Mukri Gopalan
Vs. Cheppilat Puthanpurayilaboobacker [1995] INSC 301 (12 July 1995)
Majmudar
S.B. (J) Majmudar S.B. (J) Faizan Uddin (J) Majmudar, J.
CITATION:
1995 AIR 2272 1995 SCC (5) 5 JT 1995 (5) 296 1995 SCALE (4)438
ACT:
HEAD NOTE:
THE
12TH DAY OF JULY, 1995 Present:
Hon'ble
Mr. Justice Faizan Uddin Hon'ble Mr. Justice S.B. Majmudar Mr. G.V. Iyer, Sr.
Adv. Mr. G. Prakash and Mr.B.V.Deepak, Advs. with him for the Appellant Mr.
R.F. Nariman, Sr. Adv. Mr. E.M.S. Anam, Adv. with him for the Respondent.
The
following Judgment of the Court was delivered:
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL
APPEAL NO. 1305/95 Mukri Gopalan Versus. Cheppilat Puthanpurayil Aboobacker
In
this appeal by special leave a short but an interesting question falls for
determination. It is to the effect `whether the appellate authority constituted
under Section 18 of the Kerala Buildings (Lease and Rent Control) Act, 1965
(hereinafter referred to as the `Rent Act') has power to condone the delay in the
filing of appeal before it under the said section'. Majority of the Kerala High
Court 1974 Kerala 162) has taken the view that the appellate authority has no
such power. Following the said decision a Division Bench of the Kerala High
Court by its judgment and order under appeal has dismissed the revision
application moved by the appellant herein whose appeal before the appellate
authority was dismissed as time barred and the application for condonation of
delay was treated to be not maintainable before the appellate authority.
A few
relevant facts leading to these proceedings may now be looked at. The appellant
is a tenant occupying the suit premises belonging to respondent-landlord. The
respondent filed Rent Control Petition No. 117/92 before the Rent Control
Court, Kannur, Kerala State, seeking eviction of the appellant-tenant under
Section 11(2) (a) (b) and Section 11(3) of the Rent Act on the grounds of
default in payment of rent and bonafide need for the purpose of conducting
grocery shop for his son, plaintiff no. 2. The Rent Control Court exercising its power under Section 11 of the Rent Act,
passed an order for possession against the appellant on 28th October, 1993. The appellant applied for
certified copy of the said order on 29.10.93. He obtained certified copy of the
order on 23.11.93. It is the case of the appellant that he entrusted on 4.12.93
all the relevant papers to his counsel for filing appeal. His counsel called
him in the next following week for signing vakalatnama and for completing other
formalities relating to filing of appeal. It is the further case of the
appellant that he suffered paralytic attack on 5.12.93 and was bed ridden until
27.12.93. On 28.12.93 he came to know for the first time from his counsel that
the time for filing appeal had elapsed. It may be noted at this stage that as
per Section 18(1) (b) of the Rent Act an appeal has to be filed within thirty
days from the date of order of Rent Control Court. In computing thirty days, the time taken to obtain a certified copy of
the order appealed against has to be excluded.
Ultimately
the appeal was filed by the appellant on 31.12.93 before the appellate
authority, namely, District Judge, Thalassery under Section 18 of the Act. The
said appeal was also accompanied by I.A.No. 56/94 for condonation of delay
supported by the affidavit of the appellant. The appellate authority by its
order dated 11th
January, 1994
dismissed the appeal as barred by time. The appellate authority took the view
that being not a court but a persona designata it has no power to condone the
delay in filing appeal by invoking the provisions contained in Section 5 of the
Limitation Act, 1963. As noted earlier the said order of the appellate
authority was confirmed by the High Court in Civil Revision Petition moved by
the appellant and that is how the appellant is before us.
The
learned counsel for appellant-tenant vehemently contended that the majority
view of Kerala High Court in that Section 29(2) of the Limitation Act cannot
apply to the proceeding before the appellate authority under Section 18 of the
Rent Act was not correct and that the appellate authority had full powers under
Section 29(2) of the Limitation Act to consider on merits the question of condonation
of delay in filing appeal as per Section 5 of the Limitation Act. The learned
counsel for respondent- landlord on the other hand supported the decision
rendered by the High Court.
