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Ram Mehar Vs. Raghbir Singh - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 18 of 1969
Judge
Reported in5(1969)DLT275
ActsLimitation Act, 1963 - Sections 3 and 5; Delhi Rent Control Act, 1958 - Sections 38(2) and 39(3); Code of Civil Procedure (CPC), 1908 - Order 41, Rule 1;
AppellantRam Mehar
RespondentRaghbir Singh
Advocates: S.P. Mahajan and; B.N. Wadhera, Advs
Cases ReferredCharanjit Lal Malhotra v. Raj Kumari Sud. On
Excerpt:
.....decree but it is executable like decree - decree required to be filed with memorandum of appeal - rent control tribunal has no power to dispense with filing said order. - - (2) the respondent-landlord applied to the rent controller for the eviction of the appellant-tenant on the ground that the tenant was in arrears of rent for more than three months for the second time after having enjoyed the benefit of sub-section (2) of section 14 of the delhi rent control act, 1958, so that the said benefit cannto be given to him and he must be evicted. unfortunately these excellent instructions do nto seem to be obeyed by the copyists who prepare copies of the orders of the controller and the rent control tribunal as has become evident by the usual delay in supplying copies which has been.....v.s. deshpande, j.(1) this is an appeal from the order dated 4th december, 1968 of the rent control tribunal dismissing the appellant's appeal against the order of the rent controller as barred by time. (2) the respondent-landlord applied to the rent controller for the eviction of the appellant-tenant on the ground that the tenant was in arrears of rent for more than three months for the second time after having enjoyed the benefit of sub-section (2) of section 14 of the delhi rent control act, 1958, so that the said benefit cannto be given to him and he must be evicted. the controller agreed with the landlord's contention and passed an order of eviction on 21st october, 1967. the tenant applied for a certified copy of the controller's order on 26th october, 1967. he filed the memorandum.....
Judgment:

V.S. Deshpande, J.

(1) This is an appeal from the order dated 4th December, 1968 of the Rent Control Tribunal dismissing the appellant's appeal against the order of the Rent Controller as barred by time.

(2) The respondent-landlord applied to the Rent Controller for the eviction of the appellant-tenant on the ground that the tenant was in arrears of rent for more than three months for the second time after having enjoyed the benefit of sub-section (2) of section 14 of the Delhi Rent Control Act, 1958, so that the said benefit cannto be given to him and he must be evicted. The Controller agreed with the landlord's contention and passed an order of eviction on 21st October, 1967. The tenant applied for a certified copy of the Controller's order on 26th October, 1967. He filed the memorandum of appeal before the Rent Control Tribunal on 27th October, 1967 with an uncertified copy of the order. The certified copy of the Controller's order was ready on 2nd December, 1967, but was actually obtained by the tenant from the Copying Department on 12th January, 1968 and filed by him in the Rent Control Tribunal either on 12th January, 1968 or on 15th January, 1968. When the appeal came for hearing on 4th November, 1968, the landlord raised a preliminary objection that the appeal was barred by time. The tenant obtained time from the Tribunal to apply for condensation of the delay in filing the appeal. The application for condensation of the delay was filed by the tenant on 13th November, 1968. The following averment therein is important and is reproduced below :-

'THE respondent has pointed out that this copy was applied for on 26th October, 1967 and was ready on 2nd December. 1967. The respondent has ignored that this copy was applied for on urgent basis and the appellant went on enquiring upon its preparation every day for a month and being fed up with the stock reply of the Agency that it is nto yet ready and they do nto know when it will be ready waited and approached the Agency on 12th January, 1968 when it was delivered and the appellant on the same day filed the same in this Hon'ble Court'.

(3) The learned counsel for the appellant urged the following points in his arguments :-

(1)That there was sufficient cause for delay in filing the certified copy of the Controller's order ; (2) The Rent Control Tribunal had impliedly dispensed with the filing of the said copy ; and (3) The respondent living obtained economic benefit on the footing that the appeal was admitted by the Rent Control Tribunal is estopped from raising the ground of limitation.

