Lady Raj Malik and Another vs Dr. Susanta Sen

Khosla, J.—The matter before us has arisen out of a suit for ejectment under the Delhi and Ajmer-Merwara Rent Control Act "Raj Malik and Teja Singh v. Susanta Sen" filed in the Court of a Subordinate Judge, Delhi.

The suit was filed on 19-7-1948 and summons to the Defendant were issued for 26-8-1948. The summons were served on the Defendant on 10-8-1948 and when the matter came up for hearing on 26-8-1948 the Defendant Sen did not appear in Court. The case was adjourned to 31-8-1948 and the Plaintiffs were directed to produce their evidence. On 31-8-1948 the Defendant was again absent. The statement of Teja Singh Plaintiff was recorded and a decree was passed ex parte in favour of Plaintiff 1. No application to set aside this ex parte decree under Order 9, CPC was made, but on 27-1-1949, the Defendant filed an appeal against the ex parte decree in the Court of the District Judge. The appeal was on the face of it barred by time and an application for extension of limitation under the provisions of Section 5, Limitation Act, was also presented at the same time. The Plaintiffs'' contention at the time of the hearing of the appeal was that the appeal was barred by time and there was no good ground for extending limitation. The District Judge before proceeding to consider this point thought it fit to call some evidence and after recording this evidence allowed the appeal and set aside the ex parte decree. He remanded the case for a fresh trial. This order was passed on 26-8-1949 and the Plaintiffs filed an appeal against it to this Court on 7-11-1949.

Before dealing with the merits of the case a preliminary point regarding the competence of this appeal must be considered.

The suit is governed by the provisions of the Delhi and Ajmer-Merwara Rent Control Act and the provisions set out in the Rules framed by this Court u/s 14(2) of the Act apply. Rule 5 provides that there is no right of second appeal in a case under this Act. Rule 6(i) gives the parties to the suit a right of revision, and Rule 9 provides that the period within which such a petition for revision may be preferred is 60 days. The contention of Mr. Tek Chand before us is that an appeal against the order of the District Judge as framed does not lie and that it should be dismissed on this preliminary ground. Mr. Bishan Narain has met this objection by making two submissions. In the first place, he argued that an appeal does in Act lie because Rule 5 is ultra vires as it takes away the right of a party to file a second appeal which has been given to him under the provisions of the Code of Civil Procedure. The second submission amounts to a prayer, namely, that the appeal should be treated as a petition for revision under the Rules.

The first contention has only to be examined to be rejected. The cause of Action on which this suit is based was created by the Delhi and Ajmer-Merwara Rent Control Act and where the Legislature creates special rights and wrongs it can also provide the appropriate remedies to enforce these rights or remove these wrongs, and it can appoint the forum in which the appropriate remedy may be pursued. The procedural provisions of the Act or of the Rules framed under the Act are nothing more than descriptive of the mode in which the remedy should be sought. Therefore, the argument that the rules are ultra vires the CPC has no force.

On the second point, we are disposed to agree with Mr. Bishan Narain. The Rules give him a right of revision and if he can competently file a revision against the order of the learned District Judge the more fact that the revision has been described as an appeal should not defeat his right. We, therefore, consider the appeal as a revision petition, and in this respect the question of limitation has to be considered. The limitation for filing a petition for revision is 60 days within the passing of the order complained against. The order of the District Judge was passed on 26-8-1949 and the appeal in this Court was filed on 7-11-1949. It transpires that 5th and 6th November were holidays and the revision petition is, therefore clearly within time.

