Delhi High Court
Mohd. Nayeem vs Manoj Ratta on 18 May, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 18.05.2011
+ R.S.A.No. 80/2011 & CM Nos.9795-96/2011
MOHD. NAYEEM ...........Appellant
Through: Mr. O.P. Verma, Advocate.
Versus
MANOJ RATTA ..........Respondent
Through: Nemo.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1. This appeal has impugned the judgment and decree dated
14.03.2011 which has dismissed the appeal of the appellant on the
ground of limitation; the appeal was delayed by a period of 129
days; the application under Section 5 of the Limitation Act had
been considered and dismissed. The impugned judgment had
returned the finding as follows:-
"13. Herein the appellant-applicant has alleged that it is because of the
negligence of the advocate whom he was initially engaged, that the appeal
could not be filed. Surprisingly, in his application, applicant-appellant no where
mentioned the name of the advocate who was initially engaged by him. It is
only in his affidavit Ex AW1/A, that he, for the first time, mentioned the name of
the advocate as Sh. S. A. Khan. No explanation has been furnished in the
affidavit as to why his name was not mentioned in the application.
14. In the application, the applicant has alleged that the advocate took him to
his seat in Central Hall, Tis Hazari Courts. However, in his cross examination,
he displayed his ignorance as to where the office or seat of Sh. S. A. Khan,
advocate is situated. In para 5 of his application, the applicant alleged to have
visited the said advocate several times and further that he could never meet
him at his set. This goes to show that the applicant has come forward with
contradictory versions. In case it is believed that the advocate took the
applicant to his seat and he visited him several times at the said seat, the
applicant could not display ignorance in his cross examination about location of
his office/seat. He admitted in his cross examination that Sh. S. A. Khan had
even given him his visiting cards at the time he first met him, but in the next
breath, he stated to have misplaced that visiting card. In the given
circumstances, when the applicant admittedly visited the seat of the advocate
several times, loss of visiting card does not come to help him.
15. Applicant has stated in his cross examination that he had paid initially a
sum of Rs.200/- to the advocate for the purpose of preparation of appeal in
January, 2010. However, in the next breath, he stated to have met the counsel
in December and January.
16. As noticed above, the impugned judgment and decree is of 22.03.2010. In
the given situation, it is not believable that the applicant met or engaged any
counsel by the name of Sh. S. A. Khan in December or January in connection
with preparation of any appeal. In the given circumstances, feeling aggrieved
by the conduct of the advocate, the applicant-appellant could file complaint
with Bar Association or Bar Council against Sh. S. A. Khan. However, he admits
to have not filed any complaint against Sh. S. A. Khan.
17. In view of the above discussion, the story put forth by the appellant-
applicant as to what led to delay in filing of the appeal is not believable, what to
say of his having established any sufficient cause in condonation of delay. The
application for condonation of delay is, therefore, dismissed.
The appellantapplicant having been failed to prove sufficient cause in
filing appeal, beyond the stipulated period of limitation, the authority cited by
learned counsel for appellant does not come to aid of the appellant. The present
appeal against the impugned judgment and decree dated 22.03.2010 is hereby
dismissed being barred by limitation."
2. This is a second appeal. It is yet at the stage of admission. It
is submitted that a valuable right has been lost to the appellant as
he has not been heard on merits of the case.
3. The present suit was a suit for possession qua the suit
property bearing flat No. 39-F, Section 8, Jasola, New Delhi. The
defendant was stated to be a tenant qua the suit property @
`8,000/- per month in terms of lease agreement dated 20.10.2003.
Rent had thereafter been increased from `8,000/- per month to
`8,800/- per month. Legal notice dated 21.01.2008 had been
issued terminating his tenancy; receipt of legal notice is not
denied; it has been admitted; the decree for possession had
accordingly followed; this was under Order 12 Rule 6 of the Code
of Civil Procedure (hereinafter referred to as the „Code‟). The trial
Judge had noted that there was a clear and categorical admission
by the defendant; the landlord-tenant relationship had been
disputed; it was not disputed that rent was more than `3,500/- per
month; receipt of legal notice terminating his tenancy was also not
disputed.
4. All the aforenoted facts had been admitted. The only
submission urged before this Court is that the rent agreement
dated 20.10.2003 was not a registered document and as such it
could not have been looked into by the court below; the defence of
the defendant was that the tenancy was renewed even after the
agreement of 20.10.2003 and was continuously being renewed.
Admittedly there is no written document to the said effect. Even
presuming that this defence of the defendant is correct, what had
relegated between the landlord and tenant was a monthly
tenancy; it was a tenancy on a month to month basis; the law is
clear; a tenancy can be reviewed only by a written document. The
parties having been relegated to the position of a month to month
tenancy and the said tenancy having been terminated vide legal
notice dated 21.01.2003 (no dispute is raised about the validity of
the said notice), it is clear that the defendant had become an
unauthorized occupant and decree under Order 12 Rule 6 of the
Code had been rightly passed.
5. The first appellate court had not gone into the merits of the
case. It had only dealt with the issue of limitation; it had rightly
noted that "sufficient cause" has not been made out in favour of
the appellant; the result was that the application under Section 5
of the Limitation Act stood dismissed; necessary corollary being
that the judgment of the trial Judge stood endorsed; decree for
possession under Order 12 Rule 6 of the Code was affirmed.
6. Substantial questions of law have been embodied at page 12
of the body of the appeal. No such substantial question of law has
arisen. There is no merit in this appeal. Appeal as also pending
applications are dismissed in limine.
INDERMEET KAUR, J.
MAY 18, 2011
a
