Delhi District Court
M. G. Dass vs Smt. N. Raghubir Singh /Ravi Bir Singh on 6 May, 2011
IN THE COURT OF SH. R.K. GAUBA: DISTRICT JUDGE
(SOUTH) - CUM - ADDITIONAL RENT CONTROL
TRIBUNAL, SAKET, NEW DELHI
ARCT No. 27/2010
ID No.: 02403C0278792010
M. G. Dass
son of late Sh. P. L. Gupta,
Resident of G19, Lajpat NagarIII,
New Delhi 11 00 24. ... Appellant.
Versus
1. Smt. N. Raghubir Singh /Ravi Bir Singh,
Through its legal representatives:
(a) Smt. Jaslina Kaur
R/o A99, GF Flat No.3,
Rampuri, Ghaziabad.
(b) Mr. Jai Kiran Singh,
R/o A99, GF, Flat No.3,
Ram Puri, Ghaziabad.
(c) Mr. Amarjeet Singh,
R/o A207, Sarita Vihar,
RCA No. 27/10 M. G. Dass Vs. N. Raghubir Singh/Ravi Bir Singh through LRs 1 of 21
New Delhi 11 00 76.
(d) Mr. Jaswinder Singh,
R/o A99, GF, Flat No.3,
Rampuri, Ghaziabad. .... Respondents.
Instituted on:21.08.2010
Judgment reserved on: 06.05.2011
Judgment pronounced on :06.05.2011
O R D E R
1. This appeal under Section 38 of Delhi Rent Control Act, 1958 (hereinafter referred to as "DRC Act") has been preferred against the order dated 05.06.2010 passed by Sh. Kuldeep Narain, Additional Rent Controller (South) hereinafter referred to as "the ARC") in proceedings arising out of eviction petition No. 130/09, whereby the application under Order 22 Rules 3 and 9 read with Section 151 CPC of the respondents herein was allowed and they were substituted in place of Ravi Bir Singh (their predecessorininterest) after his death on 06.05.2009. Vide the same order, learned ARC also decided application under Order 6 Rule 17 CPC of the appellant finding it merit less and, therefore, declining permission for amendment of the RCA No. 27/10 M. G. Dass Vs. N. Raghubir Singh/Ravi Bir Singh through LRs 2 of 21 written statement.
2. The appeal filed on 21.08.2010 is accompanied by an application for condonation of delay based mainly on the submission that the appellant came to acquire knowledge about the impugned order only on 19.07.2010.
3. When the appeal was filed besides the respondents, who are the four legal heirs of late Smt. N. Raghu Bir Singh and Ravibir Singh, (hereinafter, referred to as "the landlords"), four other persons were impleaded as respondents in the appeal. The Learned counsel for the appellant, however, made a statement on 12.10.2010 that the said persons were only proforma respondents and no relief was sought against them. On the basis of request made in his statement, the names of the said other respondents came to be deleted from the array of the parties.
4. On notice, landlords appeared and have resisted interalia, the application for condonation of delay, also filing, in the context of the grounds pleaded for delay, an application under Section 340 read with Section 195 Cr.P.C. seeking the prosecution of the appellant for having given false evidence in judicial proceedings.
5. The trial court record has been called for. RCA No. 27/10 M. G. Dass Vs. N. Raghubir Singh/Ravi Bir Singh through LRs 3 of 21
6. I have heard Sh. N.K. Kukreja, advocate for the appellant and Sh. Sunil Malhotra, advocate for the respondents/landlords at length on the applications of appellant for condonation of delay and of the respondents under Section 340 Cr.P.C. I have gone through the trial court record.
7. It is pertinent to trace, albeit in brief, the history of this case which began on 20.02.1982. The eviction petition pending before the court of ARC was filed by Mrs. N. Raghubir Singh for eviction of the appellant from the tenanted premises described as 19G, 3rd, Lajpat Nagar, New Delhi on the ground of bonafide need for herself and members of her family dependent on her for residential use. The appellant on being noticed was allowed the leave to contest. Thereafter, the case entered trial.