Before
we deal with the majority decision of the Kerala it is necessary to note the
relevant statutory provisions in the light of which the present controversy has
to be resolved. The Rent Act is enacted to regulate the leasing of buildings
and to control the rent of buildings in the State of Kerala. Section 2(5)
defines `Rent Control Court' to mean the court constituted under Section 3.
Section 3 of the Rent Act provides that the Government may by notification
appoint a person who is or is qualified to be appointed a Munsiff, to be the
Rent Control Court for such local areas. Section 5 of the Act deals with the dertermination
of fair rent on application of the tenant or landlord to the Rent Control
Court. Section 11 deals with the grounds on which an application can be made to
the Rent Control Court by landlord for evicting his or her tenant. Proviso of
Section 11 lays down that where the tenant denies the title of the landlord or
claims right of permanent tenancy, the Rent Control Court shall decide whether
the denial or claim is bona fide and if it records a finding to that effect,
the landlord shall be entitled to sue for eviction of the tenant in a Civil
Court and such court may pass a decree for eviction on any of the grounds
mentioned in this Section, notwithstanding that the Court finds such denial
does not involve forfeiture of the lease or that the claim is unfounded.
Section 14 deals with execution of orders passed by Rent Control Court. It
provides that such orders after the expiry of the time allowed therein be
executed by the Munsiff or if there are more than one Munsiff, by the Principal
Munsiff having original jurisdiction over the area in which the building is
situated as if it were a decree passed by him provided that an order passed in
execution under this section shall not be subject to an appeal but shall be
subject to revision by the court to which appeals ordinarily lie against the
decisions of the said Munsiff.
Section
16 lays down that the orders of Rent Control Court shall be pronounced in the
open court on the day on which the case is finally heard, or on some future day
of which due notice shall be given to the parties. Next relevant provision is
found in Section 18 dealing with appeals. As the controversy centres round the
powers of the appellate authority under Section 18 it will be useful to extract
the said Section in extensio at this stage.
"18.
Appeal. - (1) (a) The Government may, by general or special order notified in
the Gazette, confer on such officers and authorities not below the rank of a
Subordinate Judge the powers of appellate authorities for the purpose of this
Act in such areas or in such classes of cases as may be specified in the order.
(b)
Any person aggrieved by an order passed by the Rent Control Court, may, within
thirty days from the date of such order, prefer an appeal in writing to the
appellate authority having jurisdiction. In computing the thirty days
aforesaid, the time taken to obtain a certified copy of the order appealed
against shall be excluded.
(2) On
such appeal being preferred, the appellate authority may order stay of further
proceedings in the matter pending decision on the appeal.
(3)
The appellate authority shall send for the records of the case from the Rent
Control Court and after giving the parties an opportunity of being heard and,
if necessary, after making such further inquiry as it thinks fit either directly
or through the Rent Control Court, shall decide the appeal.
Explanation:-
The appellate authority may, while confirming the order of eviction passed by
the Rent Control Court, grant an extension of time to the tenant for putting
the landlord in possession of the building.
(4)
The appellate authority shall have all the powers of the Rent Control Court
including the fixing of arrears of rent.
(5)
The decision of the appellate authority, and subject to such decision, an order
of the Rent Control Court shall be final and shall not be liable to be called
in question in any court of law, except as provided in Section 20."
Section 19 deals with power to award costs. It lays down that subject to such
conditions and limitations, if any, as may be prescribed, the costs of and
incident to all proceedings before the Rent Control Court or the appellate
authority shall be in the discretion of the Rent Control Court or the appellate
authority. Section 20 deals with revision. It lays down that in cases where the
appellate authority empowered under Section 18 is a Subordinate Judge, the
District Judge and in other cases the High Court may at any time, on the
application of any aggrieved party, call for and examine the records relating
to any order passed or proceedings taken under this Act by such authority for
the purpose of satisfying itself as to the legality, regularity or propriety of
such order proceedings, and may pass such order in reference thereto as it
thinks fit. Section 20(A) gives power to remand the proceedings and provides
that in disposing of an appeal or application for revision under this Act, the
appellate authority or the revising authority, as the case may be, may remand
the case for fresh disposal according to such directions as it may give. Section
22 deals with proceedings by or against legal representatives.
