Delhi District Court
Mohd. Haneef vs Smt. Rashidan on 13 October, 2009
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RCA No. 30/09.
IN THE COURT OF SH. GURDEEP KUMAR:
D.J.VCUMASJ/ I/C (SOUTH) P.H.C., NEW DELHI
IN THE MATTER OF :
RCA No. 30/09.
(Old No.25/09).
Mohd. Haneef
S/o Sh. Mehboob Khan,
R/o I93, Muradi Road,
Batla House, Okhla,
New Delhi.
...Appellant
Versus
Smt. Rashidan,
W/o Sh. Ali Sher,
R/o H. No. 308, Okhla Village,
Near Chhaparwali Masjid,
New Delhi
...Respondent
O R D E R : Date of institution of case : 23.07.2009.
Date on which the judgment
has been reserved : 29.09.2009.
Date on which the judgment
Contd..
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RCA No. 30/09.
has been delivered : 13.10.2009.
1. This is an application u/s 5 of the Limitation Act filed by the appellant along with appeal u/s 38 of Delhi Rent Control Act, 1958 (hereinafter referred to be as the Act) for setting aside the impugned order dated 06.06.2009 passed by the Trial Court.
2. The brief facts of the case are that the appellant herein has filed a petition u/s 45 of the Act against the respondent Smt. Rashidan. Along with that petition he also filed an application u/s 45(3) of the Act for interim relief pending disposal of the petition u/s 45 of the Act which was dismissed by ld. ARC vide an order dated 06.06.2009. Aggrieved by that order, the appellant on 23.07.2009 filed an appeal u/s 38 of the Act. On 06.08.2009 appellant filed Contd..
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an application u/s 5 of Limitation Act seeking condonation of delay in filing the said appeal.
3. I have heard ld. counsel for both the parties and considered the submissions made at bar. I have also gone through the application, reply filed by the respondent and other relevant material on record.
4. As borne out from the record, impugned order was passed by ld. ARC on 06.06.2009. Appellant's contention is that after impugned order dated 06.06.2009 the courts were closed from 07.06.2009 for summer vacation, to open on 01.07.2009; that thereafter he went to his native village to see his seriously ailing mother; that from his native village he returned on 15.07.2009 and contacted his Contd..
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counsel for the purpose of filing an appeal against the impugned order; that the appeal was to be filed on or before 05.07.2009 but was filed on 23.07.2009.
5. Contention of the appellant is that the Civil Courts were closed from 07.06.2009 to 30.06.2009 on account of summer vacation. Since the court reopened on 01.07.2009 i.e. before expiry of the limitation period for filing of appeal u/s 38 of the Act the fact that the courts were closed for summer vacation from 07.06.2009 to 30.06.2009 has no effect whatsoever. In fact, the appellant did not even apply for certified copy till 17.07.2009. That means the appellant applied for certified copy much after the expiry of the limitation period which expired on 05.07.2009 despite the fact that the courts had reopened on 01.07.2009. During Contd..
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the course of arguments, ld. counsel for the respondent has submitted that it is settled law that each day's delay has to be explained; that the appellant herein has not explained each day's delay and, therefore, there are no grounds to condone the delay in filing this appeal. In support of that contention, ld. counsel has relied upon the case law reported as Punjab & Sind Bank Vs. Shri Manjit Singh & Anr. 1993 (27) DRJ and M/s. Democratic Builders, Vs. Union of India AIR 1993 Delhi 132.
In the case of Punjab & Sind Bank Vs. Shri Manjit Singh & Anr. (supra) there was a delay of 31 days in filing the appeal out of which delay of 24 days delay was not explained by the appellant. There Lordships rejected the application u/s 5 of the Limitation Act.
In the case of M/s. Democratic Builders, Vs. Contd..
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Union of India (supra) also the delay of certain days was not explained. It was held by Their Lordships that the applicant must explain each and every day's delay. Since the delay has not been explained, the delay was not liable to be condoned.
6. 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 day's 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 Contd..
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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 day's 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 proposition of law and the case law relied upon by ld. counsel for the respondent, 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 Contd..
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the facts of this case, initial burden lies on the appellant to explain each day's 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 day's delay in filing the appeal. He has also not been able to disclose sufficient cause which is prerequisite to condone the delay in filing the appeal. In the light of the above settled proposition of law, appellant is th nd required to explain each day's delay from 05 July to 22 July, 2009 for not filing the appeal in time. Appellant's contention is that the courts have reopened on 01.07.2009 after summer vacation from 07.06.2009 to 30.06.2009 and thereafter he went to his native village to see his ailing mother. It is noticed that date of his going to the native village has not been disclosed nor the name of the native Contd..
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village, the district and the state is disclosed in the application. The appellant has also not placed on record any proof of alleged serious ailment of his mother nor nature of alleged ailment is disclosed in the application. The appellant has also not disclosed the date when he contacted his Advocate after return to Delhi on 15.07.2009. All these facts go to show that the appellant has not th explained even single day's delay out of the delay from 5 nd to 22 July, 2009. Therefore, there are no grounds to condone the delay in filing the appeal. In other words, the application u/s 5 of the limitation is found to be without any merits and is dismissed.
7. Consequent to dismissal of the application for condonation of delay, appeal under Section 38 of the Act Contd..
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for setting aside impugned order dated 06.06.2009 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. 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 13th Day of October, 2009. (GURDEEP KUMAR) D.J.VcumASJ/ I/C (SOUTH) P.H.C., NEW DELHI.
Contd..