(1)In support of his contention, the learned counsel for the appellant relied upon Rules 24 and 25 of the Rules and Orders of the High Court applicable to the Civil and Criminal Courts. These Rules and Orders have nto been issued under any statutory authority, but were administrative instructions issued for the guidance of the Subordinate Courts. Rule 24 required that a copy shall be delivered, if urgent, before the close of the same day after the receipt of the application. Rule 25 required that if for any reason it was nto possible to prepare the copy asked for by the appointed day, the Officer in charge shall send on intimation by post to the applicant fixing another date for its delivery, so that he does nto unnecessarily visit the Copying Department. Unfortunately these excellent instructions do nto seem to be obeyed by the Copyists who prepare copies of the orders of the Controller and the Rent Control Tribunal as has become evident by the usual delay in supplying copies which has been judicially noticed in the decisions of this Court. The result is that the applicants for copies have to make inquiries from the Copying Department from time to time and they have to be vigilant in obtaining copies as soon as they are ready, so that the appeals filed by them may nto suffer on the ground of limitation. It is nto quite clear if the above mentioned Rules apply to the copyists who prepare copies of the orders of the Controller and Rent Control Tribunal. Mam Chand v. Sumat Prasad, Assuming, however, that these Rules apply to the preparation of these copies, the result would be that the proviso to Sub-section (2) of Section 38 of the Delhi Rent Control Act, 1958 enabling the Tribunal to entertain an appeal aft(rthe expiry of the period of limitation on the ground of sufficient cause would be construed reasonably liberally Charanjit Lal Malhotra v. Raj Kumari Sud. On the admission of the appellant reproduced abova, the appellant enquired about the preparation of the copy for one month only alter making the application on the 26th October, 1967. He did nto care to enquire about it till 12thJanuary, 1968, that is for nearly one and a half month. This is surely extreme negligence on his part. It is true that for the greater portion of this period, 30 days limitation for 11:e filing of the appeal was available for his benefit. It is only, thereforee the delay of the last week or 10 days which made the appeal barred by time. This does nto mean however, that the appellant was negligent only for the last week or 10 days prior to the obtaining of the copy. The negligence has to be viewed as a whole for the whole period of one and a half month. It cannto be said, thereforee, that there was sufficient cause for his nto obtaining the copy and for nto filing it much earlier than he did. The negligence of the appellant is further shown by the fact that he never really cared whether his appeal was barred by time and if so whether he should apply for extention of time on the ground of sufficient cause. It is only when the appeal came up for hearing on 4th November 1968 and the respondent raised the preliminary objection on the ground of limitation that the appellant woke up and prayed for time to make the application for extention of time on the ground of sufficient cause. The actual application was filed by him on 13th November 1&38. As was observed by the learned Chief Justice in Joti Parshad v, Gajendra Sharma, 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 made at the time of presenting the appeal and unless and until the prayer is granted, the appellant cannto claim any relief against the rigour of the law of limitation. It is duty of the counsel to secure such an order from the Court at the time of preliminary hearing. The conduct of the appellant in this case was completely contrary to this correct practice. No wonder, the Rent Control Tribunal refused to condone the delay in filing the appeal.

(2)Sub-section (3) of Section 39 states that the Rent Control Tribunal shall have all the powers vested in a Court under the Code of Civil Procedure when hearing an appeal. This would mean that the provisions of Order 41, Code of Civil Procedure, would apply to the hearing of the appeal by the Rent Control Tribunal. Rule I of Order 41 requires that a memorandum of appeal shall be accompanied by a copy of the decree appealed against and also by a copy of the judgment on which the decree is founded, unless the Court dispenses with the need for filing the copy of the judgment. The order of the Controller is nto followed by a decree, but it is executable like a decree. The order itself was, thereforee, in the position of a decree. It had itself, thereforee, to be filed with the memorandum of appeal. The Rent Control Tribunal had no power to dispense with the filing of the said order, inasmuch as it took the piece of the decree itself under Order 41 Rule I, Code of Civil Procedure. The Rent Control Tribunal has further stated that it did nto dispense with the filing of the copy of the order either expressly or impliedly. That concludes this point against the appellant.

(3)The Rent Control Tribunal asked the appellant to deposit rent for payment to the respondent on 12th March, 1968. The appellant thereupon deposited the rent which was accepted by the respondent.


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