Yogeshwar Dayal, J.
(1) This appeal has been filed by Miss Nirmal Chaudhary against the order dated 2nd August, 1977, passed by the learned Rent Control Tribunal, Delhi, dismissing the application filed by the appellant under section 5 of the Limitation Act for condensation of delay in filing the certified copy of the order of the learned Addl. Rent Controller dated 31-1-1975 which was impugned before it by way of appeal from the said order of the learned Addl. Rent Controller.
(2) The learned Addl. Rent Controller had passed an order for ejectment dated 30-1-1976 against the appellant on the ground of non-payment of rent and held that the appellant was not entitled to the benefit of section 14(2) of the said Rent Control Act, 1958 (hereinafter called 'the Act').
(3) Since the order of the learned Addl. Rent Controller contemplated immediate eviction of the appellant, the appellant applied for certified copy of that order by an urgent application on 2-2-1976. The copy was not ready and the appellant accordingly filed an appeal without the certified copy but with true copy along with an application for exemption from filing certified copy.
(4) The appeal came up for admission before the learned Rent Control Tribunal on 13-2-1976. The appeal was admitted provisionally subject to the appellant filing the certified copy of the impugned order within time. The certified copy was ready for delivery on 8-3-1976 and also appears to have been delivered on the same date. The copy was, however, filed before the Rent Control Tribunal on 8th April, 1976.
(5) The appeal came up for hearing on 19th May, 1976 but was adjourned for arguments to 27th September, 1976. On 27th September, 1976, it was again adjourned to 17th January, 1977. On 17th January, 1977, the learned Tribunal happened to be on leave and the appeat was fixed for arguments on 26th May, 1977. On 26th May, 1977, the appellant was present in person without her counsel and the counsel for the respondent pointed out to the Tribunal that the appeal is barred by limitation whereupon the appellant prayed for time and the learned Tribunal adjourned it for arguments on the question of limitation to 20th July, 1977. On 20th July, 1977, counsel for the appellant, Shri S. K. Bhatia, was again absent and on request on his behalf, the question as to limitation was again adjourned to 21st July, 1977. On 21st July, 1977, Shri V. P. Prabhakar, Advocate, appeared on behalf of the appellant and stated that he had only been engaged on that date and prayed for time. The matter was again adjourned to 26th July, 1977.
(6) It appears that on 21st July, 1977 itself, Shri S. K. Bhatia, the counsel who had filed the appeal, presented an application before the Rent Control Tribunal under section 5 of the Limitation Act supported by an affidavit of his clerk, Rameshwar. In this application, it was averred that the appellant had applied for certified copy and her counsel had directed his clerk to file this copy within one month after deducting the days for obtaining the certified copy of the impugned order. It was also stated that the clerk, on account of bona fide mistake in understanding the instructions, miscalculated the time and filed the certified copy of the impugned order within one month from the date of the preparation of the copy and as a result there was delay of three days in filing certified copy of the impugned order. It was stated that the delay was not intentional but was, in the circumstances of the case, as explained above and thus there was sufficient cause for condensation of delay in filing certified copy of the impugned order.
(7) The respondent filed a reply without any verification and unsupported by any affidavit.
(8) In the reply, it was stated that there was no question of the alleged instructions of the counsel because it was the duty of the counsel to have filed copy within time and the counsel could not have given instructions in the manner alleged. It was also stated that it was wrong that the clerk by bona fide mistake in understanding instructions miscalculated the time. It was also stated that the appeal was fixed for arguments and the point of the limitation was being argued on every hearing and this application was after thought and was filed very late.