8. The original petitioner Ms. N. Raghubir Singh expired on 18.01.1984. Her son Mr. Ravi Bir Singh moved an application under Order 22 Rule 3 CPC seeking to be substituted. The said application was allowed by the ARC vide order dated 05.11.1988. The said order, however, came to be set aside by ARCT in appeal vide order dated 24.07.1989. Thereafter, Mr. Ravi Bir Singh moved another application under Order 22 Rule RCA No. 27/10 M. G. Dass Vs. N. Raghubir Singh/Ravi Bir Singh through LRs 4 of 21 3 CPC on 29.07.1989. The said application came to be allowed vide order dated 03.02.1994, whereby he stood substituted as the petitioner in place of Ms. N. Raghubir Singh, the original petitioner. On the basis of the said second application, the sisters of Mr. N.Raghubir Singh also came to be impleaded as proforma respondents. The said sisters included Mrs. Indira Bhambral, who later expired and, on the application of Ravi Bir Singh (the substituted petitioner), legal heirs of the said deceased sister also came to be impleaded. It may be mentioned here, and has been conceded by both sides during the hearing, in this court, the matter has been contested before the ARC only between respondents/landlords in this appeal and the appellant. The other legal heirs of Smt. N. Raghubir Singh have not participated despite notice and have been set exparte.
9. The matter had reached the stage of final arguments on 04.03.2003 in terms of order dated 13.01.2003. For some reason or other, the matter kept hanging fire at that very stage. On 21.07.2008, the appellant moved an application under Order 6 Rule 17 CPC seeking amendment of the written statement, interalia, referring to a document purporting to be dated 13.06.2007 styled as advance receiptcumagreement to sell and RCA No. 27/10 M. G. Dass Vs. N. Raghubir Singh/Ravi Bir Singh through LRs 5 of 21 purchase, stated to have been executed by Mr. Ravi Bir Singh, his sister Smt. Rama Kaushik and two legal heirs of the deceased sister seeking to sell the property in question in favour of Smt. Kaushal Gupta wife of the appellant. While this application was pending consideration, Mr. Ravi Bir Singh, the substituted petitioner died on 06.05.2009. Therefter, his legal heirs (respondents/landlords herein) moved an application under Order 22 Rule 3 and 9 CPC which came to be allowed, as noticed earlier, by the same order which has been impugned, passed on 05.06.2010.
10.Though, the appellant has been filed generally challenging the order dated 05.06.2010, it was submitted during the course of hearing by the counsel for the respondents/landlords that he is seeking to question the legality and correctness of the impugned order only so far as thereby his application under order 6 Rule 17 CPC came to be dismissed.
11.The provision contained in Section 38 DRC Act permits the appeal from every order of the Rent Controller to the Rent Control Tribunal. The limitation for filing such an appeal is, however, prescribed as 30 days from the date of the order in question, in terms of provisions contained under Section 38(2) RCA No. 27/10 M. G. Dass Vs. N. Raghubir Singh/Ravi Bir Singh through LRs 6 of 21 of DRC Act. Admittedly, the appeal has not been filed within the period of 30 days as counted from the date of the impugned order passed on 05.06.2010.
12.In view of the above, the application (under consideration) has been moved seeking condonation of delay. The grounds whereby the delay is sought to be explained are mainly that when the matter arising out of the applications had been heard by the learned ARC on 25.02.2010, it had been adjourned for orders to be passed on 25.03.2010. Thereafter, for some reason or the other, the order could not be pronounced. It is stated that on 03.05.2010, the matter was adjourned by the Reader for 19.07.2010 which was the date noted by the counsel for the appellant. It is stated that the order came to be pronounced on 05.06.2010, of which knowledge was acquired only on 19.07.2010.
13.The above contentions are refuted by the respondents/landlords. They have come with detailed pleadings seeking to show that the claim about knowledge (about the order) having been gained only on 19.07.2010 is a falsehood, intentionally pleaded. On this ground, it has been submitted that the appellant is not entitled for condonation of delay.
RCA No. 27/10 M. G. Dass Vs. N. Raghubir Singh/Ravi Bir Singh through LRs 7 of 21
14.I have been taken through the record by both sides during the course of arguments. For purposes of appreciating the contentions of both sides, it is essential to take note of the proceedings recorded by ARC on the judicial file.
15.The trial court record shows that Sh. Kuldeep Narain, ARC heard arguments on both the applications on 25.02.2010, when, noticeably both sides were duly represented by their respective counsels. He listed the matter for orders on the said applications on 25.03.2010. On 25.03.2010, the ARC was away on some administrative duty in the High Court. Hence, in his absence, the Reader adjourned the matter for 19.04.2010. On both dates, the proceedings confirm presence of the parties through counsel. On 19.04.2010, the ARC was on leave and, in his absence, the Reader again adjourned the matter to 03.05.2010. The Presiding Officer of the court was on leave even on 03.05.2010. None appeared on either side and the matter was adjourned for proper orders to 15.07.2010 by the Reader.
