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Daya Ram Sharma Vs. Bhartoo Mal and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 91 of 1981 and Civil Miscellaneous Appeal No. 771 of 1981
Judge
Reported in20(1981)DLT193
ActsDelhi Rent Control Act, 1958 - Sections 39
AppellantDaya Ram Sharma
RespondentBhartoo Mal and ors.
Advocates: Yogeshwar Prasad and; Umesh Mishra, Advs
Cases ReferredBhagwan Dass Gupta v. Mukat Lal and
Excerpt:
.....appellant was required to file a copy of the judgment and order of the rent control tribunal as well as a copy of the order of the additional controller. it is further stated that the second appeal was filed well within time and that the non- filing of the certified copy of the trial court order would not prejudice anyone but would cause irreparable loss to the appellant. it is now well known that for condensation of delay the applicant has to explain each day's delay......of the order of the court of first instance was ready on 18th december, 1980 and the last day for filing appeal was 3rd january, 1981. the proper appeal with certified copies of the orders of the tribunal and the additional controller duly stamped was filed on 5th march, 1&61. thus it is to be seen whither there is any explanationn for not filing the appeal with certified copy of the order of the additional controller before 5th march, 1981. the application for condensation of delay (c.m. no. 771 of 1981) does not give any reason for not filing the certified copy before 5th march, 1981 except the vague allegation that papers were mixed up in the office of the counsel and there was delay of certain days. it is further stated that the second appeal was filed well within time and that the.....
Judgment:

Sultan Singh, J.

(1) The appellant is a tenant under the respondent in a portion of the property situated at B-3/18-A, Model Town, Delhi. The agreed rent is Rs. 275.00 per month. The appellant filed an application for fixation of standard rent. The Additional Controller fixed the standard rent at Rs. 93-75 with effect from 1st March, 1977. On appeal by the landlord, the Rent Control Tribunal set aside the order of the Additional Controller and dismissed the appellant's application for fixation of standard rent. The tenant filed second appeal, under Section 39 of the Delhi Rent Control Act, 1958 (hereinafter called 'the Act'). He also filed this application (C.M. No. 771 of 19-11) for condensation of delay in filing the appeal. The certified copy of the Tribunal's order dated 10th October, 1980 was applied on 13th October, 1980 and it was ready for delivery on 1st November, 1980. The certified copy of the order of the Additional Controller was also applied on 13th October, 1980 and it was ready for delivery on 18th December, 1980. The appellant on 17th December, 198U filed the second appeal Along with certified copy of the Tribunal's order dated 10th October, 1980. The registry raised various objections. One of the objections was that the certified copy of the trial court's order should be filed. It appears that the appellant took back the memorandum of appeal on 3rd March, 1981 and refiled-the same with certified copy of the order of the Additional Controller but without affixing court fee stamps on it. The appeal was again returned but refiled on 5th March, 1981 together with the certified copy of the order of the Additional Controller duly stamped.

(2) The limitation for filing the second appeal under Section 39 of the Act is 60 days. After allowing the time spent by the appellant in obtaining the certified copy of the order of the Tribunal the last date of limitation for filing the appeal was 29th December, 1980. The High Court reopened after winter vacation on 3rd January, 1981. This appeal has been fixed in this Court and thereforee the appeal is to be dealt with by this Court acting as a High Court and the same is governed by the normal procedure applicable to second appeals filed in this Court. Order 41 rule I of the Code of Civil Procedure provides that a memorandum of appeal shall be accompanied by a copy of the decree appealed from and copy of the judgment on which it is founded. Rule 2 (b) of Chapter I-A of Vol. V. of the Rules and Orders of the Punjab High Court as applicable to this Court is as under :

'2(B): Every memorandum of appeal shall be accompanied by copies of the decree and judgment as prescribed by Order Xli, Rule I of the Civil Procedure Code. In the case of Second Appeals, in addition to the documents prescribed by Order Xli, Rule I of the Code, memorandum shall be accompanied by a copy of the judgment of the court of first instance unless the appellate court dispenses therewith. In all cases which are within the competence of Division Bench motion, duplicate type written copies of memo. of appeal or revision and other essential documents shall be furnished by the appellant or applicant, as the case may be, both in Civil and Criminal case.'

