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State Bank of India Vs. Harnam Singh - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 36 of 1977
Judge
Reported in13(1977)DLT190
ActsDelhi Rent Control Act, 1958 - Sections 39
AppellantState Bank of India
RespondentHarnam Singh
Advocates: S.N. Chopra,; S.L. Verma and; B.S.C. Singh, Advs
Cases ReferredPrahlad Dass v. Bhagirath Lall
Excerpt:
.....of those cases in winch the appeals has been delayed because, of failure to obtain the certified copy of rent controller because the appeal as initially filed is also late. there is a proviso to section 39 of the delhi rent control act, 1958, staling that the high court may entertain the appeal after 60 days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. it was therein stated that the bank had decided to shift to some other premises in new rajinder nagar, but certain fixtures, the strong room, etc. actually, the appeal was filed on 17th february, 1977. in the circumstances, the period of limitation for the purpose of a case like the present should be extended by the aformentioned period of three months and accordingly, i think..........of those cases in winch the appeals has been delayed because, of failure to obtain the certified copy of rent controller because the appeal as initially filed is also late. even if there was no rule for filing a certified copy of the rent controller's order even then this appeal was late. i am, thereforee, of the view that mere delay in the preparation of the certified copy of the rent controller's order which is adelay due to the slowness of the copying agency has not led to any delay in filing this appeal. this appeal could have been filed without the certified copy of the rent controller's order or as soon as the rent control tribunal's order was ready. the said certified copy was ready on 4th december 1976 but the appeal was filed on 17th february 1977 which is more than two months.....
Judgment:

D.K. Kapur, J.

(1) The tenant has appealed against the order of ejectment passed by the Additional Rent Controller which was confirmed by the Rent Control Tribunal. A preliminary question has arisen as to whether the appeal is within time. An application as also been filed under Section 5 of the Limitation Act claiming extension of limitation. I take up this question of limitation first.

(2) The judgment of the Tribunal was pronounced on 28th October, 1976. The certified copy was applied for on 3rd November 1976 and was ready on 4th December 1976. The appeal was filed in this Court on 17th February, 1977. Along with the appeal an application was filed claiming exemption from the certified copy of the Rent Controlier's order. That was C.M. 304 of 1977. On this application I exempted the filing of the certified copy and admitted the appeal. There was also an application under Section 5 of the Limitation Act praying for condensation of delay in filing the appeal. I was under the impression and so to counsel for the appellant that the appeal was within time, if the certified copy was exempted and accordingly I ordered that no further order was necessary on this application. Later on it was found that the appeal was time barred. So, I have had to take into consideration this very application. The limitation period allowed by Section 39 of the Rent Control Act is 60 days. As the date of the judgment was 28th October 1976, and the copying days were 32, the appeal could be filed 92 days after the judgment taking into account the time requisite for obtaining a copy of the judgment under appeal. This meant that the appeal could be filed by 28th January. The appeal was actually filed on 17th February 1977 which means that it was filed about 20 days after limitation. Hence the application under Section 5 has to be considered.

(3) In support of the application, for extension of limitation, the learned counsel for the appellant has submitted that although the limitation period is 60 days, the Rules require that a copy of the Rent Controller's order should also be obtained and normally, the time requisite for obtaining that copy allowed under sections of the Limitation Act. In actual fact, a certified copy of that order has been produced which was applied for on 3rd November 1976 but was delivered only on 18th April 1977. Thus the time taken to obtain the said certified copy was 5 months and 15 days. If this time was allowed, the appeal would certainly be within time. In the present case, a somewhat peculiar situation arose because on the application of the appellant I exempted the filing of this copy and hence the appeal became complete as it was. The question for consideration is whether the application under Section 5 of the Limitation Act can be granted on the assumption that if the exemption has not been granted then these copying days might have been granted under Section 5 of the Limitation Act. It is pecular feature all the Rules framed by the High Court and also the provision of Order 42 Rule I of the Civil Procedure Code as amended by the High Court that the certified copy of the trial court's judgment is required to be filed in a second appeal although the same is not provided for in the Limitation Act. The consequence of this Rule and this provision of the Code is that the appellant is required to do something for which the Limitation Act does not allow him time. In the present case, the appeal was filed on 17th February, 1977 on which date the Rent Controller's order which can be treated as the judgment of the Court of first instance was not available to the appellant. The appellant could not reasonably be expected to file this copy on 17th February, 1977 when the same was only made available on 18th April, 1977. Thus the factual position in this case is that if I had not granted exemption concerning the filing of the certified copy, the appeal could have been filed on 18th April, 1977 Along with an application under Section 5 of the Limitation Act staling that due to facts outside the appellant's control the trial court judgment had been delayed and consequently the appeal had not been filed within the time required by law for reasons which would entitle the appellant to extension of time as being due to factors outside the appellant's control.

