DEEP CHAND Vs. SAROOPI DEVI

JUDGEMENT

(1.) The facts of this appeal are that the landlady Smt. Saroopi Devi filed an elction petition against the appellant on November 24, 1972, on the ground of default in payment of rent due from February 1972 in spite of notice of demand dated September 1, 1972. The tenant appellant denied the title of the landlady and also that he was her tenant. He claimed that he was the tenant of her son Ram Chander and had paid rent to him upto July 31,1972. The statement of the tenant was recorded on February 22, 1973, when he admitted that Saroopi Devi was the owner of the property. But he still maintained that he was taken the premises on lease from her son. The Addl. Rent Controller passed an order on March 21, 1973, under S.15(l) of the Delhi Rent Control Act, 1958 (hereinafter the Act), directing the appellant to deposit within one month the arrears of rent at the rate of Rs. 16.00 per month with effect from July 1, 1972, upto the end of the tenancy month proceeding the date of the deposit and also to deposit future rent month by month by the 15th of each succeeding month. No appeal was filed against this order. Thereafter, the respondent examined two witnesses on August 13,1973, and the case was adjourned to September 5, 1973, for remaining evidence.

(2.) On August 24, 1973, however, the landlady filed an application under Sub-section (7) of Section 15 of the Act for striking out the defence of the tenant on the ground that he had not complied with the order dated March 21, 1973. Notice of this application was issued to the counsel but instead of being addressed to Mr. M.L. Chibba, it was addressed to Mr. M.L. Chibber who declined to accept notice I he Addl. Rent Controller therefore directed further notice to the tenant for October 8,1973. The process server reported that he found the tenant/appellant at his shop but he refused to accept notice. On October 9, 1973, the Addl. Rent Controller struck out the defence as he came to the conclusion that the notice was duly served and that there had been default in compliance with the order under S. 15(1) of the Act. The learned Addl. Rent Controller then proceeded to record the statement of Ram Chander, son of the landlady, and held that the tenant was guilty of non-payment of rent and that the premises were required bona fide by the landlady. He then passed the order of eviction. The appeals were filed before the Rent Control Tribunal; one against the order made under S. 15(7) on October 9, 1973, striking out the defence and the other against the order of eviction made on October 1 1, 1973. Both these appeals were dismissed by the learned Tribunal by its order dated December 15,1973. The Tribunal agreed with the Addl. Rent G3ntroller and als3 added that he was justified in striking out of the defence because the defaults were contumacious and wilful. This second appeal is directed against this order. It was admitted on January 2, 1974. Meanwhile, possession was obtained by the landlady in execution proceedings on December 19, 1973.

(3.) Since the appeal was not accompanied by certified copies of the documents, the appellant was allowed to file them soon after they were made available. These certified copies were filed on October 23, 1978, by C. M. 2294/78. The ground for delay was stated like this. The counsel for the appellant after obtaining the certified copies gave them to his clerk for filing in the High Court. Later on, the clerk left his service. The whereabouts of the clerk could not be ascertained. The counsel himself remained in jail during the emergency for some time and his chamber was demolished. The record belonging to the certified copies is no more available. The counsel remained under the impression that the copies has been filed. The appellant changed his counsel meanwhile. When the file was recently inspected, it was noticed that the certified copies were not on record. The appellant immediately applied for fresh copies and filed the same. The ommission to file copies earlier was not intentional and if he is not permitted to file the copies, he will suffer irreparable injury. Delay was sought to be condoned. This application was granted subject to just exceptions. I have heard the learned counsel for the parties and examined the record. The copies were filed after about 5 years. The explanation given in the application is not at all convincing. Though the party should not suffer on account of the mistake of the clerk or the counsel but the circumstances do not disclose that it was really so. I am unable to believe that the party or his counsel remained under wrong impression for 5 years and even after the emergency was lifted, that copies have been filed. In the absence of data, it is even doubtful that copies were ever obtained in the first instance. The party had to deal with the file in 1977 & 1978 when it moved some applications but nothing was done to check up the matter. The application is hereby rejected, and that makes the appeal, as filed, incompetent, vide Shiv Dutt Skarma v. Prem Kumar Bhatia, 1969 D.L.T. 394.