Skip to content


Apparel Trends and anr. Vs. Krishna Dandona and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 331 of 1982
Judge
Reported inAIR1985Delhi106; 1984(7)DRJ255; 1984RLR672
ActsRent Control Act - Sections 14(l) and 15(1); Delhi Rent Control Act - Sections 15(1), 39 and 45; Transfer of Property Act - Sections 108A; Limitation Act - Sections 5; Code of Civil Procedure (CPC), 1908 - Sections 151; Code of Criminal Procedure (CrPC) , 1973 - Sections 397 and 482
AppellantApparel Trends and anr.
RespondentKrishna Dandona and ors.
Advocates: M.L. Varma and; F.C. Bedi, Advs
Cases ReferredMalik Chand v. Zubeda Begum and
Excerpt:
a. delhi rent control act: suspension of rent : it seems to be a well settled law that in case a tenant is deprived of any pan of the tenanted premises or a landlord without just and sufficient cause cuts off or with holds any supply or service enjoyed by the tenant in respect of the premises let to him the tenant can claim suspension of rent or claim abatement of the rent in proportion to the extent and nature of deprivation of the demised premises or the essential supplies. ; b. delhi rent control act--suspension of rent--the principles governing of rent are based on justice, equity and good conscience. it will depend on the facts of each case, whether a tenant is entitled to the suspension of rent.; c. delhi rent control act--suspension of rent--the second appeal against the.....r.n. aggarwal, j.(1) this second appeal by the tenant m/s. apparel trends against the order of the rent control tribunal has arisen in the following circumstances.(2) the tenant took on rent the ground floor and the basement of the industrial premises bearing no. a-21/13, naraina industrial area, phase ii, from its owner shri som nath daiidona by a deed of license dated 21st july 1976. (shri dandona has died and he is now represented by his legal heirs). the essential terms of the license are : 'whereas the licensor shri som nath dandona and the licensee m/s. apparel trends are desirous of giving and taking, being allowed privilege of using ground floor and basement of industry building at no a-21/13, naraina industrial area, phase ii, new delhi, and the licensee has approached the.....
Judgment:

R.N. Aggarwal, J.

(1) This second appeal by the tenant M/s. Apparel Trends against the order of the Rent Control Tribunal has arisen in the following circumstances.

(2) The tenant took on rent the ground floor and the basement of the industrial premises bearing No. A-21/13, Naraina Industrial Area, Phase Ii, from its owner Shri Som Nath Daiidona by a deed of license dated 21st July 1976. (Shri Dandona has died and he is now represented by his legal heirs). The essential terms of the license are :

'WHEREAS the licensor Shri Som Nath Dandona and the Licensee M/s. Apparel Trends are desirous of giving and taking, being allowed privilege of using ground floor and basement of Industry Building at No A-21/13, Naraina Industrial Area, Phase Ii, New Delhi, and the licensee has approached the Licensor for the grant of requisite license, subject to payment of license fee of Rs. 6000.00 (Rupees six thousand only) per month, for carrying on the trade of making handloom and ready-made garments. Whereas the Licensor after considering the request of the Licensee has decided to allow the licensee to use and occupy the basement and ground floor of the said premises on payment of Rs. 6000.00 as the monthly license fee commencing from 15-7-1976. That the monthly license fee of Rs. 6000.00 shall be payable in advance on or before the 10th day of each English Calendar month and in case of default in timely payment of the license fee, the licensee besides rendering his license to be revoked, shall be liable to pay additional license fee as may be fixed by the licensor for the period during which he commits default, and remains in the occupation of the said Industry Building. That the licensee shall use the aforesaid accommodation for the purpose of carrying out Industrial trade and shall not use the same for any other purpose without the prior written permission of the licensor. That the licensor shall carry out the annual and necessary repairs to the building. That the licensee has also deposited a sum of Rs. 42,000.00 (Rupees fifty-two thousand only) as license fee security for the due and faithful execution of this agreement.'

(3) On 29th May 1981 the landlords/respondents filed an application under Section 14(l)(a)(c) and (k) of the Rent Control Act against the tenant for its eviction on the ground that the tenant has not paid the rent from 16th December 1978. It was also contended that the tenant was using the premises contrary to the conditions of the lease.