I now come to the merits of the case and in order to consider them it is necessary to state a few more facts. The house was let to the Defendant Sen on 1-9-1946 at a rental of Rs. 350 per month. This figure was later enhanced by 371/2 per cent, and increased to Rs. 481 per month. Relations between landlord and tenant were none too amicable and the corrspondence between them was, in the words of the learned District Judge, somewhat "acrimonious" Teja Singh was at the time holding the appointment of a Minister in the Patiala State but he required soon afterwards and came to Delhi to take up his permanent residence there. He needed a house for this purpose and on 10-6-1948 he sent a notice of ejectment to the Defendant. There was no reply to this notice and on 10-6-1948 he and his wife Raj Malik filed the present suit. It is submitted by Sen that he received summons, in this suit on 10-8-1948 and knew that 26-8-1948 was the date of hearing. He went to Court somewhat late and learnt that the case had already been called and adjourned. While giving his evidence before the District Judge, he said that someone standing outside the Court-room told him that the hearing bad been adjourned to 81-8-1948. He intended to defend the suit but on'' the morning of 3ist August he met Teja Singh in the compound of his house and told him that his suit could not possibly succeed. Teja Singh appeared to agree with him and at the end of this conversation Sen got the impression that Teja Singh was willing to drop the suit provided he were paid his expenses. The amount due to Teja Singh on account of expenses could not be deter-mined at that stage but Sen thought that there would be no need to attend Court that day. He did not, therefore attend the hearing of the case and on 1-10 1948 sent two cheques on account of rent due to Teja Singh. He beard nothing further about the matter and believed that the suit-had been dropped. In the beginning of November, however, he became suspicious. He does toll us what aroused his suspicions but it was apparently the silence of Teja Singh and his omission to acknowledge the cheques sent him. He met Mr. Harish Chandra, Advocate and asked him in a friendly way if some intimation about his case could be obtained or three days after this he learnt from Munshi of Mr. Harish Chandra that the file been inspected and that the case against him been decreed ex parte. This happened about 15.11.1948. A day or two later Son mat another lawyer friend and asked him his opinion about the matter. This lawyer friend (Mr. Tikku) told him that he had no remedy left. A great deal of time had elapsed since the ex parte decree bad been passed and so the only thing he could do to retain the house was to persuade the authorities to requisition it on his behalf. In pursuance of this advice, Sen approached the district Magistrate on 19-11-1948 and asked him to requisition the house. He heard nothing further in the matter and or a few days he had to go out of Delhi. He returned on 2-12-1948 and on 3rd December ho was faced with a bailiff who had arrived at his door to eject him from the house. He asked the bailiff to wait and went to the District Magistrate and repeated his request for requisitioning the house. This time he was fable to obtain a notice addressed both to him self and to the landlord. This notice had the desired effect and the bailiff could not eject him. Nothing further happened till 5-1-1949 on which date he learnt that the requisition proceedings had been dropped as the authorities were not willing to requisition the house on behalf of him. On 7-1-1949 acting upon some legal advice, Sen filed a suit challenging the validity of the ex parte decree on the ground of fraud. Finally, on 27-1-1949 he lodged an appeal against the ex parte decree in the Court of the District Judge.

On these facts the contention made before the District Judge on behalf of Sen was that ho had explained why he could not file an appeal within the requisite period of 30 days. The explanation was that Teja Singh had given him to understand that the suit would not be proceeded with. Having given this explanation, he had complied with the provisions of Section 5 Limitation Act, and was entitled to crave for the indulgence of the Court in extending limitation even though he could not satisfactorily explain much of the delay which was occasioned in filing the appeal. On the other hand, it was contended that the Appellant before the District Judge had to explain every day''s delay even beyond the period of 30 days and if he could not do so, no extension could be given to him. The learned District Judge considered this matter and up held the contention of Sen''s Counsel. Belying upon certain remarks made in a Full Bench decision of the Lahore Chief Court reported as Karam Bakhsh v. Daulat Ram 183 P.R. 1888 (F.B.) he observed:

The plain meaning to my mind is that if the applicant or the Appellant satisfies the Court that he had good cause for not preferring the appeal or application within the period prescribed by the Limitation Act, his appeal or application may be admitted although preferred after the expiry of such time. The Court''s satisfaction thus has essentially to be on the question whether there was sufficient cause for not preferring the appeal or application within the period prescribed by the Act. I do not, of course, mean that if an Appellant is able to establish that he could not prefer his appeal within limitation, ho thereby obtains a general license to file the appeal whenever he chooses to. What I mean is that if this condition is satisfied, the appeal can be admitted after the period of limitation, and it would then be a matter for the Court''s discretion how much extension of time is reasonably permissible.

Again he observes:

It is thus abundantly clear that in law it is not necessary for the Appellant to show that he had sufficient cause for not filing the appeal till 27th January, although of course it is necessary for him to show that he was not negligent, in the matter of filing the appeal, and that the Court''s discretion should be exercised in his favour.

