Shri Liakat Ali (Now Deceased & ... vs Shri Afsar Khan
2013 Latest Caselaw 5554 Del

*                 HIGH COURT OF DELHI AT NEW DELHI

+                           RSA No.263/2013

                                        Date of Decision : 29.11.2013

SHRI LIAKAT ALI (NOW DECEASED & REPRESENTED THR HIS
LEGAL HEIRS)                       ..... Appellant

                         Through:       Mr.J.C.Mahindroo, Advocate.

                               versus

SHRI AFSAR KHAN                                     ..... Respondent
                         Through

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI


V.K. SHALI, J. (ORAL)

RSA No.263/2013 & CM No.18947/2013 (Stay) & CM No.18948/2013 (Condonation of Delay)

1. This is a regular second appeal filed by the appellant against the

order dated 30.04.2013 passed by the learned ADJ in RCA No.74/2005.

2. I have heard the learned counsel for the appellant and have also

gone through the record.

3. The respondent/plaintiff had filed a suit for recovery of possession,

damages and permanent injunction averring that he was the owner and

landlord of the shops bearing nos.231/2 and 231/3 situated in house

no.234, Main Road, Jafarabad, Delhi-53 which were let out to the father

of the present appellants Sh.Liyakat Ali initially at a monthly rent of

`75/- per month which was later on increased to `82.50 paise per month

besides other incidental charges. The two shops in question were stated

to be measuring 7.7 x 10 feet. One of the pleas which was taken by the

appellants/defendants was that the suit of the respondent/plaintiff was

barred by Section 50 of the Delhi Rent Control Act, 1958 as the same was

falling within the jurisdiction of the Delhi Rent Control Act, 1958. An

issue in this regard was framed by the trial court and the court returned a

detailed finding that the suit was not barred by Section 50 of the Delhi

Rent Control Act, 1958.

4. The appellant feeling aggrieved by the aforesaid finding filed the

first appeal before the learned ADJ in which he was unsuccessful. The

appellant still not feeling satisfied, has preferred the present regular

second appeal and has raked up the issue of jurisdiction once again

stating that the suit of the respondent/plaintiff fell within the jurisdiction

of the Delhi Rent Control Act, 1958. The argument which has been

advanced by the learned counsel for the appellants is that the area of

Jafrabad falls within the municipal limits of the revenue estate of Jafrabad

and since it was falling within the notified area of Municipal Corporation

of Delhi in the year of 1954, accordingly it is covered by the Delhi Rent

Control Act, 1958 and the rent being less than `3,500/-, the eviction of

the appellants from the property in question could be ordered only

through the Rent Controller and not by the Civil Court. This plea that

the jurisdiction of the civil court to try the suit of the respondent/plaintiff

is barred by Section 50 of the Delhi Rent Control Act, 1958, has been

ruled against the appellants by the trial court vide a reasoned order dated

28.10.2005. The said finding has been upheld by the first appellate court

also vide order dated 30.04.2013. The question as to whether the area in

question is covered under the Delhi Rent Control Act, 1958 or not is a

question of fact and could not be treated as a question of law much less a

substantial question of law. I accordingly feel that there is no substantial

question of law arising from the instant appeal.

5. In addition to the dismissal of the appeal on merits as no

substantial question of is involved, there is an application for condonation

of delay of 82 days in filing the instant appeal. The reasons which have

been given by the appellants in filing the appeal with a delay of 82 days

are that they learnt about the impugned order dated 30.04.2013 in and

around the first week of August, 2013 when the appellants received a

notice from the execution court and accordingly they applied for certified

copies of the judgment and decree of the impugned order dated

30.04.2013 and thereafter the appeal was filed. Merely on account of the

fact that the judgment was reserved and the appellants came to know

about the judgment on the execution proceedings being taken out, does

not entitle the appellants to contend that they learnt about the judgment

late and, therefore, delay be condoned. Every litigant is expected to be

vigilant in observing the cause list through counsel with regard to the

pronouncement of judgments. In the instant case, since the appellants

after the judgment being reserved by the first appellate court slept over

the matter, it cannot be construed that they were vigilant enough. Before

a party is given the benefit of his acts or omissions, he has to show his

bona fides that has prosecuted the matter in good faith, which, in the

instant case, is lacking. I feel that the conduct of the appellants does not

show that they were vigilant enough to pursue the remedy and prosecute

the matter. Accordingly, I feel that the instant regular second appeal is

also barred by time as the appellants have not been able to show

sufficient cause for condoning the delay of 82 days. The application for

condonation of delay is dismissed and even if the application is deemed

to have been allowed, still, as observed before, the appeal does not have

any merit and the same is accordingly dismissed.

6. I, accordingly, feel that there is no substantial question of law

involved in the instant regular second appeal and the same is dismissed.

V.K. SHALI, J.

NOVEMBER 29, 2013 dm