(4) The tenant in its written statement pleaded that the rent was Rs. 6000.00 per month inclusive of the water and electricity charges. The tenant further pleaded that the landlords in January 1980 had got the electricity disconnected and thereby withheld essential supply of electricity and water. The tenant pleaded that it had a right to suspend the payment of rent with effect from January 1980 when the supply of electricity was discontinued. The tenant further pleaded that it had spent Rs. 10,859.00 in putting the premises in useful conditions and had further incurred an expenditure of Rs. 24.000.00 in white-washing and other repairs. The tenant claimed that it had a right to spend one month's rent every year on the repairs. The amount of Rs. 24,000.00 is claimed on account of repairs for the period 1976 to 1980. The tenant further claimed to have paid Rs. 75.000.00 on account of house- tax on behalf of the landlords to the Municipal Corporation of Delhi. During the hearing of the appeal the tenant stated that it had further paid on 18th May 1984 a sum of Rs. 19,255.68 to the Delhi Financial Corporation in the account of the landlords.

(5) The petitioners (landlords) in their replication pleaded that although the rent stated in the lease-deed was Rs. 6000.00 but, in fact, the rent settled was Rs. 7,000.00 and this was exclusive of water and electricity charges. The petitioners denied that the amount of Rs. 6000.00 included the electricity and water charges. As regards the plea of the tenant regarding disconnection of the electricity connection the petitioners in para 7 replied as follows:

'THE contents of para 7 of the reply are totally wrong and thereforee denied. As stated in the above paras the petitioners' predecessor- in-interest never took the responsibility of electricity and water, which was for the respondents. It is further submitted that the electric connection in the premises was only a temporary one, which was bound to be disconnected after the period for which it was provided. It is further submitted that the respondents did not pay the electric charges to the Desu concerned. thereforee, the respondents contention is false, as far as the water, it was for the respondents to make arrangement. The petitioners have no knowledge of provisions of the water by M.C.D. of which no information was given to the petitioners. It is incorrect and denied that the respondents have suffered or is suffering any loss on account of any fault of the petitioners. The petitioners understand they have made arrangements and getting electricity from the neighbour.'

(6) The petitioners in para Ii of the replication stated that it was the responsibility of the respondents to pay the electricity and water charges. The petitioners denied that they had got the electricity connection disconnected. The petitioners pleaded that the electricity connection was a temporary connection for a limited period and since the petitioners defaulted in payment of the charges for the electricity consumed the electricity connection was disconnected.

(7) The Additional Rent Controller on 24th March 1982 passed an order under section 15(1) of the Rent Control Act requiring the tenant to pay the arrears of rent at the rate of Rs. 6000.00 per month with effect from 16th December, 1978. The relevant part of the order of the Additional Rent Controller reads as under :

'THEREFORE,without prejudice to the pleas of the parties the respondent is directed under Section 15(1) D.R.C. Act to pay entire up to -date arrears of rent @ Rs. 6000.00 w.e.f. 16-12-1978. Out of this arrears the respondent shall adjust Rs. 25,000.00 already paid to the M.C.D. He shall deposit a further sum of Rs. 98.457.00 with the M.C.D. within one month, of this order and balance amount should be deposited in this court. The respondent shall also deposit future rent month by month at the aforesaid rate of Rs. 6000.00 by the 15th day of each succeeding tenancy month in accordance with Section 15(1) D.R.C. Act.'

(8) Against the aforesaid order the tenant went in appeal. The learn- ed Tribunal partly modified the order of the Additional Rent Controller. The operative part of the order of the Tribunal reads as under :

'FOR these reasons given above, I only partly accept this appeal and modify the order of the trial court Appellants are directed to pay to the respondents or deposit in the trial court the arrears of rent from 16th of December, 1978 up to date within one month @ Rs. 6000.00 p.m.; out of this sum to be deposited they can have adjustment of Rs. 25,000.00 paid to the Municipal Corporation and of Rs. 98.457.00 still attached by the said authority. The appellants shall continue to pay or deposit future rent month by month by 15th of each succeeding month at the agreed rate referred to above.'

(9) Against the aforesaid order the tenant has come in second appeal to this court.

