Delhi High Court
Wall Groser Forgings vs Murli Dhar & Ors. on 29 August, 1997
Author: N.G. Nandi
Bench: N.G. Nandi
JUDGMENT N.G. Nandi, J.
1. In this petition under article 227 of the Constitution of India the present petitioner/tenant has been challenging the order passed in appeal under Section 38 of the Delhi Rent Control Act (hereinafter referred to 'the Act') whereby the learned Rent Control Tribunal has dismissed the appeal confirming the order passed under Section 15(7) of the Act by the learned Additional Rent Controller concerned.
2. It is not disputed that a petition under Section 14(1)(a) of the Act came to be filed by the present respondent/landlord wherein order under Section 15(1) of the Act came to be passed requiring the tenant to deposit the rent. On failure to comply with the order under Section 15(1) of the Act, an application seeking striking of the defense came to be filed and the learned ARC holding the non-compliance of the order passed under Section 15(1) of the Act, passed the order under Section 15(7) of the Act striking off the defense. It is not disputed that in the appeal u/Section-38 of the Act the merits of the appeal were not gone into and the appeal was dismissed as barred by limitation rejecting the application under Section 5 of Limitation Act.
3. The grievance in the present petition is that the Rent Control Tribunal committed illegality by not condoning the delay under Section 5 of Limitation Act The delay in filing the appeal involved the period of 27 days. The appeal under Section 38 of the Act was required to be filed on or before 16.8.1994 whereas the same was filed on 29.9.1994.
4. The submission of Mr. Gupta, Counsel for the petitioner is that as the partner who was looking after the case was out of town in India and abroad over a period of 4 to 5 months, which caused the delay of 27 days in filing the appeal.
5. Mr. Taneja Counsel for the respondent has submitted that the delay in filing the appeal is required to be explained each day and the same has not been explain; that there is no sufficient cause for condoning the delay; that the order under Section 15(1) was passed in February, 1993 for the arrears of rent due from 1.8.1987 and that the order under Section 15(7) was passed in June, 1994; that there are three partners of the petitioner/tenant; that any one could have filed the appeal within limitation.
6. On behalf of the respondent, reliance is placed on the decision in the case of Shanti Devi Vs. Bhan Raj, reported in 1989 RLR (Note) 81 p.71 and contended that the delay has to be explained and the sufficient cause for condoning the delay under Section 5 of Limitation Act has to be established and that the mere absence of mala fide in not filing the appeal within the prescribed period of limitation, is not sufficient to condone the delay caused in filing the appeal.
7. In the case of Collector Land Acquisition Anantnag and Anr. Vs. Mst. Katiji and Others, it has been held that "the Court should adopt liberal approach in condoning the delay under Section 5 of the Limitation Act". It is further held that "so long as the delay caused in filing the appeal, is not mala fide, i.e. the appellant does not stand to gain any advantage by not filing the appeal within the prescribed period of limitation, the delay caused in filing the appeal should be condoned". In the latter decision in the case of State of Haryana v. Chander Mani, reported in 1996 RLR p.224, referring to the case of Collector, Land Acquisition Anantnag and Another v. Mst. Katiji and Others (supra), it has been observed by the Supreme Court that "the expression 'sufficient cause' is adequately elastic to enable the Court to apply the law in a meaningful manner which subserves the ends of justice that being the life purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiable liberal approach in matters instituted in this Court. But the message does not appeal to have percolated down to all the other Courts in the hierarchy. This Court reiterated that the expression every day's delay must be explained does not mean that a pedantic approach should be made. The doctrine must be applied in a rational common sense pragmatic manner. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for other side cannot claim to have vested right in injustice being done because of a non-deliberately delay.......".
8. In the instant case, the delay caused is of 27 days. It is difficult to comprehend how the petitioner would stand to gain any advantage by filing the appellate by 27 days. It cannot be gain said that no advantage can accrue to the petitioner by delaying the filing by 27 days and not filing the appeal within the prescribed period of limitation, nor it can be said the delay, in any manner is deliberate.
9. Following the principle laid down in the aforesaid Supreme Court decisions I am of the view that the approach by the Rent Control Tribunal is pedantic and perverse thereby committing illegality by not condoning the delay of 27 days when no mala fides can be attributed by delaying the filing of the appeal by 27 days. In the result, the delay needs to be condoned and the appeal decided on merits.
10. In the result, the petition is allowed. The delay of 27 days in filing RCA No. 546/94 is condoned. RCA No. 546/94 is remanded to the Rent Control Tribunal for disposal on merits in accordance with law.
11. Let the petitioner and respondent appear before the Rent Control Tribunal on 29.9.1997. The Tribunal shall, then, fix the date for hearing the appeal on merits and thereafter decide the appeal in accordance with law.
12. The record of the Rent Control Tribunal be returned forthwith.
13. Petition allowed.