http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: RAM LAL KAPUR AND SONS (P) LTD.

       Vs.

RESPONDENT: RAM NATH AND OTHERS

DATE OF JUDGMENT: 18/04/1962

BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B. WANCHOO, K.N.

CITATION:  1963 AIR 1060            1963 SCR  Supl. (2) 242

ACT: Supreme   Court--Application   for   special    leave-Delay- Condonation--Necessity  to give notice to respondent  before making  order-Supreme  Court  Rules, 1950, O.  XIII,  r.  1. proviso (v).

HEADNOTE: Against the judgment of the Single judge of the Punjab  High Court  dated  January  5, 1953, in  which  he  followed  the decision of a Division Bench holding that s. 7A of the Delhi and  Ajmer Rent Control Act, 1947, was unconstitutional  and void,  the appellants preferred an appeal under the  Letters Patent.   Meanwhile the judgment or the Division  Bench  was brought up by way of appeal to the Supreme Court, and as the appeal was getting ready to be heard, the appellants made an application on January 5, 1959, for special leave to  appeal to  the  Supreme Court against the judgment  of  the  Single judge.   No  notice  was  given to  the  respondent  to  the application,  and special leave was granted  ex-parte.   The Letters  Patents  appeal  was thereafter  withdrawn  by  the appellants.   When  the appeal came on for  hearing  in  due course, the respondent raised an objection to the hearing of the  appeal on the grounds that the application for  special leave   was  barred  by  limitation,  that  there  were   no sufficient  reasons  for condoning the long. delay  of  four years, and that the special leave granted ex-parte should be revoked. 243 Held, that, in the peculiar circumstances of the case, leave should not be revoked. Expect  in very rare cases, if not invariable,  the  Supreme Court should adopt as a settle rule that the delay in making an  application  for special leave should not  condoned  ex- parte  but that before granting leave in such  cases  notice should  be served on the respondent and the latter  afforded an opportunity to resist the grant of the leave. Desirability of the Rules of the Supreme Court being amended suitably pointed out.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 476 of 1961. Appeal  by  special  leave from  judgment  and  order  dated January 5, 1955, of the Punjab High Court of (Circuit Bench) at Delhi in Civil Misc.  Petn.  No. 71/D of 1954. N.   C.  Chatterjee, Hardayal Hardy and N. N.  Keswani,  for the appellant. R.   S. Narula, for the respondents Nos. 1 to 3. 1962.  April 18.  The Judgment of the Court was delivered by AYYANGAR, J.---This is an appeal by special leave against  a judgment of a learned Single Judge of the Punjab High  Court holding that s. 7 A of the Delhi and Ajmer Rent Control Act, 1947  (hereinafter called the Act), was unconstitutional  as violative of the fundamental right guaranteed by Art. 14  of the Constitution. The  first respondent Ram Nath owns a building in  Delhi  of which,  among  others, the appellant-company was  a  tenant. The appellant moved the Rent Controller.. Delhi, under S. 7A of  the Act for fixation of the fair rent of the portion  in its  occupation.   These proceedings have  had  a  chequered history which it is not material to set out, but suffice  it to say that the Rent Controller, 244 Delhi, computed the fair rent for the entire building at Rs. 565/-  p. m. and the fair rent payable by the  appellant  at Rs. 146/- per month.  It is necessary to mention that  under the  Act the Rent Controller would have bad jurisdiction  to entertain  ’the appellant’s application for the fixation  of fair  rent and for so fixing it only if the construction  of the building in question was completed after March 24, 1947, but  if  the  construction of  the  building  was  completed earlier   the  ordinary  Civil  Courts  and  not  the   Rent Controller  would  have had jurisdiction  to  determine  the matter.    The   date  of  the  completion  of   the   first respondent’s building therefore loomed large in the  enquiry before  the  Rent Controller and that authority  recorded  a finding  on this matter adverse to the first  respondent  in his order. The  landlord-first respondent preferred an  appeal  against the  order  of the Rent Controller to the  learned  District Judge,  Delhi, but the appeal was dismissed.  Thereafter  he moved  the  High Court of the Punjab under Art. 227  of  the Constitution  challenging the correctness and  propriety  of every  finding  by the Rent Controller and of  the  District Judge on appeal.  This petition came on for hearing before a learned Single Judge of the High Court.  A Division Bench of the High Court had sometime previously held in another batch of  cases  (British  Medical Stores v.  Bhagirath  Mal)  (1) arising  under the Act, that s. 7A was unconstitutional  and void and following this decision he allowed the petition  of the  first  respondent and set aside the order of  the  Rent Controller as without jurisdiction, without considering  the other  matters which would arise if the sect-ion  was  valid and  the  Rent  Controller  had  jurisdiction.   From   this decision   of  the  learned  Single  Judge,  the   appellant preferred  an appeal under the Letters Patent to a  Division Bench. (1)  [1955] 1. L. R. 8 Punjab, 639.  245 Mean  while  the  judgement in  British  Medical  Stores  v. Bhagirath  Mat (1) was brought tip by way of appeal to  this Court, and as the appeal was getting ready to be heard,  the appellants applied for and obtained special leave to  appeal

