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Nematullah Vs. Mohd. Zikriya - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 180 of 1979
Judge
Reported in19(1981)DLT55; 1981(2)DRJ22
ActsDelhi Rent Control Act, 1958 - Sections 39
AppellantNematullah
RespondentMohd. Zikriya
Advocates: M. Ahmed and; I.S. Mathur, Advs
Cases ReferredMattulal v. Radhe Lal
Excerpt:
..... act, 1958 - section 39 appeal filed on 12.7.79 with an application for exemption from filing certified copy of the order of the additional rent controller. appeal admitted but no orders passed on exemption application. certified copy was ready on 16.2.1979 but was filed during the course of the hearing of appeal on 3.11.1980. respondent pleaded that the appeal was barred by time.; without the filing of certified copy the appeal is not validly presented and was time-barred. mere admission of appeal does not imply that application for exemption was allowed. - - if there is failure or negligence on the part of the appellant to comply with the rules and the appeal was time-barred, the respondent acquires a valuable right. there is no explanationn on record explaining the..........of civil procedure the provisions of order 41 are applicable to appeals from orders. under these rules filing of the judgment of the court of the first instance and the court of the lower appellate court along with the memorandum appeal is necessary within the meaning of order 41 rule i read with order 43 rule 2 of the code of civil procedure. besides this provision of the code of civil procedure rule 2(b) of the rules and orders of the punjab high court volume v chapter i-a provides, 'every memorandum of appeal shall be accompanied by copies of the decree and judgment as prescribed by order xli, rule 1 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:

Sultan Singh, J.

(1) This is an appeal under Section 39 of the Delhi Rent Control Act, 1958 (hereinafter called 'the Act') against the judgment of the Rent Control Tribunal dated 29/5/1979. By the said judgment the Rent Control Tribunal confirmed the decision of the Rent Controller allowing petition of the landlord for the eviction of the appellant vide order dated 1/4/1976. The Tribunal held that the respondent was entitled to an order of eviction under Section 14(l)(e) of the Act.

(2) Mr. Ishwar Sahai, Learned Counsel for the respondent has taken a preliminary objection that the appeal is barred by time. As I have sataed earlier, the judgment under appeal was delivered on 29/5/1979. The appellant made an application for a certified copy of the judgment of the Tribunal on 30/5/1979 and the copy was ready on 5/6/1979. The appellant had also filed an application on 30/5/1979 for obtaining the certified copy of the order dated 1/4/1976 passed by the Additional Controller. This certified copy was ready on 16/7/1979 but the same was not filed in this court with the memorandum of appeal. The appeal was filed on 12/7/1979 and the certified copy of the judgment and order of the Additional Controller dated 1/4/1976 was filed in this court on 3/11/1980 during the course of hearing of the appeal. Mr. Ishwar Sahai submits that the filing of the certified copy of the order of the Additional Controller along with the memorandum of appeal was necessary in view of rule 2 of Order 42 Civil Procedure Code . as introduced in Punjab and applicable to Delhi and that by virtue of Order 42 rule 3 of the Code of Civil Procedure the provisions of Order 41 are applicable to appeals from orders. Under these rules filing of the judgment of the court of the first instance and the court of the lower appellate court along with the memorandum appeal is necessary within the meaning of Order 41 rule I read with Order 43 rule 2 of the Code of Civil Procedure. Besides this provision of the Code of Civil Procedure rule 2(b) of the Rules and Orders of the Punjab High Court Volume V Chapter I-A provides, 'Every memorandum of appeal shall be accompanied by copies of the decree and judgment as prescribed by Order Xli, Rule 1 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'. The present appeal, as already stated, is under section 39 of the Act. The procedure applicable to the appeals instituted in this court shall be the procedure applicable to the second appeal filed under the Act. Thus it seems to me that filing of the certified copy of the court of the first instance is essential unless the appellate court dispenses the filing of the such copy. it is not in dispute that the word 'copy' (in Order 41 rule I and in the said rule 2(b) means certified copy. Along with the memorandum of appeal, the appellant filed an application for stay of his dispossession, C.M. No. 1407 of 1979. He also filed an application under Order 41 rule I read with Order 42 rule 2 and Section 151 of the Code of Civil Procedure alleging that he has submitted a certified copy of the Tribunal along with a true copy of the order of the Additional Controller, that he could not file a certified copy of it, as the same was not supplied to him till then, that he has applied for it and that there was immediate threat of eviction and as he had applied for the stay of eviction order he was not in a position to wait for the certified copy of the order of the Additional Controller. In this application he made the following prayer :

'THE appellant prays that he may kindly be granted exemption from filing certified copy of the order of the Additional Controller or in any case the appeal may be entertained with a true copy of it and he will submit the certified copy as it is supplied to him.'