(9) Before the Rent Control Tribunal, learned counsel for the respondent opposed the application and urged that the application for condensation of delay should have accompanied the certified copy itself. The Tribunal observed that :
'THEREis considerable force in this argument and the same is fortified by a judgment of our High Court reported as 1969 P.L.R. 171 (Delhi Section), wherein was held : 'The application under section 5 of the Limitation Act [which corresponds to proviso to section 38(2) of the Delhi Rent Control Act 1958] has to be made at the time of presenting the appeal and unless and until the prayer is granted the appellant cannot claim any relief against the rigour of the law of Limitation. It is the duty of the counsel to secure such an order from the court at the time of preliminary hearing'. 'In the instant case, the application for condensation of delay was filed more than a year after the filing of the certified copy and that too when this lapse was pointed out by the counsel for the respondent. Thus the possibility of a ground having been fabricated and concocted to meet the objection raised cannot be ruled out. The plea sought to be raised by the counsel for the appellant can certainly be creation of human ingenuity and legalistic approach'.
The Tribunal went on to observe :
'HOWEVER,in the instant case the mistaken advice of the lawyer of the appellant is not being pressed into service. Rather it is the miscalculation on the part of the clerk of her counsel which is made a ground for condensation of delay. Assuming that the appellant's counsel had given correct advice to his clerk, it did not absolve him of his duty later on to check up the matter and he could not just entrust an important task like this to the sweet will or mercy of his clerk. He should have been vigilance enough to ensure that the certified copy was filed in time. So even though the appellant herself may not share the blame with her counsel, but the fact remains that the delay is on account of sheer negligence on the part of her counsel and no Explanationn for the same is forthcoming'.
(10) I have quoted in extenso the order of the learned Tribunal to show the findings given by it. The first finding is that the application for condensation of delay was filed more than a year after the filing of the certified copy and that too when it was pointed out by the counsel for the respondent. The second finding is that 'the possibility of a ground having been fabricated and concocted to meet the objection raised cannot be ruled out'. The third finding is that assuming that the counsel had given the correct advice and the appellant herself may not share the blame with her counsel but the fact remains, that the delay is on account of sheer negligence on the part of the counsel in not checking up the matter with the clerk and that the counsel could not just entrust an important task like this to the sweet-will of his clerk.
(11) The provisions as to appeal from the order of the Controller to the Rent Control Tribunal are contained in Section 38 of the Act. Relevant part of Section 38 reads as under:
38.'(1) An appeal shall lie from every order of Controller made under this Act to the Rent Control Tribunal................. (2) An appeal under sub-section (1) shall be preferred within thirty days from the date of the order made by the Controller : 'Provided that the tribunal may entertain the appeal after the expiry of the said period of thirty days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (3) The tribunal shall have all the powers vested in a court under the Code of Civil Procedure, 1908 (5 of 1908), when hearing an appeal.'
(12) Rule 17 of the Delhi Rent Control Rules, 1959 (hereinafter referred to as 'the Rules') provides as under : Form Of Appeal 17.
'(1)Every appeal to the Rent Control Tribunal under section 38 shall be preferred in the form of a memorandum signed by the appellant or his recognised agent and presented either in person or through a recognised agent to the Tribunal or to such officer as it may appoint in this behalf. (2) Every such memorandum shall be accompanied by a copy of the order of the Controller appealed from and shall set forth concisely and under distinct heads, the grounds of objection to order appealed from without any argument or narrative: and such grounds shall be numbered consecutively'.
(13) It is thus clear that sub-section (1) of Section 38 provides forum for appeal from every order of the Controller made under the Act to the Rent Control Tribunal. Sub-section (2) thereof provides the period of limitation and also contains a proviso analogous to Section 5 of the Limitation Act conferring power on the Tribunal, to entertain appeal after the expiry of the period of limitation if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. The form of the memorandum of appeal and the documents which should accompany it are governed by rule 17 of the Rules. It is rule 17(2) which prescribes that the memorandum of appeal has to be accompanied by a copy of the order of the Controller appealed from. 'The copy of the order means a certified copy.
(14) It is again clear that the form of the memorandum of appeal or the contents of the memorandum of appeal or the documents accompanying the appeal or the grounds of objection are governed by the Rules.
(15) In view of sub-section (3) of Section 38 of the Act, however, the hearing of the appeal, after the appeal is entertained, is governed by the Code of Civil Procedure, 1908.