16.It appears that during intervening period, respondents/landlords' counsel Sh. Sunil Malhotra moved an application under Section 151 CPC for preponement of the date. The said application RCA No. 27/10 M. G. Dass Vs. N. Raghubir Singh/Ravi Bir Singh through LRs 8 of 21 was taken up by the ARC on 06.05.2010. During the hearing on this application, attention of the learned ARC was drawn to an earlier order dated 06.05.2010, mainly to the effect that the matter was 27 years old for which reasons matter had been then preponed. The learned ARC was assured by the counsel, Sh. Sunil Malhotra, that the counsel for the appellant would be duly informed. The ARC allowed the prayer and preponed the matter from 15.07.2010 to 31.05.2010, also directing notices to be issued to the appellant, and his counsel, on appropriate steps to be taken.
17.On 31.05.2010 while none appeared for the landlords, Sh. N. C. Kukreja, advocate for the appellant appeared and sought time to file reply to the application for preponement of the date. The proceedings show that the ARC told the counsel for the appellant that date had already been preponed and notice had been issued by way of information about the date 31.05.2010 having been fixed for passing of the order. On the insistence of the counsel for the appellant to file a reply to application for preponement on the plea of "certain allegations" having been made, his reply was kept on record.
18.The ARC then posted the matter for 4 PM on that very day for RCA No. 27/10 M. G. Dass Vs. N. Raghubir Singh/Ravi Bir Singh through LRs 9 of 21 passing of the order.
19.The proceedings recorded at 4 PM on 31.05.2010 show that ARC had to leave the court for administrative meeting and, therefore, the Reader adjourned the matter for orders to be passed on 05.06.2010. As has been pointed out by the counsel for the respondents/landlords, the second order sheet recorded on 31.05.2010 shows the presence was "as before" and, therefore, indicative of the presence of the counsel for the appellant.
20.On 05.06.2010, the applications were decided vide a detailed separate order. The short order (by way of order sheet) shows the presence of counsel of both sides. After recording the result of the applications by way of separate order, learned ARC listed the matter for final arguments, if any, to be heard on 19.07.2010. On 19.07.2010, the proceedings show that none appeared for the landlords, while the appellant was present with counsel. The matter stood adjourned to 21.08.2010 for arguments since learned ARC did not have sufficient time left (for hearing) on that day.
21.The above narration of the proceedings recorded by ARC leaves no room for doubt that the appellant and his counsel were RCA No. 27/10 M. G. Dass Vs. N. Raghubir Singh/Ravi Bir Singh through LRs 10 of 21 not only well aware but had been duly informed by the ARC on 31.05.2010 that the case stood preponed from 15.07.2010 to 31.05.2010. Further, it leaves no room for doubt about the presence of the counsel for the appellant at both stages when the matter was taken up in the court on 31.05.2010, particularly when the matter was adjourned to 05.06.2010 for passing of the order. It further leaves no room for doubt that on 03.05.2010 the matter was not adjourned to 19.07.2010 (as has been claimed in the application for condonation of delay) but had been adjourned to 15.07.2010.
22.The fact that the date of hearing to which matter was adjourned from 03.05.2010 was not 19.07.2010 but in fact was 15.07.2010, is brought out even from the reply (to application for preponment) filed by the appellant on 31.05.2010 which was taken on record on the insistence of his counsel. Not only above, along with reply to the application for condonation of delay, the respondents/landlords have filed documents to show that Sh. Sunil Malhotra, advocate after securing the order of preponement of the matter on 06.05.2010 had sent a formal notice, by courier and by registered post, on 07.05.2010, to the appellant and his counsel. Noticeably, there is no rejoinder RCA No. 27/10 M. G. Dass Vs. N. Raghubir Singh/Ravi Bir Singh through LRs 11 of 21 filed to the said reply so as to join the issue on this claim.
23.In support of the claim to the above effect, copy of the diary of the counsel for the appellant has also been relied upon. I am afraid the diary of the counsel cannot become clinching document in the face of abundant material showing facts to the contrary on the judicial record. Further, the plea that the courts were on vacation from 06.06.2010 till 30.06.2010 does not help in as much as appeal is belated even if limitation started running from 01.07.2010. There is no explanation why the application for certified copy was filed only on 30.07.2010.
