Delhi District Court
Iqbal Khan vs Smt. Jagpal Kaur on 2 April, 2009
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RCA No. 13/09.
IN THE COURT OF SH. GURDEEP KUMAR:
D.J.-V-CUM-ASJ/ I/C (SOUTH) P.H.C., NEW DELHI
IN THE MATTER OF :
RCA NO. 13/09.
Iqbal Khan
S/o Islammudin,
R/o H. No. 139, Vill. Humayunpur,
Safdarjang Enclave, New Delhi-29.
...Appellant
Versus
Smt. Jagpal Kaur,
Wife of Shri Naib Singh,
R/o H. No. 139, Vill. Humayunpur,
Safdarjang Enclave, New Delhi-29.
...Respondent
O R D E R :-
Date of institution of case : 26.05.2008.
Date on which the judgment has been reserved : 25.03.2009.
Date on which the judgment has been delivered : 02.04.2009.
1. This is an application filed by the appellant (under Section 38 (2) of Delhi Rent Control Act, 1958) (hereinafter referred to be as the Act) seeking condonation of delay in filing appeal against the impugned order dated Contd..
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03.11.2007 passed by the Trial Court.
2. As borne out from the Trial Court record, the respondent / landlady has filed a petition against the appellant / tenant under Section 14(1) (a) of the Act. Her case in brief is that she is the owner / landlady of house No. 139, Village Humayunpur, Safdarjang Enclave, New Delhi. The respondent is a tenant in respect of one room, common latrine and bathroom as shown in red in the site plan; that the monthly rent is Rs. 1150/-, besides electricity and water charges @ Rs. 175/- per month; that the tenancy was oral and created in 1999; that the tenant is in arrears of rent w.e.f. 01.07.2002 which he has failed to pay despite service of demand notice dated 01.12.2004.
3. In the written statement the tenant does not dispute relationship of landlord and tenant between the parties. However, he disputes the rate of rent as, Contd..
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according to him, he has been paying rent at the rate of Rs. 600/- per month, besides Rs. 30/- towards electricity and water charges. It is denied that he is in arrears of rent or there is any cause of action in favour of the landlady to file petition under Section 14(1)(a) of the Act.
4. In an order under Section 15(1) of the Act, the Trial Court passed order dated 01.06.2005 directing the tenant to pay to the landlady or deposit in the Court arrears of rent w.e.f. 01.09.2002 @ Rs. 930/- per month within one month from the date of passing of that order after adjusting the amount of rent, if any, paid by him in any other proceedings and also to continue to pay or deposit future rent at the same time month by month by the 15th day of each succeeding month till disposal of the eviction petition.
5. Subsequently, the landlady filed an application Contd..
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under Section 15(7) of the Act for striking of the defence of the tenant on the plea that he has not complied with the said orders dated 01.06.2005. The said application was allowed by the Trial Court and defence of the tenant was struck of vide orders dated 03.11.2007. Aggrieved by the said orders, appellant has come up with the present appeal.
6. Section 38(2) of the Act prescribes a limitation period of 30 days from the date of the order for filing an appeal. However, present appeal was filed on 26.05.2008. There is nothing on record that the appellant had consumed any time in obtaining certified copy of the impugned order. Therefore, the 30 days limitation in filing appeal expired on 03.12.2007. This goes to show that the present appeal has been filed by the appellant after more than 5 and half months delay.
Contd..
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7. I have heard ld. counsel for both the parties, perused the application, reply and also perused the Trial Court record. I have considered the submissions made by ld. counsel for both the parties.
8. As borne out from the application, the appellant explaining the sufficient cause for delay has averred that he had gone to his native village on account of death of his uncle when the case was listed for orders on application under Section 15(7) of the Act; that his counsel assumed that the application is still pending for orders. Later on when he returned from the native village, his own wife became ill and, therefore, he was occupied and disturbed because of death of his uncle and illness of his wife; that he could not contact his counsel and could not give instructions to file the appeal against the impugned order. All these facts attributed to five and half months delay in filing the appeal. It is also averred that he is an illiterate Contd..
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person and being so was not aware of consequences of delay in filing the appeal and, therefore, the delay may be condoned for disposal of his appeal on merits.
9. Ld. counsel for the appellant has argued that five and half months delay in filing appeal has been duly explained by the appellant which is duly supported by the documentary evidence. Referring to a decision by the Hon'ble Apex Court reported as Collector, Land Acquisition, Anantnag and another Vs. Mst. Katiji and others AIR 1987 Supreme Court 1353, ld. counsel has argued that in her reply to the application seeking condonation of delay, the respondent has not disclosed any prejudice caused to her on account of delay in filing appeal and, therefore, it is a fit case to have liberal approach in the matter and condone the delay in filing the appeal.
Contd..
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10. Ld. counsel for the respondent has argued to the contrary and submitted that the documents, which have been filed at the stage of arguments on application, have been got manipulated in order to make out a case of condonation of delay. It is pointed out by ld. counsel for the respondent that in the application there is no mention of about the the nature of the illness of the wife of the appellant, name of the Doctor under whose treatment she had been and also the period of her ailment are not disclosed.