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

to this Court even during the pendency in the High Court, of the  appeal  by it under the Letters  Patent.   The  Letters Patent appeal was thereafter withdrawn by the appellant. The appeal in the British Medical Stores case (1) was  heard by  this Court and the same was allowed by a judgment  dated August  2, 1961, and this Court held reversing the  judgment of the Punjab High Court that s. 7 A of the Act was valid It would thus be seen that the only point which the  learned Judge  considered and on which the revision petition of  the landlord-first respondent was allowed no longer subsists and hence the appellant is entitled to have the appeal  allowed. As  the  learned  Single Judge did not  consider  the  other objections  raised by the first respondent to the  order  of the Controller fixing the standard fair rent payable by  the appellant,  the appeal has to be remanded to the High  Court for being dealt with according to law. Before concluding it is necessary to advert to a preliminary objection  to  the hearing of the appeal raised  by  learned Counsel  for  the landlord-respondent.  His  submission  was that  the  special  leave which was granted  by  this  Court exparte   should  be  revoked  as  having  been   improperly obtained.   The facts in relation thereto were  these.   The judgment  of the learned Single Judge to appeal  from  which the  leave  was granted was dated January 5, 1955,  and  the application to this Court seeking leave was (1)  (1955) I.L.R. 8 Punjab 639. (2)  See Roshan Lal Mehrau .Ishwar Dass [1962] 2 S.C.R.947. 246 made on January 5, 1959, i.e., after a lapse of four  years. It  is  obvious that it was an application  which  had  been filed far beyond the period of limitation prescribed by  the rules  of  this Court.  Learned Counsel for  the  respondent urged  that there were no sufficient grounds  for  condoning that  long.  delay and that we should therefore  revoke  the leave. We  are not disposed to accede to this request for  revoking the  leave  in  the peculiar  circumstances  of  this  case. Learned Counsel invited our attention to a few decisions  in which leave granted exparte was revoked at the stage of  the hearing  of  the  appeal  on  an  objection  raised  by  the respondent;  but  we do not consider that the facts  of  the present  appeal bear any analogy to those in  the  decisions cited.  In the first place, there was no by-passing the High Court,  because the appellant had filed an appeal under  the Letters Patent and it was during the pendency of that appeal that  he  moved this Court for leave.  Next,  there  was  no suppression  of any fact which would have relevance  to  the granting or withholding of the leave, and the exact position as  it stood at the time the petition was tiled was set  out in  it.   Thirdly, it is obvious that if the delay  had  not been  condoned and leave refused when  application  therefor was   made  in  January  1959,  the  appellant  would   have prosecuted his Letters Patent appeal and he could  obviously have  come  up here if the decision went  against  him.   In fact,  the  grant of special leave in the  circumstances  of this  case,  merely served to shorten the  proceedings,  and this  Court  acceded  to the petition  for  leave  obviously because the appeal in this Court from judgments in the  case of  the British Medical Stores etc. (1) were  getting  ready for  bearing and there was some advantage if  the  appellant was in a position, to intervene in those other appeals.  In (1)  (1955) I.L.R. 8 Punjab 639. 247 view of these considerations we are of the opinion that this is not a case in which the leave should be revoked.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

Nevertheless, we consider that we should add that, except in very rare cases, if not invariably, it should be proper that this Court should adopt as a settled rule that the delay  in making  an  application  for special  leave  should  not  be condoned  ex-parte  but that before granting leave  in  such cases  notice  should be served on the  respondent  and  the latter  afforded an opportunity to resist the grant ’of  the leave.    Such  a  course  besides  being  just,  would   be preferable  to  having to decide applications  for  revoking leave  on the ground that the delay in making the, same  was improperly condoned years after the grant of the leave  when the Court naturally feels embarrassed by the injustice which would be caused to the appellant if leave were then  revoked when  he  would be deprived of the opportunity  of  pursuing other remedies if leave had been refused earlier.  We  would suggest  that  the  rules of the  Court  should  be  amended suitably to achieve’ this purpose. The  result is that the appeal is allowed and the  order  of the  learned  Single Judge accepting the  revision  petition under Art. 227 preferred by the landlord-first respondent is set  aside.   The  case is remanded to the  High  Court  for considering  the-’ petition of the respondent in  accordance with law and on the footing that s. 7 A of the Rent  Control Act is a valid piece of legislation. It   is   admitted   that   the   point   as   regards   the constitutionality of s. 7 A of the Rent Control Act was  not raised by the landlord-respondent, and in the  circumstances of the case we direct the parties to bear their own costs in this Court.  The costs in the High Court will be as directed by that Court. Appealed allowed. To be reprinted. 248