Chaman Lal Talwar vs Trilok Chand And Ors.
1987 Latest Caselaw 166 Del

JUDGMENT

Leila Seth, J.

(1) This is a civil revision challenging the order passed byMr. D.K. Saini, Additional Rent Controller, on 2.4th February, 1986, rejecting the prayer for condensation of delay and dismissing the application for leave to defend as time barred.

(2) The facts are set out in brief. Mr Trilok Chand and others, therespondent, purchased the property at No. 41UB, Jawahar Nagar, Delhi, from one Mr. 0m Prakash on 3/03/1975. Mr. Chaman Lal Talwar, the petitioner, was already a tenant in a portion of the second floor of the saidproperty.

(3) On 28 the May, 1985, the respondents-landlords filed a petition under section 14(l)(e) of the Delhi Rent Control Act, 1958 (hereinafter referred to as the "Act"). The prescribed summons was served in the ordinary way onMr. Chaman Lal Talwar on 3/06/1985. A summons was also sent by registered post acknowledgment due and this was served on the petitioner on 7/06/1985.

(4) On 20/07/1985, the petitioner filed an application for leave to defend along with an application for condensation of delay. In the said application for condensation of delay, the petitioner asserted that he received the summons of the case on 7/06/1985, along with summons of two othercases. Being 72 years of age and a "heart patient", "he got a mild heart attack and remained confined to bed, on receiving all three summons "at one time and on one day". The doctor advised complete rest and his family members were asked not to allow him to strain himself as the shock of receiving the summons might have been too much for him. Consequently, his son took away the summons and kept them out of his reach "so that he may not think about the cases". When he was a bit better, he enquired about the dates of the three cases. He was informed by his son, that two of the cases were fixed in August, 1985 and there was no date indicated in the third summons i.e. the one pertaining to the present case. He was also informed that the courts were closed for the summer vacations and he "should not think about the cases".

(5) The petitioner has mentioned that he suffered a heart attack on 30thNovember, 1984 and was in the Hindu Rao Hospital for eight to nine days.On 27/03/1985, he suffered another heart attack and was again hospitalised but was released soon after.

(6) At the end of June, 1985, he was advised complete rest, once again,as he had some pain in his chest.

(7) Since, he was a chronic heart patient, his son did not want him to undergo any tension, and took the summons away and kept them in his office in the printing press. He told him that he would be consulting an advocate on the opening of the courts", but forgot to do so. In July, 1985, the petitioner enquired once again from his son about the cases and, thereafter, his son contacted the advocate on 19/07/1985. The advocate informed him about the seriousness of not filing an application for leave to defend within fifteen days. Consequently, the application was, filed immediately thereafter on 20/07/1985, along with the application for condensation of delay. It was prayed in the said application that the delay from 1/07/1985 (when the court reopened) to 19/07/1985 be condoned. It was also asserted that the petitioner had a good case and there were sufficient grounds for graning him leave to defend, as the respondents had "more than 12 rooms besides other accommodation", as they had rebuilt and remodeled their property.

(8) Mr. D.K. Saini, Additional Rent Contoller, who heard the matter dismissed the application for condensation of delay. He was of the view that sufficient cause had not been made out for not. filing the application for leave to defend within time. He came to the conclusion that the plea of the petitioner that he suffered a mild heart attack, because he received the summons in three cases on one and, the same day, was not believeable,especially as, the summons in the present case had already been served, in the ordinary manner, four days earlier on the petitioner. He also observed that there was nothing on the record to indicate that the petitioner was not well on 3/06/1985 when he first receive the summons in this case, though he had suffered a heart attack on 27/03/1985 and again on 7/06/1985.

(9) He further noted that the petitioner could have filed an application for leave to defend during the summer vacations as an Additional Rent Controller is on duty in Delhi. He felt that the plea of the petitioner's son'sforgetfulness in contacting the advocate was not a good ground for condition of delay. Consequently, he rejected the application for leave to defend, as time barred.

(10) After perusing the petition of the respondents, and being satisfied that they bonafide needed the premises he passed an order under section 14(l)(e) of the Act on 24/02/1986 and granted the petitioner six months time to vacate the premises.

(11) On 26/05/1986, the petitioner filed this civil revision. As the registry raised certain objections, the petition was returned and refiled, a number of times. Finally on 27/08/1986, the petition was admitted and dispossession of the petitioner was stayed.

(12) Mr. Sharma, learned counsel appearing for the petitioner, urges,that the non-mentioning of the receipt of the summons on 3/06/1985 is irrelevant as the courts were closed for the summer vacations and, if THE petition had been filed on 1/07/1985, when the courts reopened, instead of 20/07/1985, it would clearly have been in time, even though it was hereafter fifteen days from the date of receipt of the summons, taking either 3/06/1985, or 7th June, 1985. He is also contends that there is no lack of bona-fides on the part of the petitioner and the delay of 19 days should he been condoned as it was patently due to the petitioner's illness and the consequent tension and forgetfulness of his son.

