Case: O.P. Kathpalia Vs. Lakhmir Singh (Dead) &amp; Others

1956 was found to be interpolated how can anyone say with confidence when the record was tampered with by the learned trial Judge. The appeal was preferred on January 2, 1958. In the application under S. 5 of the Limitation Act praying for condoning the delay in preferring the appeal it was specifically stated that the orders under appeal were made in the absence of the appellant and at his back and without communicating the same to him. Further the suit of the respondent landlord was dismissed for default on December 12, 1956 and it was restored to file on December 30, 1957 and within three days thereafter the appeal was preferred. Now ordinarily the view of the Court dealing with facts in an application under S. 5 of the Limitation Act would not be interfered unless the failure to exercise jurisdiction would lead to miscarriage of justice. Viewed from this angle the appellant had made out a very convincing and just cause for condoning the delay in preferring the appeal. The order under appeal was the very interpolated order. When was it interpolated? There is no. definite answer. Within a month and half of the interpolated order, the suit of the landlord was dismissed. Once the suit was dismissed the appellant tenant could not prefer an appeal against an interim order. The suit of the landlord was restored to file on December 30, 1957. Promptly within three days on January 2, 1958 the appeal was preferred with an application for condoning the delay. A just and convincing cause wholly sufficient to condone the delay was thus made out. More so because failure of the learned District Judge and the learned Single Judge of the High Court to condone delay resulted in the gross miscarriage of justice inasmuch as the tenant lost protection of the Act for his failure to comply with a non est injudicious order, which was a nullity in the eye of law. In this background, we find it difficult to uphold the view of the learned District Judge and the High Court. 28. Justice demands that the order dated October 6, 1956 must be set aside as it is an interpolated and therefore legally non-existent order. It must accordingly be held that the application for fixing interim rent still remains undecided and the trial Court will have to decide it as expeditiously as possible. If the application for interim rent is not disposed of by an appropriate order there was no. question of non-compliance with the same and therefore no. occasion would arise for striking off the defence of the tenant. Accordingly the order dated October 6, 1956 and the order striking off the defence dated March 4, 1958 are set aside. The order of the learned District Judge declining to condone the delay in preferring the appeal against the order dated October 6, 1956 is set aside and the order of the High Court disposing of the two revision petitions is also set aside. 29. Accordingly both these appeals will have to be allowed and the matter will have to be remitted to the trial Court for first deciding the application for fixing the interim rent and calling upon the tenant to deposit the interim rent in arrears at the rate of interim rent so fixed. Learned District Judge should take up the appeal against the order determining the standard rent as early as possible and call upon the tenant to make good the deposit in accordance with the standard rent so determined. The order striking off the defence is set aside and the tenant will be entitled to defend the suit on merits. 30. Before we conclude the judgment, one aspect to which our attention was drawn may be noticed. Original landlord Lakhmir Singh died on April 9, 1978 during the pendency of these appeals in this Court. Civil Misc. Petitions Nos. 17962-69 of 1984 were moved on March 21, 1983(1984) for substitution of his heirs and legal representatives and for condoning delay, if any, in moving the petitions. The ground on which condonation of delay is sought has been set out in the petition and affidavit in support. Appellant has stated in the petition that learned counsel for respondents Nos. 2 and 3 handed over a letter to the Registry on March 2, 1984 intimating about the death of first respondent, the original landlord. Thereafter the petition for substitution was moved on March 21, 1984 that is within three weeks from the date of the knowledge conveyed by the letter of the learned counsel for respondents Nos. 2 and 3. The date of death of respondent No. 1 is not disputed but it is said that appellant came to know about it for the first time from the aforementioned letter. This is countered by the respondents. In our opinion there is good and sufficient reason for condoning delay and granting substitution in the facts of this case. First respondent who is dead was the original landlord and he conveyed and transferred the whole property including the suit premises to respondents Nos. 2 and 3 way back on December 21, 1959 and since then respondents Nos. 2 and 3 are the real contesting respondents. Respondent No. 1 has lost all interest in the property and the litigation concerning the property sold and conveyed by him a quarter of a century back. Coupled with this is the fact that under R. 10-A of O. 22 a duty is cast on the pleader appearing for the deceased party to give intimation of the same to the opposite party. This duty in this case was discharged on March 2, 1984 that is six years after the death and promptly within three weeks the petition for substitution is filed. Having regard to the cumulative effect of all these facts we are satisfied that the appellant has made out a sufficient case for condoning the delay in seeking substitution. We accordingly set aside abatement of appeal and grant substitution.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]14. We have dealt with the view taken by the learned District Judge a little more in detail because the learned Single Judge of the High Court has practically adopted the construction which commended to the learned District Judge. We are therefore unable to accept the construction put by the Learned Judge of the High Court on Cl. 11(b). In our opinion on a proper construction, the petition for determination of standard rent filed by the appellant was within time and the learned District Judge was in error in rejecting the petition on the short ground that it was barred by limitation15. It may be mentioned that the learned trial Judge had determined the standard rent but as neither appellate Court nor the High Court dealt with the point we are constrained to remand the matter to the learned District Judge to decide the second point as to what is the standard rent of the suit premises30. Before we conclude the judgment, one aspect to which our attention was drawn may be noticed. Original landlord Lakhmir Singh died on April 9, 1978 during the pendency of these appeals in this Court. Civil Misc. Petitions Nos.9 of 1984 were moved on March 21, 1983(1984) for substitution of his heirs and legal representatives and for condoning delay, if any, in moving the petitions. The ground on which condonation of delay is sought has been set out in the petition and affidavit in support. Appellant has stated in the petition that learned counsel for respondents Nos. 2 and 3 handed over a letter to the Registry on March 2, 1984 intimating about the death of first respondent, the original landlord. Thereafter the petition for substitution was moved on March 21, 1984 that is within three weeks from the date of the knowledge conveyed by the letter of the learned counsel for respondents Nos. 2 and 3. The date of death of respondent No. 1 is not disputed but it is said that appellant came to know about it for the first time from the aforementioned letter. This is countered by the respondents. In our opinion there is good and sufficient reason for condoning delay and granting substitution in the facts of this case. First respondent who is dead was the original landlord and he conveyed and transferred the whole property including the suit premises to respondents Nos. 2 and 3 way back on December 21, 1959 and since then respondents Nos. 2 and 3 are the real contesting respondents. Respondent No. 1 has lost all interest in the property and the litigation concerning the property sold and conveyed by him a quarter of a century back. Coupled with this is the fact that under R.A of O. 22 a duty is cast on the pleader appearing for the deceased party to give intimation of the same to the opposite party. This duty in this case was discharged on March 2, 1984 that is six years after the death and promptly within three weeks the petition for substitution is filed. Having regard to the cumulative effect of all these facts we are satisfied that the appellant has made out a sufficient case for condoning the delay in seeking substitution. We accordingly set aside abatement of appeal and grant substitution.