Research › Search › Judgment

Punjab High Court · body

2003 DIGILAW 602 (PNJ)

Chemali Devi v. Aggarwal Medical Store

2003-04-28

K.C.GUPTA

body2003
Judgment K.C.Gupta, J. 1. This revision has been directed by the land lady, Smt. Chemali Devi, against the judgment dated 24.11.1998 passed by the Appellate Authority, Gurgaon, whereby her appeal was dismissed on the ground of being time barred. 2. Briefly stated, the facts are that Smt. Chameli Devi, petitioner, filed a petition for ejectment under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter to be referred as "the Act") against M/s Aggarwal Medical Store on the ground that the respondent was a tenant under her at a monthly rent of Rs. 200/- besides house tax at the rate of 121/2 % totaling Rs. 225/- per month and it has not paid the arrears of rent of the demised premises from 1.5.1991 to 31.10.1991 amounting to Rs. 1350/- and that the respondent had impaired the value and utility of the demised premises by making alteration in the roof and flooring. 3. The respondent contested the petition and filed written reply. It took certain preliminary objections about the locus-standi of the petitioner to file the petition; that he was estopped by her act and conduct to file the petition and that it was not in accordance with the provisions of the Act. It further stated that Naresh Kumar, Mahesh Kumar and Dinesh Kumar sons of Late Sh. Siri Kishan were necessary party to the petition. On merits, it denied the allegations of the petitioner and stated that the demised premises were taken on rent by M/s Aggarwal Medical Store initially @ Rs. 40/- per month with effect from 21.4.1982 and then rent was increased to Rs. 100/- per month including house tax and further it had not impaired the value and utility of the demised premises by changing roof and floor. It also stated that in order to avoid ejectment, it had tendered rent for the period from 1.5.1991 to 31.10.1991 @ Rs. 200/- per month as demanded by the petitioner alongwith assessed costs and interest and it was entitled to the refund of the excess amount. 4. With these pleadings, the following issues were framed on 31.8.1992:- "1. Whether the respondent is liable to be ejected from the premises in dispute on the ground of non-payment of arrears of rent? OPP 2. 200/- per month as demanded by the petitioner alongwith assessed costs and interest and it was entitled to the refund of the excess amount. 4. With these pleadings, the following issues were framed on 31.8.1992:- "1. Whether the respondent is liable to be ejected from the premises in dispute on the ground of non-payment of arrears of rent? OPP 2. Whether the respondent is liable to be ejected on the ground that he has materially impaired the value and utility of the premises in dispute? OPP 3. Whether the petition is bad for non-joinder of necessary party? OPR 4. Whether the petitioner is estopped by her own act and conduct from filing the present petition? OPR 5. Relief." 5. After hearing counsel for the parties, the Rent Controller, under Issue No. 1, held that the respondent was a tenant at a monthly rent of Rs. 100/- including house tax and not a monthly rent of Rs. 200/- besides house tax. Further stated that the arrears of rent had been tendered in excess. Under Issue No. 2, it was held that the respondent had not materially impaired the value and utility of the demised premise and in fact, there was no evidence to prove it. Issue Nos.3 and 4 were decided against the respondent as there was no evidence on these issues. Consequently, the petition was dismissed with costs. 6. Aggrieved by the said order dated 16.5.1997 passed by the Rent Controller, Gurgaon, the petitioner filed an appeal. Alongwith the appeal, an application under Section 5 of the Limitation Act for condonation of delay was field as it was not filed within one month from the date of order but was filed on 19.1.1998 i.e. after a delay of 8 months. However, the Appellate Authority held that there was no sufficient cause to condone the delay. Consequently, the appeal was dismissed as barred by laches on 24.1.1998 by the appellate Authority. 7. Still dissatisfied, the petitioner has filed the present revision petition. 8. I have heard Shri P.N.Anand, Advocate, counsel for the petitioner, Shri Lokesh Singhal, counsel for the respondent and carefully gone through the record. 9. Admittedly, the Rent Controller, Gurgaon, had dismissed the petition of the petitioner for ejectment of the respondent from the demises premises vide his order dated 16.5.1997 and the appeal was filed in the appellate Court on 18.1.1998. 