(16) Under rule 23 of the Rules, the Controller and the Tribunal) as far as possible, are to be guided by the Code of Civil Procedure in deciding any question relating to procedure not specially provided under the Act and the Rules.
(17) The question of the form of the appeal and the documents accompanying the appeal have already been provided for in rule 17 even when the appeal is not within time.
(18) It is also provided in sub-section (2) of Section 38 that the appeal may be entertained after expiry of the period of limitation i.e. thirty days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within time. As to what the appellant has to do if the appeal is barred by time is not provided for either in the Act or in the Rules. For that, the Tribunal, in view of rule 23 of the Rules, is to be guided by Order 41 of the Code of Civil Procedure. Relevant part of Rule 3A added by the recent amendment to Order 41 of the Code of Civil Procedure provides as under :
'3A.(1) When an appeal is presented after the expiry of the period of limitation specified thereforee, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period. (2)........................'.
This is a new provision and was not there in the unamended Code. The purport of rule 3A is that as and when the appeal is presented after the expiry of limitation specified for an appeal, it has to be accompanied by an application supported by affidavit setting forth the facts constituting sufficient cause for not preferring the appeal within the time fixed. But the very wordings of rule 3A of Order 41 show that it is mandatory and a duty is cast on the appellant to file an application as contemplated by it for condensation of delay at the time of presentation of the appeal. Of course, the legislature contemplates that the appellant must calculate the time before filling the appeal and to file the application along with the appeal showing sufficient cause if it was barred by time.
(19) In the present case, the appeal was filed without being accompanied by certified copy of the judgment appealed against. The judgment of the Rent Controller, in the present case, has the force of a decree and there is no provision in the Act or the Rules or the Code for exempting the filing of it completely. The appeal was admitted subject to the appellant filing certified copy of the impugned order within time. thereforee, in view of rule 3A the appellant ought to have filed an application for condensation of delay when the certified copy was being filed before the Tribunal out of time. This is so as the appeal will be deemed to be presented properly when it is accompanied by the order appealed against.
(20) As noticed earlier, the application for condensation of delay was filed only on 21-7-1977 and the certified copy itself was filed on 8th April, 1977. Thus the application, as rightly observed by the Tribunal, was filed after more than a year.
(21) The next question which arises is what is the effect if an application is not filed under rule 3A at the time of presentation of the appeal? Is the court powerless to condone the delay?
(22) The provisions of rule 3A are both procedural as well as substantive in nature. It provides procedure as to how and when the application for condensation of delay will be filed and also confers power on the court to condone the delay if sufficient cause is made out.
(23) As noticed earlier, the power to condone the delay under rule 3A of Order 41 can be exercised only if the application for condensation of delay is filed along with the appeal. This is in a way a right conferred on the appellant.
(24) What about the power which is conferred on the Tribunal in view of the aforesaid proviso to sub-section (2) of Section 38 What about the power which is conferred on the Tribunal in view of Section 5 of the Limitation Act, 1963 read with Section 29(2) thereof?
(25) The power which is conferred by rule 3A is in addition to the power conferred by Section 5 read with section 29(2) of the Limitation Act, and the proviso to sub-section (2) of Section 38 of the Act. Can it be said that power under the letter provision is also exhausted once a party has not availed of the right conferred by rule 3A of the Order 41 Civil Procedure Code .? I am afraid, the answer is 'no'. Whereas rule 3A of Order 41 of the Code has been incorporated creating a right in favor of the appellant to apply for condensation of delay in the manner provided in the said rule, the proviso to subsection (2) of Section 38 of the Act and the provisions of section 5 of the Limitation Act read with section 29(2) thereof, on the other hand, confer power on the court and a consequent right on the appellant. But the power is essentially of the court and/or the Tribunal, as the case may be. That power has not been taken away in any manner.