(10) I may notice another circumstance which has supervened since the filing of the appeal. In January 1983, the tenant filed an application under Section 45 of the Delhi Rent Control Act for a direction to the landlords to restore the supply of electricity to the demised premises. The landlords opposed the application on the ground that the electricity connection was disconnected because the tenant has failed to pay the electricity charges. The landlord denied that she had got the electricity disconnected. The said application is still pending. The situation as obtaining today is that the tenant has not paid the rent since January 1979 and the demised premises is without electricity.

(11) The main contention on behalf of the appellant-tenant is that after the landlord had discontinued the supply of electricity the tenant is en- titled to the suspension of the rent. It is not disputed that the rent since 1st January 1979 has not been paid. The tenant has only pleaded certain payments to the Municipal Corporation of Delhi on account of house-tax and a payment of Rs. 19,000.00 and odd amount to the Delhi Financial Corporation on 8th May 1984. It has also claimed adjustment of Rs. 42.000.00 deposited as security and Rs. 34,000.00 and odd amount on account of repairs.

(12) The crucial question that arises in the appeal is whether the tenant is entitled to the suspension of the rent.

(13) It seems to be a well settled law that in case a tenant is deprived of any part of the tenanted premises or a landlord without just and sufficient cause cuts off or withholds any supply or service enjoyed by the tenant in respect of the premises let to him the tenant can claim suspension of rent or claim abatement of the rent in proportion to the extent and nature of deprivation of the demised premises or the essential supplies. See Kailash Chand Jain v. Smt. Gayatri Devi Bhargava 1973 DLT 407, Ved Rattan and Brothers v. Janak Raj, 1979( 1) RCR 106; N.K. Baslas v. Krishan Lal 1973 RL 14; Hakim Sardar Bahadur v. Shri Tej Parkash Singh 1962 PLR 538 and Surendra Nath Bibray. Stephen Court Ltd., : [1966]3SCR458 .

(14) Shri Verma contended that the demised premises is an industrial establishment and the landlord had cut off the supply of electricity to the demised premises and this had resulted in a total deprivation of the enjoyment of the demised promises and the tenant was well within its rights to claim suspension of the whole of the rent after electric supply was disconnected in i- January 1980. Shri Verma does not dispute the liability to pay the rent from January 1979 to 25th January 1980. He only claims adjustments of the amounts paid by the tenant to the Municipal Corporation of Delhi, and the Delhi Financial Corporation in the account of the landlord and a few other amounts which I have noted earlier.

(15) The disconnection of the electric supply to the demised premises since about January 25, 1980 is not disputed. During the hearing of the appeal I permitted the parties to file additional affidavits on the question whether the tenant had at any time defauted in paying the electricity charges. The parties besides filing additional affidavits examined two witnesses from the electricity department. The demised premises had two temporary electric connections Nos. Ftp 1559 and Ftp 1560. The said electric connections were discontinued on 22nd November 1978 and the meters were removed. Shri M.L. Minocha, Junior Clerk, Desu, Shankar Road, New Delhi, gave evidence that the electricity charges due on the said two connections on the date the meters were removed were Rs. 3560-30 in respect of connection No. Ftp 1559 and Rs. 272-42 in respect of connection No. Ftp 1560. The witness further stated that the final bills regarding the electricity charges due on the above said two connections were prepared on 23rd July 1980 and were sent with office letter dated 5th March 1981, to the consumer M/s. Capital National Builders, at C-38, Kirti Nagar, Delhi (address of the landlord). Thewitnessfurtherdeposedthatthe security amount was adjusted against the said bills and the balance of Rs. 2636-42 was paid on 23rd August 1982 (the said amount was paid by the tenant).

(16) Shri Mohan Singh, Assistant Electrical Engineer, Desu gave evidence that electric connection No. FT-2/549 was installed at the premises on 24th November 1978 and electric connection No. FT-2-/559 on 7th December 1978 and that the electric connection No. 549 was discontinued on 24th January 1980 and the second connection on 25th January 1980. The witness stated that electric connection No. 549 was discontinued at the instance of the consumer, that is, M/s. Capital National Builders, A-21/13, Naraina Industrial. Area, and the second connection was disconnected on the advise of their commercial office at Shankar Road. The witness stated that the record brought by him does not show that the said two electric connections were disconnected on account of any arrears in the payment of electricity bills.