(3) The appeal came for hearing on 13/7/1979. It was admitted. Mr. Jshwar Sahai, counsel for the respondent accepted notice of the appeal. The appeal .was ordered to be heard on 12/11/1979. Stay of dispossession subject to payment of rent regularly was ordered on the application (C.M. No. 1407 of 1979). No order appears to have been passed on the exemption application (C.M. No. 1408 of 1979). This appeal came up for shearing on 30/10/1980 when the Learned Counsel for the respondent raised this objection. The appeal was part-heard and adjourned to 3/11/1980, when, as already stated, the Learned Counsel for the appellant filed certified copy of the order dated 1/4/1976 passed by the Additional

(4) Controller, without any application explaining the reasons for not filing the certified copy at an earlier date. Mr. Ishwar Sahai contends that there was no valid presentation of appeal on 12/7/1979. as it was not accompanied with the certified copy of the judgment of the Additional Controller. Mr. M. Ahmed, Learned Counsel for the appellant, on the other hand contends that the appellant had filed the application for exemption for filing the certified copy along with the memorandum of appeal and as the appeal was admittgd tit should be deemed that the appellant was granted exemption. in seems to me that without any order on the exemption application it cannot be held that the appellant was exempted from filing the certified copy of the order of the court of the first instance. It was for the appellant to have obtained such an order. The appeal when filed was not in accordance with the rules contained in Order 41 rule I, Order 42 rule I and Order 43 rule 2 read .with rule 2(b) of the Rules and Orders of this court as contained in Volume V Chapter I-A quoted above. The appeal was entertained as there was an application for stay of dispossession of the appellant. The appeal was admitted ex parte but it does not mean that the respondent cannot challenge the presentation of the appeal if it was not in accordance with law. It was the duty of the appellant to have complied with the rules. If there is failure or negligence on the part of the appellant to comply with the rules and the appeal was time-barred, the respondent acquires a valuable right. The appellant ought to have taken steps to obtain appropriate orders and to file the certified copy of the court of the first instance as stated by him in the application. Although the certified copy was ready on 16/2/1979 but it was not filed up to 3/11/1980. Without the filing of the certified copy the appeal is not validly presented and thereforee it must be held that the appeal is barred by time. (Mr. Ishwar Sahai in support of his argument relies upon Suraj Parkash Bali v. Parmanand, 1966 D.L.T. 407 wherein a similar application for exemption from the filing of the certified copy of the order of the court of the first instance was filed but no order was passed dispensing with the filing of the certified copy. According to the allegations contained in the exemption application, if the appellant did not collect the certified copy during the period from 16/7/1979 to 3/11/1980 he would not be entitled to extension of time. There is no Explanationn on record explaining the delay from 16/7/1979 to 3/11/1980 for the appellant's failure to file the certified copy of the court of the first instance.

(5) Learned Counsel for the appellant relies upon G.I.P. Railway Co. v. Radhakisan Jaikishan and another, A.I.R. 1926 Nagpur 57 wherein it is observed, 'As the appeals were admitted on presentation, notice being ordered to issue to the respondents, it must be taken that the court dispensed with the copy of judgment. In any case this is a matter between the court and the appellant' He further submits that the present appeal having been admitted by order dated 13/7/1979 it must be held that the filing of the certified copy was impliedly exempted by this court.

(6) Next Mr. Ahmed relies upon Shakuntala Devi Jain v. Kuntal Kumari and others, : [1969]1SCR1006 . The Supreme Court observed, 'We are not satisfied that the High Court dispensed with the filing of the copy of the order under Section 47. Admittedly, the High Court did not pass any express order to that effect. It may be that in a proper case such an order may be implied from the fact that the High Court admitted the appeal after its attention was drawn to the defect. (See G.I.P. Railway Co. v. Radhakisan Jaikishan and another, A.I.R.I 926 Nagpur 57). But in the present case the High Court was not aware of the defect and did not intend to dispense with the filing of the copy' . On the basis of this observation Mr. Ahmed admits that the appellant is entitled to exemption from filing the certified copy. I am afraid it is not possible. The Supreme Court made the observation that the attention of the High Court must have been drawn to the defect. In the case before me attention of the Admission Bench was not drawn to the fact of not filing the certified copy of the court of the first instance. There is no implied observation anywhere on record to show that the Admission Bench intended to dispense with the filing of the certified copy. In view of the observation of the Supreme Court, it was for the appellant to take steps either to obtain the order for exemption or to comply with the filing of the certified copy in accordance with law. The appellant failed to do either. Learned Counsel for the appellant further refers to Bri jendra Lal Saha and others v. Jana Mondal and others : AIR1947Cal67 , a case under the proviso added to Order 42 rule I of the Code of Civil Procedure. It was observed by the Calcutta High Court, 'If the certified copies of the judgment and decree of the first court are not filed the defeet would be a defect in form.' The authorities of Nagpur and Calcutta High Courts are not applicable to the facts of the present case in view of the said judgment of the Supreme Court and the specific rules of this court as referred to above. The court has no doubt power to exempt the filing of the certified copy but there must be a reason for it to be disclosed by the appellant. No reasons have been disclosed. On the contrary, in his exemption application he alleged that he was seeking exemption as he was seeking stay of his dispossession. He stated that he had made an application for the certified copy which was not supplied to him till then and he would submit the same as it is supplied to him. Mr. Ahmed further relies upon M/s. Maha Maya General Finance Co. Pvt. Ltd. v. Harjit Singh, Liquidator, National Planners Ltd. & another wherein the Learned Judge in the facts and circumstances of that case came to the conclusion that it must be presumed that the exemption applied for was granted by the court. There were two appeals arising out of the common judgment. Certified copy of the common judgment in one appeal had been filed and exemption was granted from filing the certified copy in the other appeal. In view of this fact there is no ground to exempt the appellant from filing the certified copy of the court of the instance i.e. the order dated 1/4/1976 passed by the Additional Controller, Delhi. It is thereforee held that the appeal is barred by time.