(26) Learned counsel for the respondent again, relied on the afore-quoted observations of Deshpande, J. in the case of Ram Mahar v. Raghbir Singh: 1969 P.L.R. 171 (Delhi Section) and submitted that an application under section 3 of the Limitation Act or under the corresponding proviso to section 38(2) of the Act has to be made at the time of presenting the appeal and unless and until the prayer is granted the appellant cannot claim any relief against the rigour of law of limitation. It is the duty of the counsel to secure such an order at the time of the preliminary hearing.
(27) It will be noticed that the aforesaid decision of Deshpande J. is somewhat similar on facts to the present case. On facts Despande, J. agreed with the Tribunal that the delay had not been explained and no sufficient cause for condensation was made out. That depended on the facts of that case and n,o exception can be taken thereto. Each case will depend on its own facts for making out sufficient cause. But exception is taken by learned counsel for the appellant to the observations of the learned Judge that an, application under section 5 of the Limitation Act has to be made at the time of presenting the appeal.
(28) Deshpande, J. for his aforesaid observations, relief upon the decision of Dua C.J. in Joti Parshad v. Gajendra Sharma : 4(1968)DLT125 . In this case decided by Dua, C.J., a similar difficulty arose for the appellant in filing the second appeal in the High Court. The certified copy of the order appealed against was not filed with the appeal but was filed later on and when the certified copy was filed, and on which date the appeal will be deemed to be properly presented, it was barred by 14 days. Dua, C.J. rejected the contention of the appellant that merely because the appeal was entertained without the certified copy the filing of the certified copy was thereby exempted. Dua, C.J. made the following observations in paragraph 7 of the judgment :
'7.In my view, when an application for exemption like the present is filed in, this Court, unless and until the prayer is granted, the appellant cannot claim any relief against the rigour of the law of limitation. It was, in my opinion, the duty of the counsel at the time of preliminary hearing before Dulat, J. on 20-12-1963 to secure an order of exemption,. I am, however, disinclined in the present case to penalise the appellant because I know that as a matter of practice, great laxity has been prevailing in the office of this Court in drawing the attention of admitting Judge to such applications. It is only recently that this Court has started being strict in this respect. But be that as it may, the fact remains that the office entertained the appeal without certified copies and this matter was not brought to the notice of the admitting Judge for the purpose of securing suitable order on the miscellaneous application for exemption. In these circumstances, I am inclined to condone the delay in filing in this Court the certified copies of the Rent Controller's order and of the grounds of appeal.'
(29) It will be noticed from the facts stated in the judgment and paragraph 7 quoted above that the preliminary objection that the appeal was barred by time was raised by the respondent therein at the time of the regular hearing of the appeal. It is also clear from the judgment of the learned Chief Justice that earlier, like the present case, the appellant had applied for exemption from filing certified copy. The learned Chief Justice does not advert to any application having been filed for condensation, of delay and on the facts borne out on the record, in fact the delay was condoned. The observations of the learned Chief Justice in the opening part of paragraph 7 refer to an application for exemption, from filing certified copy. It did not refer to the filing of an application for condensation of delay under section 5 of the Limitation Act or under the proviso to sub-section (2) of Section 38 of the Act. If an appellant knows that the appeal is barred by time, it goes without saying that he would have to apply for condensation of delay while presenting the appeal. Otherwise, there may be lack of bona fides, and consequently lack of sufficient cause. But, where the appellant is ignorant that the appeal is barred by time, there is no rule of law, or any practice that the application for condensation of delay for exercise of power under section 5 of the Limitation Act read with section 29(2) thereof or under the proviso to sub-section (2) of Section, 38 of the Act must be filed with the memorandum of appeal. It cannot be filed at all because the appellant is ignorant about the delay.