(17) I may straightaway say that there is nothing on the record to show that electric connections No. 549 and 559 were disconnected on 24/25th January 1980 due to non-payment of electricity charges. Electric connection No. 549 was disconnected on 24th January 1980 at the instance of the consumer and electric connection No. 559 was discontinued on 25th January 1980 on the advice received from the Commercial Office at Shankar Road.

(18) Shri Bedi, learned counsel for the landlord, contended that, ad- mittedly, the tenant defaulted in paying rent with etfect from 1st January 1979 and a tenant at fault in paying rent cannot invoke the doctrine of the suspension of rent.

(19) The counsel in support of his contention relied on Anil Sachdeva v. Two Brothers Pvt. : 22(1982)DLT194 wherein Mr. Justice Yogeshwar Dayal held :

'THATfor clause (c) of Section 108A, Transfer of Property Act to come into operation the condition precedent is that the lessee pays the rent reserved by the lease and performs the contract bin- ding on the lessee. It is only then there is a duty on the Lesser not to interrupt in the peaceful use of the premises by the tenant. But once the prima facie conclusion has been reached that the lessee has not performed his part of the contract and was in arre- ars of rent reserved by the agreement, the tenant cannot take the benefit of the principles of suspension of rent.'

(The said case is under appeal to the Supreme Court and the Supreme Court has made some interim directions regarding the payment of rent).

(20) Shri Verma, learned counsel for the tenant, contended that the Rent Control Act is a complete Code and regulates the rights and obligations of both the landlord and the tenant and in case the tenant was in default in paying the rent the remedy open to the landlord was to move the Rent Controller for the eviction of the tenant for non-payment of rent and it was not open to the landlord to cut off the electric connection or withhold any other essential supply enjoyed by the tenant.

(21) Shri Bedi contended that Section 45 of the Rent Control Act provides that no landlord either himself or through any person purporting to act on his behalf shall without just and sufficient cause cut off or withhold any essential supply or service enjoyed by the tenant in respect of the premises let to him and in case the landlord contravenes the provisions of Sub-section (1) a tenant can make an application to the Controller complaining of such contravention. Shri Bedi contended that the tenant did not have recourse to the provisions of Section 45 until January 1983. The counsel contended that the landlord has pleaded in the replication that the tenant has. taken electricity from a neighbouring industrial establishment and the tenant was enjoying the property as well as not paying the rent.

(22) It is true that the Rent Control Act regulates the rights and obli- gations of both the landlord and the tenant. It is also true that a landlord under Section 14(1) can file an application for the eviction for the tenant guilty of non-pay.Tient of rent. A tenant also can in the case of a landlord cutting off or withholding an essential facility enjoyed by a tenant in respect of the demised premises file an application under Section 45 for the restoration of the essential supply cut off or withheld.

(23) The license deed shows that Shri Som Nath Dandona, the prede- cessor-in-interest of the present landlords, had permitted M/s. Apparel Trends to use the industrial premises A-21/13, Naraina Industrial Area, on a license fee of Rs. 6003'- per month for carrying on trade of handloom and readymade garments- The license deed provided that in case the licensee failed to pay license fee of Rs. 6000.00 payable in advance on or before 10th of each English calendar month the licensee besides .rendering his license to be revoked shall be liable to pay additional license fee as may be fixed by the licensor for the period during which he commits default and remains in the occupation of the said industrial building. On the failure of the tenant to pay license fee the licensor had filed a suit in 1980 for recovery of the possession of the demised premises but the tenant pleaded that the license was a regular lease and the civil courts had no juris- diction. On the above plea the landlords withdrew the suit and filed an application for eviction of the tenant for non-payment of rent in May 1981.

