CHAND CHAUDHRY Vs. R L TALUJA

JUDGEMENT

(1.) The appellant obtained an order of eviction against Nirmal Banerjee (respondent No. 2) in respect of a garage on March 28, 1966 on the ground of non-payment of rent and subletting in favour of R. L. Taluja (respondent No. 1) from November 3, 1965. Respondent No. 1 was not a party to the eviction proceedings.

(2.) The appellant applied for execution of the order of eviction whereupon respondent No. 1 filed objections asserting that the garage had been let out to him by the appellant since November, 1965 and being a tenant in his own right, the appellant was not entitled to execute the order of eviction against him by reason of section 25 of the Delhi Rent Control Act, 1958. By his order dated September 1, 1967, the First Additional Rent Controller dismissed the objection petition of respondent No. 1 and issued warrants for possession of the premises in question. Respondent No. 1 filed an appeal before the Rent Control Tribunal, Delhi. The Tribunal, by his order dated August 17, 1968 found that the appellant had let the garage in dispute to respondent No. 1 in November, 1965 at the rate of Rs. 35.00 per mensem. The Tribunal. therefore, allowed the appeal, upheld the objections of respondent No. I and directed that he shall not be evicted from the garage in execution of the order of eviction obtained by the appellant against Nirmal Benerjee (respondent No. 2).

(3.) A preliminary objection has been raised on behalf of respondent No. 1 that the appeal is barred by time. This appeal was filed on November 11, 1968 and if the matter had rested there, there would admittedly be no question of limitation because this date was the 58th day from the date of the order of the Rent Control Tribunal. It appears, however, that some columns of the prescribed opening sheet of the memorandum of appeal had not been filled up and on November 14, 1968 the office of this Court suggested that it may be returned to be refiled within a week. The papers were put up before the Assistant Registrar who on November 16, 1968 said "Return". He, however, did not specify the time during which it was to be returned although the office had fixed the time as "within a week". The memorandum was actually taken delivery of by the clerk to the then counsel for the appellant on November 18, 1968 and was refiled on December 5, 1968. The refiling was, therefore, beyond the time fixed by the office. It is, therefore, contended that the appeal must be taken to have been filed on December 5, 1968 and on that date, it will be barred by limitation by 22 days.