Delhi High Court
Kanwal Nath Mehra vs Ram Lal Sindhwani on 13 November, 1992
Equivalent citations: 49(1993)DLT10, 1993(25)DRJ14, 1993RLR83
JUDGMENT Santosh Duggal, J.
(1) This second appeal is directed against the order passed by the Rent Control Tribunal on 12.4.1991, where by the appeal filed by the appellant against the order passed by the Addl. Rent Controller on 1.2.1991 dismissing his objection under section 21 of the Delhi Rent Control Act, 1958 (for short 'the Act'), was also dismissed.
(2) The tenancy pursuant to section 21 of the Act commenced from 13.10.1978 for a limited period of three years, expiring on 12.1O.1981. Landlord's attempts to get the vacant possession of the property after expiry of limited period have been thwarted by the tenant so far by filing objections, which have been dismissed by the Judgments on concurrent findings of the two courts below.
(3) On this second appeal being taken up for final hearing, Shri C.L.Nayyar, appearing for the respondent, has raised objection for dismissal of the appeal for the reason that it did not comply with the requirements of filing of certified copies in consonance with the provisions of Order 42 Rule 2 Cpc, as amended by the punjab & Haryana High Court, and adopted by the High Court of Delhi. This rule lays down as under: "RULE2 Delhi Same as that of Punjab. "R.2. In addition to the copies specified in Order 41, R.I, the memorandum of appeal shall be accompanied by a copy of the judgment of the Court of first instance, unless the Appellate Court dispenses therewith." (19.3.1926).
(4) Accordingly, as per requirement of this Rule, a second appeal is to be deemed to have been properly filed only if it is accompanied by not only certified copy of the order in appeal, but also certified copy of the trial court's judgment or order. Mr. Nayyer has referred to three judgments of this Court, namely, 1980 (2) Vol. 16 Rcr 592, Smt. Vidya Vati Vs. Shri Gurbax Rai Arora, 1975 Vol. 7 Rcr 647, Kidar Nath V. Baldev Singh. and 1969 Vol. V. Dlt 394, Shiv Dutt Sharma Vs. Prem Kumar Bhatia, holding that the provisions of this rule are applicable to second appeals filed under section 39 of the Delhi Rent Control Act also. It has also been held in the case of Smt. Vidya Vati (supra) that the period of limitation for the purpose of filing a second appeal under section 39 is to be computed as consisting of 60 days for filing an appeal plus the time taken in obtaining certified copy of the order under appeal.
(5) Mr. Nayyar has submitted that as per endorsement on the certified copy of the order of Rent Control Tribunal dated 12.4.1991. it was applied for on 19.4.1991 and it was ready for delivery on 20.4.1991, and consequently only two days are available on account of time in obtaining certified copy of the appellate order. That being so, the limitation for filing this second appeal expired on 13.6.1991. The appeal was, no doubt, filed within this time, having been instituted on 1.5.1991, and it was also accompanied by the certified copy of the Rent Control Tribunal's order, but the default lies in not filing the certified copy of the order of the Addl. Rent Controller in accordance with the provisions of Rule 2 of Order 42 Cpc, as extended to Delhi, while filing the appeal. It so happened that the appellant moved an application for exemption Along with appeal and the relevant application for this purpose is Cm 702/91. The Court while issuing notice of the second appeal by order dated 9.5.1991. passed the following order on this application: "CERTIFIED copies be filed as soon as obtained."
(6) According to Mr. Nayyar, as per record, the certified copy of the order of the Addl. Rent Controller was filed, as a matter of fact, on 31.7.1991. whereas the endorsement on this certified copy reveals that it was ready for delivery on 10.6.1991. This means that the certified copy was ready even before the expiry of the period of limitation, for filing the appeal, but the appellant did not take any steps to file the same in Court till 31.7.1991, which involves a delay of about 50 days. Even then no attempt was made to explain the delay or seek condensation or even make out a case for condoning the delay nor any attempt or explanation as to why the certified copy was not filed, as soon as obtained, in terms of Court's order dated 9.5.1991, because it is not even revealed as when this certified copy was collected. A reading of the above cited three judgments of this Court, all relating to second appeals under section 39 of the Act makes it clear that the provisions are to be stringently applied and are not a mere matter of formality, and in all cases the second appeals had been dismissed as not being competent on the short ground that certified copy of the Addl. Rent Controller's order had either been filed or had not been filed within the time stipulated by law or given by Court.
(7) It has been specifically held in Smt. Vidya Vati's case (supra) that the appeal can be said to have been filed properly only when the certified copy of the order of the trial court was filed in this Court. It has further been observed in this judgment that the appellant could have taken advantage of the time spent in obtaining certified copy of the order of the trial court i.e. the Addl. Rent Controller under section 5 of the Limitation Act, but that advantage can be given only if the appellant files an application for condensation of delay, while filing certified copy of the trial court's judgment, or such an application is moved in time, setting out a sufficient cause.
(8) In this reported case, a request made by the appellant's counsel at the time of hearing for being allowed to move an application under section 5 of the Limitation Act to condone the delay in filing the certified copy of the order of the Addl. Rent Controller was also declined on the view that once while filing the appeal an exemption had been sought and the Court had granted exemption subject to certain directions, and needful was not done in terms of those directions, the appellant cannot be permitted, after expiry of a considerable time, to make out a story and pray for condensation of delay.
(9) The present is also such a case. Even the application seeking exemption, being C.M.702/91. was filed very casually because there is no specific prayer for exemption being granted or time being allowed for obtaining certified copy of the Addl. Rent Controller's order, but generally of the annexures filed with the Ippeal, without spelling out what those annexures were. Even then, the Court allowed it on the condition that the certified copies are filed as soon as obtained. The appellant had apparently taken this order very casually because he did not bother to either collect the certified copy when it was ready or file it in time, and file it soon after obtaining it, and,in fact, filed the same after expiry of 50 days, from the date it was ready. Even then, no application for condensation of delay was filed, and no attempt at explaining the delay for not filing the certified copies in accordance with the Court's order contained in the order dated 9.5.91 was made.
(10) Mr. Rajesh Khanna, appearing for the appellant, places reliance on a judgment of the Supreme Court, reported as , Collector, Land Acquisition, Ananlnag and another Vs. Mst. Katiji and others. A perusal of this judgment reveals that an application under section 5 of the Limitation Act had been filed by the party concerned and it was in that context that the Court held that the term "sufficient cause" should be liberally interpreted. This proposition would not be attracted when there is no application at all, and at no stage any attempt had been made to explain the delay, much less make out a sufficient cause for consideration of the Court.
(11) Mr. Khanna has also referred to a judgment of the Jammu & Kashmir High Court reported as Air 1968 J & K 19, Mst. Mali V. Lassi Thakur and others, saying that in the event of court allowing time for filing certified copy of a decree sheet while filing an appeal, and the decree sheet is filed in accordance with law, then the appeal shall be taken to have been properly filed. In view of the three judgments of Delhi High Court cited above, all arising under section 39 of the Act. I am not inclined to follow the judgment of the Jammu & Kashmir High Court, and on facts also, it is distinguishable because in that case certified copy of decree sheet seems to have been filed in accordance with the orders of the Court whereas in the present case. certified copy of the lower court judgment has not been filed in consonance with directions of the Court, while allowing time.
(12) The prayer made, at this stage, by Mr. Khanna for time being allowed to file such an application also cannot be considered in view of what has been held in the case of Smt. Vidya Vati (supra), and also on the facts of this case.
(13) It may be mentioned for record that Mr. Nayyar had indicated that he was raising this preliminary objection when the matter was mentioned in Court yesterday in the presence of Mr. Khanna, So, the learned counsel became aware of this objection. but even then no steps were taken to explain the delay. Earlier also, while filing reply to show cause, the respondent had taken objection that the appeal was not competent having not been filed in accordance with rules on the subject. Even though rejoinder was filed, no notice was taken of this objection.
(14) In face of such conduct of the appellant, no further indulgence can be shown. On the authority of the aforesaid three judgments fo this court. I hold that this appeal is also not properly filed and is not competent, and is liable to be dismissed on this count.
(15) The appeal is dismissed accordingly. No order as to costs.