Delhi District Court
Sh. Anil Lohar vs Smt. Shakuntala Devi on 19 March, 2012
IN THE COURT OF SH. O.P. GUPTA, DISTRICT JUDGE
& ADDL. SESSIONS JUDGE I/C (WEST)/ARCT, DELHI
***
RCT No.31/10
Unique ID No. 02401C0220582010
Sh. Anil Lohar,
s/o Sh. Het Ram
r/o H.No.C2/406, Sultan Puri,
Delhi110086.
....... Appellant
Versus
Smt. Shakuntala Devi
w/o Shanker Lal,
r/o D471, Raghubir Nagar,
New Delhi.
....... Respondent
Date of Institution of Appeal : 25.05.2010
Arguments heard on : 12.03.2012
Date of Order : 19.03.2012
O R D E R
The present appeal is directed against order dated 23.02.2010 passed by Ld. ARC holding petition under Section RCT No.31/10 Page 1 of 10 14(1)(a) DRC Act to be successful. The facts which can be gathered from the impugned order are that respondent herein claimed that appellant was tenant in one corner shop bearing Pvt. No. 1 on ground floor in property No.1, BlockA, J.J.Colony, Camp no.2, Nangloi, Delhi. The premises was let out to the appellant herein in March, 2001 at monthly rent of Rs.1,000/ exclusive of other charges. The appellant has neither paid nor tendered rent w.e.f 10.07.2001 inspite of notice dated 02.12.2004.
2. The appellant filed W.S disputing relationship of landlord and tenant between the parties. According to him his father Het Ram was tenant under the erstwhile owner Sh. Gariba at monthly rent of Rs.130/ per month. After his death, the tenancy devolved upon him. Rent was subsequently enhanced from time to time and present rent was Rs.700/ per month which he had regularly paid to Ms. Lali d/o Late Sh. Gariba. In the meantime after death of Gariba, his wife Smt. Javitri became the owner/landlord and after her death on 25.08.2003, his daughter Lali had been issuing rent receipt. The respondent herein is not the daughter of Gariba. However, he admitted the service of notice dated 02.12.2004 and claimed that he replied the same.
3. In replication the respondent herein stated that the plot was RCT No.31/10 Page 2 of 10 allotted to her by DDA under resettlement scheme in lieu of demolition of her jhuggi. The father of appellant herein remained tenant for a short period and thereafter he vacated the shop. Same remained lying vacant for months together and in March, 2001, the shop was let out to the appellant herein. She denied that father of the appellant was inducted as a tenant by Gariba. Gariba was neither owner nor had anything to do with the property. Gariba had no daughter named Lali. In fact, Lali is daughter of Puran and Smt. Javitri. Smt. Javitri is her (respondent herein) mother also. Gariba was dewar of Javitri.
4. Order under Section 15(4) DRC Act was passed on 22.08.2005 directing the appellant to deposit rent w.e.f March, 2005 at the admitted rate of Rs.700/ per month.
5. In support of her case the respondent herein examined three witnesses. AW1 Shakuntla Devi is petitioner. She proved the site plan as Ex.AW1/1, counter foil of rent receipt as Ex.AW1/2, allotment receipt issued by DDA in her favour as Ex.AW1/3, Rent agreement of another shop bearing private No.2 as Ex.AW1/5, copy of judgment of Sh. R.B.Singh, Civil Judge in suit for possession of said shop bearing private No.2 as Ex.AW1/6. She proved copy of notice as Ex.AW1/7, postal RCT No.31/10 Page 3 of 10 receipt as Ex.AW1/8, UPC as Ex.AW1/9 and AD as Ex.AW1/10.
6. AW2 Ranbir Singh, UDC Slum and J. J. Department proved the allotment receipt already exhibited as Ex.AW1/3.
7. AW3 Sh. Raj Kumar is the son of respondent herein.
8. As compared to it the appellant also examined two witnesses. RW1 Anil Lohar is appellant himself and RW2 is Ms. Lali.
9. After going through the material on record Ld.ARC found that in cross examination RW1 stated that written agreement was entered into between his father and Garib Dass at the time of taking the shop on rent. But no such agreement was filed on record. So adverse inference was liable to be raised against the appellant as per decision in Gopal Krishanji Ketkar Vs Mohd. Haji Latif & Ors. AIR 1968 SC 1413. Further Ld.ARC noticed that RW1 stated in his cross examination that he could not say whether Ms. Lali had any right in the suit property. Not only this, Lali as RW2 stated that she did not have any documents in her possession whereby tenancy was created by her father in favour of Het Ram/father of the appellant.
10. Per contra the respondent herein has proved the allotment RCT No.31/10 Page 4 of 10 letter in her favour as Ex.AW1/3. RW2 Ms.Lali admitted in cross examination that the property was got alloted in petitioner's name by her in the year 1995. Thus it stood proved that it was the petitioner who was the allottee of the property. That being so, she was landlord also. Reliance was placed on decision of our own Hon'ble High Court in Jeet Kaur Vs Mool Chand 1982(2) RCR 7 to make out that owner is essentially a landlord.
11. Ld. ARC also found that burden of proof of payment of rent was on the appellant which he has failed to discharge. Thus it was held that appellant was in arrears of rent since 10.07.2001. It was not the case of appellant that he has tendered the rent to the respondent herein. Hence, earlier order under Section 15(4) DRC Act was modified and the appellant was directed to deposit rent w.e.f March, 2002 to 28.02.2005 within one month. The appellant failed to comply with the said order and consequently benefit under Section 14(2) DRC Act was denied vide order dated 22.05.2010 and eviction order was passed.