11. I have gone through the aforesaid case law being relied upon by ld. counsel for the appellant. It is found that therein the State Government had filed an appeal against the decision substantially enhancing compensation in the land acquired and the appeal also raised important questions as regards principles of valuation. The said appeal was filed after 4 days delay. In the light of these Contd..
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facts and mere 4 days delay in filing appeal, it was held by Their Lordships that the appellant was entitled for condonation of delay in filing appeal. Their Lordships also held as under :-
"When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay."
With due respect to Their Lordships, I am of the view that the said case law does not help the appellant in any manner as the facts of that case and the case in hand are entirely different. In the case before Their Lordships, there was only 4 days delay in filing of appeal by the State Government against the decision substantially enhancing compensation for the land acquired and which also raised important questions as regards principles of valuation. Whereas in the present case there is five and half months delay in filing the appeal. It is settled law that to attract the provisions of Section 5 of the Limitation Act, the Contd..
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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. 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."
The aforesaid proposition of law is squarely applicable to the facts of this case. Applying the aforesaid Contd..
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proposition of law, I am of the considered view that the application filed by the appellant seeking condonation of delay in filing appeal is devoid of any substance. In view of the facts of this case, initial burden lies on the appellant to explain each days delay. Onus is also on the appellant to show sufficient cause which prevented him from filing appeal in time. The appellant has not brought on record anything to explain each days delay in filing the appeal after more than five and half months. He has also not been able to disclose sufficient cause which is pre- requisite to condone the delay in filing the appeal. As per the case of the appellant when the case was listed for orders on application under Section 15(7) of the Act, he had to go to his native village on account of death of his uncle. He has not disclosed the month, date and year when he went to his native village in that connection. However, the death certificate filed on record reveals that one Mr. Idu Khan resident of Nagar Panchyat Karnawal, Contd..
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Tehshil Sarghana, District Meerut had died on 03.11.2007. The impugned order had been passed on 03.11.2007. Even if, he had to go to his native village in connection with death of his relative, at the maximum he could have said to have been busy for a fortnight from the date of death of his uncle. Another contention of the appellant is that when he returned from his native village, his wife became ill and on that account he could not contact his counsel to give him instructions to file appeal against the impugned order. In the application, he has not disclosed the month, date and year when he returned from his native village and when his wife fell ill. He also did not disclose the nature of disease she was suffering from. Nor he disclosed the exact or even a presumed period of her illness. He also did not disclose the name of the Doctor from whom she had been taking treatment for the alleged illness. No medical documents were filed alongwith application seeking condonation of delay in filing appeal.
Contd..
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However, the appellant has filed medical certificate at the time of arguments on that application. Perusal of the said medical certificate shows that it has been issued by a Charitable General Hospital on 27.02.2008 stating that Smt. Anisha Begum wife of Shri Iqbal Khan had been suffering from Jaundice and she had been under his treatment from 02.12.2007 to 26.02.2008. No reliance can be placed on the said medical certificate as the same was not filed alongwith application nor the name of the Doctor and the period of ailment were disclosed in the application. All these facts clearly go to show that the said medical certificate had been procured at a later stage in order to make out a case for sufficient cause to seek condonation in filing appeal. Alongwith medical certificate of his wife, appellant has placed on record another medical certificate issued in his own name by the same hospital according to which he also had been suffering from Jaundice and was under treatment from 02.03.2008 to 25.05.2008. In Contd..
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the application, it is not the case of the appellant that he himself had been suffering from Jaundice or any other ailment during the period from 02.03.2008 to 25.05.2008 and, therefore, the said medical certificate is of no help to the appellant. This further goes to show that the said medical certificate, issued in the name of the appellant, has been procured from charitable hospital to show sufficient cause with a view to seek condonation of delay in filing the appeal.
12. In view of the matter, I am of the considered view that the appellant has filed to show sufficient cause to make out a case for condonation of five and half months delay in filing appeal against the impugned order dated 03.11.2007. The application filed by the appellant for that purpose is without any merits.
13. For the aforesaid reasons, I am of the considered Contd..
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view that the appellant has failed to show any sufficient cause for five and half months delay in filing the appeal against the impugned order dated 03.11.2007 passed by the Trial Court. Accordingly, the application for condonation of delay is dismissed.
14. Consequent to dismissal of the application for condonation of delay, appeal under Section 38 of the Act for setting aside impugned order dated 03.11.2007 is also deemed to be barred by limitation and hence not maintainable. As a result, the said appeal is also dismissed being barred by limitation and is disposed of accordingly. Parties are directed to appear before the Trial Court / Successor Court on 09.04.2009. Copy of this order be sent to the Trial Court / Successor Court. Appeal file be consigned to Record Room. ANNOUNCED IN THE OPEN COURT ON 2nd Day of April, 2009. (GURDEEP KUMAR) D.J.-V-cum-ASJ/ I/C (SOUTH) P.H.C., NEW DELHI.
Contd..