Delhi District Court
Sh. Narender Kumar vs Smt. Premwati on 1 September, 2008
-:1:-
RCA No. 14/08.
IN THE COURT OF SH. GURDEEP KUMAR
ADDITIONAL RENT CONTROL TRIBUNAL
KARKARDOOMA COURTS, DELHI.
IN THE MATTER OF
Sh. Narender Kumar,
S/o Sh. Rameshwar,
R/o D-74, (New No. 129/3),
Gali No. 6, Vijay Colony,
New Usmanpur,
Shahdara,
Delhi-110053.
...Appellant
Versus
Smt. Premwati,
W/o Sh. Braham Singh,
R/o A-500, Ist Pushta,
Chaudhary Chander Gali,
Kaithwara, Usmanpur,
Delhi-110053.
...Respondent
O R D E R :-
Date of institution of case : 29.02.2008.
Date on which the judgment
has been reserved : 27.08.2008.
Date on which the judgment
has been delivered : 01.09.2008.
Contd..
-:2:-
RCA No. 14/08.
1. This is an application under Section 5 of Limitation Act filed by the appellant seeking condonation of delay in filing of appeal u/s 38 of DRC Act, 1958 (hereinafter to be referred as the Act) for setting aside impugned orders dated 17.11.2007 passed by the ld. Trial Court.
2. As borne out from the record, the appellant herein has filed a petition under Section 45 of the Act against the respondent / landlady on the ground that Sh. Rameshwar his father was induced as a tenant in a shop forming part of property bearing No. 500, A Block, First Pusta, Chaudhary Chander Gali, Usman Pur, Shahdara, Delhi on rent of Rs. 30/- per month including other charges. He has been running shop carrying out the repair of T.V and Radio etc. But the respondent / landlady filed a petition under Section 14 (1) (a) of the Act to evict the tenant from that shop. It was further averred that when he was out of station, the respondent disconnected the electricity supply to the tenanted shop.
Contd..
-:3:-RCA No. 14/08.
3. The respondent / landlady filed a written statement contesting the application stating that she had never supplied electricity to the tenant and there was no fitting of electricity in the shop; that the petitioner used to arrange electricity himself and no electricity connection was ever provided to him at the time of inception of tenancy.
4. Alongwith that petition under Section 45 of the Act, an application under Section 45 (3) of the Act was also filed seeking directions to the respondent / landlady to restore the electricity supply in the tenanted shop during pendency of the petition. After hearing ld. Counsels for both the parties, the ld. Trial Court vide impugned orders dated 17.11.2007 deferred orders on that application till further orders and listed the case for petitioner evidence. Aggrieved by that order, the appellant filed an appeal under Section 38 of the Act. Since the appeal has been filed much after the expiry of the limitation period, he has filed the present application under Section 5 of the Limitation Act seeking condonation of the delay in filing that appeal.
Contd..
-:4:-RCA No. 14/08.
5. I have heard ld. counsels for both the parties on that application. I have considered the submissions made by ld. counsels for the parties and gone through the relevant material on record.
6. The impugned order under challenge in appeal was passed by the ld. Trial Court on 17.11.2007. Appeal under Section 38 of the Act has been filed on 29.02.2008. As per the record, appellant had applied for certified copy of the impugned order on 28.11.2007 and he got the certified copy on 03.12.2007. In the light of this, the appellant could have filed appeal latest by 24.12.2007. However, the appeal has been filed on 29.02.2008 i.e. after a lapse of more than 2 months after expiry of the limitation period prescribed for filing the appeal. The only contention of the appellant is that the appeal could not filed in time because his counsel Mr. J. P. Srivastava, Advocate had met with an accident. So delay on his part is neither willful nor intentional and, therefore, he is entitled for condonation of Contd..
-:5:-RCA No. 14/08.
delay in filing the appeal. In support of that contention, he has placed on record photo copy of M.L.C. dated 16.11.2007 issued by G.T.B. Hospital, Shahdara, Delhi in the name of Mr. Jai Prakash (Advocate). Perusal of that M.L.C. does not reveal that Mr. Jai Prakash (Advocate) had suffered any fracture or any injury of grievous nature on account of which he can be said to be bed ridden or unable to pursue his normal course after 16.11.2007. He has also placed on record a medical certificate dated 26.02.2008 issued by a Doctor of Shanti Clinic, Amar Vihar, Main Karawal Nagar Road, Delhi in which it is stated that Mr. J.P. Srivastava had met with an accident and he had sustained fracture for which he was advised medical rest from 17.12.2008 to 26.02.2008. It is noticed that the said medical certificate is not corroborated by the M.L.C. Besides, the said medical certificate has not been signed by Mr. J.P. Srivastava (Advocate) as a patient examined by the Doctor. No medical record has been placed on record in order to show that Mr. J. P. Srivastava (Advocate) had suffered fracture in that accident. For that purpose, a mere medical certificate issued by a Doctor of Contd..
-:6:-RCA No. 14/08.
Shanti Clinic is not sufficient. Therefore, the appellant has failed to bring on record any cogent and authentic proof in order to show that his counsel Mr. J.P. Srivastava, Advocate had sustained fracture on 16.11.2007 in that accident and he could not follow his normal pursuit upto 26.02.2008. Therefore, the contention of the appellant that appeal could not be filed within time on account of the reasons beyond his control is without any substance.
7. It is settled law that to attract the provisions of Section 5 of the Limitation Act the appellant is under an obligation to show sufficient cause for not preferring the appeal within the period of limitation prescribed under the law. It is also settled proposition of law that the appellant is required to explain each days delay. Reference in this regard may be made to the case law reported as Krishna Continental Ltd. & Ors. (M/s) Vs. Sh. Balkrishan Sharma 2007 VII AD (Delhi) 633; and Smt. Tara Wanti Vs. State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab and Haryana 32 Full Bench.
Contd..
-:7:-RCA No. 14/08.
Reference in that regard is also made to a decision by our own Hon'ble High Court in the case of Jagdish etc. Vs. Har Sarup 1978 RLR 266 wherein Their Lordships have held as under :-
"It is now well settled that each days delay has to be explained. I find that the appellants have failed to satisfy me that they had sufficient cause for not filing the copies within time."
8. For the aforesaid reasons, I am of the considered view that the appellant has failed to plead and place on record a proof in order to show that he was prevented by just and sufficient cause from filing appeal within the stipulated period of 30 days which expired on 24.12.2007. Since the appeal was filed on 29.02.2008 i.e. after a lapse of more than two months of expiry of the limitation period and no sufficient cause has been shown for not filing the appeal in time, application under Section 5 of the Limitation Act is found to be without any merits. Accordingly, the application is dismissed.
9. Appeal under Section 38 of the Act being barred by Contd..
-:8:-RCA No. 14/08.
limitation is liable to be dismissed. Appeal is also dismissed being barred by limitation and is disposed of accordingly.
10. Copy of this order be sent to the Trial Court. Parties are directed to appear in the Trial Court on 08.09.2008. Appeal file be consigned to the record room.
ANNOUNCED IN THE OPEN COURT ON 1st Day of September, 2008.
(GURDEEP KUMAR) ADDITIONAL RENT CONTROL TRIBUNAL KARKARDOOMA COURTS, DELHI.
Contd..