Delhi High Court
Mehboob Alam vs Khushal Singh on 20 October, 2015
Author: Rajiv Shakdher
$~43
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 370/2015
MEHBOOB ALAM ..... Appellant
Through: Mr M.M. Kashyap, Adv.
versus
KHUSHAL SINGH ..... Respondent
Through
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
ORDER
% 20.10.2015
CM No. 24523/2015 (Exemption)
1. Allowed subject to just exceptions.
CM No. 24524/2015 (condonation of delay of 7 months 22 days in filing)
2. This is an application seeking condonation of delay of 7 months and
22 days in preferring the appeal. To be noted, the context in which the
captioned application has been filed is as follows:
2.1 The respondent/ plaintiff had filed a suit for possession and arrears of
rent in the sum of Rs. 1,39,050/-. Summons in the suit were issued. The
appellant/ defendant, despite service, did not file his written statement,
therefore, the trial court proceeded to close the opportunity to file the written
statement, vide order 27.04.2013. Thereafter, the trial court, permitted the
respondent/ plaintiff to prove his case. Pertinently, in the appeal filed before
the learned ADJ, it is averred that the appellant / defendant had filed an
application under Order 7Rule 11 of the Code of Civil Procedure, 1908
(CPC) which was dismissed by the trial court.
2.2 A perusal of the original judgement and decree dated 19.12.2013
would show that the respondent / plaintiff proved three principal aspects
with respect to his suit:
(i) That there was a landlord-tenant relationship obtaining between the
parties. In other words, the appellant/ defendant was the tenant of the
respondent/ plaintiff.
(ii) That the rent of the suit property was more than Rs. 3500/- and hence the
action fell outside the purview of the Delhi Rent Control Act, 1958 (in short
the DRC Act).
(ii)(a). In this connection, it is observed, on a perusal of paragraph 12 of the
impugned judgment that a notice under Section 6A of the DRC Act was
issued which resulted in an enhancement of monthly rent to a sum of Rs.
3850/- w.e.f 15.01.2012.
(iii) That a notice under Section 106 of the Transfer of Property Act, 1882
dated 01.03.2012 was issued and served on the appellant/ defendant.
2.3 It is, upon receipt of proof qua these aspects, that the trial court
proceeded to pass a decree for possession and recovery of rent in the sum of
Rs. 1,39,050/-, with interest, at the rate of 9% per annum from the date of
institution of the suit till realization.
2.4 The appellant/ defendant filed an appeal before the Addl. District
Judge, which was dismissed on 22.08.2014.
2.5 Thereafter, the appellant / defendant filed an application under Order
9 Rule 9, which was also dismissed on 16.01.2015. The plea taken in the
said application, was that, the appellant's/defendant's counsel could not
remain present as he had to appear before a court at Allahabad, on
23.08.2014. Curiously enough, Mr Kashyap, who appears for the appellant/
defendant, says that the copy of the application filed under Order 9 Rule 9 of
the CPC has not been filed with the present appeal.
2.6 The reason that I asked Mr Kashyap to supply a copy of the
application is that there is an observation in the order dated 16.01.2015 that
the ground projected for non-appearance on 23.08.2014 before the trial court
was that the counsel had to file an appeal before a court at Allahabad, on
23.08.2014. As to whether the counsel actually filed an appeal before a
court in Allahabad, and for that purpose had proceeded to Allahabad, cannot
be discerned from the record placed before me. This aspect is important, in
context of the observation made by the Ist appellate court in the order dated
22.08.2014, that an application had been moved on behalf of the main
counsel for the appellant / defendant that the appeal be adjourned for a
period of one month. The application for adjournment was, evidently,
drafted by the main counsel. There is no ground taken in the appeal filed
before me, refuting this observation of the court.
2.7 Continuing with the narrative, the Ist appellate court in the order dated
16.01.2015 has noted that even the appellant / defendant was not present.
Notwithstanding the above, as indicated above, there is nothing on record, to
establish that the reason given for non-appearance of the counsel on
23.08.2014, is genuine and bonafide. The very fact that an application was
filed, by which the counsel for the appellant / defendant sought adjournment
for a period of one month stretches credulity, to say the least.
2.8 What has compounded the injury vis-a-vis the respondent/ plaintiff, is
that, thereafter the appellant /defendant took recourse to a wrong remedy
against the order dated 16.01.2015 by filing a petition under Article 227 of
the Constitution. The said petition came to be dismissed as withdrawn on
08.10.2015, with liberty to avail of an appropriate remedy.
3. It is in this context that the accompanying appeal has been filed with
the captioned application for condonation of delay.
4. According to me, the appellant/ defendant has only compounded the
miseries of the respondent/ plaintiff; firstly, by not filing a written statement;
secondly, by adopting, perceptibly, dilatory tactics of filing an appeal, and
having that dismissed, and then, moving an application under Order 9 Rule 9
of the CPC; and lastly, by taking recourse to a remedy, which was, at the
very inception, not the correct remedy - with the result, though the
respondent/ plaintiff, has a judgement and decree in his favour (which was
passed as far back as on 19.12.2013), he has not been able to enjoy the fruits
of the decree.
5. In these circumstances, in my view, the appellant/ defendant has
failed to establish sufficient cause for condonation of delay. The appellant/
defendant, in my opinion, has been clearly negligent in prosecuting the case
and taking recourse to appropriate remedies that may have been available to
him, in law, at the relevant point in time.
6. Accordingly, the application for condonation of delay is dismissed.
FAO 370/2015 & CM No. 24522/2015 (Stay)
7. In view of the fact that CM No. 24524/2015 has been dismissed, the
appeal and the captioned application will suffer the same fate.
Consequently, the appeal and the captioned application are also dismissed.
RAJIV SHAKDHER, J
OCTOBER 20, 2015
kk