As per
the said section provisions of Section 146 and order XXII of the Code of Civil
Procedure, 1908 shall as far as possible be applicable to the proceedings under
this Act.
Then
follows Section 23 which deals with procedure and powers of the Rent Act and
appellate authority and also of the Accommodation Controller. It provides that
the Rent Control Court and the appellate authority shall have the powers which
are vested in a court under the Code of Civil Procedure, 1908 in respect of
listed matters which include discovery and inspection; enforcing the attendance
of witnesses, and requiring the deposits of their expenses;
compelling
the production of documents; examining witnesses on oath, granting
adjournments; reception of evidence taken on affidavit; issuing commission for
the examination of witnesses and for local inspection; setting aside ex parte
orders; enlargement of time originally fixed or granted;
power
to amend any defect or error in orders or proceedings and power to review its
own order. As per sub-section (2) of Section 23 the Accommodation Controller,
the Rent Control Court or the appellate authority may summon and examine suo moto
any person whose evidence appears to it to be material and it shall be deemed
to be a Civil Court within the meaning of sections 480 and 482 of the Code of
Civil Procedure, 1908. At this stage it will be useful to note that the Govt.
of Kerala in exercise of its power under Section 18(1) has issued a
notification conferring on District Judges the powers of appellate authority
for the purpose of Kerala Rent Act. The said notification reads as under:-
"BUILDINGS
(LEASE & RENT CONTROL) ACT, 1965-NOTN. UNDER S.18(1) CONFERRING ON DISTRICT
JUDGES POWERS OF APPELLATE AUTHORITIES.
(Published
in Kerala Gazette No.38 dated 26th September, 1989: SRO:1631/89) NOTIFICATION S.R.O.No.
1631/89-In exercise of the powers conferred by clause (a) of sub-section (1) of
S.18 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (2 of 1965) and
in supersession of all previous notifications on the subject, the Government of
Kerala hereby confer on the District Judges having jurisdiction over the areas
within which the provisions of the said Act have been extended, the powers of
the Appellate Authorities for the purposes of the said Act, in the said
areas." In the background of the aforesaid relevant statutory provisions
and the notification issued thereunder we have to proceed to tackle the
question posed for our consideration.
As
noted earlier the appellate authority, namely the District Judge, Thallassery
has taken the view that since he is a persona designata he cannot resort to
Section 5 of the Limitation Act for condoning the delay in filing appeal before
him. So far as this reasoning of the appellate authority is concerned Mr. Nariman,
learned counsel for respondent fairly stated that he does not support this
reasoning and it is not his say that the appellate authority exercising powers
under Section 18 of the Rent Act is a persona designata. In our view the said
fair stand taken by learned counsel for respondent is fully justified. It is
now well settled that an authority can be styled to be persona designata if
powers are conferred on a named person or authority and such powers cannot be
exercised by anyone else. The scheme of the Act to which we have referred
earlier contra indicates such appellate authority to be a persona designata. It
is clear that the appellate authority constituted under Section 18(1) has to
decide lis between parties in a judicial manner and subject to the revision of
its order, the decision would remain final between the parties. Such an
authority is constituted by designation as the District Judge of the district
having jurisdiction over the area over which the said Act has been extended. It
becomes obvious that even though the concerned District Judge might retire or
get transferred or may otherwise cease to hold the office of the District Judge
his successor in office can pick up the thread of the proceedings from the
stage where it was left by his predecessor and can function as an appellate
authority under Section 18. If the District Judge was constituted as an
appellate authority being a persona designata or as a named person being the
appellate authority as assumed in the present case, such a consequence, on the
scheme of the Act would not follow. In this connection, it is useful to refer
to a decision of this Prasad (AIR 1961 SC 606). In that case Hidayatullah, J
speaking for the court had to consider whether Additional District Magistrate
empowered under Section 10(2) of Criminal Procedure Code to exercise powers of
District Magistrate was a persona designata. Repelling the contention that he
was a persona designata the learned Judge made the following pertinent
observations:
"......A
persona designata is a "a person who is pointed out or described as an
individual, as opposed to a person ascertained as a member of a class, or as
filling a particular character." (See Osborn's Concise Law Dictionary, 4th
Edn., p.253). In the words of Schwabe, Koteswara Rao, ILR 47 Mad 369: (AIR 1924
Mad 561) (FB), personae designatae are "persons selected to act in their
private capacity and not in their capacity as Judges." The same
consideration applies also to a well known officer like the District Magistrate
named by virtue of his office, and whose powers the Additional District
Magistrate can also exercise and who can create other officers equal to himself
for the purposes of the Eviction Act. The decision of Sapru, J.
