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Gurdit Singh Bajaj Vs. Ramesh Chander - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 276 of 1980
Judge
Reported inAIR1981Delhi217; 19(1981)DLT178; 1981(2)DRJ98; 1981RLR247
ActsDelhi Rent Control Act, 1958 - Sections 39
AppellantGurdit Singh Bajaj
RespondentRamesh Chander
Advocates: S.L.Verma,; H.L. Sabarwal and; Y.K. Sabharwal, Advs
Cases ReferredS.A. Gaffoor v. Ayesha Begum
Excerpt:
delhi rent control act, 1958 - section 39--application under proviso to section 39 for condensation of delay on the ground that after excluding the time spent in obtaining the certified copies of the orders of the rent controller and the kent control tribunal, the appeal is within time.; the appeal is governed by the rules of the high court besides code of civil procedure and the limitation act. the time spent in obtaining the order of the court of first instance cannot be excluded under section 12(3) of the limitation act. - - on or before 19/1/1980. in the application for condensation delay there is no explanationn why the second appeal was not filed during the period from 19/1/1980 to 1/2/1980. it is well settled that the appellant has to explain each day's delay......2179/80, under the proviso to section 39 of the act. his contention is that after excluding the time spent by him in obtaining the certified copies of the order of the rent controller and the rent control tribunal the appeal is within time. the copy of the order of the tribunal was applied on 16/11/1979 and it was ready for delivery on 22/11/1979. the copy of the order of the rent controller was applied on 17/11/1979 and it was ready for delivery on 6/12/1979. this second appeal was filed on 1/2/1980. (2) the delhi rent control act, 1958, is silent as to what procedure the high court is to follow in dealing with the second appeals. an appeal in the high court is governed by the normal procedure applicable to the second appeals in the high court. the high court in dealing with the.....
Judgment:

Sultan Singh, J.

(1) This second appeal under Section 39 of the Delhi Rent Control Act, 1958 is directed against the judgment and order of the Rent Control Tribunal dated 30/11/1979. The appeal is barred by time, The appellant has filed this application, C.M. 2179/80, under the proviso to Section 39 of the Act. His contention is that after excluding the time spent by him in obtaining the certified copies of the order of the Rent Controller and the Rent Control Tribunal the appeal is within time. The copy of the order of the Tribunal was applied on 16/11/1979 and it was ready for delivery on 22/11/1979. The copy of the order of the Rent Controller was applied on 17/11/1979 and it was ready for delivery on 6/12/1979. This second appeal was filed on 1/2/1980.

(2) The Delhi Rent Control Act, 1958, is silent as to what procedure the High Court is to follow in dealing with the second appeals. An appeal in the High Court is governed by the normal procedure applicable to the second appeals in the High Court. The High Court in dealing With the second appeal under Section 39 of the Act must, thereforee, act in accordance with the Code of Civil Procedure and the Rules of this Court. In National Sewing Thread Co. Ltd. v. James Chandwick & Bros. Ltd. 1953 SCR 357 it was held that the High Court had to exercise its appellate jurisdiction under Section 76 of the Trade Marks Act, 1940, in the same manner as it exercised its other appellate jurisdiction as the Trade Marks Act did not make any provision with regard to the procedure to be followed by the High Court in the appeal. Again, in Collector, Vuranasi v. Gouri Shanker Misra and others, : [1968]1SCR372 it is observed that the appeals under Section 19(l)(f) of the defense of India Act, 1939, have to be disposed of just in the manner as other appeals to the High Court. It is further observed that after the appeal has reached the High Court, it has to be determined according to the rules of practice and procedure of that Court. Thus, it seems to me that the present appeal is governed by the rules of this Court besides the Code of Civil Procedure and the Limitation Act. Under Section 12(3) of the Limitation Act, the time spent in obtaining the certified copy of the impugned order is excluded for calculating the period of limitation for preferring an appeal. No provision has been pointed out to me under which the time spent by the appellant in obtaining the copy of the order of the first instance i.e. the Rent Controller is this case can be excluded. Thus, if the lime spent in obtaining the copy of the order of the Tribunal is excluded the appeal ought to have been filed on or before 19/1/1980. As already stated, the appeal was filed on 1/2/1980.

(3) In Bhagwan Dass Gupta v. Mukat Lal & others, 1970 PLR 78 it has been held that only those days which are spent by the appellant in actually obtaining the copy of the judgment of the court of first instance after the expiry of the period of limitation and till the delivery of the copy to him plus time as may be reasonably spent thereafter in drafting the grounds of appeal etc. would be regarded as sufficient cause for condensation of the delay in preferring the appeal under Section 5 of the Limitation Act. It is also held that the time spent in obtaining the copy of the judgment of the court of first instance cannot be allowed under Section 12(3) of the Limitation Act. The tin. e for filing the appeal expired on 19/1/1980 and the order of the court of first instance in this case was ready for delivery on 6/12/1979, and as such it seems that the appellant was not prevented by any cause from filing the appeal within time i.e. on or before 19/1/1980. In the application for condensation delay there is no Explanationn why the second appeal was not filed during the period from 19/1/1980 to 1/2/1980. It is well settled that the appellant has to explain each day's delay. As there is no Explanationn the appeal is barred by time.

(4) Learned counsel for the appellant contends that the Limitation Act does not apply to the appeals under the Act and relies upon Subhash Chander v Rehmat Ullah I.LR. 1973 Del 181. This judgment does not support the contention of I he appellant. The Division Bench in that case held that the Limitation Act, 1963 applies only to a court and though the Controller under the Delhi Rent Control Act 1958, may have some of the trappings of a court, he is not a court stricto sensa and is not within the meaning of the Limitation Act. This judginsnt relates to the Controller, an authority under the Act, but as already observed, this second appeal is to toe governed by the procedure of this Court applicable to other appeals. The The learned counsel further ralies upon S.A. Gaffoor v. Ayesha Begum & Ors. 1970 (2) UJ 784 wherein the Supreme Court excluded the time spent in obtaining the certified copy which was not required to be filed with the memorandum of appeal. The copy of the judgment in that case was the impugned judgment which is to be excluded under Section 12(3) of the Limitation Act. It was not a case for exclusion of time spent in obtaining the copy of the court of first instance. The learned counsel next relies upon Jagat Ram Khullar and another v. Battu Mal A.I.R. 1976 Del 111 in support of his contention that time spent in obtaining the certified copy of the order of the Rent Controller is to be excluded. It seems to me that this judgment is not applicable in view of the earlier Division Bench judgment of this Court in Bhagwan Dass Gupta case (supra).

(5) As already stated, the certified copy of the order of the Rent Controller was ready on 6/12/1979 and the appellant could have filed the appeal on or before 19/1/1980, the last day of limitation. For the reasons known to the appellant, he waited till 1/2/1980. When he filed this second appeal, as already stated, no Explanationn for not filing the appeal on 19/1/1980, and thereafter up to 1/2/1980, was given. It is, thereforee, held that the present appeal is barred by time and no sufficient cause has been made out to condone the delay in filing the appeal on 1/2/1980. The application for condensation of delay is, thereforee, dismissed. The appeal being barred by time is accordingly dismissed. No order as to costs.


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