Delhi District Court
Sh. Megh Raj vs Smt. Lakhmiri (Deceased) on 24 May, 2008
-:1:-
RCA No. 37/07
IN THE COURT OF SH. GURDEEP KUMAR
ADDITIONAL RENT CONTROL TRIBUNAL
KARKARDOOMA COURTS : DELHI.
IN THE MATTER OF
Sh. Megh Raj, S/o Sh. Charan Singh,
R/o 125, Ambedkar Basti, Ghonda, Delhi.
... Appellant
VERSUS
Smt. Lakhmiri (Deceased)
Through her LRs. (i) Sh. Ram Niwas (ii) Sh. Om Prakash
S/o Sh. Mangal Singh, R/o H. No. 42, Ambedkar Basti,
Ghonda, Delhi-110053.
.... Respondent
O R D E R :-
This is an application under Section 5 of Limitation Act filed by the appellant for condonation of delay in filing an appeal u/s 38 of DRC Act against the impugned order dated 25.05.2007 passed by the ld. Trial Court in Petition No. E-587/2006. It is averred that the case was listed before ld. Trial Court on 25.05.2007, and on that date, it was revealed that it has been adjourned to 25.07.2007.
Contd...
-:2:-RCA No. 37/07 Accordingly, the appellant noted down the next date and informed his counsel in that regard. The appellant throughout remained under the impression that no such order has been passed by the ld. Trial Court and the matter has been merely adjourned for 25.07.2007. However, in order to prepare for the case, the counsel for the appellant inspected the case file on 10.07.2007 and on inspection of the file, it was revealed that on 25.05.2007, the impugned order was passed by ld. Trial Court. Subsequent upon coming to know about the impugned order, ld. counsel for the appellant tried his level best to contact the appellant but it was only on 23.07.2007, the appellant himself visited the chamber of the Advocate so as to get the case prepared for 25.07.2007 and it was only on contacting the counsel, the counsel informed the appellant about the impugned order. Therefore, prior to 23.07.2007, appellant was absolutely unaware about the impugned order. The delay in filing appeal is stated to be neither intentional nor deliberate.
2. I have heard ld. Counsel for the parties and considered the submissions made by them. I have also gone through the Trial Contd...
-:3:-RCA No. 37/07 Court record and other relevant material on record.
3. It is a matter of record that the impugned order is dated 25.05.2007 which was passed by the ld. Trial Court whereby an application by the appellant herein for condonation of delay in complying the orders u/s 15(1) of DRC Act and was dismissed and an application u/s 15 (7) of the Act by the respondent herein was allowed, thereby striking of the defence of the respondent herein. It is not in dispute that the appellant was required to file the appeal u/s 38 of DRC Act within 30 days from the date of the order. The contention of the appellant is that he was not aware of the said orders because on 25.05.2007 when the matter was listed for orders on the said application, it was revealed that the case has been adjourned to 25.07.2007. Accordingly, the appellant noted down the said date as the next date of hearing and informed his Advocate in that regard. There is no substance in the said contention of the appellant. As borne out from the Trial Court record on 17.05.2007 the case was listed for orders on the applications which was deferred for 19.05.2007. On 19.05.2007 when none was present for the Contd...
-:4:-RCA No. 37/07 parties, the ld. Trial Court directed its Naib Nazir to submit his report regarding deposit of rent by the respondent in compliance of orders u/s 15(1) of DRC Act within 3 days and the matter was deferred for 25.05.2007 for orders. On 25.05.2007 the application by the appellant for condonation of delay in compliance of those orders u/s 15(1) of DRC Act was dismissed and the application u/s 15(7) of DRC Act was allowed. It is not believable that the appellant herein would not be aware of the orders dated 25.05.2007 on or after 25.05.2007. When the case was listed for orders on the application on 25.05.2007 the appellant was supposed to find out the orders passed, if any, on 25.05.2007 and also the purpose for which the matter had been listed for 25.05.2007. Vide orders dated 25.05.2007 the matter was listed for final arguments on 25.07.2007. It cannot be believed that the appellant herein was not aware that the impugned order dated 25.05.2007 had been passed and the matter was listed for final arguments on 25.07.2007. As stated in the application, ld. counsel for the appellant herein had inspected the Trial Court record on 10.07.2007 and come to know about the impugned order dated 25.05.2007. However, his contention is that ld. counsel for the Contd...
