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Amal Mal Sindhi Vs. Ram Parkash - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 236 of 1979
Judge
Reported in20(1981)DLT22; 1981(2)DRJ153; ILR1982Delhi861
ActsDelhi Rent Control Act, 1958 - Sections 39
AppellantAmal Mal Sindhi
RespondentRam Parkash
Advocates: Amarjit Singh and; Rajeev Behl, Advs
Cases ReferredMalik Chand v. Zubeda Begum
Excerpt:
delhi rent control act, 1958 - section 39--if certified copy of controller is not filed along with copy of impugned order within limitation and there is no explanationn for the delay then appeal is barred by time. - .....the learned counsel for the appellant submits that such court fee was paid by him on the ordinary copy filed by him along with the appeal. this is not a sufficient compliance. section 4 of the court fee act requires the payment of the court fee as provided therein on the document as and when it is filed. if the appellant has paid court fee on the ordinary copy of the order it does not mean that he is not liable to pay court fee on the certified copy of the said order when he files the same in compliance with the provision of the code of civil procedure or rules and orders of this court. i am, thereforee, also of the view that the appellant ought to have paid court fee on the certified copy too. there was no proper filing of the certified copy without court fee. in other words it means.....
Judgment:

Sultan Singh, J.

(1) This second appeal under Section 39 of the Delhi Rent Control Act, 1958 (hereinafter called 'the Act') is directed against the judgment and order dated 12/1/1979 of the Rent Control Tribunal passing the order of eviction under section 14(l)(e) of the Act. Mr. Rajiv Behl has raised a preliminary objection that this second appeal is barred by time.

(2) Section 39 of the Act prescribes a period of 60 days for the filing of an appeal in this court from the date of the order of the Tribunal. Order 41 Rule I of the Code of Civil Procedure requires that the memorandum of appeal shall be accompanied by a copy of the impugned order. Needless to say that the copy of the order must be a certified copy. Rule 2(b)of Chapter I-A of the Rules and Orders of the Punjab High Court Vol. V, which are applicable to this court, requires the filing of a copy of the judgment of the court of first instance along with a copy of the order of the first appellate court. The appellant filed the present appeal on 16/4/1979 together with certified copy of the order of the Rent Control Tribunal and an ordinary copy of the order of the Additional Controller. The Registry returned the appeal as there was no copy of the order of the court of first instance. The appeal was refiled on 20/8/1979 together with the certified copy of the order of the Additional Controller. I may mention that the ordinary copy of the order of the Additional Controller bears

(3) In Bhagwan Dass Gupta -v. Makat Lal and others, 1970 PLR 78, it has been held by this court that the time spent in obtaining the copy of the court of first instance cannot be excluded under section 12(3) of the Limitation Act but the period spent as such can be allowed under Section (5) of the Limitation Act. In other words the time spent by him up to 19/4/1979 may be deemed to be a sufficient cause for not filing the proper appeal up to 19/4/1979. Under these circumstances the appellant ought to have filed proper appeal i.e. memorandum of appeal together with the certified copies of the orders of the Rent Control Tribunal and the Additional Controller on 20/4/1979. As already stated this appeal along with the certified copies of the order of the Additional Controller was filed on 20/8/1979. The appeal is thereforee barred by time. On the file there is no application seeking condensation of delay for any reason whatsoever for the period from 20/4/1979 to 20/8/1979. It also appears that when the appeal was filed on 16/4/1979 on the basis of ordinary copy of the order of the Additional Controller no application for exemption from filing the certified copy of the court of first instance was filed. When the appeal was refiled on 20/4/1979 no application for condensation of delay in filing the appeal on 20/8/1979 was filed. Learned counsel for the appellant submits that the appellant may be granted time to make an appropriate application seeking condensation of delay. I do not find any justification to grant the appellant any opportunity to file any application at this stage. As already stated the appeal was refiled on 20/8/1979 and the appeal has come up for final arguments when this preliminary objection is raised by the learned counsel for the respondent. It is now more than one and a half year that no action was taken by the appellant to see whether the appeal filed by him was within time. I feel that no useful purpose would be served in permitting the appellant to file any application for condensation of delay after lapse of this long period of one and a half year. In SuraJ Parkash Ball v. Permanand 1966 Dlt 407, this court held that without the filing of the certified copy of the judgment of the Rent Controller an appeal under Section 39 of the Act was not a proper appeal. In Shiv Dutt Sharma v. Prem Kumar Bhalia, 1969 Dlt 394, it was observed that the filing of the copy of the order by the Rent Controller was essential. It was further held that in the absence of such a certified copy of the memorandum of appeal cannot be treated to have been properly filed. Similarly in Malik Chand v. Zubeda Begum & others, 1974 (2) Del 160, it was held that the memorandum of appeal must be accompanied by a copy of the impugned order and also of the court of first instance. If copy has not been filed within limitation appeal is held to be barred by time. In view of this settled provision of law that the filing of the certified copy of the order of the Rent Control Tribunal and the order of the Additional Controller is essential, the present appeal is barred by time. Further the certified copy of the court of first instance does not bear the court fee stamp required to be paid under article 6 of Schedule I to the Court Fee Act, 1887. Section 4 of the Court Fee Act provides that no document specified in the first or second schedule annexed to the said Act shall be filed or received by court unless the court fee prescribed therein has been paid. In the present case it is admitted that the court fee as required under Article 6 Schedule I to the Court Fee Act was not paid on the certified copy of the order of the Controller dated 24/11/1973. The learned counsel for the appellant submits that such court fee was paid by him on the ordinary copy filed by him along with the appeal. This is not a sufficient compliance. Section 4 of the Court Fee Act requires the payment of the court fee as provided therein on the document as and when it is filed. If the appellant has paid court fee on the ordinary copy of the order it does not mean that he is not liable to pay court fee on the certified copy of the said order when he files the same in compliance with the provision of the Code of Civil Procedure or Rules and Orders of this Court. I am, thereforee, also of the view that the appellant ought to have paid court fee on the certified copy too. There was no proper filing of the certified copy without court fee. In other words it means that there is no proper appeal even today before me. The learned counsel for the appellant further submits that he may be allowed to file the court fee on the certified copy under Section 149 of the Code of Civil Procedure. It seems to me that no useful purpose would be served by permitting him to file the court fee on this certified copy even now as the appeal is barred by time. As already observed the last date of limitation was 20/4/1979 and there is no proper appeal up to this date. Under these. circumstances I uphold the preliminary objection raised by the learned counsel for the respondent and hold that the appeal is barred by time.' The appeal is thereforee dismissed with no order as to costs.


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