These observations, as remarked by me, are based on certain phrases in the judgment of Plowden J., in the Full Bench decision referred to above. I have examined the judgment of the Full Bench and if the passage relied upon by the learned District Judge is considered in isolation it appears to me to lay down too broad a proposition of law. In my view, however, it is wrong to interpret this passage torn from its context, and the only way of interpreting it is to relate it to the facts of the case which were before the Full Bench, and if the Acts of the case are considered no inference of the kind made by the learned District Judge is possible. Indeed, an examination of Section 5, Limitation Act, would not lead to any such conclusion, for such a conclusion would lead to the most absurd result section. The question is not whether an Appellant or a Petitioner who craves for indulgence u/s 5 is able to show good cause only up to the period of limitation, and beyond that there is no obligation cast upon him in that respect. A literal interpretation-of Section 5 might possibly load to that conclusion for the section does not say what the Appellant or the applicant is called upon to do in respect of time that elapses after the period of limitation expire section In my view, however, this was not the intention of the Legislature, and if there is indeed such a lacuna this must be supplied in order to make the wording of the section convey any sense at all.

The provisions of Section 5, Limitation Act, have been considered in a large number of case. In the Full Bench decision referred to above Plowden J., made the following observation:

We are of opinion that the question referred to the Full Bench must be answered in the negative.

Section 5, Limitation Act directs that any appeal may be admitted, after the period of limitation provided therefor, when the Appellant satisfies the Court that he had sufficient cause for not presenting the appeal within such period.

It seems important to observe the concluding words. All that the section requires in express terms, as a condition for the exercise of the discretionary power of admission of an appeal presented after time is ''sufficient cause for not presenting the appeal within the prescribed period.

If such cause is shown, the Court may in its discretion, which is of course a judicial and not an arbitrary, discretion, admit the appeal.

In my view, the concluding sentence of Plowden J. completely defeats the argument advanced by him in the earlier part of the quotation, for, if the Appellant or the Petitioner is not bound to explain the delay after a period, there is no material before the Court on which it can exercise its discretion at all. Discretion can only be exercised in favour of a Petitioner if there are materials or grounds which may explain the delay and the existence of such materials postulates an obligation to explain, and therefore, it cannot be said that the Court has a discretion in enlarging the period of limitation without any explanation being furnished which in other words means without any material whatsoever on which to base its discretion. The facts of the case before the Full Bench clearly showed that there was an explanation given by the Appellant and that there was ample material. upon which the learned Judges were able to exercise their discretion.

In a number of cases it has been held that the Appellant or the Petitioner in seeking indulgence under the provisions of Section 5, Limitation Act, must give an explanation for every day that he delayed in coming to Court. In George Gawshala v. Balak Ram AIR 1927 Lah. 717 : 103 I.C. 498 a Division Bench of the Lahore High Court considered this matter and took the view that it was the Appellant''s duty "to explain the delay for every day that elapses beyond the period allowed by the Limitation Act for filing an appeal." The same view was taken in Chuni Lal Tulsi Ram v. Aminchand 14 Lah. 543 : AIR 1933 Lah. 856 by another Division Bench of the Lahore High Court, and also in Kanhaya Lal v. Baldeo Das 14 Lah. 656 : AIR 1933 Lah. 681 and Sunder Singh v. Diwan Singh A.I.R 1947 Lah. 276 : 49 P.L.R. 72. The dictum that every day''s delay must be explained does not mean that the Appellant or the Petitioner must conclusively establish his inability on each and every day to come to Court. It merely means that ho must give some explanation of why he did not pursue his remedy. He cannot say.

I refuse to give an explanation for the delay for a number of days because I have explained my inability to file the appeal within the period of limitation and have therefore completely complied with the provisions of Section 5.

Such an attitude on his part would defeat the rights which have become vested in the other party and would lead to the most absurd results. It would logically follow that once having explained the delay during the period of limitation an Appellant may postpone the filing of the appeal or petition indefinitely. It is for this reason that the principle laid down in the rulings mentioned by me is that the Appellant must explain each day''s delay. In some cases even a feeble explanation may be accepted owing to the peculiar circumstances of that particular case. In other instances, the Court may refuse to accept the explanation on the ground that it is not satisfactory. But to say that no explanation is necessary, as has been observed by the learned District Judge, is in my view to state an entirely wrong proposition of law. The learned Counsel for the Respondent drew our attention to Mary Josephine Pompeii Connally Vs. James Sidney Osmond Conally, and Hakim Rai v. Ganga Ram AIR 1938 Lah. 836 : 181 I.C. 248 in support of his contention that the Appellant was not bound to explain each day''s delay, but; in these cases the matter that was considered by the two High Courts of Patna and Lahore was whether the explanation given by the Appellant was or was not satisfactory. It was not held in either of these two cases that the Appellant could refuse or omit to give an explanation for even a single day''s delay and yet claim extension of time u/s 5, Limitation Act.