9. Admittedly, the Rent Controller, Gurgaon, had dismissed the petition of the petitioner for ejectment of the respondent from the demises premises vide his order dated 16.5.1997 and the appeal was filed in the appellate Court on 18.1.1998. The main allegation of the petitioner is that she is an illiterate lady and could not be made to understand the fate as well as result of the rent petition decided on 16.5.1997 and moreover her counsel in the lower Court kept her in dark and ultimately in the month of January, 1998 i.e. on 7.1.1998, she came to know from the official of the Court concerned that her petition had been dismissed on 16.5,1997. It is further averred that thereafter she applied for certified copy and after obtaining the same, she filed the appeal on 16.1.1998. Various interim orders passed by the Rent Controller reveal that the cause was posted for further progress of the case on 30.4.1997, 2.5.1997, 12.5.1997 and 15.5.1997 and ultimately, it was decided on 16.5.1997. The petitioner had also placed on file the brief of her counsel, showing the dates as 17.4.1997, 24.4.1997 and 19.7.1997 and on the other side of the brief, only one date i.e. 16.5.1997 is mentioned. No affidavit of the counsel, Shri D.P.Sharma, Advocate, had been filed to prove that there was a mis-understanding of the date and he did not know about the date of order of the Rent Controller i.e. 16.5.1997. The affidavit is silent about these dates. The very fact that on the other side of the brief the date 16.5.1997 is mentioned shows that counsel knew that it is fixed for order on the said date. The affidavit filed by the petitioner as well as the Clerk, Shri Ravinder Kumar, had not been attested in accordance with law and only the word "ATTESTATION" is mentioned and this is no attestation in the eye of law. So, the same cannot be taken into consideration. Even if these affidavits are taken into consideration, then one does not know as to what happened with the case after 19.7.1997. The petitioner has stated in her application that a verbal date in the month of November was given for the purpose of arguments. If the date was given in the last week of November for arguments, then it is not known as to how the date of January was mentioned in the application. The petitioner has stated in her application that a verbal date in the month of November was given for the purpose of arguments. If the date was given in the last week of November for arguments, then it is not known as to how the date of January was mentioned in the application. Further, a perusal of the copy of the order shows that the application for copy was presented on 7.1.1998 and the copy was ready on 10.1.1998. It has not been explained as to why the appeal was not field immediately within 1-2 days after 10.1.1998 and was field only on 19.1.1998. The delay of even 7-8 days during the said period has not been explained at all. It is true that the law regarding condition of delay is liberal but a person who wants the discretion to be exercised in his/her favour, should show sufficient cause for reason to condone such delay. In the present case, there is no explanation at all regarding the delay of 8 months in filing the appeal much less sufficient cause. 10. Counsel for the petitioner, on the basis of the authority of Honble Apex Court in N. Balakrishnan v. M. Krishnamurthy, (1999-2)121 P.L.R. 462 (S.C.) contended that the Court should give liberal construction to the words "SUFFICIENT CAUSE" so, as to advance substantial justice if the explanation offered does not smack of malafide or not put-forth as part of dilatory strategy, then delay should be condoned. There is no dispute about the principle of law laid down in the above said authority. However, in the present case, there is no explanation much less of sufficient cause to condone the delay at all. It has been observed by the Division Bench of this Court in The Oriental Insurance Company Limited v. Smt. Kailash Devi and Ors., (1993-3)105 P.L.R. 254 that delay means a cause beyond the control of the party i.e. the delay if it could be avoided by taking due care and attention would not come within the ambit of sufficient cause. It has also been observed by this Court in Tek Chand v. Balbir Singh and Ors.; (1996-1)112 P.L.R. 456 that there is no sufficient cause for condoning the delay in exercise of revisional jurisdiction where the order had been passed in the presence of counsel for the parties. It has also been observed by this Court in Tek Chand v. Balbir Singh and Ors.; (1996-1)112 P.L.R. 456 that there is no sufficient cause for condoning the delay in exercise of revisional jurisdiction where the order had been passed in the presence of counsel for the parties. In the present case also, the Rent Controller had passed the order in the presence of counsel for the parties. Even the date 16.5.1997 had been mentioned on the brief of counsel for the petitioner. It is difficult to believe that the counsel misled the petitioner and told wrong dates. For this reason, the petitioner had not filed the affidavit of the counsel to prove that in fact by mistake or otherwise he had told wrong dates to the petitioner. In fact, it has been wrongly pleaded that she came to know in the month of January 1998 regarding the decision of the Rent Controller, which was made on 16.5.1997 to make out a case for condonation of delay. The counsel has no motive to tell wrong dates to the petitioner. 11. Hence, in view of the discussion above, I hold that there is nothing on file to suggest that it was beyond the control of the petitioner not to file the appeal within time. Therefore, there is no sufficient cause or reason in favour of the petitioner to condone the delay. 12. Consequently, the order of the appellate authority is confirmed and the revision is dismissed.