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Capital Bus Service Vs. Girnari Devi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 116 of 1980
Judge
Reported in1981RLR164
ActsDelhi Rent Control Act, 1958 - Sections 39(1)
AppellantCapital Bus Service
RespondentGirnari Devi
Advocates: S.K. Khanna and; Atul Jain, Advs
Cases Referred and Pila Ram v. Devi Das
Excerpt:
- - however, one may well refer to karanbir singh v smt......in the order of the tribunal, and it is required only for purposes of reference. thereforee, a copy certified by an advocate as correct may be enough to meet the requirements of rule 2(b) of chap. i of vol. v, of the high court rules and orders. this decision came after the appeal was filed. however, the copy had already been certified as true on 25 2.80. at any rate, it was a fit case in which delay deserved to be condoned. (8) rule 2(a) of the said rules of the high court talks of a copy of the judgment of the court of first instance and though i am doubtful if the said requirement of the rule can be applied strictly to the second appeals s. 39 of the act, since this court has confidently held, that the controller is not a court yet it also appears to have been established equally.....
Judgment:

M.L. Jain, J.

(1) The appellants were the tenant of the respondent in the disputed premises situated at Asaf Ali Road, New Delhi. One of the terms of the lease dt. 17.9.53, was as follows :

'THATthe lessee shall not be entitled to sublet or part with possession of the premises without the written permission of the landlady provided that the lessee shall have the right to allow the use of the premises to their sister or associate concern, the liability of the lessee to pay to the landlady covenated rent thereforee remaining absolute.'

(2) The respondent landlady on 9.3 1972, filed an eviction petition on the ground that the tenant had sub-let, assigned or otherwise parted with possession of the tenanted premises to M/s Associated Traders and Engineers(P) Ltd., without her written consent. The case of the tenant was that M/s. Associated Traders and Engineers(P) Ltd., were their associate or a sister concern and they were using the premises with express written permission of the landlady as contained in the aforesaid terms of the lease. The Additional Controller by his order of 16.11.76 repelled the contention of the tenant and directed recovery of possession in favor of the respondent landlady. In the execution proceedings, possession of the premises was taken by the respondent on 26.11.76.

(3) The Rent Control Tribunal dismissed the appeal of the tenant on 28.11.79. The tenant applied for a copy of the judgment on 6.12 79. The copy was ready and delivered on11.12.79. The second appeal was presented on 12.2.80. The office raised an objection that the appeal was barred by ten days and the copy of the order of the Additional Controller was not certified as true copy by the counsel.

(4) According to Section 39 of the Delhi Rent Control Act, 1958 (herein the Act), the period of limitation for filing a second appeal is 60 days. However, the proviso to Section 39(1) of the Act, permits an appeal to be entertained even after the expiry of the said period provided sufficient cause is shown. The appellants made an application (C M. 1097/80) on 5.3.1980, under the proviso to Section 39(1) of the Act and Section 5 of the Limitation Act, 1963. This application is opposed by the respondent.

(5) The rules of the High Court, Vol. v. Chap. 1-A, part A(a), Rule 2(b), require that 'in case of Second Appeal in addition to the documents prescribed by order 41, Rule 1, 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'. The appellant through its pairokar K.L. Dhutti had applied for the copy of the judgment of the Addl. Controller on 11.1.1980. The appeal was, however, filed on 12.2.1980, with an uncertified copy of the order. The Registry returned the appeal, with the objection that the uncertified copy of the order of 16.11.76, passed by the Additional Controller was not certified as true copy by the counsel and that the objection be removed within a week. On 25.2.1980, the appeal was refiled, stating that a certified copy was not yet available and the existing copy has been certified as true by the counsel. On 26.2.80 when Dhutti went to the copying agency, he was asked to come on 1.3.80. The copy was, however, prepared on 272.80. On 1.3.80, he had to go out of Delhi, March 2 was a Sunday. He received the copy on March 3. The Registry returned the appeal again on March 4, with the remarks that their objection still remained to be rem6ved. The appellants, thereforee, re-filed it on 5.3.80, with the certified copy of the order of the Additional Controller, which he had by then obtained. It is prayed that in the circumstances, the time taken in obtaining the copy of the order of the Additional Controller should be allowed to be excluded, and at any rate, delay may be condoned.

