DEWAN CHAND CHAUDHRY Vs. R I TALUJA

JUDGEMENT

(1.) The appellant obtained anorder of eviction against Nirmal Banerjee (respondent No.2) in respectof a garage on 28/03/1960 on the ground of non-payment of rentand sub-letting in favour of R.L. Taluja (respondent No. 1)froai 3/11/1965. 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 hadbeen let out to him by the appellant since November, 1965 and being atenant in his own right, the appellant was not entitled to execute theorder of eviction against him by reason of section 25 of the Delhi RentControl Act, 1958 By his order dated 1/09/1967, the FirstAdditional 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 Rant Control Tribunal, Delhi. The Tribunal by his order dated 17/08/1968 foundthat the appellant had let the garage in dispute to respondent No. 1 inNovember, 1965 at the rate of Rs. 35.00 per mensem. The Tribunal,therefore, allowed the appeal, upheld the objections of respondent No. 1and directed that ha shall not be evicted from the garage in executionof the order of eviction obtained by the appellant against NirmalBanerjee (respondent No. 2).

(3.) A preliminary objection has been raised on behalf of respondentNo. 1 that this appeal is barred by time This appeal was filed on 11/11/1968 and If the matter had rested there, there wouldadmittedly be no question of limitation because this dale was the 58thday from the date of the order of the Rent Control Tribunal. It appearshowever, that some columns of the prescribed opening sheet ofmemorandum of appeal had not been filled up and on 14/11/1968 the office of this Court suggested that it may be returned to berefiled within a week. The papers were put up before the AssistantRegistrar who on 16/11/1968 said "Return". He, however, didnot specify the time during which it was to be returned althought theoffice had fixed the time as "within a week". The memorandum wasactually taken delivery of by the clerk to the then counsel for the appellant on 18/11/1968 and was refiled on 5/12/1968. Therefling was, therefore, beyond the time fixed by the office. It is therefore, contended that the appeal must be taken to have been filed on 5/12/1968 and on that, date it will be barred by limitation by 22 days.