in the
Allahabad case, with respect, was
erroneous." Applying the said test to the facts of the present case it
becomes obvious that appellate authorities as constituted under Section 18 of
the Rent Act being the District Judges they constituted a class and cannot be
considered to be persona designata. It is true that in this connection, the Amina
Kunhi Umma (supra) also took a contrary view. But the said view also does not
stand scrutiny in the light of the statutory scheme regarding constitution of
appellate authority under the Act and the powers conferred on and the decisions
rendered by it.
Once
it is heldthat the appellate authority functioning under Section 18 of the Rent
Act is not a persona designata, it becomes obvious that it functions as a
court. In the present case all the District Judges having jurisdiction over the
areas within which the provisions of the Rent Act have been extended are
constituted as appellate authorities under Section 18 by the Govt. notification
noted earlier.
These
District Judges have been conferred the powers of the appellate authorities. It
becomes therefore, obvious that while adjudicating upon the dispute between the
landlord and tenant and while deciding the question whether the Rent Control Court's order is justified or not such
appellate authorities would be functioning as courts. The test for determining
whether the authority is functioning as a court or not has been laid down by a
series of decisions of this court. We may refer to one of them, in the case of Thakur
Ltd. & Anr. (1967(3) SCR 163). In that case this court was concerned with
the question whether the Assistant Registrar of Co-operative Societies
functioning under Section 48 of the Bihar
and Orissa Cooperative Societies Act, 1935 was a court subordinate to the High
Court for the purpose of Contempt of Courts Act, 1952. While answering the
question in the affirmative, a division bench of this court speaking through Mitter,
J placed reliance amongst others on the Narain (1955 (2) SCR 955) wherein it
was observed as under:
"It
is clear, therefore, that in order to constitute a court in the strict sense of
the term, an essential condition is that the court should have, apart from
having some of the trappings of a judicial tribunal, power to give a decision
or a definitive judgment which has finality and authoritativeness which are the
essential tests of a judicial pronouncement." Reliance was also placed on
another decision of this court Punjab (1955 (2) SCR 1013). Following observations
found at page 1018 therein were pressed in service.
