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Lachhman Das and anr. Vs. Suraj Parkash Mahajan - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 311 of 1980
Judge
Reported in18(1980)DLT75; 1980RLR525
ActsDelhi Rent Control Act, 1958 - Sections 39; Code of Civil Procedure (CPC), 1908 - Order 41
AppellantLachhman Das and anr.
RespondentSuraj Parkash Mahajan
Advocates: Ravinder Sethi,; R.S. Narula and; D.S.Narula, Advs
Cases ReferredBikram Dags v. The Financial Commissioner
Excerpt:
tenancy - dispensation - sections 38 and 39 of delhi rent control act, 1958 - second appeal filed without certified copy of order of rent controller - appeal otherwise validly presented within period of limitation - court may dispense with filing of certified copy of order of rent controller at any time before appeal finally heard - production of copy of certified order by advocate at time of filing appeal or thereafter sufficient ground for granting dispensation. - - along with the appeal, the appellant filed a certified copy of the order of the tribunal as well as a copy of the rent controller's order certified as true by the counsel of the appellant. ..(6) the present appeal and the aforesaid accompanying application as well as a stay application came up before avadh behari j. in..........of rule 2 of order xlii of the code of civil procedure introduced in punjab was applicable to an appeal filed under section 39 of the delhi rent control act. repelling the contention of counsel for the respondent that in view of rule 2 of order xlii of the code of civil procedure an appeal under section 39 of the delhi rent control act cannot be said to have been validly presented unless the same was accompanied by a certified copy of the judgment of the court of first instance, the learned judge held : 'in my view, there is no force in this contrition. the appeal in the present case has been instituted under section 39 of the delhi rent control act, 1958. the provisions of rule 2 of order xlii as introduced in punjab would apply, by virtue of order xliii rule 2, c. p. c., to appeals.....
Judgment:

Harish Chandra, J.

(1) Shri Suraj Parkash Mahajan filed an eviction petition against Shri Lachman Dass and another under clauses (a), (b), (e), (f), (g) and (j) and Section 14(1) of the Delhi Rent Control Act, 1958. The petition was allowed under clause (a) by an order dated 20th May, 1977.

(2) Shri Lachman Dass and another hereinafter referred to as the Appellant preferred Rent Control Appeal No. 546 of 1977. Shri Mahajan filed two appeals, R.G.A. No. 725 of 1977 and R.G.A. No. 724 of 1977 against the order of the Rent Controller under S. 15(7). All the three appeals were decided by an order dated 11th September, 1979. The order of eviction under clause (a) was set aside. The order dismissing the eviction petition under clause (b), (e), (g) and ( j) was upheld but eviction was ordered under clause

(3) On 25th October, 1979, the appellant filed the present appeal against the aforesaid order dated 11th September, 1979. Having regard to the time taken in obtaining certified copy of the order dated 11th September, 1979, this appeal could be filed up to 21st November, 1979.

(4) On 14th September, 1979, the appellant had applied for a certified copy of each of the orders, i.e. of the Tribunal dated 11th September, 1979 and of the Rent Controller dated 20th May, 1977. On 24th September, 1979 when the appellant collected the certified copy of the Tribunal's order, the certified copy of the first order was not ready. It was not ready even on 25th October, 1979.

(5) On this day, i.e. 25th October, 1979, without waiting for a certified copy of the first order, the appellant filed the present appeal. Along with the appeal, the appellant filed a certified copy of the order of the Tribunal as well as a copy of the Rent Controller's order certified as true by the counsel of the appellant. An application under Section 151 of the Code of Civil Procedure was also filed praying that the filing of the certified copy of the Controller's order dated 20th May, 1977 'be dispensed with for the present'. The appellant undertook to file the same 'as soon as the same is made available...............'.

(6) The present appeal and the aforesaid accompanying application as well as a stay application came up before Avadh Behari J. on 29th October, 1979. On that day, the same were adjourned to 31st October, 1979, when notice of the appeal only was issued for November, 7. On 7th November, 1979, the appeal was admitted. G.M. No. 2444 of 1979 being the stay application was also taken up and disposed granting stay. The appeal was ordered lo be heard on 21st November, 1979. On 21st November, 1979, the hearing of the appeal was adjourned to 15th January, 1980 and then to 5th February, 1980. No order was passed on C. M. No. 2427 of 1979 being the aforesaid application seeking dispensation from filing the certified copy of the Rent Controller's order, referred to above.

