HAJI NEMATULLAH Vs. HAJI MOHAMMAD ZIKRIYA

JUDGEMENT

(1.) This is an appeal under Section 39 of the Delhi Rent Control Act, 1958 (hereinafter called 'the Act') against the judgment of the Rent Control Tribunal dated 29/5/1979. By the said judgment the Rent Control Tribunal confirmed the decision of the Rent Controller allowing petition of the landlord for the eviction of the appellant vide order dated 1/4/1976. The Tribunal held that the respondent was entitled to an order of eviction under Section 14(l)(e) of the Act.

(2.) Mr. Ishwar Sahai, Learned Counsel for the respondent, has taken a preliminary objection that the appeal is barred by time. As I have sataed earlier, the judgment under appeal was delivered on 29/5/1979. The appellant made an application for a certified copy of the judgment of the Tribunal on 30/5/1979 and the copy was ready on 5/6/1979. The appellant had also filed an application on 30/5/1979 for obtaining the certified copy of the order dated 1/4/1976 passed by the Additional Controller. This certified copy was ready on 16/7/1979 but the same was not filed in this court with the memorandum of appeal. The appeal was filed on 12/7/1979 and the certified copy of the judgment and order of the Additional Controller dated 1/4/1976 was filed in this court on 3/11/1980 during the course of hearing of the appeal. Mr. Ishwar Sahai submits that the filing of the certified copy of the order of the Additional Controller along with the memorandum of appeal was necessary in view of rule 2 of Order 42 Civil Procedure Code . as introduced in Punjab and applicable to Delhi and that by virtue of Order 42 rule 3 of the Code of Civil Procedure the provisions of Order 41 are applicable to appeals from orders. Under these rules filing of the judgment of the court of the first instance and the court of the lower appellate court along with the memorandum appeal is necessary within the meaning of Order 41 rule I read with Order 43 rule 2 of the Code of Civil Procedure. Besides this provision of the Code of Civil Procedure rule 2(b) of the Rules and Orders of the Punjab High Court Volume V Chapter I-A provides, "Every memorandum of appeal shall be accompanied by copies of the decree and judgment as prescribed by Order XLI, Rule 1 of the Civil Procedure Code. In the case of Second Appeals, in addition to the documents prescribed by Order XLI, Rule I of the Code, memorandum shall be accompanied by a copy of the judgment of the court of first instance unless the appellate court dispenses therewith". The present appeal, as already stated, is under section 39 of the Act. The procedure applicable to the appeals instituted in this court shall be the procedure applicable to the second appeal filed under the Act. Thus it seems to me that filing of the certified copy of the court of the first instance is essential unless the appellate court dispenses the filing of the such copy. it is not in dispute that the word 'copy' (in Order 41 rule I and in the said rule 2(b) means certified copy. Along with the memorandum of appeal, the appellant filed an application for stay of his dispossession, C.M. No. 1407 of 1979. He also filed an application under Order 41 rule I read with Order 42 rule 2 and Section 151 of the Code of Civil Procedure alleging that he has submitted a certified copy of the Tribunal along with a true copy of the order of the Additional Controller, that he could not file a certified copy of it, as the same was not supplied to him till then, that he has applied for it and that there was immediate threat of eviction and as he had applied for the stay of eviction order he was not in a position to wait for the certified copy of the order of the Additional Controller. In this application he made the following prayer :

(3.) The appeal came for hearing on 13/7/1979. It was admitted. Mr. Jshwar Sahai, counsel for the respondent, accepted notice of the appeal. The appeal .was ordered to be heard on 12/11/1979. Stay of dispossession subject to payment of rent regularly was ordered on the application (C.M. No. 1407 of 1979). No order appears to have been passed on the exemption application (C.M. No. 1408 of 1979). This appeal came up for shearing on 30/10/1980 when the Learned Counsel for the respondent raised this objection. The appeal was part-heard and adjourned to 3/11/1980, when, as already stated, the Learned Counsel for the appellant filed certified copy of the order dated 1/4/1976 passed by the Additional