Delhi High Court
L.Queth Khong Decd. Thr.Lrs vs Prem C.Soni Decd. Thr.Lrs &Ors on 18 January, 2012
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 18.01.2012
+ CM(M) No. 341/2007 & CM No. 3534/2007
L.QUETH KHONG DECD. THR.LR'S ..... Petitioner
Through Mr. Sudhir Nandrajog, Sr.
Advocate with Mr. Siddharth
Bambha, Adv.
versus
PREM C.SONI DECD. THR.LR'S &ORS ..... Respondents
Through Mr. Sanjeev Mahajan, Adv. for
R-1
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1 The order impugned before this Court is the order dated
17.01.2007 vide which the application filed by the appellant under
Order 22 Rule 3 of the Code of Civil Procedure (hereinafter
referred to as the „Code‟) seeking impleadment of the legal
representatives of the deceased appellant had been declined.
2 Record show that an eviction petition had been filed by the
landlord against his tenant which had been decreed in favour of
the landlord. An appeal had been filed against the said judgment
which was pending disposal before the Appellate Tribunal. During
the pendency of the appeal, the aforenoted application dated
09.10.2006 had been filed; this was to bring on record the legal
representatives of the deceased L. Queth Khong who had expired
on 14.05.2000. There was a delay in preferring this application
and as such along with this application a second application under
Section 5 of the Limitation Act had also been filed. The averments
in the application under Order 22 Rule 3 of the Code have been
perused. The primary contention is that the appeal was being
defended by the brother of the appellant Lee Man Khong and as
attorney he was not aware that after the death of his brother i.e.
the appellant his legal representatives were required to be
brought on record within a stipulated period; this legal position
was not known to the other legal representatives of the deceased
either; it was only on 05.10.2006 when the counsel for the
appellant gave a call to the attorney of the appellant that this fact
about the death of L. Queth Khong had been informed whereupon
this application had been filed immediately.
3 The impugned order had dismissed this application. This is
the grievance of the petitioner.
4 At the outset, learned counsel for the petitioner has
submitted that the provisions of the Limitation Act are not
applicable to rent control proceedings and to substantiate his
submission, reliance has been placed upon a judgment of this
Court reported as ILR (1973) I Delhi Subhash Chander Vs.
Rehmat Ullah as also a full Bench judgment of this Court reported
as 1973 RLR 701 titled as Kedar Nath Vs. Ram Nath. Further
contention being that on merits, although there is a delay in
preferring the application yet since a valuable substantive right of
the litigant is involved, a justice oriented approach should be
followed by the Court; his opportunity of having his lis
determining on merits should not be given a go-bye and to support
this submission, he has placed reliance upon the judgment of the
Apex Court reported as (2003) 10 SCC 691 Mithailal Dalsangar
Singh & Others Vs. Annabai Devram Kini & Others.
5 Arguments have been countered. It is submitted that the
point of limitation has been answered by the Apex Court in (1987)
4 SCC 84 Kashi Ram Vs. Rakesh Arora. The Apex Court in this
case on the question of the applicability of the Limitation Act to
proceedings under the DRCA had held herein as under:-
"So far as the first question about the applicability of the Limitation Act,
it is necessary to refer to Section 42 of the Delhi Rent Control Act, 1958
(hereinafter called „the Act‟) which provided that an order of eviction has to be
executed like a decree of the civil Court. The provisions of the Code of Civil
Procedure executing the decree are made applicable by legal fiction recognized
by virtue of Section 42 of the Act. In any case procedure of the Small Cause is
adopted by the Controllers under the provisions of the Act wherein also in
execution the provisions of the Code of Civil Procedure are applicable and as
such law of limitation would be attracted. The question is when the limitation
starts running. Once the limitation starts running then unless the statute comes
to the rescue of a person the period would expire after the efflux of time."
6 The Apex Court in (1995) 5 SCC 5 Mukri Gopalan Vs.
Cheppilat Puthanpurayil while dealing with provisions of Kerala
Rent Controller Act had noted that the Appellate Authority
functioning under the said Act is not a persona designate; it
functions as a Court. Provisions of the Limitation Act are
applicable to proceedings under the DRCA.
7 The judgments relied upon by learned counsel for the
petitioner are distinguishable inasmuch as both the aforenoted
judgments i.e. of Subhash Chander (Supra) and Kedar Nath
(Supra) related to powers of Rent Controller and the judgment of
Subhash Chander in fact was in the context of the powers of the
Controller available to him under Section 37 (2) of the Delhi Rent
Control Act (DRCA).
8 With this background, the contentions on merits of the
learned counsel for the petitioner have to be viewed. The
averments made in his application under Order 22 Rule 3 of the
Code are negatived by certain facts which have been brought to
the notice of the Court by the learned counsel for the respondent.
It is a matter of record that during the course of the proceedings
before the appellate Court, the respondent had also died; an
application under Order 22 Rule 4 of the Code had been filed by
the appellant through his counsel supported by the affidavit of L.
Queth Khong (attorney of the appellant) within the stipulated
period of limitation and as such his submission in this application
(under Order 22 Rule 3 of the Code) that he was not aware of this
legal position is clearly falsified. A legal notice had also been sent
by the landlord to the tenant on 18.11.2002 seeking enhancement
of rent under Section 6 (A) of the DRCA to which a reply had been
remitted on 23.12.2002 wherein again the factum of death of the
appellant (who had died on 14.05.2000) had not been informed. In
fact it was only when the appellate Court had passed directions on
04.09.2006 for the appearance of the appellant that the present
application had been filed. The laxity on the part of the petitioner
is clear and apparent. The appellant had died on 14.05.2000 and
his submission that he was not aware about the legal position that
his legal representatives had to be brought on record within a
specified stipulated period has as noted supra negatived and in
these circumstances, there being no explanation in this
application as to why this application has been filed so belatedly it
is clear that the appeal stood abated after a period of 90 days
from the date of the death of the appellant. The application filed
on 09.10.2006 after a lapse of almost six years without any
sufficient explanation was rightly dismissed.
9 Impugned order in this factual scenario calls for no
interference. Petition is without any merit. Dismissed.
INDERMEET KAUR, J
JANUARY 18, 2012
A