(7) Learned Counsel for the parties have argued the appeal on merits also, and thereforee I deem it desirable to decide the appeal on merits also. Mr. Ahmed, Learned Counsel for the appellant, has raised one question. He says that under Section 14(l)(e) of the Act it is not necessary for the landlord to prove that the premises were let for residential purposes. He argues that the landlord has failed to prove the same. His argument is that on record there is a rent note dated 12/4/1950 Ex. A-l wherein the purpose of letting is not mentioned. From the facts of the present case it appears that a Balakhana of property No. 2337, Gali Dugdugi Shah Kallan, Bazar Chitli Q-abar, Turkman Gate, Delhi Ward No. X was let out to the appellant by the respondent on 11/4/1950, on a monthly rent of Rs. 15-15 annas. It is mentioned in this rent note admittedly executed by the appellant that the appellant would occupy the premises. The actual words used in this rent note 'Aj Khud Abaad Rahun Ga'. It means I will occupy : the same. The accommodation of the Balkhana is not described in the rent note. Balakhana in common parlance means premises on the upper floor of a building. From the pleadings and evidence on record it is admitted that the Balakhana under the tenancy of the appellant consists of one room, two stores, kitchen, courtyard, shed, latrine and open roof. This document is a unilateral document executed by the appellant confirming the fact of having taken the premises on rent on 11/4/1950. As already stated, the document was executed by the appellant on 12/4/1950. The contention of Mr. Ahmed is that as there is no mention of the purpose of letting, it must be presumed that the premises were let for residential-cum-commercial purposes. His further argument is that the defense of the appellant is that the premises were taken on rent for residential-cum-commercial purposes and that the same have always been used as such. Learned Counsel for the respondent on the other hand submits that the premises were let for residential purposes only, that the premises are situated in residential colony, that the property in question is residential and not commercial, that the evidence on record conclusively proves that the premises were let for use as residence and have always been used as such. He further submits that there is concurrent finding of fact by the Additional Controller and the Tribunal that the premises were let for residential purposes and that no ground has been made out for interference with the finding of fact about the letting purpose. Mr. Ahmed, however, submits that no oral evidence to determine the purpose of letting can be looked into. He relies upon Sections 91 and 92 of the Indian Evidence Act. It seems to me that the two Sections of the Evidence Act are not applicable. The rent note is not a written contract between the two parties. It is only an acknowledgement on behalf of the appellant-tenant. Mr. Ahmed has read various portions of the evidence on record in support of his contention that the premises were let and used for residence-cum-commercial purposes. I am afraid that in Second Appeal I cannot re-appreciate the evidence on record. The two courts below have disbelieved the evidence led by the appellant and have accepted that the premises were let for residential purposes and have been used as such. It is settled law the High Court in second appeal cannot re-appreciate the evidence and interfer e with the findings of fact reached by the lower appellate court unlesss it can be shown that there was an error of law in arriving at it or that it was based on no evidence at all or was arbitrary, unreasonable or perverse' (See: Mattulal v. Radhe Lal , : [1975]1SCR127 ). After going through the evidence, I do not find that there is no evidence in support of the finding arrived at by the lower courts. The finding is not arbitrary, unreasonable or perverse. I may further mention that no documentary evidence was placed on record on behalf of the appellant to show that any business was carried on in the suit premises. The appellant is a publisher. He says that he published about 500 books. No document has been placed to show that any book published by him bears the address of the suit premises. As a matter of fact it is only the oral evidence on behalf of the appellant in support of his plea which has been disbelieved by this court below. I, thereforee, do not find any ground to interfere with the finding of fact arrived by the Controller and the Rent Control Tribunal. There is no merit. The appeal is dismissed. Parties are left to bear their own costs.


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