Om Parkash and Others vs Dogar Das Sachdeva Trust

V.S. Aggarwal, J.—The present revision petition has been filed by Om Parkash and another, hereinafter described as "the petitioners" directed against the order of the learned Rent Controller, Fazilka, dated 24.1.1997 and of the learned Appellate Authority, Ferozepur, dated 4.6.1998. The learned Rent Controller had passed an order of eviction against the petitioners and the appeal filed by the petitioners was dismissed.

The relevant facts are that the respondent had filed eviction petition against the petitioners with respect to the shop in question. The sole ground of eviction taken up was pertaining to non-payment of rent. It was asserted that the petitioners are in arrears of rent from 8.5.1984 to 7.11.1994.

Notice of the application had been issued to the petitioners. The notice was received back with the report of refusal. Thereafter, the learned Rent Controller directed it to be published in the newspaper. The petitioners were proceeded ex parte on 6.4.1995. An order of eviction was passed on 24.1.1997.

The petitioner preferred an appeal. The learned, Appellate Authority held that the appeal is barred by time and otherwise also concluded that there was no ground to go into the question as to whether the petitioners had been proceeded ex parte in a proper manner or not. The appeal was dismissed. Hence, the present revision petition.

It is apparent from the facts enumerated above that before the learned Appellate Authority it was pointed out that the appeal was barred by time. The ejectment order was stated to have been passed on 24.1.1997. The appellants had applied foe the certified copy on 17.2.1997. It was ready on 19.12.1997. The appeal was filed on 5.3.1997. The contention raised by the appellant''s counsel was that the appellants did not know about the ex parte order of eviction and, therefore, delay occurred in filing of the appeal. No application had been filed for condonation of delay. In the absence of any application having been filed for condonation of delay, the appeal was held to be barred by time. The learned counsel for the petitioners highlighted the fact that even if no application was filed for condonation of delay, oral request of the petitioner should have been conceded.

To appreciate the said contention, reference can well be made to Order 41 Rule 3-A of the CPC (for short "the Code") which contemplates an application for condonation of delay. It reads as under:-

"3.A Application for condonation of delay:- (1) When an appeal is presented after the expiry of the period of limitation specified therefore, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period.

(2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under Rule 11 or Rule 13, as the case may be.

(3) where an application has been made under Sub-rule (1), the Court shall not make an order for the stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not, after hearing under Rule 11, decided to hear the appeal.

A perusal of the Order 41 Rule 3-A clearly stipulates that it was incorporated in the Code from 1.2.1997. It stipulates that when the appeal is presented after expiry of the period of limitation, it has to be accompanied by an application supported by an affidavit setting forth the facts as to why the delay should be condoned. Though the court of the Rent Controller or the Appellate Authority may not be strictly bound by the provisions of the Code, but still the basic principle, unless the facts of the case speak otherwise, must be adopted.

Reliance on behalf of the petitioners was placed on the decision of the Delhi High Court in the case of Nirmal Chaudhary Vs. Bishambar Lal, , wherein it was held as under:-

"If an appellant knows that the appeal is barred by time, it goes without saying that he would have to apply for condonation of delay while presenting the appeal. Otherwise, there may be lack of bona fides, and consequently lack of sufficient cause. But where the appellant is ignorant that the appeal is barfed by time, there is no rule of law, nor any practice that the application for condonation, of delay for exercise of : power u/s 5 of the Limitation Act read with Section 29(2) thereof or under the proviso to Sub-section (2) of Section 38 of the Act must be filed with the memorandum of appeal. It cannot be filed at all because the appellant is ignorant about the delay.

As the provisions of Section 5 of the Limitation Act and the proviso to Section 38(2) are framed it does not even necessarily imply in law that the power of the Court to condone the delay is circumscribed by an application being filed. The power to condone delay can be exercised if the appellant satisfied the court that he had sufficient cause for not filing the appeal within the period prescribed. The Court can be satisfied even from the affidavits or the documents on the record. It is not necessary in law that an application must, be filed. Of course as a matter of practice the appellant does file such an application. But the power of the Court is not necessarily dependent on a formal application being made by the appellant. If it is made, well and good; but if it is not made and only an oral prayer is made for condonation of delay, the Court is not powerless if there is material on the record to show facts consisting sufficient cause for condonation of delay."

It is abundantly clear from what has been held by the Delhi High Court and if the appellant knows that the appeal is barred by time, he must apply for condonation of delay. Where the appellant is ignorant that the appeal is barred by time, there is no rule of law that application for condonation of delay must be filed. But still it was concluded that the Court has to be satisfied from the affidavit and the documents that there are grounds for condonation of delay. In the present case in hand, it is not shown that the petitioners were ignorant of appeal being time barred it was, therefore, proper that an application should have been filed seeking condonation of delay explaining as to when the petitioners came to know of the order of eviction and the reasons for the delay, The cited judgment in the peculiar facts, therefore,, does not help the petitioners.

In the event, reliance further was placed on the Division Bench judgment of this Court in the case Pratap Singh v. State of Haryana and Anr.,1979 P.L.J. 48. Relying on the ratio decendi of the cited decisions, the learned councel urged that oral prayer can be taken into consideration and it is not necessary that an application should have been filed seeking condonation of delay. The Court held as under:-

" ..... Therefore, within 90 days of his death there was no forum where the legal representative could make an application for being brought on the record. The notices were issued by the District Judge to the parties for 18th October, 1975 and on that very date an application was made. On the facts and circumstances of the case, we are of the considered opinion that this is a fit case where a finding be returned that Shanti Devi was prevented by sufficient cause from putting an application within time. We also find that it is not necessary for her to make a written application u/s 5 of the Limitation Act for the condonation of delay as an oral prayer can be taken into consideration."

The facts which are reproduced in the paragraph above reveal that there was no forum where the legal representation can make an application for being brought on the record. It was in this backdrop that it was held that it was not necessary to file an application seeking condonation of delay. Thus, this judgment cannot be taken to be laying down as a principle that it is not necessary to file an application for condonation of delay.

On the contrary, in the case of Sukh Sagar and Others Vs. Hem Raj and Others, , this Court mentioned about the necessity of filing Such an application seeking condonation of delay. In paragraph 5 of the judgment, it was held as under:-

"It is also true that it was the requirement of Order 41 Rut 3-A of the CPC that an application for condonation of delay was to be accompanied by an affidavit. I am, however, of the view that where the facts which were required to be sworn in the affidavit in support of the application for condonation of delay, could be accurately ascertained from the Court records, either judicial or administrative, it would not be incumbent that an affidavit in support of the application for condonation of delay must also be filed. Such requirement would be dependent on the facts of each case."

Same was the view of the Delhi High Court in the case of Scindia Potteries and Services Limited v. Sri Chand, 1996(3) RCR 229. The Delhi High Court held that an application for condonation of delay should ordinarily be filed. Unless there is an application seeking condonation of delay along with the appeal, the appeal cannot have any existence nor entertained. In the present case, no such application had been filed and there was no ground to entertain the oral request. This is for the reason that certain peculiar facts had to be alleged as to why delay occurred in the filing of the appeal.

For these reasons, the revision petition being without merit must fail and in accordingly dismissed.