(4) I have always felt that the Rules that require the filing of the certified copy of the trial court's judgment when time for the same is not permitted by the Limitation Act is an unreasonable requirement. Unfortunately, these Rules have been commonly applied by several High Courts and they all deal with the Rule in the same way. Personally. I can see no justification for requiring the appellant to file this copy because the same can always be summoned when the appeal is actually before the Court. The Limitation Act only gives to the appellant time which is taken up in obtaining a certified copy of the judgment under appeal as well as the decree under appeal. The Limitation Act has made no provision for allowing time taken for obtaining certified copy of the trial court's judgment. Yet, the appellant is required to do almost the impossible which is to get a copy and file the same although the law does not allow him any time to get that copy. It is a pure accident that the obtaining of certified copies has become a complex and long drawn out affair for which no litigant can be said to be responsible. The copy in this case has taken about 5 months to obtain. Hence, there is a great deal of justification in making an alteration in the Rule requiring the filing of the certified copy. Suppose the Rule merely' provided for the filing of the certified copy of the appellate judgment and a copy of the decree, I do not see how the filing of the appeal is materially affected. Incase, the Court finds that it is necessary to refer to the trial court's judgment before admitting the appeal then the Court has full power to summon the trial court record before finally deciding whether the appeal is to be admitted. In the circumstances, I feel that the Rule requiring the filing of the trial Court's judgment is unnecessary and a otiose. Still, till the Rule is altered in some way and, I fency that the Rule being a very old one is not likely to be altered easily, it has to be applied. It is from this point of view that the question of limitation has to be decided.

(5) The question for consideration in this case is whether the extension of time can be granted after the exemption for filing the certified copy of the Rent Controller's order had been granted on 21st February 1977. Normally, in these cases, an appeal cannot be filed without the Rent Controller's order but, if an urgent order is sought then exemption is granted and the appeal is taken up even without that certified copy. In such cases, the appeals in view of the urgency are filed well within the normal period of limitation and the order passed, by the Court is that the certified copy should be filed within the period of limitation. In the present case, the appeal as originally filed was 18 days late. This is not one of those cases in winch the appeals has been delayed because, of failure to obtain the certified copy of Rent Controller because the appeal as initially filed is also late. Even if there was no Rule for filing a certified copy of the Rent Controller's order even then this appeal was late. I am, thereforee, of the view that mere delay in the preparation of the certified copy of the Rent Controller's order which is adelay due to the slowness of the Copying Agency has not led to any delay in filing this appeal. This appeal could have been filed without the certified copy of the Rent Controller's order or as soon as the Rent Control Tribunal's order was ready. The said certified copy was ready on 4th December 1976 but the appeal was filed on 17th February 1977 which is more than two months after the certified copy had been obtained by the appellant. There is no Explanationn for this long period of delay. If the appellant wanted an urgent order it could have filed its appeal shortly after 4th December 1976 and then, if the Rent Controller's order had been deleyed the Court would have considered the question whether the extension should be granted under Section 5 of the Limitation Act. That is not the situation in the present case.

(6) The learned counsel for the appellant has referred to the judgment in case Prahlad Dass v. Bhagirath Lall, where the following observations were made on this very Rule :--

'The appeal, thereforee, would be deemed to be filed only on the date when the certified copy had been filed ; otherwise the appeal would be incompetent. It is true that the exemptions for filing the same was granted on the date the appeal was admitted, but the exemption was subject to the plea of limitation and so the appellant cannot take advantage of the order granting exemption.'

(7) In that case also the appeal was filed without the certified copy of the Rent Controller's order but complete exemption was not granted hence the appeal was deemed to have been filed only when the certified copy of the Rent Controller's order was filed. That is not so in the present case in which the exemption was granted in absolute terms. It may be convenient here to recall that the amended provisions of order 42 applicable in this Court are to the effect that a second appeal must be accompanied by the trial Court's judgment unless exempted by the Court. Once the exemption is granted, it was no longer necessary to file the certified copy of the Rent Controller's order hence extension of time cannot begranted on this ground. In the circumstances, the time requisite for obtaining the certified copy of the Rent Controller's order is not a ground for extension of time under Section 5 of the Limitation Act in this case. This seems to be the unfortunate consequence of the exemption granted at the admission stage. The exemption being absolute, this plea is not available to the appellant.

(8) I have now to consider whether there are any other grounds for extending limitation in the circumstances of the present case. There is a proviso to Section 39 of the Delhi Rent Control Act, 1958, staling that the High Court may entertain the appeal after 60 days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. Although this provision is in the same terms as Section 5 of the Limitation Act. I think it gives a certain amount of latitude to the High Court for extending time if there is a sufficient cause appearing on the record. For this purpose, I refer to the Rent Control Tribunal's order in this case, which granted the appellant-Bank three month's time to stop the misuse of the premises. The final passage in the judgment reads as follows :

'To sum up, thereforee, I find no merit in this appeal. It is accordingly dismissed with costs. However, three month's time is allowed to the appellant bank to stop the misuse of the premises in dispute for Commercial purpose and on their doing so the order of eviction passed against the appellant shall become inexecutable.'

