Smt. Pinki Chopra vs Smt.Gulshan Bir Kaur (Since ...
2015 Latest Caselaw 106 Del

*              HIGH COURT OF DELHI AT NEW DELHI

+                           R.S.A. No.136/2013

                                    Decided on : 8th January, 2015

SMT. PINKI CHOPRA                                  ...... Appellant

                   Through:      Mr.Amit Swami, Advocate.


                      Versus


SMT.GULSHAN BIR KAUR (SINCE DECEASED) THR.HER LEGAL
HEIRS.                             ...... Respondent
             Through:


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

V.K. SHALI, J. (ORAL)

CM No.15540/2014 (u/O 41 R 23 CPC) CM No.15541/2014 (For Condonation of Delay of 294 days)

1. These are two applications filed by the appellant. CM

No.15540/2014 has been filed under Order 41 Rule 23 CPC while CM

No.15541/2014 has been filed under Section 5 of the Limitation Act,

1963 read with Section 151 CPC seeking condonation of delay of 294

days in filing the former application.

2. I have heard the learned counsel for the appellant. The instant

regular second appeal was dismissed on 12.11.2013 holding that no

substantial question of law is involved. Moreover, the order which was

passed by the first appellate court was only remanding the matter back to

the trial court holding that the learned trial court has the jurisdiction to

decide the suit for possession on the ground that the rent of the premises

in question was more than Rs.3,500/- per month.

3. The case set up by the respondent/plaintiff before the trial court

was that he had let out the premises to the present appellant/tenant on a

monthly rent of Rs.3,200/- per month apart from electricity and water

charges. However, in the year 1998 on account of amendment in the

Delhi Rent Control Act, 1995, Section 6A was incorporated because of

which he had sought increase of rent by 10% as a consequence of which

the rent became more than Rs.3,500/-. Consequently after expiry of

considerable period of time, he filed the suit for ejectment of the present

appellant.

4. The appellant had filed an application before the learned trial court

framing of an additional issue with regard to the suit being barred on

account of lack of jurisdiction which was dismissed by the Civil Judge on

20.08.2014 stating since question of jurisdiction of the civil court has already been decided by the higher court, therefore, an issue in this regard

cannot be framed. By virtue of CM No.15541/2014 seeking condonation

of delay of 294 days, it has been stated by the appellant that since the

request of the appellant for framing of an additional issue was rejected by

the trial court on 20.05.2014, therefore, cause of action accrued to him to

file the present application on 21.08.2014 and accordingly the CM

No.15540/2014 under Order 41 Rule 23 CPC for framing substantial

question of law has been filed.

5. It has also been stated in the application seeking condonation of

delay that earlier the appellant was advised to file a special leave petition

against the order dated 12.11.2013 by virtue of which the regular second

appeal of the appellant was dismissed. However, on a second opinion, it

was advised to the appellant that he should file an application before this

court rather than preferring an SLP and hence these two applications CM

No.15541/2014 seeking condonation of delay of 294 days in filing CM

No.15540/2014 under Order 41 Rule 23 CPC for framing of substantial

question of law, have been filed by the appellant.

6. I have considered the submissions and gone through the averments

made in the application. I feel that both these applications are totally

misconceived and are without any merit. The reason for this is that this court had already taken a view on 12.11.2013 holding that the case does

not involve any substantial question of law and the matter was

accordingly dismissed. If the appellant felt aggrieved, he ought to have

taken such recourse as was available to him in law. It is not open to the

appellant to file an application under Section 5 of the Limitation Act,

1963 after nearly an year and then try to reagitate the matter which was

sought to be done. In case the application seeking condonation of delay

in hearing the application under Order 41 Rule 23 CPC of the appellant is

allowed, it would practically tantamount to reopening the case of the

appellant afresh. This cannot be permitted to be done.

7. As a matter of fact, a perusal of the order dated 20.08.2014 passed

by the learned Civil Judge rejecting the application of the appellant for

framing of an additional issue clearly shows that the appellant's entire

exercise is to prolong the disposal of the suit which is ripe for final

arguments.

8. I feel that this is only a dilatory tactics adopted by the appellant to

postpone the disposal of the matter. This cannot be permitted to be done.

There is no merit in either of the applications inasmuch as no sufficient

cause for condonation of delay has been shown or urged in the

application. Moreover, even if this aspect is ignored, the allowing of the application under Order 41 Rule 23 CPC would tantamount to allowing

rehearing of the matter, which cannot be permitted to be done under the

garb of the said application.

9. Both these applications are totally misconceived and are

accordingly dismissed.

V.K. SHALI, J.

JANUARY 08, 2015 dm