Mohd. Nayeem v. Manoj Ratta

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes INDERMEET KAUR, J. (Oral)

1. This appeal has impugned the judgment and decree dated 14.03.2011 which has dismissed the appeal of the appellant on the ground of limitation; the appeal was delayed by a period of 129 days; the application under Section 5 of the Limitation Act had been considered and dismissed. The impugned judgment had returned the finding as follows:- “13. Herein the appellant-applicant has alleged that it is because of the negligence of the advocate whom he was initially engaged, that the appeal could not be filed. Surprisingly, in his application, applicant-appellant no where 2011:DHC:2792 mentioned the name of the advocate who was initially engaged by him. It is only in his affidavit Ex AW1/A, that he, for the first time, mentioned the name of the advocate as Sh. S. A. Khan. No explanation has been furnished in the affidavit as to why his name was not mentioned in the application.

14. In the application, the applicant has alleged that the advocate took him to his seat in Central Hall, Tis Hazari Courts. However, in his cross examination, he displayed his ignorance as to where the office or seat of Sh. S. A. Khan, advocate is situated. In para 5 of his application, the applicant alleged to have visited the said advocate several times and further that he could never meet him at his set. This goes to show that the applicant has come forward with contradictory versions. In case it is believed that the advocate took the applicant to his seat and he visited him several times at the said seat, the applicant could not display ignorance in his cross examination about location of his office/seat. He admitted in his cross examination that Sh. S. A. Khan had even given him his visiting cards at the time he first met him, but in the next breath, he stated to have misplaced that visiting card. In the given circumstances, when the applicant admittedly visited the seat of the advocate several times, loss of visiting card does not come to help him.

15. Applicant has stated in his cross examination that he had paid initially a sum of Rs.200/- to the advocate for the purpose of preparation of appeal in January, 2010. However, in the next breath, he stated to have met the counsel in December and January.

16. As noticed above, the impugned judgment and decree is of 22.03.2010. In the given situation, it is not believable that the applicant met or engaged any counsel by the name of Sh. S. A. Khan in December or January in connection with preparation of any appeal. In the given circumstances, feeling aggrieved by the conduct of the advocate, the applicant-appellant could file complaint with Bar Association or Bar Council against Sh. S. A. Khan. However, he admits to have not filed any complaint against Sh. S. A. Khan.

17. In view of the above discussion, the story put forth by the appellantapplicant as to what led to delay in filing of the appeal is not believable, what to say of his having established any sufficient cause in condonation of delay. The application for condonation of delay is, therefore, dismissed. The appellantapplicant having been failed to prove sufficient cause in filing appeal, beyond the stipulated period of limitation, the authority cited by learned counsel for appellant does not come to aid of the appellant. The present appeal against the impugned judgment and decree dated 22.03.2010 is hereby dismissed being barred by limitation.”

2. This is a second appeal. It is yet at the stage of admission. It is submitted that a valuable right has been lost to the appellant as he has not been heard on merits of the case.

3. The present suit was a suit for possession qua the suit property bearing flat No. 39-F, Section 8, Jasola, New Delhi. The defendant was stated to be a tenant qua the suit property @ `8,000/- per month in terms of lease agreement dated 20.10.2003. Rent had thereafter been increased from `8,000/- per month to `8,800/- per month. Legal notice dated 21.01.2008 had been issued terminating his tenancy; receipt of legal notice is not denied; it has been admitted; the decree for possession had accordingly followed; this was under Order 12 Rule 6 of the Code of Civil Procedure (hereinafter referred to as the „Code‟). The trial Judge had noted that there was a clear and categorical admission by the defendant; the landlord-tenant relationship had been disputed; it was not disputed that rent was more than `3,500/- per month; receipt of legal notice terminating his tenancy was also not disputed.

4. All the aforenoted facts had been admitted. The only submission urged before this Court is that the rent agreement dated 20.10.2003 was not a registered document and as such it could not have been looked into by the court below; the defence of the defendant was that the tenancy was renewed even after the agreement of 20.10.2003 and was continuously being renewed. Admittedly there is no written document to the said effect. Even presuming that this defence of the defendant is correct, what had relegated between the landlord and tenant was a monthly tenancy; it was a tenancy on a month to month basis; the law is clear; a tenancy can be reviewed only by a written document. The parties having been relegated to the position of a month to month tenancy and the said tenancy having been terminated vide legal notice dated 21.01.2003 (no dispute is raised about the validity of the said notice), it is clear that the defendant had become an unauthorized occupant and decree under Order 12 Rule 6 of the Code had been rightly passed.

5. The first appellate court had not gone into the merits of the case. It had only dealt with the issue of limitation; it had rightly noted that “sufficient cause” has not been made out in favour of the appellant; the result was that the application under Section 5 of the Limitation Act stood dismissed; necessary corollary being that the judgment of the trial Judge stood endorsed; decree for possession under Order 12 Rule 6 of the Code was affirmed.

6. Substantial questions of law have been embodied at page 12 of the body of the appeal. No such substantial question of law has arisen. There is no merit in this appeal. Appeal as also pending applications are dismissed in limine.

INDERMEET KAUR, J. MAY 18, 2011 a