(24) The tenant admittedly has paid no rent with effect from 1st January 1979. Actually, the landlords have not recalled a single penny as rent till date. The conduct of the tenant in not paying the rent seems to be contumacious and deliberate. The electric connections were disconnected on 24/25th January 1980 (assuming at the instance of the landlords) the tenant did not move the Rent Controller under Section for restoration of the electric supply. The tenant filed an application under section 45 only in January 1983. It seems, either the business of the tenant was not affected by the discontinuance of the electric supply or the landlords may be right in contending that the tenant has taken electricity from a neighbour- ing industrial establishment. It seems that sometime in 1980 a notice was served on the tenant by the Delhi Municipal Corporation attaching the rent and asking the tenant to deposit the ren with Delhi the Municipal Corporation. The said demand was probably on account of arrears of house-tax. The tenant in para 18 of the reply has stated that it had been paying to the Municipal Corporation of Delhi the rental the rate of Rs. 50uU.00 per month with effect from January 1980 uptill September 1981 and that a sum of Rs. 75,000.00 had been paid to the Municipal Corporation of Delhi pursuaat to their attachment order and that since there was no electricity and water in the premises in dispute the tenant had been deduc- ting the proportio iate sum of Rs. 1000.00 from the rent although the pro- portionate deduction should have been much more. I may add here that the case of the tenant is that the rent of Rs. 6000,'- was inclusive of water and electricity charges. It seems from the above averments that the tenant had appropriated Rs. 1000.00 out of the agreed rent ofRs.6000.00 towards electricity and water charges. (I may state here that there is no dispute in regard to water supply. The tenant admits that it had got the water connect'on within two or three months of disconnection).

(25) A question arises whether on the facts alleged tenant is entitled to the supension of rent with effect from 25th January 1980. The answer, in my opinion, should be in the negative. The tenant, it seems, deliberately stopped payment of rent from 1st January 199. (The case of the landlords is that the tenant had stopped paying rent from 16th December 1978). On the default in the payment of rent the landlords terminated the license and filed a suit for recovery of possession which was resisted by the tenant on the ground that the deed in reality was a lease and the civil courts had no jurisdiction. The landlords thereafter filed the application for eviction on the ground of non-payment of rent. The tenant has admittedly not paid a single penny by way of rent to the landlords till date. Even after excluding the payments said to have been made to the Delhi Municipal Corporation and the Delhi Financial Corporation about Rs. 2,50,CLO.00 are due to the landlords on account of rent. The tenant took no steps under Section 45 of the Rent Control Act after the electricity was cutoff. The tenant has derived huge benefit by withholding the payment of rent. The interest alone on the amount of Rs.2,50,000.00 would come to about Rs. 37.000.00 per year.

(26) The principles governing 'suspension of rent' are based on justice, equity and good conscience. It will depend on the facts of each case whether a tenant is entitled to the suspension of rent. I see no equity in favor of the tenant. On balancing the facts and circumstances I hold that the tenant is not entitled to invoke the principles of suspension of rent)

(27) I direct that the tenant would pay all the arrears of rent with effect from 16th December 1978 uptill 31st August 1984 at the rate of Rs. 6000.00 per month within one month from today. He shall in future continue to pay the rent at the rate of Rs. 6000.00 per month by the 15th of each month. The tenant shall be entitled to deduct the following amounts from the said payment:

(1)Rs. 75,000.00 said to have been paid to the Delhi .Municipal Corporation on account of municipal taxes due from the landlord. I may mention here that the landlords have stated that some of the cheques given by the tenant were dishonoured. The tenant has filed an affidavit giving the particulars of the payment and claimed that it has paid till date Rs. 75,000.00 to the Delhi Municipal Corporation on account of the municipal taxes due from the landlords. If during the hearing of the petition it is found that' any of the payments said to have been made to the Corporation by the tenant is not proved to have been paid the tenant shall pay. the said amount to the landlord.

(2)Rs. 19,255.68 paid to the Delhi Financial Corporation in the account of the landlords on 18th May 1984.

(3)The tenant had deposited Rs. 42.000.00 as security. The landlords have stated that out of the said amount Rs. 21.000.00 have been adjusted in the rents paid by the tenant up to 16th December 1978. The tenant can adjust the balance of Rs. 21,000.00 in the amount to be paid by it to the landlords as arrears of rent. Regarding the balance of Rs. 21,000.00 it shall be a matter of evidence before the Rent Controller whether the said amount of Rs. 21,000.00 is outstanding or has been adjusted. The tenant has in addition claimed Rs. 24.000.00 as white-washing etc. and another Rs.l0,000.00 and odd amount on account of repairs. The said amounts are not accepted by the landlords and, thereforee, it shall be a matter of proof whether the tenant is entitled to the adjustments of the said amounts and it shall be decided by the Controller.

(4)The balance of attached amount which according to the order of the Tribunal would be Rs. 48, 457.00 can also be retained by the tenant. But the tenant shall deposit the said amount with the Delhi Municipal Corporation within one month. The tenant cannot be allowed to keep this amount in his pocket and deposit it at his whim. In case the tenant defaults to deposit the said amount within the time mentioned above, the landlords can move an application for appropriate orders to the Additional Rent Controller.