(7) In the meanwhile, the certified copy of the Rent Controller's order dated 25th May, 1977, was obtained on 2nd November, 1979 but was actually filed in the Court on 27th November, 1979. As noted above, having regard to the time taken in obtaining a certified copy of the order of the Tribunal, the appeal could be filed till 21st November, 1979. The appellant now realised that filing of the certified copy of the first order on 27th November, 1979 may mean that the date of a valid presentation of the memorandum of appeal would be taken as 21st November, 1979 and if so, the appeal is barred by six days. The appellant, thereforee, filed C.M. No. 428 of 1980 on 1l the 'February, 1980 under Section 5 of the Limitation Act seeking condensation of the delay in filing the certified copy of the order of the Rent Controller. It is this application which I am disposing by the present order.

(8) The case of the applicant-appellant is that though the certified copy was obtained on 2nd November, 1979 and handed over by the appellant to the clerk of the counsel on 7th November, 1979 but after being so handed over the said copy got mixed up by the clerk with the papers relating to some other case. This mistake was realised on 27th November, 1979, on which date the copy was filed. In pleading for condensation the applicant has greatly stressed on the diligence with which the appeal was otherwise prosecuted and on the absence of mala fide or ulterior motive in filing the certified copy on 27th November, 1979. The application is supported by an affidavit of the applicant as well as one of the clerks of the counsel.

(9) The application is opposed by the respondent who was averred that the averment that the copy was given by the applicant to the clerk of the counsel on 7th November, 1979, is false and has made an averment on the strength of being told by one R.G. Dawar that in fact the copy was given by the applicant to the clerk on 27th November, 1979. Respondent has also filed an affidavit of the said R.G. Dawar, affirming the same. A rejoinder to the reply supported by an affidavit has also been filed. Apart from reiterating the earlier averments, the applicant deposes in the affidavit that he did not know R.G. Dawar, did not travel to the High Court with him on 27th November, 1979 as claimed by R.G. Dawar and that his depositions in the affidavit are false.

(10) Whereas it is always difficult to put credibility in one statement on oath in an affidavit versus another such statement, I am inclined to proceed on the basis of the depositions of the applicant and clerk of the counsel in preference to the depositions of R.G. Dawar, total stranger to the proceedings and obviously known to the respondent enough to have gone to the respondent to convey his alleged concersation with the applicant.

(11) Before proceeding to consider if the applicant has shown 'sufficient cause' for condensation of delay it may first be determined as to what are the requirements of a valid presentation of the memorandum of appeal under Section 39 of the Delhi Rent Control Act.

(12) Section 39 of the Act does confer a right to appeal against the decision of the Rent Control Tribunal and does provide limitation of sixty days for so doing but does not lay down requirements of a valid presentation of the memorandum of appeal and more specifically does not lay down the documents that must accompany a memorandum of appeal. It does not make the requirements set out in Orders Xli & Xlii or Order Xliii of the Code of Civil Procedure applicable to an appeal under Section 39 by any express provision.

(13) In Suraj Parkash Bali v. Parmanand, 1966 Delhi Law Times 407, S.K. Kapur J. of the Punjab High Court had occasion to consider whether provisions of Rule 2 of Order Xlii of the Code of Civil Procedure introduced in Punjab was applicable to an appeal filed under Section 39 of the Delhi Rent Control Act. Repelling the contention of counsel for the respondent that in view of Rule 2 of Order Xlii of the Code of Civil Procedure an appeal under Section 39 of the Delhi Rent Control Act cannot be said to have been validly presented unless the same was accompanied by a certified copy of the judgment of the court of first instance, the learned judge held :

'IN my view, there is no force in this contrition. The appeal in the present case has been instituted under Section 39 of the Delhi Rent Control Act, 1958. The provisions of Rule 2 of Order Xlii as introduced in Punjab would apply, by virtue of Order Xliii Rule 2, C. P. C., to appeals from orders provided in Order Xliii Rule I. Consequently, this would not be applicable to an appeal filed under Section 39 of the Delhi Rent Control Act 1958.'

