Sohan Lal Lamba vs S.L. Kapoor And Anr.
1968 Latest Caselaw 174 Del

JUDGMENT

T.V.R. Tatachari, J.

(1) This Second Appeal was filed against the order, dated 22-8-1968, of the Rent Control Tribunal, Delhi, in Rent Control Appeal No. 1308 of 1967, dismissing the said appeal on the ground that it was barred by time.

(2) The respondents herein, S. L. Kapur and A. L. Kapur, filed an application under section 14(1) (b) & (h) of the Delhi Rent Control Act in the Court of Shri P. K. Bahri, 1st Additional Rent Controller, Delhi, seeking the eviction of the appellant herein, Sohan Lal Lamba, on the ground that the appellant-tenant was alltoted a

(3) Against that order, the appellant herein preferred an appeal, Rent Control Appeal No. 1308 of 1967, to the Rent Control Tribunal, Delhi. When the appeal came up for hearing, a preliminary objection was raised by the respondents herein that the appeal was barred by time. The appellant herein filed an application praying that the appeal be held to have been filed within time, and that in the alternative, the delay of about 13 days in filing the appeal be condoned. Shri M. L. Jain, Rent Control Tribunal, Delhi, by his order, dated 22-8-1968, held that the appeal was barred by time, and that there was no sufficient cause for condoning the delay. The learned Tribunal accordingly dismissed the appeal. It is against that order that the present Second Appeal has been filed. The two questions that arise for determination in this Second Appeal are:-

(1) Whether the appeal was barred by time; and

(2) Whether there was no sufficient cause for condoning the delay as held by the Rent Control Tribunal ?

(4) For a proper appreciation of the contentions of the parties on the said two questions, a few facts have to be stated. The order of the learned Rent Controller was passed on 1-12-1967. The appellant herein applied for a certified copy of the order on 2-12-1967 for filing an appeal before the Rent Control Tribunal. As he did nto receive the certified copy, and as he wanted to obtain an urgent order of stay of eviction, he filed the appeal before the Rent Control Tribunal against the order of the Rent Controller on 8-12-1967, along with an uncertified copy of the order of the Rent Controller and an application for exemption from filing the certified copy of the said order, dated 1-12-1967, of the Rent Controller. In that application, he stated that the certified copy will be filed as and when obtained. He also filed an application for stay of the operation of the order of the Rent Controller. On 8-12-1967, the Rent Control Tribunal passed an order that the appeal be registered and put up on 12-12-1967 for "scrutiny/stay application." On 12-12-1967, the case was adjourned to 16-12-1967. On 16-12-1967, the Tribunal admitted the appeal, stayed the operation of the impugned order till further orders, and directed ntoice of the appeal and the stay application to the opposite party for 15-1-1968. It appears from the order of the Tribunal that Shri S. C. Chhabra, Advocate for the respondents herein, was present before the Tribunal and accepted ntoice on behalf of the respondents on that date itself. The certified copy of the order of the Rent Controller was ready on 30-12-1967, but it was filed before the Tribunal by the appellant herein on 12-2-1968. On 14-6-1968, the appellant herein filed an application under section 5 of the Indian Limitation Act and Order 41 Rule 1 and section 151 of the Code of Civil Procedure, praying that the appeal be held to have been filed within time or, in the alternative, the delay of about 13 days be condoned. As already stated, the learned Rent Control Tribunal, came to the conclusion that the appeal was nto filed within time. The Rent Control Tribunal took the view that the provisions of Rule 17 of the Delhi Rent Control Rules, which provided for the filing of the certified copy of the order appealed from along with the appeal, were distinct and quite different from the provisions of Order 41, Rule 1 of the Code of Civil Procedure, under which the appellate court was empowered to exempt the filing of the certified copy of the judgment appealed from, that there was no such power or discretion vested in the Rent Control Tribunal, and that since Rule 17 of the Delhi Rent Control Rules specifically provided that the certified copy should be filed along with the appeal, there was no discretion left with the Rent Control Tribunal for exempting the appellant from filing a certified copy. The Tribunal also took the view that even if the order passed by the Tribunal on 16-12-1967 is to be regarded as having exempted the filing of the certified copy, the said exemption was only for a temporary period, that is, up to the stage of the obtaining of the certified copy of the impugned order by the appellant, and was nto an absolute order, and that the appellant could nto give any explanation of the further delay of 13 days made by the appellant in filing the certified copy on 12-2-1968 even though it was ready on 13-12-1967. The Tribunal accordingly held that the appeal should be deemed to have been filed only on 12-2-1968, and as there was no sufficient cause for condoning the delay, dismissed the appeal as barred by time.