(30) As the provisions of section 5 of the Limitation Act and the proviso to Section 38(2) are framed it does not even necessarily imply in law that the power of the court to condone the delay is circumscribed by an application being filed. The power to condone delay can be exercised if the appellant satisfies the court that he had sufficient cause for not filing the appeal within the period prescribed. The court can be satisfied even from the affidavits or the documents on the record. It is not necessary in law that an application, must be filed. Of course as a matter of practice the appellant does file such an application. But the power of the court is not necessarily dependent on a formal application being made by the appellant. If it is made well and good ; but if it is not made and only an oral prayer is made for condensation for delay, the court is not powerless if there is material on the record to show facts constituting sufficient cause for condensation of delay.
(31) The language of Section 5 of the Limitation Act also does not provide that an application in writing must be filed before relief under the said provision, can be granted. (See Firm Kaura Mal Bishan Dass v. Firm Mathura Dass Atma Ram, Ahmedabad and others: .
(32) It appears that it was not brought to the notice of Deshpande, J. in the case of Ram Mehar that the observations of Chief Justice Dua in the case of Joti Parshad related to an application for exemption and not to an, application for condensation of delay under section 5 of the Limitation Act or under the proviso to sub-section (2) of Section 38 of the Act.
(33) The power of condoning delay conferred by the Limitation Act or by the provisions of the Act is not subject to any rules or practice. The newly added provision of rule 3A of Order 41 in the Code of Civil Procedure gives an additional right to a litigant to claim condensation of delay by presenting an application for condensation at the time of presenting the appeal. The provision of rule 3A of Order 41 of the Code cannot be read in such a way as to repeal the power conferred on, a court by the substantive provisions for condensation of delay referred to in the aforesaid two provisions.
(34) It must, thereforee, be held that in spite of rule 3A of Order 41 of the Code, the court still has power to condone the delay under section 5 of the Limitation Act and/or proviso to sub-section (2) of section 38 of the Act as the case may be. The power conferred by rule 3A of Order 41 of the Code is in addition to the power conferred by the aforesaid provisions.
(35) It also appears that the Tribunal was influenced by the fact that the application for condensation of delay itself was not maintainable in law unless it was accompanied by certified copies and it was powerless to condone the delay on an application filed later on. This approach coupled with the wrong approach in considering the meaning of sufficient cause makes it not only an error of law but also a substantial question of law as it was based on the observations of Deshpande, J. which in turn were based on the observations of Dua, C.J. which the learned Chief Justice never made.
(36) Once the ground is clear that the court has the power to condone the delay even if the application is not presented along with the certified copy, let us examine the facts:
(37) The Tribunal had not noticed, when it took on record the certified copy, that the appeal was barred by time. Had the Tribunal noticed the filing of the certified copy beyond time, the objection that it should be accompanied by an application for condensation of delay could have been met immediately. But as it appears from the record of the Tribunal, the objection was taken when the appeal came up for hearing, by the respondent on 26-5-1977. It also appears that thereafter the appellant even changed her counsel and on the day she changed her counsel, application was filed for condensation of delay. That application was signed by the new counsel but was presented by Shri S. K. Bhatia, Advocate, the previous counsel.
(38) In the present day system of our judicial administration, a litigant has, per force, to fall back upon an Advocate to look after his litigation. The counsel, again, for their day-to-day ministerial work in the courts relay upon their clerks. It is clear that the appellant, immediately after the impugned order was passed against her, applied for certified copy and as soon as the same was ready it was collected. The Explanationn for the delay has been given in the application supported by an affidavit. No counter-affidavit was filed on behalf of the respondent though the instructions pleaded by the counsel and the misunderstanding of the clerk were denied but no affidavit was filed in support thereof.
(39) It is true that if there is a delay in, filing the application for condensation of delay there is a possibility of fabrication and concoction of story to make out sufficient cause. Every case will depend on the facts of that case. The approach in such matters has been laid down by the Supreme Court in the case of Shakuntla Devi Jam v. Kuntal Kumari & others : : 1SCR1006 in these words :
'IT is not a case where it is possible to impute to the appellant want of bona fides or such inaction or negligence as would deprive her of the protection of section 5 of the Limitation Act.'