(14) The learned judge, however, accepted the contention of counsel for the respondent that Rule 2(b), Part A, Chapter I Volume V of the High Court Rules and Orders apply to such appeals and proceeded to decide the case on the footing that an appeal under Section 39 not accompanied by a copy of the judgment of the court of first instance unless dispensed with, is an appeal not presented validly as required by the aforesaid Rule In the result the appeal was held to be time barred and, thereforee, dismissed on that ground.

(15) In Shiv Dutt Sharma v. Prem Kumar Bhatia, 1969 Delhi Law Times 394, V.S. Deshpande J. had occasion to consider a similar question. On page 399 he observed :

'.........under section 39(1) of the Act, an appeal lies to the High Court from an order of the Rent Control Tribunal. The Act is silent as to what procedure the High Court is to follow in dealing with such an appeal. Under these circumstances) it is clear that the appeal is to be dealt with by the High Court acting as the High Court. The appeal in the High Court is, thereforee, governed by the normal procedure applicable to second appeals in the High Court. In Municipal Corporation of Delhi v. Kuldip lal Bhandari decided on 9th December, 1968 by a Full Bench of this Court I had occasion to refer to the decision of the House of Lords in Telephone Company Ltd. v. Postmaster General in which Viscount Haldane, L.G. observed at Page 552 as follows : When a question is stated to be referred to an established Court without move, it, in my opinion) imports that the ordinary incidents of the procedure of that Court are to attach. This decision was cited with approval by the Supreme Court in Collector of Varanasi v. Gauri Shankar. The High Court in dealing with the Second Appeals under Section 39(1) of the Act must................... thereforee, be held to act as a High Court in accordance with the procedure laid down in Order 42 read with the Order 41 of the Code of Civil Procedure. By an amendment of Order 42 mad e by the Punjab High Court, adopted by this High Court, it is necessary that, a certified copy of the order of the Trial Court is filed along with the copy of the judgment appealed against with the memorandum of appeal in the High Court. In the absence of such a certified copy, the memorandum of appeal was not praperly filed. The deficiency not having been received (removed) within limitation, the appeal itself was filed after the expiry of the period of limitation. The appellant has not shown that he was prevented by sufficient cause from filing the appeal in time within the meaning of proviso to Section 39(1) of the Act. The appeal is, thereforee, barred by time.'

(16) In Malik Chand v. Jubeda Begum 1. L. R. (1974) Del (II) 160, H.L. Anand J. considered a contention that the Delhi Rent Control Act was a complete Code by itself and it was not necessary to go out of the provisions of the Act to determine if the second appeal under Section 39 of the Act required to be accompanied by a certified copy of the order and that on a true construction of the provisions of Section 39) in the context of the claim of the Act and the Rules framed there under, it must be held that there was no requirement that a second appeal under the Act should be accompanied by a certified copy of the impugned order. It was held that because Order Xli Rule I C. P. C. deals with the form of appeal from original decrees and as to the accompanyment of a memorandum of appeal this provision had no application even by virtue of Order Xlii Rule I to appeals from orders as distinct from appeals from decrees and, thereforee, did not apply to an appeal under Section 39 of the Delhi Rent Control Act. It was further held that an order under Section 38 not being an order set out in Order Xliii, Rule 2 of Order Xli Ii does not extend the application of Order Xli to appeals under Section 39. The learned judge, however, held that the phrase 'second appeal' appearing in Rule 2 (b) of Chapter I, Part A (a) of the Rules and Orders of the Punjab High Court, Vol. V made applicable to Delhi by virtue of the provisions of Section 7 of the Delhi High Court Act, 1966 is very wide in its sweep because it is not confined to appeals under the Code of Civil Procedure but would appear ex facie to take within its ambit all appeals that may be filed in the High Court under the provisions of any law including second appeals except those that are specially provided in Chapter 7 of the said Rules. On this view, the learned judge held that the provisions of Order Xli Rule I CP.C. would be extended to all second appeals before the High Court by implication.

