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1965 DIGILAW 63 (DEL)

SURAJ PARK ASH BALI v. PARMANAND

1965-08-24

S.K.KAPUR

body1965
S. K. Kaput ( 1 ) THIS is an appeal against the judgment of the Rent Control Tribunal, Delhi, dated December 8, 1964. By the said judgment the Rent Control Tribunal confirmed the decision of the Rent Controller allowing the petition of the landlord for eviction of Suraj Parkash appellant. The Tribunal held that the accommodation already in possession of Parma Nand respondent-landlord was not sufficient and he, therefore, bonafide required the premises in question for his use and the use of dependent members of his family. ( 2 ) MR. Yogeshwar Dayal, the learned counsel for the respondent, has taken a preliminary objection that the appeal is barred by time. As I have mentioned earlier the judgment under appeal was delivered on 8-12-1964. The appellant made an application for a certified copy of the judgment of the Rent Control Tribunal on 2-2-1905 and the copy was ready on 8-3-1965. On the same day, that is 2-2-1965, the appellant applied for a certified copy of the judgment of the Rent Controller and the same was ready on 15-3-1965. The present appeal was filed on March 15,1965, but the same was returned by the office on 16-3-1965 as the same was not accompanied by a certified copy of the judgment of the Rent Controller. The appeal was refiled with the certified copy of the judgment of the Rent Controller on March 25, 1965. Mr. Yogeshwar Dayal submits that rule 2 has been added in Punjab to Order 42, Civil Procedure Code, which is as under :- "in addition to the copies in Order 41, rule 1, the memorandum of appeal shall be accompanied by a copy of the judgment of the Court of first instance, unless the appellate Court dispenses there with. "he then draws my attention to Order 43, rule 2, Civil Procedure Code, which provides that the rules of Order 41 shall apply, so far as may be to appeals from orders. According to Mr. Yogeshwar Dayal the effect of the aforesaid provisions is that unless the appeal is accompanied by a certified copy of the judgment of the Court of first instance there is no valid presentation of the appeal. According to Mr. Yogeshwar Dayal the effect of the aforesaid provisions is that unless the appeal is accompanied by a certified copy of the judgment of the Court of first instance there is no valid presentation of the appeal. He points out that there is nothing on the record nor has the appellant filed any affidavit explaining the delay in fixing the certified copy of the judgment of the Court of first instance up to 25th March, 1965, though the same was ready on 15-3-1965. He has in support of this contention REFERRED TO Custodian, Evacuee Property v. Pubhu Dayal*-, Naul and others v. Mula and others , Bhiwani Cotton Spinning and Weaving Mills Co. Ltd. v. Firm Bishen Sahai-Bhagwan Dass". and aa unreported judgment of this Court in Tulsi Ram v. Dewa* (Regular Second Appeals Nos. 83-D and 86-D of 1953) decided on 2-2-1909. In my view, there is no force in this contention The appeal in the present case has been instituted under section 39 of the Delhi Rent Control Act, 1958. The provisions of rule 2 of Order 42 as introduced in Punjab would apply, by virtue of Order 43, rule 2, Civil Procedure Code, to appeals from orders provided in Order 43, rule 1. Consequently, they would not be applicable to an appeal filed under section 39 of the Delhi Rent Control Act, 1958. Mr. Yogeshwar Dayal has drawn my attention to section 37 (2) of the Delhi Rent Control Act, 1958, and submits that by virtue thereof the Controller is enjoined while holding an enquiry in any proceedings before him to follow, as far as may the the practice and procedure of a Court of Small Causes including the receding of evidence. That argument is of no avail to Mr. Yogeshwar Dayal since the right of appeal does not arise by virtue of section 37 (2) of the said Act. Mr. Yogeshwar Dayal then refers to rule 2 (b), Part A, Chapter I Volume V of the High Court Rules and orders, which provides "every memorandum of appeal shall be accompanied by copies of the decree and judgment, as prescribed by Order 41, rule 1 of the Civil Procedure Code. Mr. Yogeshwar Dayal then refers to rule 2 (b), Part A, Chapter I Volume V of the High Court Rules and orders, which provides "every memorandum of appeal shall be accompanied by copies of the decree and judgment, as prescribed by Order 41, rule 1 of the Civil Procedure Code. In the case of Second Appeals, documents in addition to the documents prescribed by Order 41, rule 1 of the Code, memorandum shall be accompanied by a copy of the judgment of the Court of First instance unless the appellate Court dispenses therewith. In all cases which are within the competence of Division Bench motion, duplicate type written copies of memo of appeal or revision and other essential documents shall be furnished by the appellant or applicant, as the case may be, both in Civil and Criminal cases. According to Mr. Yogeshwar Dayal, the present appeal is a second appeal within the meaning of the said rule 2 (b) and consequently there was no valid presentation of the appeal on 15-3-1965, unaccompanlied as it was by a certified copy of die judgment of the Rent Controler. Mr. Darbari Lal Khanna, the learned counsel for the appellant, on the other hand draws my attention to an application dated 15-3-1965 wherein lie had prayed inter alia for dispensation with the filing of a certified copy of the order of the trial Court. In paragraph 2 of the said application he had stated thit he would file the certified copy of the order of the Rent Controller as soon as the sams was supplied to him. According to him, the copy was supplied to him on the 25th March, 1965 and therefore, h; was entitled to time till that date. I may srraigh tway point out that there is no force in this e intention of Mr. Darbari Lal Khanna. No order was passed on his affresaid application di. pensing with the filing of the certified copy of the judgment of the Rent Controller. Moreover, paragraph 2 of the said application cannot be read to man that if the appellant did not collect copy for six months he would be entitled to extenssion of time till then. In agreement with the submission of Mr. Yogeshwar Dayal I hold th. pensing with the filing of the certified copy of the judgment of the Rent Controller. Moreover, paragraph 2 of the said application cannot be read to man that if the appellant did not collect copy for six months he would be entitled to extenssion of time till then. In agreement with the submission of Mr. Yogeshwar Dayal I hold th. it the appeal was not validly presenied on 15-3-1965 and there is no explanation on the record explaining the delay of 10 days from 15-3-1965 to 25-3-1965. The appeal is time. barred and, therefore, must be dismissed on that ground. ( 3 ) REGARDING the merits of the case Mr. Darbari Lal Khanna submits that the landlord had failed to prove that the premises were bona fide required by him. He has drawn my attention to the evidence of Parma Nand landlord wherein he had stated that in case he was given possession of the premises in dispute he would invite his three independent married sons and their families also to come and stay with him. According to the learned counsel that shows that the landlord did not bona fide require any additional accomedition and he ewas only pressing for eviction because he wanted to accomedate his three sons whose needs could not be taken into consideration. The perusal of the judgment of the Rent Control Tribunal would show that it has not taken the needs of his three sons into consideration and has based its decision on the ground of bona fide requirement of the landlord, his wife and his two dependent children. Apart from this being a pure question of fact it cannot be said that the matter raises any substantial question of law justifying mterfrencc under section 39 of the Delhi Rent Control Act, 1958. The appeal, therfore, fails and is dismissed but there will be no order as to costs.