24.The above narration of facts demonstrates that the grounds pleaded for the condonation of delay, in general, and in support of the claim that the appellant gained knowledge of the impugned order only on 19.07.2010 in particular, are factually against the record, and in the nature of false statements and, therefore, not deserving to be acted upon.
25.The claim for condonation of delay has to be considered in above light.
26.The counsel for the appellant has placed reliance on Standard Pharmaceuticals Ltd. Vs. Gyan Chand Jain 2002 (97) DLT 290 and Wall Groser Forgings Vs. Murli Dhar 1998 (71) RCA No. 27/10 M. G. Dass Vs. N. Raghubir Singh/Ravi Bir Singh through LRs 12 of 21 DLT 472 to plead that the delay should be condoned so that the parties can continue to contest on merits.
27.It is true that in the case of Standard Pharmaceuticals Ltd. (supra), reference has been made to the judgment of Hon'ble Supreme Court in earlier case wherein the delay of nearly 18 years was condoned. But then, that cannot be said to have been laid down as the general law.
28.In Wall Groser Forgings (supra), the law laid down was that delay in filing the appeal can be condoned if malafide is not attributable to the appellant. In fact, this is the spirit of law relied upon by the opposite side as well.
29.The respondents seeking to contest the application for condonation of delay, have referred to the following:
(i) North Delhi Power Ltd. Vs. AAR ESS Industries 177 (2011) DLT 632;
(ii)U.O.I. & anr. Vs. Major K. K. Taneja 43 (1991) DLT 227 (DB);
(iii) M/s Democratic Builders Vs. U.O.I, 1992 (2) CCC 79;
(iv) Employees State Insurance Corporation Vs. M/s Ram Gopal Sat Narayan Poha Mill 1986 (2) CCC 677;
(v) Krishi Utpadan Mandi Smiti, Amroha Vs. Ganga Ram & Ors. 1993(1) CCC 127; and
(vi) Ajit Singh Thakur Singh & anr. Vs. State of Gujrat, AIR (1981) SC 733).
RCA No. 27/10 M. G. Dass Vs. N. Raghubir Singh/Ravi Bir Singh through LRs 13 of 21
30. In Ajit Singh Thakur Singh (supra), Hon'ble Supreme Court held in the context of application for condonation of delay that the cause pleaded as sufficient must be referable to the period prior to the expiry of the period of limitation. In Krishi Utpadan Mandi Smiti, Amroha (supra), Hon'ble Allahabad High Court observed that contradictory statements, gross negligence, absence of diligence and deliberate inaction on the part of the appellant having been found apparent on record the case did not justify condonation of delay. In Employees State Insurance Corporation (supra), the appellant was found not having come out with true allegations and, therefore, was held unable to show sufficient cause for condonation of delay.
31.In M/s Democratic Builders (supra) it was, inter alia, held that application seeking condonation of delay was required to explain delay of each and every day. With reference to Soorajmal Nagarmal Vs. Golden Fibre and Products AIR 1969 Calcutta 381, it had been reiterated that sufficient cause within the contemplation of Section 5 must be a cause which is beyond control of the party invoking the aid of the section. The cause for delay in making the application which by due care and RCA No. 27/10 M. G. Dass Vs. N. Raghubir Singh/Ravi Bir Singh through LRs 14 of 21 attention could have been avoided cannot be sufficient cause within the meaning of Section 5 of Limitation Act.
32.In Union of India Vs. Major K.K. Taneja (supra), the ground pleaded for condonation of delay was found to be "false" and, therefore, was held to be a circumstance which disentitled the appellant to any indulgence in the matter for condonation of delay.
33.The judgment in North Delhi Power Ltd. (supra), referred to two decisions of Hon'ble Supreme Court mainly Balwant Singh Vs. Jagdish Singh & ors. V (2010) SLT 790 and Ram Lal & others Vs. Rewa Coal Fields Ltd. AIR 1962 SC 36.
34.In the case of Balwant Singh (supra), Hon'ble Supreme Court made the following observations: "We may state that even if the term "sufficient cause" has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the concerned party. The purpose of introducing liberal construction normally is to introduce the concept of 'reasonableness' as it is understood in its general connotation. The law of limitation is a substantive law and has definitive consequences on the rights and obligations of a party to arise. These principles should be adhered to and applied RCA No. 27/10 M. G. Dass Vs. N. Raghubir Singh/Ravi Bir Singh through LRs 15 of 21 appropriately depending on the facts and circumstances of a given case. Once a valuable right, has accrued in favour of one party as a result of the failure of the other party to explain the delay but showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party."
