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2025 DAILYLAW 3589 (HP)

Jagmohan Sood v. Ram Tirath

2025-11-17

Ajay Mohan Goel

body2025
JUDGMENT : Ajay Mohan Goel, J. By way this petition, the petitioner has assailed order dated 01.09.2023, passed by the learned Additional District Judge-II, Shimla in Case Reg. No. 9002926/2018, titled as Sh. Ram Tirath and another Vs. Shri Jagmohan Sood, in terms whereof, learned Court has allowed the application filed under Section 5 of the Limitation Act by condoning the delay in filing the appeal. 2. Brief facts necessary for the adjudication of this petition are that feeling aggrieved by order dated 17.03.2017, passed by learned Rent Controller, Shimla, H.P. in Rent Petition No. 27/2 of 2016, an appeal was preferred by the respondents herein alongwith an application under Section 5 of the Limitation Act for condonation of delay in filing the said appeal. 3. In terms of the averments made in the application, it was mentioned therein that the applicants/appellants came to know about the order passed by the learned Rent Controller on 09.07.2018 when a notice dated 03.07.2018, issued by Sh. Anirudh Nadda on the instructions of Sh. Jagmohan Sood was received by one of the applicants, i.e., Sh. Ram Tirath, whose name was wrongly mentioned as Tirath Ram. Thereafter, one of the applicants, namely, Jiwan Lal went to the District Court and applied for the copy of the eviction order passed against them on 10.07.2018. The copy was received on 18.07.2018. Wife of Ram Tirath suffered a heart attack on 16.07.2018 and was admitted in Alchemist Hospital at Panchkula, Haryana, from where she was discharged on 21.07.2018. On account thereof, the family of the applicants remained disturbed and it was only on 03.09.2018 that they visited the office of counsel and thereafter, the appeal was prepared and accordingly, a prayer was made that the delay in filing the appeal, which was of 34 days, be condoned. 4. Non-applicant opposed the application by filing reply and it was mentioned therein that the Rent Petition No. 24/2 of 2016, titled as Sh. Jagmohan Sood Vs. Tirath Ram and others was instituted on 06.04.2016 and decided on 17.03.2017. The respondents were duly served in the Rent Petition. After the eviction orders were passed by the learned Rent Controller on 17.03.2017, an Execution Petition was filed for recovery of possession. Pursuant thereof, the possession of the premises was delivered to the petitioner therein by the Court Bailiffs on 07.11.2017. The respondents were duly served in the Rent Petition. After the eviction orders were passed by the learned Rent Controller on 17.03.2017, an Execution Petition was filed for recovery of possession. Pursuant thereof, the possession of the premises was delivered to the petitioner therein by the Court Bailiffs on 07.11.2017. As per the non- applicant, the appeal was filed just to harass and torment the non- applicant/respondent, as during the course of eviction and execution proceedings, the applicants had approached the non-applicant, i.e., the landlord and demanded money to vacate the premises. It was further averred in the reply that in execution proceedings, the possession of the property was taken over on 07.11.2017 and in this backdrop, the filing of the application was nothing but an abuse of the process of law. It was denied that the applicants came to know about the order passed by the learned Rent Controlled on 09.07.2018 only, as alleged. 5. In terms of the impugned order, the application was allowed by the learned Court below by holding that a perusal of the copy of the order demonstrated that the copy thereof was delivered to the respondent on 19.07.2018 and the appeal was filed with a delay of 34 days on 06.09.2018, which otherwise was to be filed on 18.08.2018. Learned Appellate Court further held that the applicants had examined one Anil Kumar as AW-1, who had produced the record to prove the plea of the wife of one the applicants having suffered heart attack. Learned Court also held that Yog Raj, AW-3 proved that the applicants/appellants were served on wrong address on 31.08.2016 and 30.10.2016 and when landlord failed to serve the applicants/appellants, the service was done by way of affixation, which cannot be termed as a valid service. On these bases primarily, the learned Court below allowed the application filed under Section 5 of the Limitation Act. 6. Having heard learned counsel for the parties and having perused the orders under challenge, this Court is of the considered view that the same are perverse and not sustainable in the eyes of law. 7. In the present case, the application under Section 5 of the Limitation Act was filed for condonation of delay in filing the appeal. The eviction order was passed by the learned Rent Controller, Shimla on 17.03.2017 and the appeal was admittedly filed on 06.09.2018. 7. In the present case, the application under Section 5 of the Limitation Act was filed for condonation of delay in filing the appeal. The eviction order was passed by the learned Rent Controller, Shimla on 17.03.2017 and the appeal was admittedly filed on 06.09.2018. Thus, the appeal was filed after about one year and six months as from the date of the order of learned Rent Controller. 8. Learned Appellate Court while allowing the application believed it to be gospel truth that the date of knowledge which the applicants had mentioned, was to be taken as the date on which the applicants actually gained the knowledge of the order passed by the learned Rent Controller, without appreciating that the applicants had not pleaded anything as to how the they were justifying the delay of more than one year and six months in filing the appeal. Not only this, learned Appellate Court while allowing the application, returned the findings that the applicants were not properly served during the eviction proceedings, which issue was outside the domain of the learned Appellate Court. If the applicants were aggrieved that they were not properly served in the eviction proceedings, then the proper course for them was to have had filed an application before the learned Rent Controller and it was not for the Appellate Court to return the findings to this effect while deciding an application filed under Section 5 of the Limitation Act. All this renders the order passed by the learned Appellate Court per se perverse and, thus, the same is not sustainable in the eyes of law. 9. This Court is not oblivious that in the matter of condonation of delay etc., endeavour is to be to advance the cause of justice, but then, the Court is not to take a call on the application myopically, taking into consideration the rights of one party only. The Court has to strike a balance between rights of both the parties. Obviously, after the period of limitation elapses, right stands conferred upon the party in whose favour the order is. The Court has to strike a balance between rights of both the parties. Obviously, after the period of limitation elapses, right stands conferred upon the party in whose favour the order is. If the right which stands crystalized upon a party is to be interfered by a Superior Court, by allowing an application filed under Section 5 of the Limitation Act, then the order has to be supported by cogent reasoning and not on conjectures and on the basis of findings, which are outside the domain of the Court. This important aspect of the matter has been ignored by the learned Appellate Court while deciding the application filed under of the Limitation Act. First of all, no findings have been returned in the impugned order with regard to the delay as from the date of order up to the date when the copy thereof was applied. Secondly, learned Appellate Court was having no right to make any observation as to whether or not the applicants were properly served in the eviction proceedings, in the course of deciding an application under of the Limitation Act. All this renders the Appellate Order bad in the eyes of law. Besides this, as now the Court stands informed that the possession of the premises in question stands bestowed on the landlord, therefore also, the impugned order is liable to be set aside. 10. Accordingly, on above counts, this petition is allowed and impugned order dated 01.09.2023, passed by the learned Additional District Judge-II, Shimla, H.P. in Case Regn. No. 9002926/2018, titled Sh. Ram Tirath and another Vs. Sh. Jagmohan Sood, is set aside. Petition stands disposed of accordingly, so also pending miscellaneous applications, if any.