Again, in, Mata Din v. A. Narayan : : 2SCR90 the Court observed :
'WEdo not find anything in the case to show that this error was tainted by any mala fide motive on the part of the counsel for the litigant'.
The Court further went on to observe in paragraph 6 of the judgment:
'THElaw is settled that mistake of counsel may in certain circumstances be taken into account in condoning delay although there is no general proposition that mistake of counsel by itself is always a sufficient ground. It is always a question whether the mistake was bon,a fide or was merely a device to cover an ulterior purpose such as laches on the) part of the litigant or an attempt to save limitation in an underhand way.'
(40) The same view was expressed by a full Bench of this Court in M/s. Panchsheel Electric Corporation v. Jupitor General Insurance Co. Ltd. & another : I. L. R. (1974) 2 Delhi 239.
(41) The appellant, in this case, had dose everything within her power. There can be no reason to impute lack of bona fides on her part or on, the part of her counsel, in the circumstances of this case. In the absence of any affidavit being filed on behalf of the respondent there was no reason or material for the learned Rent Control Tribunal to find that the plea or the facts constituting sufficient cause 'can certainly be creation of human ingenuity and legalistic approach'. I may say, there was no reason to disbelieve the averments contained in the application supported by the affidavit of the clerk.
(42) Mr. R. L. Kohli, learned counsel for the respondent submitted that the condensation of delay is a question of fact and in a second appeal it cannot be interfered with in view of the observations of B. C. Misra, J. in Narain Ds and others v. Daya Narain 1974 A I RCJ 217. In this case, B. C. Misra, J. in paragraph 7 of the judgment, observed as under :
'ITis, however, significant to notice that in the application just mentioned it is not stated as to when the counsel left for Jaipur and when the clerk left for Jagadhri. It is also not mentioned as to why the counsel or his clerk could not file the certified copy before the Tribunal on 3rd February, 1966 when it had been obtained, particularly when a typed copy of the order of the Additional Controller which had already been filed before the Tribunal was still available with the counsel, nor has it been stated as to why it was not possible to file it soon thereafter. The application is conveniently vague on these material aspects. The Rent Control Tribunal in the impugned order has not believed the reasons given in the application and found them to be not satisfactory and it, thereforee, declined to condone the delay. The condensation of delay was essentially a matter in the discretion of the Rent Control Tribunal. It was justified in not placing reliance on the facts mentioned in the application for condensation of delay and I do not find any legal infirmity in the exercise of discretion by the Rent Control Tribunal refusing to condone the delay. This does not raise any substantial question of law for determination by this Court. The first contention, of the counsel for the appellant is, thereforee, rejected'.
(43) I am in respectful agreement with the observations of the learned Judge in the light of the facts of that case. It is also true that normally condensation of delay is a discretionary matter and once a discretion is exercised on correct principles of law, it cannot be a question of law, much less a substantial question of law to call for interference in, second appeal under section 39 of the Act. But sometimes, it is a mixed question of law and fact, as noticed by Deshpande, J. in the aforesaid Full Bench decision. Where, however, the Tribunal without there being even an affidavit of the respondent an,d on an incorrect approach declines to condone the delay, it cannot be said that the finding cannot be interfered with in second appeal.
(44) Iff the present case, the first basic error made by the Tribunal was to assume that once the application is not accompanied by the certified copies, it cannot be entertained later on. The second basic error was instead of examining want of bona fides, it went on to the question of negligence of the appellant's counsel in not checking the copies before filing.
(45) To my mind, there appears to be no lack of bona fides on the part of the appellant and if the Explanationn given in the application for condensation of delay is true, there can be no doubt that it constitutes sufficient cause in filing certified copy of the impugned order before the Tribunal beyond time.
(46) The appeal, thereforee, succeeds. The order of the Rent Control Tribunal dated 2-8-1977 is set aside and the Tribunal is directed to decide the appeal in accordance with law. Parties are directed to appear before the Tribunal on 17-4-1978. Parties to bear there own costs.