12. The appeal has been filed on 24.05.2010 and is barred by limitation. The appellant has moved an application under Section 5 Limitation Act for condonation of delay on the ground that his earlier counsel advised that he could file revision within 90 days, RCT No.31/10 Page 5 of 10 he is a layman and illiterate person, he was facing great financial crisis, he was suffering from jaundice and was bed ridden for almost 2 months. He was continuously under treatment from vaidh in his native village in Haryana. Delay in filing appeal was neither deliberate nor intentional. He has relied upon decision in Collector Land Acquisition Vs Mst. Katiji & Ors. AIR 1987 SC 1353 in which it was held that Court should adopt liberal approach in condonation of delay. Refusing to condone delay can result in meritorious matter being thrown out at the very threshold and cause of justice being defeated. Similar view was taken in Special Tehsildar Land Acquisition Karala Vs K.V.Ayisumma JT 1996 (7) SC 2004. In N. Balakrishnan Vs M. Krishnamurthy AIR 1998 SC 3222 also delay was condoned. In Ram Bilas Mehto Vs Union of India 2007 ACJ 2484 it was held that all efforts should me made to dispose of the case on merits instead of non suiting a litigant on technical grounds of delay. In CBI Vs State of Gujarat 2004(4) Recent Criminal Reports 81, High Court of Gujarat held that Court should not deny justice on technical grounds. In Dilip Bhai Gajrota & Ors. Vs Contractor Lime Gotan AIR 1996 Rajasthan 119 it was held that filing an application under Section 5 Limitation Act at a later stage is RCT No.31/10 Page 6 of 10 permissible. In R. Ayyasamy & Ors. Vs Ganesan & Ors. 2005 (4) Recent Civil Reports 744 High Court of Madras held that Court should be liberal in condoning the delay.
13. I have gone through the application and heard arguments. It is true that the Court should be liberal but that does not mean that a go by should be given to the law of limitation. After all the law of limitation confers valuable right on the opposite party which should not be snatched lightly. Viewed from that angle, application in the present case is as vague as it can be. The appellant has taken all the possible pleas such as wrong advice, financial crisis, illness. The dates from which to which he remained ill, the name and address of the vaidh from whom he took treatment are all missing. No certificate from vaidh has been placed on record. The application does not disclose any sufficient ground for condonation of delay and is dismissed.
14. With the application for condonation of delay being dismissed, the appeal is liable to be dismissed on this short ground alone. Anyhow even on merits I do not find that appellant has any case.
15. Before coming to the merits of the appeal it may be RCT No.31/10 Page 7 of 10 mentioned that the appellant has moved an application under Order 41 Rule 27 CPC for additional evidence. He wants to file and prove photocopy of registered GPA dated 12.03.2003 executed by Smt. Javitri in favour of Smt. Lali, Mahipal and Shakuntla Devi (respondent). The Second document is Will executed by Smt. Javitri in favour of same three persons, the third document is photocopy of Rent Deed dated 06.05.1983 executed by Javitri Devi in favour of father of appellant. Rest are some bills and challan to show that the appellant was in possession of shop since long back. The plea taken in the application is that appellant was not author of or party to any of the aforesaid documents. Smt. Lali handed over the documents to him only now. The documents are necessary for reaching truth.
16. In support of his application the appellant has relied upon Satwinder Singh Vs Kanwar Krishan Anand 154 (2008) DLT 473 in which it was held that efforts of Court has to dig out truth and not to act only as an umpire in bout of two litigants. Court can allow application for additional evidence if it is necessary to come to proper decision in case. In Vimal Chand Ghevarchand Jain Vs Ramakant Eknath Jajoo III (2009) SLT 170 it was held that Appellate Court in exercise of its discretion may allow RCT No.31/10 Page 8 of 10 parties to adduce additional evidence subject to fulfilment of conditions laid down under Order 41 Rule 27 CPC. The conditions are that the party was not in knowledge of or could not have knowledge of the document sought to be produced in appeal, inspite of exercise of due deligence. That condition is missing in the present case. In the case in hand Smt. Lali appeared in witness box as RW2. She did not produce those documents. Rather she stated that she did not have any documents to show that tenancy was created by her father in favour of father of appellant.
17. Similarly reliance on K.R.Mohan Reddy Vs Net Work Inc. rep.Tr. M.D. AIR 2008 SC 579 is unfounded. In fact the same goes against the appellant. The reason being that what was held therein is that Appellate Court should not pass order to patch up weakness of the evidence of unsuccessful party before the Ld. Trial Court.
18. I do not find that appellant has made any ground for additional evidence, the application is dismissed.
19. Again before adverting to the merit of the case it is important to mention here that the shop has been demolished by RCT No.31/10 Page 9 of 10 Delhi Metro Corporation which has acquired the property. Thus the appeal has become infructous.
20. Still I proceed to decide the appeal on merits as the counsel for the appellant pressed the same. The appellant has not complied with the modified order under Section 15(1) DRC Act passed on 23.02.2010. There is no explanation for not doing so. Thus, Ld. ARC has no option but to decline benefit under Section 14(2) DRC Act.
21. To sum up the appeal is dismissed and eviction order is affirmed. Trial Court record be sent back with a copy of this order. File be consigned to record room.
Announced in open Court on (O.P. GUPTA)
this 19h day of March, 2012 DJ & ASJ I/C (W)/ ARCT
DELHI/19.03.2012
RCT No.31/10 Page 10 of 10