-:5:-RCA No. 37/07 appellant tried his level best to contact the appellant but could not do so till 23.07.2007 when the appellant himself visited his chamber to get the case prepared for 25.07.2007. It is noticed that ld. counsel for the appellant has not filed his own affidavit in support of the said plea. Besides, possibility of appellant visiting the chamber of the Advocate on 23.07.2007 for getting the case prepared for 25.07.2007 did not arise as per the case of the appellant the case had been adjourned for orders. In the application the appellant has not disclosed the mode by which his counsel had tried to contact him after 10.07.2007. In the light of these facts, I am of the considered view that there is no substance in the said contention of the appellant.
4. It is not in dispute that the appellant was required to file the present appeal within 30 days from the date of the impugned order or latest by 01.07.2007 when the Courts reopened after summer vacation. However, the appellant filed the same on 27.07.2007. That means there is 27 days delay in filing the appeal. During the course of the arguments it was noticed that the appellant Contd...
-:6:-RCA No. 37/07 has not filed certified copy of the impugned order. He was directed to file the same within 3 days as per order dated 12.05.2008. However, he did not file the same and rather filed an application on 16.05.2008 stating that he had never applied for certified copy of the impugned order dated 25.05.2007 and, therefore, he is unable to file the same on record. Along with appeal he had filed an application under Order 41 Rule 1 CPC containing an undertaking to file certified copy of the impugned order as and when the same is made available by the Copying Agency. That means he must have applied for certified copy. Vide order dated 12.05.2008 he was directed to file certified copy within 3 days, the appellant was present in person along with his Advocate. However, at that point of time he did not state that, in fact, he had not applied for certified copy. It appears that the appellant is withholding certified copy of the impugned order as the same would have spelled out the date when he applied for certified copy which must be contrary to the plea set up in the application seeking condonation of delay. Since the appellant has not filed certified copy of the impugned order, the application seeking condonation of delay as well as the appeal u/s 38 of DRC Act are not Contd...
-:7:-RCA No. 37/07 maintainable.
5. Besides, it is settled law that to attract the provisions of Section 5 of the Limitation Act the 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. The said case law is squarely applicable to the facts of this case. There is nothing on record to show that the appellant had consumed any period after the impugned order was passed, in obtaining certified copy, therefore, limitation period shall be computed from the date of impugned order itself i.e. 25.05.2007. 30 days limitation period expired on 25.06.2007 and the appellant could have filed appeal latest by 01.07.2007 when the Courts reopened after summer vacation. Since the appeal was filed on 27.07.2007, there is Contd...
-:8:-RCA No. 37/07 27 days delay in filing appeal which is not explained as required under the law.
6. As already discussed above there is no substance in the contention raised by the appellant for the said delay. He has not explained each days delay nor he has disclosed sufficient cause which is prequisite to attract the provisions of Section 5 of Limitation Act. Therefore, the application for condonation of delay in filing appeal is dismissed. Since the appeal is barred by limitation and the appellant has failed to show his entitlement for condonation of delay u/s 5 of Limitation Act, appeal is liable to be dismissed being barred by limitation. This is otherwise also not maintainable for want of certified copy of the impugned order. The appeal is accordingly dismissed.
ANNOUNCED IN THE OPEN COURT ON 24th Day of May, 2008.
Typed : (1+1) (GURDEEP KUMAR)
ADDITIONAL RENT CONTROL TRIBUNAL
KARKARDOOMA COURTS : DELHI.
Contd...