(17) It, thereforee, appears to be settled law that a memorandum of appeal under Section 39 of the Delhi Rent Control Act is required to be accompanied by a certified copy of the order of the Tribunal made under Section 38 as well as a certified copy of the order passed by the Rent Controller and an appeal filed without either of these certified copies cannot be said to be an appeal validly presented. I need hardly add that unless the High Court dispenses with the filing of a copy of the judgment of the court of first instance, in this case the judgment of the Rent Controller, as provided in Rule 2 (b). Chapter I of Vol. V of the Rules and Orders of the Punjab High Court, the date of valid presentation of the memorandum of appeal under Section 39 of the Delhi Rent Control Act is the date when the certified copy of the judgment has been filed in addition to the certified copy of the judgment of the Rent Control Tribunal.

(18) As noted above, the certified copy of the order of the Rent Controller, in the present case, was filed on 27th November, 1979 whereas the limitation for filing an appeal expired on 21st November, 1979 and a delay of six days has been occasioned.

(19) Numerous judgments were cited before me by the learned counsel for the parties appearing to pull in different directions but this appeared to be so only because a different set of facts were considered in each of these cases and not because there obtained a difference in the principles to be applied.

(20) Too much has been said in the past on what does and what does not constitute 'sufficient cause' and it is difficult to add to the erudition on the subject already filling the pages of countless reports. This is all the more so because judgments proceeding on given facts have often been relied upon as judgments absolute and presented as binding principles on differing facts. It is this tendency which needs to be carefully scrutinised lest the rule of precedent becomes the rule of non-application of mind.

(21) The one judgment that comes nearest to the facts of this case is the judgment in KuldipSingh v. Krishan Kumar and others, 1973 Rent Control Reporter 186. In this case the limitation for filing an appeal under Section 39 of the Delhi Rent Control Act expired on 1st August, 1972 but the certified c-)py of the order of the Rent Controller, i.e. the court of first instance was tiled in the Registry on 8.8.72.

(22) An appeal under Section 39 of the Delhi Rent Control Act had been filed on 10th July, 1972 well before the limitation for the same expired on 1st August, 1972. Anapplication for exemption from filing the certified copy of the order of the Rent Controller, which was not available on the day the appeal was filed had been mad e. Eventually, the certified copy of the said order was obtained on 24thJuly, 1972 and the party handed over the same to the clerk of counsel on 25th July, 1972. The certified copy was, however, misplaced and filed in some other brief and on checking up the files, when it was discovered, it was promptly filed in the court on 8th August, 1972.

(23) After considering all these facts and the various decisions on similar and other facts, Prithvi Raj J. proceeded to accept the statement of the clerk of counsel on oath that due to rush of work he had mislaid the. certified copy and was able to locate the same only on 7th August, 1972 and considered it sufficient cause to condone the delay of seven days, the same having been occasioned due to a bona fide mistake of the clerk of the counsel.

(24) I see no reason to differ from the line of thinking and approach to the facts of this case which I repeat are not only similar but indeed almost identical and condone the delay of six days occasioned in the filing of the certified copy of the order of the Rent Controller.

(25) In coming to the conclusion in favor of the applicant, I have also taken into consideration that on the one hand there is no ulterior motive discernible on the part of the applicant for the delay and on the other the applicant has been diligent in pursuing the appeal. He not only applied for certified copies of both judgment well in time, he actually filed the appeal well within the period of limitation. With the appeal he filed a copy of the order of the Rent Controller certified as true by the Advocate of the applicant and filed an exemption application Along with it. Eventually, on the misland certified copy of the Rent Controller's order having been found out, it was promptly filed in the court even though six days after the expiry of the period of limitation.

(26) Before parting with the matter, I would like to refer to Rule I of Order Xli C.P. C. Rule 2 of Order Xlii as adopted by Punjab and Haryana and made applicable to Delhi as well as to the aforesaid Rule 2 (b) of Chapter I -A of Volume V of the High Court Rules and Orders, all of which make a distinction between the requirement of filing the decree appealed from on the one hand and the copies of the judgments required to accompany the memorandum of appeal on the other because unlike in the former the court has been given the power to dispense with the filing in the case of the latter.