"It
may be stated broadly that what distinguishes a court from a quasijudicial
tribunal is that it is charged with a duty to decide disputes in a judicial
manner and declares the rights of parties in a definitive judgment. To decide
in a judicial manner involves that the parties are entitled as a matter of
right to be heard in support of their claim and to adduce evidence in proof of
it. And it also imports an obligation on the part of the authority to decide
the matter on a consideration of the evidence adduced and in accordance with
law. When a question therefore arises as to whether an authority created by an
Act is a court as distinguished from a quasi- judicial tribunal, what has to be
decided is whether having regard to the provisions of the Act it possesses all
the attributes of a court." When the aforesaid well settled tests for
deciding whether an authority is a court or not are applied to the powers and
functions of the appellate authority constituted under Section 18 of the Rent
Act, it becomes obvious that all the aforesaid essential trappings to
constitute such an authority as a court are found to be present. In fact, Mr. Nariman
learned counsel for respondent also fairly stated that these appellate
authorities would be courts and would not be persona designata. But in his
submission as they are not civil courts constituted and functioning under the
Civil Procedure Code as such, they are outside the sweep of Section 29(2) of
the Limitation Act. It is therefore, necessary for us to turn to the aforesaid
provision of the Limitation Act. It reads as under:
"S.29(2)
Where any special or local law prescribes for any suit, appeal or application a
period of limitation different from the period prescribed by the Schedule, the
provisions of Section 3 shall apply as if such period were the period
prescribed by the Schedule and for the purpose of determining any period of
limitation prescribed for any suit, appeal or application by any special or
local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply
only insofar as, and to the extent to which, they are not expressly excluded by
such special or local law." A mere look at the aforesaid provision shows
for its applicability to the facts of a given case and for importing the
machinery of the provisions containing Sections 4 to 24 of the Limitation Act
the following two requirements have to be satisfied by the authority invoking
the said provision.
(i)
There must be a provision for period of limitation under any special or local
law in connection with any suit, appeal or application.
(ii)
The said prescription of period of limitation under such special or local law
should be different from the period prescribed by the schedule to the Limitation
Act.
If the
aforesaid two requirements are satisfied the consequences contemplated by
Section 29(2) would automatically follow. These consequences are as under:
(i) In
such a case Section 3 of the Limitation Act would apply as if the period prescribed
by the special or local law was the period prescribed by the schedule.
(ii)
For determining any period of limitation prescribed by such special or local
law for a suit, appeal or application all the provisions containing Sections 4
to 24(inclusive) would apply insofar as and to the extent to which they are not
expressly excluded by such special or local law.
In the
light of the aforesaid analysis of the relevant clauses of Section 29(2) of the
Limitation Act, let us see whether Section 18 of the Rent Act providing for a
statutory appeal to the appellate authority satisfies the aforesaid twin
conditions for attracting the applicability of Section 29(2) of the Limitation
Act. It cannot be disputed that Kerala Rent Act is a special Act or a local
law. It also cannot be disputed that it prescribes for appeal under Section 18
a period of limitation which is different from the period prescribed by the
schedule as the schedule to the Limitation Act does not contemplate any period
of limitation for filing appeal before the appellate authority under Section 18
of the Rent Act or in other words it prescribes nil period of limitation for
such an appeal. It is now well settled that a situation wherein a period of
limitation is prescribed by a special or local law for an appeal or application
and for which there is no provision made in the schedule to the Act, the second
condition for attracting Section 29(2) would get satisfied. As laid down by a
majority decision of the Constitution Bench of this court in (AIR 1964 SC
1099), when the first schedule of the Limitation Act prescribes no time limit
for a particular appeal, but the special law prescribes a time limit for it, it
can be said that under the first schedule of the Limitation Act all appeals can
be filed at any time, but the special law by limiting it provides for a
different period.
While
the former permits the filing of an appeal at any time, the latter limits it to
be filed within the prescribed period. It is therefore, different from that
prescribed in the former and thus Section 29(2) would apply even to a case
where a difference between the special law and Limitation Act arose by the
omission to provide for limitation to a particular proceeding under the
Limitation Act.
It is
also obvious that once the aforesaid two conditions are satisfied Section 29(2)
on its own force will get attracted to appeals filed before appellate authority
under Section 18 of the Rent Act. When Section 29(2) applies to appeals under
Section 18 of the Rent Act, for computing the period of limitation prescribed
for appeals under that Section, all the provisions of Sections 4 to 24 of the
Limitation Act would apply. Section 5 being one of them would therefore get
attracted. It is also obvious that there is no express exclusion anywhere in
the Rent Act taking out the applicability of Section 5 of the Limitation Act to
appeals filed before appellate authority under Section 18 of the Act.
