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Ramchand Sri Ram, Vs. Hira Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Miscellaneous Appeal No. 2567 of 1980
Judge
Reported in20(1981)DLT34; 1981(2)DRJ75; 1981RLR197
ActsDelhi Rent Control Act, 1958 - Sections 39
AppellantRamchand Sri Ram, ;joint Hindu Family Firm and anr.
RespondentHira Lal and anr.
Advocates: S.P. Mahajan and; A.R. Singh, Advs
Cases ReferredBhagwan Dass Gupta v. Mukat Lal and
Excerpt:
delhi rent control act 1958 - section 39.; the procedure applicable to other second appeals is applicable. the court fee is rs. 2.65 only. limitation act--section 5.; time taken in obtaining the copy of the trial court judgment and in preparing the grounds of appeal may be regarded as sufficeint cause for condensation of delay. - .....is governed by the code of civil procedure and rules of this court. the limitation act applies to appeals filed in this court. in this view of the matter, it appears that the application for condensation of delay is covered under section 5 of the limitation act. it may be stated that the proviso to section 39 of the act is an additional provision for condensation of delay for filing appeal, and when an application is filed under section 5 of the limitation act, the court fee is payable on such application is rs. 2.65 only. in view of the fact that this appeal is governed by the procedure applicable to this court, it seems that the court fee paid on the application i.e. rs. 2.65 is the proper court fee paid on the application. (4) under section 12(3) of the limitation act, the appellant.....
Judgment:

Sultan Singh, J.

(1) The appellant filed this second appeal under section 39 of the Delhi Rent Control Act, 1958 (hereinafter called 'the Act') on 17th July, 1980 challenging the order dated 17th April, 1980 of the Rent Control Tribunal. The appellant prays that the delay in filing the appeal be condoned. Certified copy of the Tribunal's order was applied for on 21st April, 1980, and it was ready for delivery on 2nd May, 1980. Certified copy of the Rent Controller's order was applied for on 20th June, 1980, and it was ready for delivery on 15th July, 1980. It is alleged that this copy was ready for delivery by the evening of 15th July, 1980 and was in fact delivered on 16th July, 1980. The appellant further states that his counsel was busy in his personal case and that he took time to prepare the grounds of appeal and he filed the appeal on 17th July, 1980.

(2) Learned counsel for the respondents, on the other hand, says that the application for condensation of delay is not properly stamped. His arguments is that the present application is for a relief under the proviso to section 39 of the Act and as such it should be stamped with court fees of Rs. 13.00 as provided under Article 23 of Schedule Ii of the Court Fees Act as applicable to Delhi. He further says that admittedly the appeal was barred by time on the date of institution and the appellant should have filed an application for condensation of delay along with the appeal. The appeal, as already stated, was filed on 17th July, 1980, and on objection by the Registry an application for condensation of delay was filed on 29th July, 1980.

(3) Under section 39 of the Act second appeal lies to the court and as such the procedure applicable to other second appeals entertained by this court is applicable to the appeal of the Act (See Shiv Daft Sharma v. Prem Kumar Bhatia, 1969 D.L.T. 394 and Controller, Varanasi v. Gauri Shankar Mishra and others, : [1968]1SCR372 . The procedure of this court is governed by the Code of Civil Procedure and Rules of this court. The Limitation Act applies to appeals filed in this court. In this view of the matter, it appears that the application for condensation of delay is covered under section 5 of the Limitation Act. It may be stated that the proviso to section 39 of the Act is an additional provision for condensation of delay for filing appeal, and when an application is filed under section 5 of the Limitation Act, the court fee is payable on such application is Rs. 2.65 only. In view of the fact that this appeal is governed by the procedure applicable to this court, it seems that the court fee paid on the application i.e. Rs. 2.65 is the proper court fee paid on the application.

(4) Under section 12(3) of the Limitation Act, the appellant is entitled to exclude the time taken in obtaining the certified copy of the impugned judgment. As already stated, the copy of the impugned Judgment was applied for on 21st April, 1980 and it was ready on 2nd May, 1980. Rule 2(b) part A chapter I, vol. V of the Punjab High Court Rules and Orders, as applicable to this court, provides that the copy of the order of the court of the first instance is also to be filed along with the copy of the order of the first appellate court. The appellant was, thereforee, required to file the copy of the order of the Rent Controller Along with the appeal. As already stated, the copy of the Controller's order was reidy on 15th July, 1930 and it was delivered on 16th July, 1980 and after prepration of the ground of appeal the same was filed on 17th July, 1980 undar section 12(3) of the Limitation Act. The time spent in obtaining the copy of the Controller's order is not to be excluded but it has been held in Bhagwan Dass Gupta v. Mukat Lal and others 1970 PLR 78 that time spent in obtaining the copy of the judgment of the first instance cannot be excluded under section 12(3) of the Act but it can be treated as sufficient cause under section 5 of the Limitation Act. It is further laid down that time reasonably spent by the appellant for obtaining the copy of the trial court judgment and in preparing the grounds of appeal thereafter may be regarded as sufficient cause for condensation of delay in preferring the appeal. I, thereforee, find that there was no unreasonable delay in filing the appeal. The certified copies of the order of the Tribunal and of the Rent Controller were available on the evening of 15th July, 1980 and after preparing the grounds the appeal was filed on 17th July, 1980. It, thereforee, appears that there was sufficient cause for not filing the appeal before 17th July, 1980.

(5) The last objection of the learned counsel for the respondents is that the application for condensation of delay was not filed along with the appeal. He also refers to order 41 rule 3 (a) of the Code of Civil Procedure which provides for the filing of an application for condensation of delay with the appeal if it is barred by time. It appears that the Registry raised objection that the appeal was barred by time. The appeal was ordered to be returned and refiled within a week, vide order dated 25th July, 1980. The appellant, it seems, received back the memo of appeal and refiled the same along with the application for condensation of delay on 29th July, 1980. It seems that refiling of the appeal along with an application for condensation of delay is sufficient compliance.

(6) After giving my careful consideration to the fact of the case, I condone the delay in filing the appeal. There will be no order as to costs.


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