SHIV DAYAL DHIMAN Vs. HAVELI RAM

JUDGEMENT

(1.) Shiv Dayal (now the appellant) is the owner of shop located within the municipal limits of Ludhiana. He let out the shop to Dewan Chand, Daulat Ram and Hans Raj at yearly rental of Rs. 1,200/-. They failed to pay the rent for one year. Therefore, Shiv Dayal sued them for recovery of Rs. 1,200/- as arrears of rent. He had impleaded Haweli Ram, Sham Singh, Lal Chand, Bhagwan Sarup, Mastak Mani and Avtar Singh (now respondents) as defendants on the ground that Dewan Chand, Daulat Ram and Hans Raj had permitted them to occupy the shop from time to time. The suit was contested by Dewan Chand, Daulat Ram, Hans Raj, Lal Chand, Bhagwan Sarup, Mastak Mani and Avtar Singh, while Haweli Ram and Sham Singh refrained from resisting the suit. The trial Court framed the following issues :-

(2.) Mr. H.L. Sarin, learned counsel for the respondents, has raised a preliminary objection that the appeal is barred by time. The decree was passed by the First Appellate Court on September 19, 1963. The Appellant applied for obtaining copies of the judgment and decree of the lower Appellate Court on October 31, 1963. The said copies were prepared and ready for delivery on November 12, 1963. Those were, however, obtained by the appellant on November 30, 1963. He while filing the appeal on December 30, 1963, filed certified copies of the judgment and decree of the lower Appellate Court and an unattested copy of the judgment of the trial Court. The Registry, therefore, returned the appeal on January 17, 1964 to the appellant to refile the same with certified copy of the judgment of the trial Court within a week. The appeal was then refiled with the certified copy of the judgment of the trial Court on January 18, 1964. Rule 2 added by this High Court to Order XLII, Code of Civil Procedure, required that in addition to the copies of the judgment and decree of the lower Appellate Court, a copy of the judgment of the first instance should have been filed with the Memorandum of Appeal. The copy mentioned in rule 2 of Order XLII of the Code of Civil Procedure is the certified copy and not the unattested copy. I am supported in this view by a judgment of this Court reported in Reasat Ali Khan V. Mahfuz Ali Khan and others, 1929 AIR(Lah) 771Therefore, when the appeal was filed on December 30, 1963, it was incompetent for the reason that certified copy of the judgment of the trial Court was not filed with the Memorandum of Appeal. The appeal could be treated as competent on January 18, 1964 when it was refiled along with the certified coy of the judgment of the Court of first instance. Therefore, legally the appeal cannot be taken to have been refiled on December 30, 1963 since the Memorandum of Appeal was not accompanied by the certified copy of the judgment of the trial Court on that date and it (the appeal) would be deemed to have been filed on January 18, 1964. It is not disputed that if the appeal is taken to have been filed on January 18, 1964, it was barred by time even if allowance is made for the days requisite for obtaining certified copies of the judgment and decree. The judgment delivered in State of Punjab V. Niranjan Singh,1968 PunLR 229, supports this view. Even when the certified copy of the judgment of the trial Court was filed, it was not stamped with the requisite court-fee. No doubt, the requisite court-fee had been stamped on the unattested copy of the judgment of the trial Court which was filed with the Memorandum of Appeal on December 30, 1963, but the court-fee paid on the unattested copy of the judgment of the trial Court cannot be taken as paid on certified copy of the judgment of the trial Court which was filed with the Memorandum of Appeal on January 18, 1964. This view finds support from a judgment reported in Custodian, Evacuee Property, Punjab and others V. Prabhu Dayal Chhajan Lal and others, 1960 AIR(P&H) 298Therefore, when the certified copy of the judgment of the trial Court has not been properly stamped even till today, there can be no escape from the conclusion that the appeal is barred by time. So, the preliminary objection raised by Mr. Sarin, prevails and the appeal is held to be time-barred.

(3.) On merits too, I feel that the appellant can have no luck. It is the case of the appellant that Dewan Chand, Daulat Ram and Hans Raj were his tenants. So, they had the right to possess the shop. If they had inducted Haweli Ram, Sham Singh, Lal Chand, Bhagwan Sarup, Mastak Mani and Avtar Singh, the latter were answerable for payment of mesne profits or the like to them. But, the said persons cannot be said to be in illegal use and occupation of the shop qua Shiv Dayal. So, Shiv Dayal could not maintain his claim for the rent against them because they, viz, Haweli Ram, Sham Singh Lal Chand, Bhagwan Sarup, Mastak Mani and Avtar Singh were not his tenants or for mesne profits because their possession of the shop could be illegal qua Dewan Chand, Daulat Ram and Hans Raj who had taken the shop on rent. At one stage, I felt that Shiv Dayal could maintain his claim for Rs. 1,200/- on account of rent against Dewan Chand, Daulat Ram and Hans Raj. But, I find from the judgment of the trial Court, that he had relinquished his claim qua them viz., Dewan Chand, Daulat Ram and Hans Raj. The suit against them, namely, Dewan Chand, Daulat Ram and Hans Raj had been dismissed by the trial Court and no appeal was preferred against the said dismissal of the suit by Shiv Dayal. Further, in the prayer clause of the Memorandum of Appeal in this Court, he did not pray for any decree against Dewan Chand, Daulat Ram and Hans Raj. In these premises no relief can be granted against Dewan Chand. Daulat Ram and Hans Raj because the appellant had relinquished the relief available to him against them and even did not claim the same in the lower Appellate Court or in this Court. So, he is not entitled to claim any amount from Haweli Ram, Sham Singh, Lal Chand, Bhagwan Sarup, Mastak Mani and Avtar Singh because they were not in any manner answerable to him and dismissal of the suit cannot be interfered with. This appeal is bereft of any merit.