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2008 DIGILAW 756 (DEL)

Mohd. Saeed Qureshi v. Shahabuddin

2008-08-08

SHIV NARAYAN DHINGRA

body2008
JUDGMENT: 1. By this petition under Article 227 of the Constitution of India, the petitioner has assailed the order dated 31st May 2008 passed by learned ARC Tribunal dismissing the application of the petitioner under Section 5 of the Limitation Act for condonation of delay in filing the appeal. 2. An eviction order was passed against the petitioner on 25th May 2007 by the learned ARC under Section 14(1)(b) of Delhi Rent Control Act. Aginst this, the petitioner preferred an appeal under Section 38 of the DRC Act on 21st February 2008 accompanied by an application under Section 5 of the Limitation, since the period of 30 days limitation for filing the appeal had expired. In the application, the petitioner took the plea that he could not file the appeal in time because his wife was seriously ill at that point of time and she expired after long illness. The appellant went in deep sorrow and did not remember about the proceedings of the case and the judgment passed by the trial court. He, therefore, could not contact his advocate for taking proper steps as per law and the delay in filing the appeal was due to this reason. The respondent resisted the application on the ground that the averments made in the application were vague and the petitioner did not state the true facts. 3. There was a delay of more than 7 months in filing the appeal, after taking into account the period spent in obtaining certified copies. The learned ARCT observed that onus to show that the appellant was prevented from filing the appeal in time by a sufficient cause was on the appellant. The appellant had not brought on record anything to explain the delay in filing the appeal. He had not disclosed when his wife fell ill, what was the nature of illness, for how long she remained ill and when she expired etc. The appellant had also not placed on record any document whatsoever to show that she was under medical treatment at any point of time during the relevant period. In absence of these material, learned trial court found that the averment in application were completely vague and without any substance. The appellant had failed to show sufficient cause for condonation of delay in filing the appeal. 4. In absence of these material, learned trial court found that the averment in application were completely vague and without any substance. The appellant had failed to show sufficient cause for condonation of delay in filing the appeal. 4. The petitioner has challenged the order alleging that the trial court committed a material irregularity in dismissing the application under Section 5 of the Limitation Act. The petitioner admitted that he had not filed documents in support of the application before the learned ARCT. The petitioner filed some medical prescription along with this petition. The petitioner claimed that he could not file the appeal in time due to unavoidable circumstances and the learned ARCT should have considered that only unavoidable circumstances would have prevented the petitioner form filing the appeal and, therefore, should have condoned the delay. It is stated that the documents qua illness of the petitioner were handed over by the petitioner to his counsel but these documents were not placed on record by the counsel for the appellant for reasons best known to the counsel. 5. This Court while exercising jurisdiction under Article 227 of the Constitution cannot substitute its own decision in place of decision arrived at by the court below. The Court has only to see if the principles of natural justice have been followed and the court below has acted within its jurisdiction. 6. It is an undisputed fact that the petitioner had not placed before the learned ARCT documents in support of his contentions that he was prevented by a sufficient cause from filing appeal in time. The petitioner even now has not disclosed the date of death of his wife, which is the ground taken by the petitioner before the trial court for not filing the appeal. Though, this Court could not have looked into the documents at this stage of entertaining the petition under Article 227, but a perusal of documents filed by the petitioner show that these are prescriptions slips of the petitioner and not of his wifes illness. In the prescription slips only illness shown is hypertension. The prescription slips contain a note that these are not for medico legal purposes. 7. In this case there is a delay of 220 days in filing an appeal. In the prescription slips only illness shown is hypertension. The prescription slips contain a note that these are not for medico legal purposes. 7. In this case there is a delay of 220 days in filing an appeal. Even though it is not that the petitioner had to explain the delay of each and every day but the petitioner ought to have shown due diligence and sufficient cause which prevented him from preferring the appeal. Mere assertion that due to illness of his wife he had gone into hypertension and anxiety cannot be a ground for condonation of delay. I, therefore, find that this petition is without merits. The petition is hereby dismissed. No orders to costs.