(5)The landlords shall immediately take steps to have the electricity restored in the demised premises.

(28) Before concluding, I must deal with the preliminary objection raised by Shri Bedi, learned counsel for the respondents. Shri Bedi contended that the tenant has not filed a certified copy of the order of the Additional Rent Controller and, thereforee, there is no competent appeal before the court and the appeal be thrown out as barred by time.

(29) This second appeal against the order of the Tribunal was filed on 12th October 1982. The appeal was accompanied by a certified copy of the grounds of appeal and the order of the Tribunal and an uncertified copy of the order of the Rent Controller also was filed. 'The appeal was accompanied by an application Cmp No. 3327 of 1982 in which the appellant had stated that it had filed an application for obtaining certified copy of the order of the Rent Controller but the certified copy had not been received so far and, thereforee, prayed that the court may exempt the filing of the certified copy of the order of the Additional Rent Controller dated 24th March 1982 and pass such other and further orders as this court may deem fit and proper to meet the ends of justice.

(30) On 13th October 1982 Mr. Justice Sultan Singh passed the following order in Cmp No. 3327 of 1982 :

'CERTIFIEDcopy to be filed in accordance with law.' Certified copy of the order has not been filed till date.

(31) On 13th August 1984 the appellant filed an application under Section 151 of the Code of Civil Procedure read with Section 5 of the Limitation Act staling therein that an application for obtaining certified copy of the order of the Additional Rent Controller was filed but it was returned on 29th November 1982 on the ground that the records had gone to the High Court, that thereafter on 10th January 1983 another application was filed for obtaining the certified copy of the order of the Additional Rent Controller but this was also returoed on 3rd February 1983. The appellant has stated that since the original records were received in this Court on 12th November 1982 the appellant was advised by its advocate that there was no need to obtain a certified copy of the order of the Additional Rent Controller. The appellant pleaded that it was under a genuine and bonafide belief that no further steps were taken for filing a certified copy of the order of the Additional Rent Controller. It was also pleaded that the Delhi Rent Control Act does not require the filing of a certified copy of the order of the trial Court. It was also pleaded that there was no limitation prescribed for filing a certified copy of the order of the Additional Rent Controller in a second appeal under Section 39 of the Delhi Rent Control Act. The appellant at the end prayed that the filing of the certified copy of the order of the Additional Rent Controller be dispensed with and that in any case the delay, if any, on the part of the appellant in not filing the certified copy of the order dated 24th March, 1982 be condoned.

(32) I may mention that even now there is no certified copy of the order of the Additional Rent Controller on the record.

(33) Shri Bedi contended that the court while admitting the appeal had in civil miscellaneous No. 3327 of 1982 passed an order that certified copy of the order of the Additional Rent Controller be filed in accordance with law. The counsel contended that it was obligatory for the appellant to file a certified copy of the impugned order as well as a certified copy of the order of the first court and in the absence of a certified copy of the order of the Additional Rent Controller there is no competent appeal. The counsel further contended that the Explanationn offered by the appellant for not filing the certified copy of the order of the Additional Rent Controller shows a clear negligence on the part of the appellant and his counsel in not obtaining and filing the certified copy of the order of the first court. The counsel further contended that even if the appellant is now permitted to file the certified copy of the order of the first court the appeal would be barred by time.

(34) Shri Bedi in support of his contention has referred to the following authorities : (1) Amal MalSindhiv. Shri Ram Parkash, : 20(1981)DLT22 . Mr. Justice Sultan Singh held in the cited pase that if certified copy of the Controller js not filed along with the copy of the impugned order within limitation, and there is no Explanationn for the delay then appeal is barred by time; (2) Malik Chand v. Zubeda Begum and others I.L.R. (1974) Del 160. Mr. Justice H.L. Anand in the said case after discussing the entire case law on the subject held as under :

'...THATthe memorandum of appeal must be accompanied by certified copies of the order appealed against as also of the order made in the first instance;

