STATE BANK OF INDIA Vs. HARNAM SINGH

JUDGEMENT

(1.) The tenant has appealed against the order of ejectment passed by the Additional Rent Controller which was confirmed by the Rent Control Tribunal. A preliminary question has arisen as to whether the appeal is within time. An application as also been filed under Section 5 of the Limitation Act claiming extension of limitation. I take up this question of limitation first.

(2.) The judgment of the Tribunal was pronounced on 28th October, 1976. The certified copy was applied for on 3rd November 1976 and was ready on 4th December 1976. The appeal was filed in this Court on 17th February, 1977. Alongwith the appeal an application was filed claiming exemption from the certified copy of the Rent Controlier's order. That was C.M. 304 of 1977. On this application I exempted the filing of the certified copy and admitted the appeal. There was also an application under Section 5 of the Limitation Act praying for condonation of delay in filing the appeal. I was under the impression and so to counsel for the appellant that the appeal was within time, if the certified copy was exempted and accordingly I ordered that no further order was necessary on this application. Later on it was found that the appeal was time barred. So, I have had to take into consideration this very application. The limitation period allowed by Section 39 of the Rent Control Act is 60 days. As the date of the judgment was 28th October 1976, and the copying days were 32, the appeal could be filed 92 days after the judgment taking into account the time requisite for obtaining a copy of the judgment under appeal. This meant that the appeal could be filed by 28th January. The appeal was actually filed on 17th February 1977 which means that it was filed about 20 days after limitation. Hence the application under Section 5 has to be considered.

(3.) In support of the application, for extension of limitation, the learned counsel for the appellant has submitted that although the limitation period is 60 days, the Rules require that a copy of the Rent Controller's order should also be obtained and normally, the time requisite for obtaining that copy allowed undersections of the Limitation Act. In actual fact, a certified copy of that order has been produced which was applied for on 3rd November 1976 but was delivered only on 18th April 1977. Thus the time taken to obtain the said certified copy was 5 months and 15 days. If this time was allowed, the appeal would certainly be within time. In the present case, a somewhat peculiar situation arose because on the application of the appellant I exempted the filing of this copy and hence the appeal became complete as it was. The question for consideration is whether the application under Section 5 of the Limitation Act can be granted on the assumption that if the exemption has not been granted then these copying days might have been granted under Section 5 of the Limitation Act. It is pecular feature all the Rules framed by the High Court and also the provision of Order 42 Rule I of the Civil Procedure Code as amended by the High Court that the certified copy of the trial court's judgment is required to be filed in a second appeal although the same is not provided for in the Limitation Act. The consequence of this Rule and this provision of the Code is that the appellant is required to do something for which the Limitation Act does not allow him time. In the present case, the appeal was filed on 17th February, 1977 on which date the Rent Controller's order which can be treated as the judgment of the Court of first instance was not available to the appellant. The appellant could not reasonably be expected to file this copy on 17th February, 1977 when the same was only made available on 18th April, 1977. Thus the factual position in this case is that if I had not granted exemption concerning the filing of the certified copy, the appeal could have been filed on 18th April, 1977 alongwith an application under Section 5 of the Limitation Act staling that due to facts outside the appellant's control the trial court judgment had been delayed and consequently the appeal had not been filed within the time required by law for reasons which would entitle the appellant to extension of time as being due to factors outside the appellant's control.