(13) Mr. ArunKumar, learned counsel appearing for the respondents,onthe other hand, contends that the provisions of section 14(l)(e) of the Act read with section 25B provide for a summary procedure and brook no dealy. He,therefore, submits that the scope of the petition is very limited, and since eachday's delay, from 1st to 19/07/1985 has not been explained, the learned Additional Rent Controller was justified in rejecting the application for condensation.

(14) He also submits, that apart from the assertion of the petitioner, that his son forgot to meet the advocate when the courts reopened, there is nothing else to substantiate it, not even an affidavit by the petitioner's son.

(15) He further submits that the court should not exercise its discretion in favor of the petitioner as he did not disclose the receipt of the summons on 3/06/1985. He says that this fact was intentionally suppressed by the petitioner as otherwise he could not make out the story of getting a mild heart attack receiving three summons on the same day.

(16) Lastly, he submits that the petitioner's conduct is not bona fide as he refiled for, the fourth time, the revision petition, after removing the objections, as lasted as 19/08/1986, when the period of six months granted to the petitioner to vacate the premises was about to expire.

(17) Taking the last point first, it is no doubt true, that though the petition was filed on 26/05/1986, it was finally refiled only on 19/08/1986. It appears that the registry raised certain objections and the petition was returned and after removing the objections, it was refiled; but as the objections were not fully removed, the papers were again returned. Eventually all the objections were removed and it was refiled. This refiling, a number oftimes, in itself is not relevant for the purpose of deciding whether the delay in filing the application for leave to defend should have been condoned.

(18) It would appear to me that the fact an Additional Rent Controller was available during the summer vacations is not really relevant and the Additional Rent Controller was not justified in holding this fact against the petitioner. Since the courts were closed, the petitioner was entitled to presume that limitation would start only after the courts reopened. Therefore, the only question to be examined, is, was there sufficient cause for the delay from 1st to 19/07/1985.

(19) It would appear to me that there was. The petitioner was 72 years old and a chronic patient of heart trouble. He was not well. The photocopy of the certificate dated 17/07/1985 of Dr. Y.C. Arora, which was annexed to the application for condensation of delay, indicates that he had a myocardial infraction and had developed anteroom septet angina since 28/06/1985. The certificate further indicates that he was advised to take rest and avoid exertion and tension. The original certificate has been produced in court today by Mr.Sharma and is taken on record, without objection,

(20) The Additional Rent Controller has not dies believed the certificate of the doctor. Though, it is apparent from the certificate, that the petitioner was not in such a condition that he could not have communicated with his son and asked him to go and see the advocate, yet, it is quite possible, that the family members and the son of the petitioner, who were worried about his health,avoided discussing the matter with him as they wanted him to be free fromtension. It is also possible that the son who was worried about his father, forgot to go to the advocate as promised and did so only when the petitioner raised the matter again. However, thereafter, he went to the advocate, who took action immediately.

(21) The Supreme Court has repeatedly observed that "sufficient cause must be liberally construed and the discretion exercised to advance substantial justice (See :Ramlal and others v.Rewa Coalfields Ltd. and The State of West Bengal v. The Administrator, Howrah Municipality andothers, ), Though the delay from 1st to 19/07/1985has not been explained day by day, the certificate of Dr. Arora, refers to illness over a period from 28/06/1985 to 17/07/1985, the date of the certificate The story of the son's forgetfulness during the illness of the lather is plausible and should not have been rejected outright. The fact that there is no affidavit by the son is not of serious consequence, if the petitioner's story is believed.

(22) The criticism regarding the non-mentioning of the receipt of the summons on 3/06/1985, the consequent mild heart-attack, pertains to aperiod prior to 1/07/1985, when limitation started to run. The period alter 1/07/1985 is covered by the certificate of Dr. Arora. There does not appear to be any ulterior motive for not filing the application for leave to defend andnotbefore 20/07/1985.

(23) Procedural law is for the purpose of advancing justice, a servant and not a tyrant, and it seems to me that the Rent Controller who bad power to condone the delay, should have condoned the delay in the facts and circumstances of the case. (See: Gurditta Mal and others v. Bal sarup and others, , Jagdish Pershad v. Phoolwati Devi, and Lacchiman Das v. Shri SurajParkash, ).

(24) In the present case, there is no want of bonafides imputable of the petitioner. The inaction has been explained, because of the petitioner s illness and his son's forgetfulness. In Udyan-Chinubhai v. R. C. Ball, A.IR. 1977S C 2319 the Supreme Court observed that they were inclined to condone the delay of twelve days caused by the negligence of the advocate as there were no aches on the part of the appellant.

(25) Consequently, in the facts and circumstances of this case, it seems tome that the application for condensation of delay should not have been reacted and the application for leave to defend has to be considered on merits and not dismissed as time barred. As such, the order dated 24/02/1986 is set aside and the learned Additional Rent Controller is directed to consider the application for leave to defend on merits.

(26) In view of the fact that the application under section 14(l)(e) of the Act was filed as far back as 28/05/1985, the Additional Rent Controller should try and deal with the matter expeditiously. There will be no order as to costs.

(27) Parties are directed to appear before the trial court on 30/03/1987.

(28) The record should be sent back forthwith.