THATas the appeal, in the instant case, was incomplete and incompetent without the accompaniment of the certified copies of the impugned order and of the order made in the first instance, the admission of the appeal to a hearing did not validate it, the exemption granted to the appellant from filing the certified copy of the impugned order and the direction that the same may be filed as early as possible was without the authority of law, as no such exemption could be granted and that the appeal would be deemed to have been validly instituted only after the necessary copies were filed by the appellant; that the certified copy not having been filed within time in this case, the appeal was barred by time; that in determining whether there was sufficient cause for condensation of delay in a particular case wherein certified copy of impugned order has not been filed within time the following principles may be kept in view;

IT is a well settled that where any suit or proceedings are barred by limitation, the opposite party gets a very valuable right and when the party in default seeks to justify the delay, it must explain every day of the delay. It is equally well settled that the expression 'sufficient cause' should be so constructed as to advance substantial justice and should receive liberal construction when no negligence or inaction or want of bona fide are involved. It is equally well settled that normally the negligence of an agent is the negligence of a party and the only exception to this rule may be cases in which the party had not merely left the matter to the agent but had taken all other steps that were necessary to prosecute the proceedings and notwithstanding that, the agent was guilty of negligence or the delay had been occasioned by a bona fide mistake of the agent.'

All the above authorities support the contention of Shri Bedi.

(35) Shri Verma contended that the requirement of the filing of a certified copy of the order of the Additional Rent Controller in a second appeal is merely a procedural technicality and this court should not throw out the appeal merely because a certified copy of the order of the first court has not been filed, especially when the entire record containing the original order is before the court. The counsel relied upon Raj Kapoor and others v. State (Delhi Administration) and others, : 1980CriLJ202 .

(36) I have gone through the cited authority carefully and, in my view, it is distinguishable and not applicable to the case in hand. The judgment delivered by Mr. Justice Pathak shows that the counsel for the parties had agreed that the High Court should not have rejected the revision petition at the stage it had reached and that the matter called for a decision on merits. Mr. Justice Krishna lyer, observed :

'..The dismissal by the High Court, on a little point of procedure, has led to this otherwise avoidable petition for special leave, at a time when torrents of litigation drown this court with an unmanageable flood of dockets. The negative order under challenge was made by the High Court refusing to exercise its inherent power under Section 482 of the Criminal Procedure Code (the Code, for short) because the subject fell under its revisional power under Section 397 and this latter power was not unsheathed because a copy of the short order of the trial court had not been filed as required not by the Code, but by a High Court Rule, although the original order, together with all the records, had been sent for and was before the court. A besetting sin of our legal system is the tyranny of technicality in the name of finical legality, hospitably entertained sometimes in the halls of justice. Absent orientation, justicing becomes 'computering' and ceases to be social engineering.'

(37) The above decision, in my opinion, is on its own peculiar facts and will not govern the case in hand. Mr. Verma contended that if at all it was his mistake since he advised the appellant that there was no need to apply for a certified copy of the order of the first court as resord contain- ing the original order of the first court is in the High Court, lgnorance of law is no excuse and more so in this case because the person pleading ignorance or mistake is a senior lawyer who is supposed to be abreast with law- at least of the court where he is practicing. The long catena . of authorities to which I have referred to above and which are all of this court clearly hold that in a second appeal under the Rent Control Act certified copy of the impugned order as well as a certified copy of the order of the first court have to be filed and without a certified copy of either the Rent Control Tribunal or the Rent Controller the appeal is not valid and competent. With a little study of the case law on the subject the learned counsel would have found out that a certified copy of the order of the Additional Rent Controller had to be filed. The contention of the learned counsel that he had advised the appellant not to file an application for obtaining the certified copy of the order of the Additional Rent Controller since the record containing the original order had reached the High Court, in my view, would be no answer to the mandatory requirements of the law.

(38) For the reasons stated I hold that there is no competent appeal. In any case, the appeal is barred by time and there is no sufficient cause either to dispense with the filing of the certified copy of the order of the Additional Rent Controller or to now allow the appellant to file a certified copy of the order of the Additional Rent Controller since now it would be barred by time.

(39) I have chosen to decide the appeal both on the preliminary objection as well as on merits in order to avoid a remand. The landlords (a widow and her minor children) have been hit hard by their not receiving the rent since 16th December 1978. This property may, as well, be the only source of livelihood of the family. With the modifications indicated the appeal is dismissed, but I leave the parties to bear their own costs. The parties shall appear before the Additional Rent Controller concerned on 25-9-1984.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //