Delhi District Court
) Shri Bal Kishan Dass Jain vs ) Smt. Ibrani Begum on 20 November, 2017
IN THE COURT OF SHRI TALWANT SINGH
DISTRICT & SESSIONS JUDGE (HQs)
RENT CONTROL TRIBUNAL
TIS HAZARI COURTS, DELHI
RCT Appeal 30307/2016
Jain Swetamber Property Trust
Through its Trustees
1) Shri Bal Kishan Dass Jain
2) Shri Anand Prakash Jain
3) Shri Mohan Lal Jain
4) Shri Naren Bhikhu Ram
5) Shri Ravi Kumar Jain ..... Appellant
Versus
1) Smt. Ibrani Begum
W/o late Mohd. Yunus
2) Mohd. Kamil
S/o late Mohd. Yunus
3) Mohd. Subaid
S/o late Mohd. Yunus
4) Mohd. Wasim
S/o late Mohd. Yunus
All residents of:
H.No. 6358, Gali Ishwari Pershad,
Bara Hindu Rao, Delhi110006
5) Mohd. Hussain
R/o H.No. 6358, Gali Ishwari Pershad,
RCT No. 30307/16 Jain Swetamber Property Trust v. Ibrani Begum & Ors. Page 1 of 6
Bara Hindu Rao, Delhi110006 ..... Respondents
ORDER ON APPLICATION UNDER SECTION 5 OF THE LIMITATION ACT READ WITH SECTION 151 OF THE CPC FOR CONDONATION OF DELAY IN FILING APPEAL The appellant/Trust has preferred the present appeal against impugned order dated 27.03.2010 passed by Ld. ARC/North whereby the eviction petition filed by the appellant was dismissed for nonprosecution.
2. Along with the present appeal, an application under Section 5 of the Limitation Act read with Section 151 of the CPC has also been filed. In the application, it is submitted that against the impugned order, the appellant preferred CM (Main) Petition before Hon'ble High Court of Delhi as the appellants were under the impression that only a CM (Main) was maintainable against the impugned order. However, at the time of hearing of the said CM (Main), Hon'ble High Court Judge was of the view that the impugned order was an appealable order; the appellant withdrew the CM (Main) Petition on 25.01.2012; immediately applied for certified copy of the order and same was made available to the appellant on 07.02.2012 and thereafter the present appeal was filed. It is prayed that the delay in filing of the present appeal occurred as the appellant was pursuing judicial remedy with bonafide intentions before a wrong forum.
RCT No. 30307/16 Jain Swetamber Property Trust v. Ibrani Begum & Ors. Page 2 of 63. Notice of the application was issued to the respondents.
4. I have heard Ld. Counsel for the parties on the application for condonation of delay and perused the record.
5. Ld. Counsel for the appellant has reiterated the grounds mentioned in the application for condonation of delay. On the other hand, Ld. Counsel for the respondents has submitted that there is a delay of 732 days in filing of the present appeal; the appellant deliberately approached Hon'ble High Court; even there was a delay of 121 days in filing CM (Main) Petition; specific period of delay has not been spelled out; there is no explanation to the delay; thus appeal is liable to be dismissed.
6. Ld. Counsel for the respondents has relied upon following judgments:
1)Pundlik Jalam Patil (D) by LRs v. Exe. Eng. Jalgaon Medium Project & Anr. JT 2008 (11) SC 596, wherein it has been held that the court cannot enquire into belated and stale claims on the ground of equity and that delay defeats equity. It was further held that the courts help those who are vigilant and do not slumber over their rights.
2)Lanka Venkateswarlu (Dead) by LRs v. State of Andhra Pradesh & Ors. (2011) 4 SCC 363, wherein it has been held that while considering application for condonation of delay under Section 5, the RCT No. 30307/16 Jain Swetamber Property Trust v. Ibrani Begum & Ors. Page 3 of 6 courts do not enjoy unlimited and unbridled discretionary power. The discretion has to be exercised in a systematic manner informed by law.
3)Ramji Pandey & Ors. v. Swaran Kali AIR 2011 SC 489, wherein it has been held that where the conduct of the appellant lack due diligence and he was not negligent, no benefit under Section 5 or Section 14 of Limitation Act can be extended.
4)Ketan V.Parekh v. Special Director, Directorate of Enforcement & Anr. AIR 2012 SC 683, wherein it has been held that where there was no averment in the application for condonation of delay that appellant had been prosecuting remedy before wrong forum, such condonation application cannot be allowed.
5)Hiralal Sarman Prasad & Ors. v. Amarnath Batra & Ors. 1986 MPLJ 149, wherein it has been held that the courts should be fully satisfied of the justness of grounds on which appellants seek to obtain extension of time and time cannot be extended simply for sympathy and out of benevolence.
There is no dispute regarding ratios laid down in above judgments but the same are not applicable to facts and circumstances of the present case.
7. It is a matter of fact that after passing of the impugned order dated 27.03.2010, the appellant had approached Hon'ble High Court by preferring CM (Main) there. Order dated RCT No. 30307/16 Jain Swetamber Property Trust v. Ibrani Begum & Ors. Page 4 of 6 25.01.2012 passed by Hon'ble High Court in the CM (Main) is reproduced herein under: "After some arguments, learned counsel for the petitioner seeks permission of this court to withdraw this petition with liberty to take appropriate legal remedy, if any available to him, through appropriate legal forum. Permission is granted. Petition is dismissed as withdrawn."
8. Thereafter, the copy of the impugned order was applied on 31.01.2012 and same was received on 07.02.2012. If this period is excluded then the appeal was to be filed by 03.03.2012 which has been done in the present case. But the fact remains that the appellant took 121 days in approaching Hon'ble High Court in filing CM (Main). No limitation is prescribed for approaching Hon'ble High Court in filing CM(Main). It is borne from record that CM (Main) was filed by the appellant before Hon'ble High Court and it was bonafidely pursuing judicial remedy before a wrong forum. Therefore, the period of pursing CM(Main) is to be excluded from the consideration. If this period as well as the period taken in obtaining certified copy of the impugned order is excluded, then the present appeal is well within time. Accordingly, application for condonation of delay in filing present appeal is allowed.
Announced in the open Court (TALWANT SINGH) RCT No. 30307/16 Jain Swetamber Property Trust v. Ibrani Begum & Ors. Page 5 of 6 Dated: 20th November, 2017 District & Sessions Judge (HQs) Rent Control Tribual Tis Hazari Courts : Delhi RCT No. 30307/16 Jain Swetamber Property Trust v. Ibrani Begum & Ors. Page 6 of 6