This being the view of the matter, it is clear that the learned District Judge has erred in coming to the conclusion he did. His decision is based not on the consideration that the explanation given by Sen was satisfactory but on the ground that no explanation at all for some portion of the period was necessary, and this is a wholly erroneous view, and that being so this Court must interfere on the revision side.

Holding that the Appellant before the District Judge had to give an explanation for each day''s delay we must now consider whether he did give such an explanation or not, and whether the explanation given by him was sufficient in the circumstances of the case. The learned District Judge has accepted Sen''s story of his meeting Teja Singh Plaintiff on the morning of 31-8-1948. This finding leads to the conclusion that Sen was led into believing that the suit would be dropped and that he had, there fore, no need to go to Court that day. He did not come to know what the true state of affair was until the middle of November 1948. He has therefore, given a satisfactory explanation why no appeal was filed within the statutory period of 80 days, and the point to consider now is why the filing of the appeal was delayed from 15-11-1948 to 27 1-1949. There is no explanation whatever of why he did not file the appeal alter he came to know that the requisition proceedings had been dropped. To say that he had taken steps to have the house requisitioned is not in my view a satisfactory explanation at all. His legitimate remedy was to file an appeal or an application for setting aside the ex parte decree. Had he consulted a competent lawyer this was the advice which won hi have been given to him. Ho says he met Mr. Harish Chandra,'' Advocate, but ho does not say what advice was tendered by this lawyer. Then ho says that he met Mr. Tikku and enquired from him in a friendly way and Mr. Tikku''s advice '' was that nothing could be done. It is clear that '' Sen did not consult Mr. Tikku as a lawyer and so the ad vice given offhand by Mr. Tikku cannot be considered legal advice. Ho went to the District Magistrate and asked him to requisition the house but for several days he heard nothing about the matter. He went to him again on 8-12-1948 when the bailiff arrived at his house to eject him, but on 5-1-1949 he was told that the requisition proceedings had been dropped. He did nothing for two days and then on the advice of some Counsel he filed a suit. Then it was not until the 27th of January that he filed an appeal in the Court of the District Judge. It is admitted by Mr. Tek Chand that there is no explanation whatever for the delay between the 5th of January and the 27th of January or at any raw between the 7th of January and the 27th of January. Son does not even say that he was watching the progress of the suit and that, he filed the appeal when the suit was dismissed. Indeed, the suit was pending on the day he filed the appeal. It is clear, therefore, that for a considerable portion of the period which elapsed between the middle of November 1918 and 17-1-1949 there is no explanation whatsoever forthcoming and in the absence of such an explanation the Appellant before the District Judge could not have craved for any indulgence. Indeed, the stand taken by him at that stage was that he was not obliged to furnish any explanation at all in respect of this period.

Holding that no explanation for much of the delay occasioned in this case has been furnished and that whatever explanation was furnished by him was not satisfactory and does loot amount to a reasonable ground I would hold that the Respondent before us was not untitled to any extension of time u/s 5, Limitation Act, and that the learned District Judge in granting him this extension orred in law. I would, therefore, allow this petition with costs ad set aside the order of the learned District judge. Mr. Tek Chand prays that some time may be allowed within which he may make other arrangements for his residence. This appears to me to be a reasonable request and I would allow three months time from to day to vacate the house.

Kapur, J.

I agree and would like to add that when the time for appealing is once passed, a very valuable right is secured to the successful litigant; and the Court must therefore be fully satisfied of the justice of the grounds on which it is sought to obtain an extension of the time for attacking the decree, and thus perhaps depriving the successful litigant of the advantages which he has obtained: See Karson-das Dharmasey v. Bai Gungabai, 30 Bom. 329 : 7 Bom. L.R. 965, per Jenkins, C.J. I would also like to say that in cases where suitor has consulted a legal adviser and such advice is either negligently given or as a result of gross ignorance or want of legal skill he can not come to Court and ask for indulgence on that ground.