(5) Shri Devinder K. Kapur, the learned counsel for the appellant, contended that as the appellant had filed the appeal before the Tribunal along with an uncertified copy of the order of the Rent Controller appealed from and an application for exemption from filing a certified copy of the said order, and as the Tribunal admitted the appeal, granted interim stay, and directed ntoices in the appeal and the stay petition to the respondent, the filing of the certified copy should be regarded to have been exempted by the Tribunal. This argument was advanced before the Tribunal also. The Tribunal took the view that the provisions in Rule 17 of the Delhi Rent Control Rules are distinct and quite different from the provisions of Order 41, Rule 1 of the Code of Civil Procedure, and that in view of the provision in Rule 17, the Tribunal had no power to exempt the filing of the certified copy of the impugned order. Order 41, Rule 1 of the Code of Civil Procedure provides that the memorandum of appeal shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded. Rule 17 of the Delhi Rent Control Rules, 1959, runs as follows :-

"17. Form of appeal-Every appeal to the Rent Control Tribunal under section 38 shall be prefered in the form of a memorandum signed by the appellant or his recognised agent and presented either in person or through a recognised agent to. the Tribunal or to such officer as it may appoint in this behalf. (2) Every such memorandum shall be accompanied by a copy of the order of the Controller appealed from and shall set forth concisely and under distinct heads, the grounds of objection to order appealed from without any argument or narrative, and such grounds shall be numbered consecutively."

(6) Thus, under Order 41, Rule 1 of the Code of Civil Procedure, the appellate court has power to dispense with the filing of a certified copy of the judgment on which the decree appealed from is founded. But, in cases under the Delhi Rent Control Act, the Rent Controller passes only an order, and no separate decree is drafted or issued. The order comprises btoh. According to Rule 17(2), the appeal-memorandum should be accompanied by a copy of the order of the Controller appealed from. The said rule was obviously made in pursuance of section 56(2)(e) of the Delhi Rent Control Act, 1958, which empowers the Central Government to make a rule providing for "the form and the manner in which an application for appeal or transfer of proceedings may be made to the Tribunal." Rule 17 does nto expressely confer any power on the Tribunal to exempt the filing of a certified copy of the order appealed from. However, the said rule has to be read with the provision in section 38(3) of the Act, which provides that "the Tribunal shall have all the powers vested in a Court under the Code of Civil Procedure, 1908 (V of 1908), when hearing an appeal". Reference has also to be made to Rule 23 of the Delhi Rent Control Rules, 1959, which provides that "in deciding any question relating to the procedure nto specifically provided by the Act and these rules, the Controller and the Rent Control Tribunal shall, as far as possible, be guided by the provisions contained in the Code of Civil Procedure, 1908". In my opinion. Rule 17 has to be read along with Rule 23 and section 38(3), and on such a reading it is clear that the Tribunal has the power to exempt the filing of a certified copy of the order of the Rent Controller appealed from. The Tribunal, therefore, was in error in taking the view that it had no power to exempt the filing of a certified copy of the impugned order along with the memorandum of the appeal.

(7) Shri Davinder K. Kapur referred to the decision in Mst. Mali v. Lassi Thakur(1) in which it was held that :-    "WHERE at the time of the presentation of an appeal under Civil Procedure Code, the appeal is admitted by the Court and presented by the counsel without a copy of the decree-sheet having been appended, and the Court by an act of indulgence to the appellant gives him time to produce a copy of the decree-sheet and the decree-sheet is produced in pursuance of the order of the Court, the appeal will be deemed to have been presented on the initial date of presentation."  

(8) But, in the view taken by me on the power of the Tribunal, it is nto necessary to base the decision of the present case on the said decision. Shri Davinder K. Kapur also referred to the decision in G.I.P. Railway Company v. Radha Kisan,(2) in which it was held that-    "WHERE the memorandum of appeal stated that the copy of the judgment would be given afterwards, and the appeals were admitted on presentation, ntoice being ordered to issue to the respondents, it must be taken that the Court dispensed with the copy of the judgment."  

(9) In the present case also, the Tribunal admitted the appeal on 16-12-1967, granted stay of the impugned order, and directed ntoice of the appeal and the stay application to the opposite party. It is nto clear from the record whether any order was passed on the application for exemption. It is also nto clear whether the attention of the Tribunal was drawn to the said application for exemption. It was pointed out by I. D. Dua, C.J. in Jytoi Prashad v. Gajendra Sharma,(3) that when an application for exemption from producing a certified copy of the order of the trial court and the grounds of appeal before the lower appellate court is filed at the time of presenting the appeal in the High Court-    "UNLESS and until the prayer is granted, the appellant cannto claim any relief against the rigour of the Law of Limitation."  