It is a particular feature of this case that the eviction of the appellant was ordered on account of the fact that the property in question was being used for commercial purposes in spite of a notice from the Land and Development Officer. The property in question is situated in New Rajinder Nagar, and under the terms of the lease, the landlord was not entitled to use the property for commercial purposes. On account of the fact that the bank-appellant was using the premises for commercial purposes the case became one of premises being used contrary to the conditions imposed on the landlord by the Government. On the D.D.A. while granting the lease of the land. This is a case covered by Section 14(1)(k) of the Delhi Rent Control Act. To such a case Section 14(11) applies and time may be specified by the Controller allowing the tenant an opportunity to comply with the conditions imposed on the landlord by the Government or any other Authority. This means that the Rent Control Tribunal was entitled, and in fact, had to give time to the appellant bank to change the user of the premises from commercial to residential. If such a change in the user had been made, then the order for eviction would have become inexecutable. thereforee, this case is in a sense peculiar because for these three months the Bank could take steps to alter the user of the premises. If the user had been changed during this period, then appellant Bank would have no further grievance as the order for eviction would become inoperative. The appellant Bank's grievance would only arise if it found that in spite of the grant of three months time to make the change in user it found that it would not effect the change within that period of time. Thus, in a sense, the filing of the appeal was bound to be delayed for a period of three months in which the Bank could mike an effort to abandon the commercial user of the premises and try to make it residential. I am particularly impressed by the fact that the Bank did try to move the location of the Bank from the premises in question to some other premises. For this purpose, a reference to an application moved by the Bank to the Rent Controller in January, 1977, is sufficient. It was therein stated that the Bank had decided to shift to some other premises in New Rajinder Nagar, but certain fixtures, the Strong Room, etc., had also to be moved that this could not be done till the same were provided for in the new premises. It can thereforee, legitimately be said that the Bank was trying to change the location of its branch and did everything possible to find new premises and shift to the same. .It was only when it was found that the three months period was not enough that the Bank moved for the grant of a further period of six months. When this extension was not granted, the Bank was aggrieved and accordingly thought of filing the appeal to this court. The nature of the order, the nature of the Bank's conduct and its application the Rent Controller all show that the Bank had used the interventing period of three months granted by the Rent Control Tribunal in trying to alter the user of the premises in question. It was only when no relief was granted in the matter of extending the period that the Bank instituted the present appeal. This period of three months should thereforee in all justice be added to the period of limitation. In other words, the Bank could wait till 28th January, 1977, for the expiry of the three months and could file the appeal after that date. Actually, the appeal was filed on 17th February, 1977. In the circumstances, the period of limitation for the purpose of a case like the present should be extended by the aformentioned period of three months and accordingly, I think that the Bank does have sufficient cause for delaying the filing of the appeal and I should, thereforee, condone the delay in filing the appeal under the proviso to Section 39 of the Delhi Rent Control Act in the special circumstances of this case.

(9) Turning now to the merits of the case I find that the eviction order has been passed because of misuse of the premises. The misuse is on account of the use of the premises for commercial purposes. The Rent Control Tribunal has granted three months' time to end this misuser. From the Bank's own application it seems that the branch has been shifted from the premises in question to other premises. This is conceded also by the learned counsel for the appellant. It also appears that some part of the Bank such as strong Room etc , has not yet been shifted and that is why this appeal has been filed. There is no possibility of the Bank using these premises for residential purposes. In these circumstances, there is no ground for interfering with the order of the Controller and the Tribunal. No substantial question of law arises because the Bank itself is unable to use the premises for residential purposes.

(10) The learned counsel for the appellant contends that some time should be given to enable the Bank to remove the Strong Room and other assets of the Bank. As this is a Bank, and it seems to be in the interest' of the public that the appellant Bank should be given some time to move its Strong Room etc., I have asked the learned counsel for the respondent as to whether time can be granted. He has pointed out that there is a threat from the land and Development Officer and there is a possibility of the lease in favor of the landlord being cancelled or at least some penalty being imposed by the authorities for misuse of the premises. On this question, the learned counsel for the appellant has stated that any extra expense that the landlord has to meet by way of penalty or otherwise will be met by the Bank. The learned counsel for the appellant wants a period of one year for enabling the Strong Room etc., of the Bank moved. I do not think that I can allow this length of time. However, I think the interest of justice requires that some time should be given to the appellant to move the Strong Room and other assets of the Bank to some other suitable accommodation. This time can only be granted on the condition that the appellant Bank would bear such expenses as the respondent landlord may have to meet by way of penalty or otherwise, as may be imposed by the Land and Development Officer, in addition to the normal rent. The rent, of course, would be paid by way of damages and would not create any new lease. In the circumstances, I permit the Bank to move the Strong Room etc. by 31st March, 1978 or earlier. In case the Land Development Officer does not pi-emit this continuance and insists on the misuse coming to an end immediately then the order for eviction may be executed even earlier. I hope that the Land and Development Officer will permit the misuse to continue till the date indicated subject to any reasonable conditions, so that the Bank can move its Strong Room, assets etc. to some other suitable premises. The parties are left to bear their own costs. order accordingly.


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