PARMA NAND ARYA Vs. KAMLA SETHI

JUDGEMENT

(1.) This second appeal under Section 39 of the Delhi Rent Control Act. 1958, hereinafter referred to as "the Act" is directed against an order of the learned Rent Control Tribunal dismissing appeal under Section 38 of the Act against an order of the learned Rent Controller by which the appellant's plea for condonation of delay in payment of court fees was rejected.

(2.) The respondent herein, the landlady, sought eviction of the appellant, the tenant. from the premises in dispute on various grounds and in the course of the reply filed to the application by the appellant, the appellant, while resisting the eviction action on various grounds, set up a plea about the fixation of the standard rent of the premises in dispute. It is not disputed that in view of the fact that the eviction action was not based on default of payment of rent, the plea of the appellant for fixation of standard rent was tantamount in law to an application for fixation of standard rent and, therefore, required a court fees of Rs. 13 leviable on such an application. The appellant, however, did not affix any court fees on the reply presumably under the impression that a plea for fixation of standard rent in reply to an eviction action did not require court fees. On a motion of the respondent by application of November 15, 1971 that in the absence of the requisite court fees, the plea for fixation of standard rent be rejected the learned Rent Controller made an order of February 21, 1972 to the effect that the appellant may pay the necessary court fees within ten days. The appellant, however, made default and paid court fees on the 14th day and made an application on May 27, 1972 seeking condonation of delay on the solitary ground that the clerk of the counsel of the appellant was under a wrong impression that the necessary court fees had to be paid within a fortnight. Evidence was led on behalf of the appellant in support of the plea for condonation but the plea did not find favour with the learned Rent Controller who rejected it on the ground that the clerk of the counsel of the appellant did not show "due care and attention and as such it cannot be said that sufficient cause has been shown for condonation of delay." On appeal to the learned Rent Control Tribunal, the order, as indeed the finding of the learned Controller that the appellant was negligent in the matter of payment of court fees and could have avoided "this delay by exercise of due care and attention was confirmed. It is this order which is sought to be challenged by the present Second Appeal.

(3.) Shri H.S. Dhir, who appears for the appellant assails the order mainly on the ground that the condonation of delay of four days in the payment of courts fees had been sought under the provisions of Section 148 and 151 of the Code of Civil Procedure and that the orders of the Courts below were vitiated, in that, the Courts below approached the entire question from the point of view of negligence and/or absence of due care and caution and, therefore, applied to the proceedings the test laid down under Section 5 of the Limitation Act It was further contended that the provisions of section 148 as indeed Section 149 and 151 of the Code of Civil Procedure were much wider in ambit and the proper approach would have been to see if in dealing with the matter of court fees, the appellant was acting in a bona fide manner in the sense in which the term "bona fide" is defined in the General Clauses Act and should have, therefore, seen if the appellant was acting honestly and in that the approach the question whether the appellant acted negligently or not was wholly extraneous to the enquiry. It was further contended that the plea of the appellant for condonation had at no stage been opposed on the grounds that it was mala fide.