The learned Chief Justice, however, observed further as follows :-    "IT was, in my opinion, the duty of the counsel at the time of the preliminary hearing before Dulat, J. on 20-12-1963 to secure an order of exemption. I am, however, disinclined in the present case to penalise the appellant because I know that as a matter of practice, great laxity has been prevailing in the office of this Court in drawing the attention of the admitting Judge to such applications. It is only recently that this Court has started being strict in this respect. But, be that as it may, the fact remains that the office entertained the appeal without certified copies and this matter was nto brought to the ntoice of the admitting Judge for the purpose of securing suitable order on the miscellaneous application for exemption. In these circumstances, I am inclined to condone the delay in filing in this Court the certified copies of the Rent Controller's order and of the grounds of appeal."  

(10) The circumstances in the present case are similar to those in the case decided by the learned Chief Justice. Taking into consideration the laxity that was prevalent as regards the passing of orders on such applications for exemption of certified copies of the impugned orders, and the circumstance that the Tribunal, even in its final order, dated 22-8-1968, vested its conclusion upon the absence of power in the Tribunal to exempt the filing of the certified copy of the impugned order, rather than upon the omission of the Tribunal to pass an express order on the application for exemption at the time of the admission of the appeal, I am inclined on the facts of this case to take the view that the Tribunal, by admitting the appeal and directing ntoices in the appeal and the stay petition, should be regarded to have impliedly ordered the application for exemption. I have already held above that the Tribunal had the power to so exempt.

(11) Shri S. C. Chhabra, the learned counsel for the respondent, contended firstly, that Order 41, Rule I of the Code of Civil Procedure does nto apply to the Rent Control Tribunal. I have already discussed this aspect and held that the Tribunal has all the powers vested in a court in hearing an appeal under the Code of Civil Procedure including the power to exempt the filing of certified copies of impugned orders.

(12) Shri Chhabra referred to the decision in Union of India v. Chiranjee Lal, in which I. D. Dua and P. C. Pandit, JJ. held that in case of appeals from the awards of the courts of District Judges made under section 18 of the Land Acquisition Act, the position is that every award is to be deemed to be a decree and the statement of grounds of every such award is a judgment within the meaning of section 2(9) of the Code of Civil Procedure, and that, therefore, it follows that the award cannto be dispensed with under Order 41, Rule 1 of the Code of Civil Procedure. This decision was based upon the provision in section 26(2) of the Land Acquisition Act which provides that every award shall be: deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of section 2, clause. (2) and clause (9), respectively, of the Code of Civil Procedure. There is no such deeming provision in the Delhi Rent Control. Act. It is true that section 42 of the Act provides that- "SAVE as toherwise provided in section 41 an order made by the Controller or an order passed on appeal under this Act shall be executable by the Controller as a decree of the Civil Court and for this purpose the Controller shall have all the powers of a Civil Court." This section, thus, provides that an order of the Controller shall be executable as a decree of a Civil Court. In toher words, the order of the Controller is a decree of the Civil Court only for the purpose of execution of the same. The section does nto provide that the order shall be regarded as a decree of a Civil Court for all purposes. Thus, the provision in section 42 cannto be regarded to be of the same nature as the deeming provision in section 26 of the Land Acquisition Act. In the absence of such a deeming provision in the Rent Control Act, an order of a Controller cannto be regarded as a decree within the meaning of Code of Civil Procedure, except for the purpose of execution, even though it comprises btoh the operative part of the decision of the Controller and the reasons therefore. Therefore, the order of the Controller cannto be regarded as a decree within the meaning of the Code of Civil Procedure for all purposes, and the principle laid down in Chirnajee Lal's case regarding an award under the Land Acquisition Act cannto be applied to an order of the Controller under the Delhi Rent Control Act.

(13) Shri Chhabra contended next that the appellant filed the certified copy of the impugned order on 12-2-1968, even though it was ready on 30-12-1967, and, therefore, the appeal should be deemed to have been filed on 12-2-1968, and no sufficient cause was shown by the appellant for condensation of the delay. In the view taken by me that the Tribunal had the power to exempt the filing of a certified copy of the impugned order of the Rent Controller, and that the filing of the certified copy of the order was exempted, the appeal has to be regarded to have been filed on the initial date of presentation, i.e. 8-12-1967, and nto on 12-2-1968. As pointed out by Bhat, J. in Mst. Mali's case (supra)- "THE question of condensation of delay is foreign to such a case."