Consequently, all the legal requirements for applicability of Section 5 of the
Limitation Act to such appeals in the light of Section 29(2) of Limitation Act
can be said to have been satisfied. That was the view taken by the minority
decision of the learned single Judge of Kerala The majority did not agree on
account of its wrong supposition that appellate authority functioning under
Section 18 of the Rent Act is a persona designata. Once that presumption is
found to be erroneous as discussed by us earlier, it becomes at once clear that
minority view in the said decision was the correct view and the majority view
was an erroneous view.
It is
also necessary to note the change in the statutory settings of Section 29(2) as
earlier obtained in the Indian Limitation Act, 1908 and the present Limitation
Act of 1963. Section 29(2) as found in Indian Limitation Act, 1908 read as
follows:- "Where any special or local law prescribes for any suit, appeal
or application a period of limitation different from the period prescribed therefor
by the First Schedule, the provisions of Section 3 shall apply, as if such period
were prescribed therefor, in that Schedule, and for the purpose of determining
any period of limitation prescribed for any suit, appeal or application by any
special or local law:- (a) the provisions contained in Section 4, Sections 9 to
18, and Section 22 shall apply only in so far as, and to the extent to which,
they are not expressly excluded by such special or local law; and (b) the
remaining provisions of this Act shall not apply." As per this
sub-section, the provisions contained in certain sections of the Limitation Act
were applied automatically to determine the periods under the special laws, and
the provisions contained in other sections were stated to apply only if they
were not expressly excluded by the special law. The provision (Section 5)
relating to the power of the court to condone delay in preferring appeals and
making applications came under the latter category. So if the power to condone
delay contained in Section 5 had to be exercised by the appellate body it had
to be conferred by the special law. That is why we find in a number of special
laws a provision to the effect that the provision contained in Section 5 of the
Limitation Act shall apply to the proceeding under the special law. The
jurisdiction to entertain proceedings under the special laws is sometimes given
to the ordinary courts, and sometimes given to separate tribunals constituted
under the special law. When the special law provides that the provision
contained in Section 5 shall apply to the proceedings under it, it is really a
conferment of the power of the court under Section 5 to the Tribunals under the
special law-whether these tribunals are courts or not. If these tribunals under
the special law should be courts in the ordinary sense an express extension of
the provision contained in Section 5 of the Limitation Act will become otiose
in cases where the special law has created separate tribunals to adjudicate the
rights of parties arising under the special law. That is not the intension of
the legislature.
In
view of the aforesaid provision of Section 29(2) as found in Indian Limitation
Act, 1908, Section 5 would not have applied to appellate authorities
constituted under Section 18 as Section 5 would not get attracted as per the
then existing Section 29(2) of Indian Limitation Act, 1908 which did not
include Section 5 as one of the provisions to be applied to such special or
local laws. That appears to the reason why during the time when the Limitation
Act,1908 was in force, the Rent Act of 1959 which is the forerunner of present
Rent Act of 1965 contained a provision in Section 31 of that Act which read as
under:- "31. Application of the Limitation Act:- The provisions of Section
5 of the Indian Limitation Act, 1908 (9 of 1908), shall apply to all
proceedings under this Act;" After repealing of Indian Limitation Act,
1908 and its replacement by the present Limitation Act of 1963 a fundamental
change was made in Section 29(2). The present Section 29(2) as already
extracted earlier clearly indicates that once the requisite conditions for its
applicability to given proceedings under special or local law are attracted,
the provisions contained in Sections 4 to 24 both inclusive would get attracted
which obviously would bring in Section 5 which also shall apply to such proceedings
unless applicability of any of the aforesaid Sections of the Limitation Act is
expressly excluded by such special or local law. By this change it is not
necessary to expressly state in a special law that the provisions contained in
Section 5 of the Limitation Act shall apply to the determination of the periods
under it. By the general provision contained in Section 29(2) this provision is
made applicable to the periods prescribed under the special laws.
An
express mention in the special law is necessary only for any exclusion. It is
on this basis that when the new Rent Act was passed in 1965 the provision
contained in old Section 31 was omitted. It becomes therefore apparent that on
a conjoint reading of Section 29(2) of Limitation Act of 1963 and Section 18 of
the Rent Act of 1965, provisions of Section 5 would automatically get attracted
to those proceedings, as there is nothing in the Rent Act of 1965 expressly
excluding the applicability of Section 5 of the Limitation Act to appeals under
Section 18 of the Rent Act.
