Sham Lal vs Municipal Corporation Of Delhi ...
1968 Latest Caselaw 119 Del

JUDGMENT

I.D. Dua, J.

(1) This is an application under Section 115, Code of Civil Procedure, and Articles 226 and 227 of the Constitution of India challenging the order of the learned additional District Judge dated 16th March, 1962 dismissing the present petitioner's appeal as barred by time.

(2) The learned Counsel for the respondents Shri J. P. Chopra has raised a preliminary objection that by virtue of sectien 171 of the Delhi Municipal Corporation Act 66 of 1957, the order of the Court confirming, setting aside or modifying an order in respect of any rateable value or assessment or liability to assessment or taxation shall be final. According to the learned counsel, this provision excludes the applicability of section 115, Code of Civil Procedure, to cases like the present. Without expressing any opinion on this objection, in my view. Article 227 of the Constitution under which also the petition has been presented to this Court, empowers this Court to scrutinise acts of all subordinate Coarts and Tribunals to see that they keep themselves within the bounds of law and that they do nto decline to exercise jurisdiction vested in them on erroneous grounds. This power cannto be taken away by the Delhi Municipal Corporation Act or, for that matter, by any subordinate legislation.

(3) Coming to the merits of the case, it appears to me that the learned Additional District Judge was nto right in holding that section 5 of the Limitation Act could only be invoked if the claimant filed a written application supported by an affidavit. That section does nto say so and I am aware of Bo precedent or principle according to which a person seeking relief under section 5, Limitation Act, is bound as a natter of law to file a written application to that end. An oral application may in given circumstances be quite enough, though as a general rule, of course it is desirable that a written application be filed.

(4) On the view that I have taken, it appears to me that the learned Additional District Judge has declined to exercise jurisdiction vested in him according to law when he said that he had no alternative but to uphold the preliminary objection and dismiss the appeal because the appellant had nto filed any application seeking extension of time under section 5, Limitation Act, J, therefore, set aside and quash the impugned order and send the case back to the lower Appellate Court by permitting the appellant in that Court to produce an affidavit in support of his claim for extension of time under Section 5 of the Limitation Act. Parties are directed to appear on 2nd September, 1968 belore the learned Additional District Judge when a short date within two weeks would be given for further proceedings in accordance with law and in the light of the observations made above. In the pecaliar cicumstances of this case, there will bs no order as to costs in this Court.