JUDGMENT
Devinder Gupta, J.
(1) In Cm 1017/91, the petitioner has prayed for condensation of delay in filing the revision petition. In order to decide this application it is necessary to narrate some facts.
(2) According to the petitioner, his father Nirmal Singh, came in occupation of the disputed premises in September, 1947. The property in which the premises are located was transferred in favor of respondent No. 1 on the basis of a certificate of sale issued by the Custodian Department on 28.8.1961. On the strength of this certificate, title of respondent No.1 was duly registered in the office of the Sub Registrar on 21.8.1961.
(3) A petition for eviction was filed by respondent No. I against Nirmal Singh seeking his eviction under Section 14(l)(a), (c) & (e) of the Delhi Rent Control Act, 1958. It was dismissed on 10.2.1981. Appeal was preferred by respondent No. 1 before the Rent Control Tribunal, Delhi. In the meanwhile, Nirmal Singh expired and the 645 appeal of respondent No.1 was also dismissed on 8.2.1981. 4. Respondent No.1 on 3.2.1983 filed a civil suit claiming a decree for possession against the heirs of Nirmal Singh alleging that they had no right to hold back the property. All of them were termed to be trespassers since according to respondent No.1 they had no right to inherit the tenancy rights. Decree for mesne profits was also claimed. During the pendency of suit, a statement was made on 14.2.1985 by the counsel for the heirs of Nirmal Singh admitting the claim of respondent No.1 and praying for passing of a decree for possession and mesne profits. A prayer was also , for giving some time to vacate. Case was adjourned for consideration. Ultimately-on the basis of the statement dated 14.2.1985, a compromise decree was passed on 1.5.1985 in favor of respondent No.1 and against the heirs of Nirmal Singh who were allowed a period of three years to vacate the premises. The decree also provided for payment of damages at the rate of Rs.l3.00 p.m.
(5) A fresh civil suit was preferred on 24.2.1986 by the legal representatives of Nirmal Singh praying for a decree for declaration that the decree obtained by respondent No.1 in the earlier civil suit No-58/83 was a nullity. It is not disputed that this civil suit has since been dismissed as not maintainable.
(6) Respondent No.1 preferred a petition seeking to execute the decree dated 1.5.1985 passed in civil suit No-58/83. During the pendency of that execution petition, objections under, Section 47 were preferred by the petitioners on number of grounds. The same were dismissed on 6.4.1990 by the executing court. Against dismissal of the objections, petitioner preferred an appeal on 20.4.1990 before the Senior Sub Judge. On respondent No.1 raising an objection as regards maintainability of the appeal the petitioner preferred instant revision petition against the order dated 6.4.1990 dismissing the objections filed under Section 47 of the Code. The revision was preferred on 6.4.1991. Along with the revision an application under Section 5 read with Section 12 of the Limitation Act was also made seeking condensation of delay. Though the application has been preferred under Section 5 read with Section 12 of the Limitation Act, counsel for the petitioner has rightly conceded that the application ought to have been filed under Section 14 of the Limitation Act and prayed that it may be treated as such. Provisions of Section 5 and Section 12 of the Limitation Act are not applicable in view of the specific provisions of Section 14. Accordingly the application is treated to be one filed under Section 14 of the Act. 646
(7) It is stated in the application that it was under an erroneous impression that an appeal was preferred on 20.4.1990 in the court of Senior Sub Judge whereas the remedy of the petitioner lay in preferring a revision petition in this court which actually was preferred on 6.4.1991. Delay which has occurred in filing the revision is sought tp be condoned on the ground that the petitioner had been bonafide and diligently pursuing his remedy in another court under a bonafide mistaken legal advice.
(8) This application is vehemently opposed by the respondents alleging that no ground has been made out for condoning the delay. Neither it was a bonafide mistake nor the petitioners can be said to be diligently prosecuting the litigation. False averments have been made in the application due to which no discretion deserves to be exercised in favor of the petitioners. It has also been contended in reply that in pursuance to the proceedings in execution, warrant was duly issued and the petitioners were duly dispossessed from the premises on 23.1.1992. The decree now stands fully satisfied. After the petitioners were dispossessed, premises were let out to another tenant. At the time of final hearing, it was also pointed out that the property now stands sold to a third person who is not a party before the court.
(9) I have heard the learned counsel for the parties and gone through the entire record.
(10) Petitioner will be entitled to the condensation of delay in preferring the instant revision provided two circumstances are established – that the petitioner had been prosecuting his remedy in another court in good faith and that the wrong forum was chosen due to bonafide mistaken legal advice.
(11) In so far as the second ground is concerned, namely, bonafide mistaken legal advice of the counsel, the same can be said to have been duly made out in this case on the basis of the affidavits on record. Mala fides have not been imputed to the- counsel in rendering advice. In the facts it has to be held that it was under a bonafide mistaken legal advice of counsel that instead of preferring civil revision in this court against the impugned order, an appeal was preferred before Senior Sub Judge on 24.4.1990.
(12) The other ground that the remedy was being prosecuted in good faith cannot be said to be established in the facts and circumstances of the case. Not only false and incorrect averments have been made in the application but the same have also been insisted upon during the course of arguments 647. I have also perused the record of the appellate court. As noticed, the appeal before the Senior Sub Judge was preferred on 20.4.1990. Notice in the appeal was issued to the opposite party, namely, respondents herein. Arguments initially were heard on 24.9.1990 but the judgment was reserved, which could not be announced. The appeal remained pending. In the meanwhile an application was moved by the petitioner under Section 151 of the Code on 28.9.1990 for summoning the record of the civil suit. Respondents were called .upon to file reply to the said application. Reply was filed on 8.11.1990 in which a preliminary objection was raised that the appeal was not maintainable and deserved dismissal. It was specifically stated in the preliminary objection that the entire exercise of hearing the appeal on merits was an exercise in futility since against the impugned order passed under Section 47 of the Code no appeal was competent since it was not a decree as per the definition of decree given in the Code as amended by the Amendment Act of 1976. Copy of this reply was supplied to the learned counsel for the petitioner on the same day, namely, 8.11.1990. Appeal was thereafter taken up on three different dates, namely, 10.12.1990, 14.3.1991 and 25.3.1991. No steps were taken by the petitioner either to withdraw the appeal or to immediately file revision petition in this court.
(13) In the application moved in this court it has been stated on oath that for the first time objection as regards non-maintainability of appeal was raised on 4.4.1991. The case thereafter was adjourned to 8.4.1991 but before the next date this revision was preferred on 6.4.1991. This stand taken of the petitioner that objection as regards non-maintainability was taken for the first time on 4.4.1991 stands falsified from the record, which suggests that objection if it was not raised earlier was raised in writing on 8.11.1990. There is absolutely no explanation for the delay from 8.11.1990 to 6.4.1991. Assuming that from the date of filing of appeal till 8.11.1990 when the respondent in writing raised objection as regards maintainability of appeal, the petitioners were diligent and bonafide prosecuting remedy, but at least for subsequent period from 8.11.1990 to 6.4.1991 the petitioners cannot be said to be diligently prosecuting their remedy. In case an objection was raised .on 8.11.1990 there is no reason why the petitioners did not apply their mind to the said objection and did not choose to file revision. Thus, it has to be held that from 8.11.190 onwards the petitioners have not been prosecuting their remedy diligently. The delay for the period from 8.11.1990 to 6.4.1991 has, thus, remained unexplained and is not liable to be condoned. 648
(14) Resultantly, the application merits rejection, which is hereby rejected with costs quantified at Rs.2,000.00 . Consequently Civil Revision No.274/91 is also dismissed.