Delhi High Court
Master Abdul Aleem Decd Thr Lrs vs Hameeda Shahzad on 9 February, 2012
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 09.02.2012.
+ R.C.R. No. 539/2011, CAV No. 1160/2011 & CMNo. 23286/2011
MASTER ABDUL ALEEM DECD THR LRS ..... Petitioner
Through Mr. Jayant K. Mehta, Adv
versus
HAMEEDA SHAHZAD ..... Respondent
Through Mr. Raman Kapur, Sr. Advocate
with Mr. R.P. Singh, Adv.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1 Order impugned before this Court is the order dated 17.10.2011;
the Court had not taken the application for leave to defend on record
holding it to be barred by delay of one day; necessary corollary was that
the eviction decree had followed in favour of the landlord.
2 Record shows that the present eviction petition has been filed
under Section 14 (1)(e) of the Delhi Rent Control Act (DRCA). The
tenant was served with the summons on 12.01.2010; he had filed an
application seeking a complete set of the petition which was provided to
him on 30.10.2010. The impugned order has noted that even if the date
of summons is counted from 30.01.2010, the application for leave to
defend filed on 15.02.2010 was barred by limitation as the limitation has
expired on 14.02.2010. It is not in dispute that 14.02.2010 was a
Sunday. Contention of the petitioner before this Court is that 14.02.2010
being a Sunday which has necessarily to be excluded for the purpose of
computing the period of 15 days which is the outer limit within which
an application for leave to defend can be filed in eviction proceedings
under Section 14 (1)(e) of the DRCA.
3 This argument has been refuted by the learned counsel for the
respondent; reliance has been placed upon the judgment of this Court
reported in 177 (2011) DLT 747 Aster Publishing Vs. Shi Niwas
Aggarwal & Others as also another judgment in R.C.R. No. 9/2011
decided on 11.02.2011 titled Shiv Gopal & Anr Vs. Shipra Singh &
Others; contention is that even a one day delay cannot be condoned.
Both the said judgments are inapplicable. In the first case there was
admittedly a delay of three days in filing the application for leave to
defend and in the second case there was a delay of two days. The
question which has arisen for consideration in this case is not whether a
delay in filing an application for leave to defend can be condoned; but
how the said period has to be computed and when the last day is a
Sunday and the Courts being closed on that day, does it have to be
counted in computing the period of 15 days.
4 A similar question has come for consideration before a Bench of
this Court in 1984 (6) DRJ 47 Frank Anthony Public School Vs. Amar
Kaur which was also in proceedings under Section 14 (1)(e) of the
DRCA where the application seeking leave to defend was within the
period of 15 days; the expression within 15 days from service hereof had
come up for consideration. Relevant extract of the said order reads
herein as under:-
"The expression "day" has been understood in different ways by different nations in
different times. Lord Coke said :
"The Jewes, the Chaldeans, and Babylonians, begin the day at the rising of the sun:
the Athenians at the fall; the Umbri in Italy beginner at midday: the Egyptians and
Romanes from midnight; and so doth the law of England in many cases". The
English day begins as soon as the clock begins to strike twelve p.m. of the preceding
day. Williams v. Nash 28 L J. Ch. 886".
In Halsbury's Laws of England, third edition. Vol. 37, P 84 it is said :
"The term "day" is, like the terms "year" and "month", used in more senses than one.
A day is strictly the period of time which begins with one midnight and ends with
the next. It may also denote any period of twenty-four hours, and again it may
denote the period of time between sunrise and sunset."
(27) Counsel for the landlady argues that time ought to be counted from 12-5-1982
and the period of fifteen days expired on 26-5-1982. In any event he says the leave
application made on 27-5-1982 was barred by time. I have no hesitation in rejecting
this argument. The question is what is meant by the phrase "within fifteen days from
the service hereof". In my opinion, on a proper reading of the third schedule, the
word "day" should be read as meaning a "calendar day". I propose to found my
decision R. v. Turner (1910) 1 K.B. 346 and Chambers v. Smith (1843) 152 E.R.
1085 and to decide that the phrase means fifteen clear days exclusive of the day of
service. The words ' within fifteen days of the service hereof" in the form of
summons prescribed in third schedule must be construed as meaning fifteen
consecutive periods of twenty-tour hours after the service of the summons.
(28) It is well known maxim that the law disregards fractions. By the Calendar the
day commenced at midnight, and most nations reckon in the same manner. The
English do it in this manner. We too have adopted the same. In the space of a day all
the twenty-four hours are usually reckoned, the law generally rejecting all fractions
of a day, in order to avoid disputes. If anything is to be done within a certain time
of) from, or after the doing or occurrence of something else, the day on which the
first actor occurrence takes place is to be excluded from the computation. (Williams
v. Burgess (1840) 113 E.R. 955) unless the contrary appears from the context. (Hare
v. Gocher (1962) 2 Q.B. 641). The ordinary rule is that where a certain number of
days are specified they are to be reckoned exclusive of one of the days and inclusive
of the other. (R. v. Turner, supra p. 359).
(29) Fraction of a day has not to be counted. So I would disregard 12-5-1982, the
day on which the ordinary summons were delivered to the Principal. Fifteen days
will commence from 13-5-1982. Counting in this way the application was made on
the last day, i.e. 27-5-1982. The application for leave to appear and contest is within
time. I Therefore hold that the tenant was entitled to count fifteen days from the
receipt of the second summons on 12-5-1982."
5 In view of the aforenoted legal position, it is clear that 14.02.2010
has to be excluded. If 14.02.2010 which was a Sunday is excluded the
application seeking leave to defend filed by the tenant is clearly within
time. The impugned order decreeing the eviction petition thus suffers
from an infirmity. It is accordingly set aside. The application for leave to
defend is taken on record. Parties to appear before the Additional Rent
Controller on 22.02.2012 who shall proceed to deal with the application
on its merit.
6 Petition disposed of.
INDERMEET KAUR, J
FEBRUARY 09, 2012
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