(6) The respondent contended that the appellants had no nearest in the premises and the appeal is being pursued on behalf of the sub-tenant by Dhutti who was employed as a legal inspector of the sub-tenant since 1965. He has been conducting the court cases for the last 15 years and was fully conversant with the procedure of the court. Lawyers of repute had been conducting the case before the Additional Controller and the Tribunal. It was, thereforee, surprising that in the High Court an advocate of just a few years' standing was engaged. The appellants should have taken care to obtain proper advice and to have applied for the certified copy of the judgment of the Additional Controller simultaneously when he applied for the certified copy of the judgment of the Tribunal. That apart, an application for dispensing with the filing of the certified copy of the order could be made but that too was not done. The application and the appeal should, thereforee be rejected.

(7) I have heard the arguments. In Malik Chand M. Zubeda Begum I.L.R. (1974) Ii Del. 160:1974 Raj L.R. 260 it was held that an appeal would be incomplete and incompetent if it was not accompanied by the certified copies of the impugned order and of the order made in the first instance and no exemption could be granted from filing any of the two documents and an appeal would be deemed to have been validly instituted only after the necessary copies were filed. It is urged on this basis that the appeal shall be deemed to have been filed on 531980, and it is within limitation if the time taken in obtaining the certified copies is excluded from computation of the period of limitation u/s 12 of the Limitation Act. In both the cases, the appellants had applied for a certified copy within time In Lacchiman Dus v. Suraj Prakash 1980 R L.R. 525, Harish Chandra, J., held on 21-4-1981, that in second appeals filing of the order of the Controller could be dispensed with at any time before final hearing because the order of the Controller gets merged in the order of the Tribunal, and it is required only for purposes of reference. thereforee, a copy certified by an advocate as correct may be enough to meet the requirements of Rule 2(b) of Chap. I of Vol. V, of the High Court Rules and Orders. This decision came after the appeal was filed. However, the copy had already been certified as true on 25 2.80. At any rate, it was a fit case in which delay deserved to be condoned.

(8) Rule 2(a) of the said Rules of the High Court talks of a copy of the judgment of the court of First instance and though I am doubtful if the said requirement of the rule can be applied strictly to the second appeals S. 39 of the Act, since this court has confidently held, that the Controller is not a court yet it also appears to have been established equally firmly that a second appeal u/s 39 must be accompanied by a copy of the order of the Controller. But S. 12 of the Limitation Act 1963, cannot be resorted to. It applies only to copies of a decree, sentence of order appealed from and cannot be availed of in respect of time consumed in obtaining a copy of the judgment of the court of the first instance. No authority is required for this self-evident provision. However, one may well refer to Karanbir Singh v Smt. Mukhtiar Inder Kaur. 70 P.L.R. (1968) 438, and Pila Ram v. Devi Das . In view of Malik Chand (supra), para 48, provisions of Section 5 of the Limitation Act 1963, can further not be invoked as the statute of limitation has no application to the present proceedings. The appellants have, thereforee, to fall back only upon the proviso to sub-section (1) of S. 39 of the Act and can salvage this appeal if they are able to show sufficient clause. In a case of limitation, each day's delay has to be explained, and where no negligence or inaction or want of bona fide is involved, a liberal view may be taken.

(9) Now, the appeal should have ordinarily been filed by January 27, 1980. If the Explanationn that the delay up to March 3, was on account of obtaining the copy of the Controller's order is considered satisfactory, still there is no satisfactory Explanationn for the delay of 2 days between March 3 and March 5, 1980. I, thereforee, hold that sufficient cause has not been shown for late filing of the appeal within the meaning of .the proviso to sub-section (1) of S. 39 of the Act.

(10) The application for condensation of delay (C M. 1097/80) and along with that, the main appeal are hereby rejected.


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