(Emphasis supplied)
35. Hon'ble Court found the averments made by the applicant seeking condonation of delay to be "not correct" and ex facie lacking "bonafide". Against this back ground, it was observed as under: "The explanation has to be reasonable or plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. If it does not specify any of the enunciated ingredients of judicial pronouncements, then the application should be dismissed."
(Emphasis supplied)
36. In Ram Lal (supra), Hon'ble Court ruled as under: "7. In constructing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives RCA No. 27/10 M. G. Dass Vs. N. Raghubir Singh/Ravi Bir Singh through LRs 16 of 21 rise to a right in favour of the decree holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decreeholder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree holder by lapse of time should not be lightheartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan, ILR 13 Mad 269 It is however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that RCA No. 27/10 M. G. Dass Vs. N. Raghubir Singh/Ravi Bir Singh through LRs 17 of 21 diligence of the party or its bonafides may fall for consideration,....."
(Emphasis supplied)
37.It is clear from the above decision of Hon'ble Supreme Court, the bonafide of the applicant is one of the relevant considerations at the stage of adjudication upon the application for condonation of delay. It is on this basis that Hon'ble High Court in North Delhi Power Ltd. (supra) as under: "While dealing with an application for condonation of delay under Section 5 of the Limitation Act, the Court must bear in mind two important considerations. Firstly, the expiration of limitation for filing an appeal gives rise to a legal right to a decree holder to treat the decree as binding between the parties and this right should not be lightly disturbed. Second, if sufficient cause is shown for condonation of delay, the delay should be condoned. It has been repeatedly held by the Supreme Court of India that the words "sufficient cause" should receive a liberal construction so as to advance substantial justice. In the same breath, it has been held that the discretion should be exercised, when there is no negligence or inaction nor want of bonafides imputable to the appellant the Court must be satisfied that there was due diligence on the part of the appellant."
(Emphasis supplied) RCA No. 27/10 M. G. Dass Vs. N. Raghubir Singh/Ravi Bir Singh through LRs 18 of 21
38. Having regard to the above spirit of law on the subject of condonation of delay and taking into account the conduct of the appellant herein coming to the appellate court with application for condonation of delay on factually incorrect statement against the record, I am of the opinion that he does not deserve indulgence under Section 5 of Limitation Act. With these observations, the application for condonation of delay is dismissed. The appeal being time barred, it cannot be entertained.
39.Coming to the application under Section 340 Cr.P.C., I am conscious of the observations made in Dalip Singh Vs. State of Uttar Pardesh and others [(2010) 2 Supreme Court Cases 114] by Hon'ble Supreme Court as have been relied upon to the following effect: "Truth constituted an integral part of the justice delivery system which was in vogue in the pre Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, the postIndependence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, RCA No. 27/10 M. G. Dass Vs. N. Raghubir Singh/Ravi Bir Singh through LRs 19 of 21 misrepresentation and suppression of facts in the court proceedings. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is not well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final. "
40.Reliance has also been made on the views taken in Suo Motu Proceedings against R. Karuppan Advocate (2001) 5 SCC 298 Mahant Surinder Nath Vs. Union of India & ors 146 (2008) DLT 438, Ranjeet Singh Vs. The State of Pepsu AIR 1959 SC 843 and Afzal & anr. Vs. State of Haryana & ors. (1996) 7 SCC 397.
41.But, having given my considered thoughts to the prayer made, I do not find it expedient to refer the matter for criminal prosecution under Section 340 Cr.P.C. on the basis of false averments in the application for condonation of delay, since justice in my opinion stands substantially achieved with RCA No. 27/10 M. G. Dass Vs. N. Raghubir Singh/Ravi Bir Singh through LRs 20 of 21 application for condition of delay having been dismissed. The parties here have been locked in litigation now for 29 years. Initiating criminal prosecution at this stage will only open the doors for further litigation between them which may not see the end result during their life time.
42.With above observations, the application under Section 340 Cr.P.C. stands disposed of.
43.Trial court record be returned with copy of this order.
44.Appeal file be consigned to Record Room. Announced in open Court today on this 6th day of May, 2011 (R.K. GAUBA) District Judge (South) - cum -
Additional Rent Control Tribunal, Saket, New Delhi.
RCA No. 27/10 M. G. Dass Vs. N. Raghubir Singh/Ravi Bir Singh through LRs 21 of 21