(27) It is settled law that whereas the court has no power to dispense with the filing of decree, it can dispense with the filing of the copies of the judgments. This was so held in Shakuntala Devi Jain v. Kuntal Kumari, : [1969]1SCR1006 . Adapting to the filing of appeals under Section 39 of the Delhi Rent Control Act those provisions would mean that while the court lias no power to dispense with the filing of the certified copy of the order of the Rent Control Tribunal, (as this order is both the decree as well as the judgment) it can dispense with the filing of the certified copy of the judgment of the Rent Controller.

(28) The distinction between the two judgments embedded in the very provisions which require their filing is also made in Section 12 of the Limitation Act which provides for the exclusion of time required for obtaining a certified copy of the first but does not provide for the exclusion of time required for obtaining a certified copy of the second. The situation,, thereforee, is that whereas the litigant/appellant is required to file a certified copy of the Rent Controller's order, it gets no benefit of the time taken by the Copying Agency in giving the same.

(29) Whereas the purpose of requiring the certified copy of the first appellate judgment flows from the fact that the Court must have a copy of the judgment which can. be relied upon as correct before setting aside or confirming it, the purpose of the copy of the judgment of the trial court, which has already merged in the judgment of the first appellate court could only be for reference. This purpose can well be served by a copy which can otherwise be believed to be true, for example, upon certification as true by the Advocate of the appellant. Secondly, once the stage of admission of an appeal is over and the appeal is admitted) the purpose could well be served, by filing a certified copy at any time before the final hearing' when reference may be required to be made to it again.

(30) It may be noted that by an amendment to Order Xli notified in the Haryana Government Gazette of March 25,1975, applicable to Punjab, Haryana and Chandigarh, the following provision was introduced in Order XLI:

'PROVIDEDfurther that the court may permit the appeal to be filed with true copies duly authenticated by an Advocate as correct.'

31.It is in this light that one may consider whether it is necessary to non-suit the appellant altogether for failure to carry out what is obviously a directory requirement of the provisions, within the prescribed period of limitation.

(32) In this connection, reference may be made to a decision of the Supreme Court in the State of Punjab v. Sham Lal Murari, : [1976]2SCR82 . In this case the Court considered the effect of non-compliance with Rule 3 of the Punjab and Haryana High Court Rules and Orders, Vol. V Chapter 2-G which provides as under :

'3.No appeal under Clause 10 of the Letters Patent will be recieved by the Deputy Registrar unless it is accompanied by three typed copies of the following : (a) Memorandum of appeal; (b) Judgment appealed from, and (e) Paper book which was before the Judge from whose judgment the appeal is preferred.'

33. A Full Bench of the Punjab and Haryana High Court had held in Bikram Dags v. The Financial Commissioner, , that the aforesaid Rule was mandatory and non-compliance there with resulted in the appeal being dismissed in liming. Over-ruling the decision of the Full Bench, the Court held that, the ommission to file three copies is only a breach which can be characterised as an irregularity to be corrected by condensation on application by the party fulfillling the condition within a time allowed by the court. The court her observed :

'WEmust always remember that processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. It has been wisely observed that procedural prescriptions are the hand-maid and not the mistress, a lubricant, not a resistant in the administration of justice. Where the non-compliance, the procedural, will thwart fair hearing or prejudice doing ofjustice to parties, the rule is mandatory. But, grammar apart, if the breach can be corrected without injury to a just disposal of the case, we should not enthrone a regulatory requirement into a dominant desideratum. After all. Courts are to do justice, not to wreck this end product on technicalities.'

(34) It appears to me that having regard the above dictum, if a second appeal is filed without a certified copy of the order of the first instance, i. e., of the Rent Controller, and the appeal is otherwise validly presented within the period of limitation, the court may dispense with the filing of the certified copy of the order of the Rent Controller, at any time before the appeal is finally heard and production of a copy of the certified as true by an Advocate at the time of filing the appeal or even thereafter, appears to be sufficient ground for granting such dispensation.


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