Thus, under Order 41 rule I of the Code read with the said rule 2(b), the appellant was required to file a copy of the judgment and order of the Rent Control Tribunal as well as a copy of the order of the Additional Controller. The filing of a copy of the order of the Court of first instance is essential as held by this Court in various judgments. Some of them are Suraj Parkash Bali v. Parmanand 1966 D.LT. 406, Shiv Dutt Sharma v. Prem Kumar Bhatia, 1969 D.L.T. 391, Malik Ohand v. Zubeda Begum and others, (1974) 2 Del 160. As already observed, the last date for limitation for filing the appeal was 29th December, 1980. The appellant was entitled to exclude the time spent by him in obtaining the certified copy of the order of the Rent Control Tribunal under Section 12 of the Limitation Act. He is, however, not entitled to exclude the time spent in obtaining the copy of the order of the court of the first instance. No provision of law has been brought to my notice enabling the appellant to exclude such time. The Division Bench of this Court in Bhagwan Dass Gupta v. Mukat Lal and others, 1970 P.L.R. 78 3ia held that time spent in obtaining the copy of the judgment of the court of first instance cannot be excluded under Section 12(3) of the Limitation Act but the period which was spent by the appellant in actually obtaining the copy of the judgment of the court of the first instance after the expiry of the period of limitation and till the delivery of the copy plus time as may be reasonably spent thereafter in drafting the grounds of appeal would be regarded as sufficient cause for condensation of the delay in preferring the appeal under Section 5 of the Limitation Act. In the present case the certified copy of the order of the court of first instance was ready on 18th December, 1980 and the last day for filing appeal was 3rd January, 1981. The proper appeal with certified copies of the orders of the Tribunal and the Additional Controller duly stamped was filed on 5th March, 1&61. Thus it is to be seen whither there is any Explanationn for not filing the appeal with certified copy of the order of the Additional Controller before 5th March, 1981. The application for condensation of delay (C.M. No. 771 of 1981) does not give any reason for not filing the certified copy before 5th March, 1981 except the vague allegation that papers were mixed up in the office of the counsel and there was delay of certain days. It is further stated that the second appeal was filed well within time and that the non- filing of the certified copy of the trial court order would not prejudice anyone but would cause irreparable loss to the appellant. The law of limitation and the rules of this Court are required to be complied with. The last date for limitation was 3rd January, 1981. It appears that the appellant did not take steps to file the appeal in accordance with the rules of this Court. There is no Explanationn why the certified copy of the order of the Additional Controller was not filed during the period from 3rd January, 1981 when the High Court re-opened and 5th March, 1981 when the copy of the order duly stamped was filed. The application for condensation of delay does not mention any date when the papers were misplaced and when they were found out. The application is vague. It is now well known that for condensation of delay the applicant has to explain each day's delay.

(3) The learned counsel for the appellant submits that Rule 2(b) of Chapter I-A of Vol. V. of the Rules and Orders of the Punjab High Court is not mandatory and thereforee if the certified copy of the order of the Additional Controller was not filed, the appeal should not be deemed to be barred by time. No application for exemption from filing the copy of the order of Additional Controller was also filed by the appellant and there is however no ground to dispense with filing of the same. The counsel relies upon The State of Punjab and another v. Shamlal Murari and another, manu/sc/0494/1975 : [1976]2SCR82 but in that case Rule 3 Chapter 2-C Vol. 5 of the Rules required filing of three additional copies of the documents besides original Letters Patent Appeal and under those circumstances the Supreme Court held that if the rule for filing additional copies was not complied with, the appeal should not be dismissed as barred by time. This judgment of the Supreme Court, it seems is not applicable to the facts of the present case.

(4) I, do not find any sufficient cause for condensation of delay in filing the appeal on 5th March, 1981. The application for condensation of delay is, thereforee, dismissed. The appeal, being barred by time, is dismissed with no order as to costs.


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