Mr. Nariman,
learned counsel for respondent tried to salvage the situation by submitting
that even if conditions for applicability of Section 29(2) get satisfied,
Section 29(2) itself will not apply to them unless it is held that the appellate
authority functioning as a court was constituted under the Civil Procedure
Code. He contended that unless such courts functioning under special law or
local law are constituted under the Civil Procedure Code, Section 29(a) cannot
apply to them. This submission is required to be stated to be rejected as it
would amount to moving in a circle. If according to Mr. Nariman Section 29(2)
can apply to only those courts which are constituted under the Civil Procedure
Code then the entire scheme of Limitation Act from Sections 3 to 24 onwards
would apply to proceedings of such courts on its own force and in that
eventuality provisions contained in Section 29(2) for applying Sections 4 to 24
of Limitation Act, 1963 to such court proceedings would be rendered otiose and
redundant.
Mr. Nariman
tried to get out of this situation by submitting that because of provisions of
first part of Section 29(2).
Section
3 of the Limitation Act, 1963 is treated to have applied to the periods of
limitation prescribed by such special or local law by a deeming fiction. There
may be situations wherein even courts constituted under special or local law
which are governed by Civil Procedure Code may have prescribed period of
limitation for suit, appeal or application under such special or local law and
for which provision might not have been made under schedule to the Limitation
Act and only for such courts an express provision has to be made for applying
Sections 4 to 24 of the Limitation Act as found in second part of Section 29(2)
but for which such a machinery may not be available for computing such periods
of limitation even though by a legal fiction Section 3 of the Limitation Act
would apply. It is difficult to countenance this submission. The express
language of Section 29(2) clearly indicates that such special or local law must
provide for period of limitation for suit, appeal or application entertainable
under such laws and for computing period of limitation under such special or
local law the Legislature has made available the machinery of Sections 4 to 24
inclusive as found in Limitation Act. Nowhere it is indicated that as per
Section 29(2) the courts functioning under such special or local law must be
governed whole hog by Civil Procedure Code.
In
order to support his contention Mr. Nariman invited our attention to the
relevant provisions of the Rent Act, namely, Sections 20, 22, 23 as well as
second proviso to Section 11(1) and contended that a Rent Court functioning
under the Rent Control Act is not a fullfledged civil court.
If it
was a full-fledged civil court there would have been no occasion for the
Legislature to provide that certain provisions of Code of Civil Procedure, 1908
will govern such proceedings. To that extent Mr. Nariman is right. We will proceed
on the basis that Rent
Court functioning
under the Rent Act or for that matter the appellate authority adjudicating
disputes between landlords and tenants in a judicial manner may not be
considered strictly as civil courts fully governed by the Code of Civil Procedure.
Still the question remains whether only because of that their proceedings will
go out of the provision of Section 29(2) of the Limitation Act. Mr. Nariman
submitted that Section 29(2) will apply only to the proceedings of those courts
constituted under special or local law which are civil courts, stricto sensu.
In order to buttress his aforesaid submission he invited our attention to four
judgments of this court. We will therefore turn to the consideration of these
judgments. The first judgment on which reliance was placed by Mr. Nariman is
rendered in the case of Town
Court, Hubli &
Ors. (1970(1) SCR 51). In that case a bench of two learned Judges of this court
was concerned with the short question whether any period of limitation governed
an application under Section 33(c) (2) of Industrial Disputes Act, 1947. The
High Court had taken the view agreeing with the Labour Court that Article 137 of the Limitation Act, 1963 would govern
such applications. Reversing that view it was held that Labour Court exercising
powers under Section 33 (C) (2) of Industrial Disputes Act may be acting as
quasi judicial authority or even a court but as it was not a civil court
contemplated by the Civil Procedure Code, Article 137 of the schedule to the
Limitation Act could not get attracted. Bhargava. J. speaking for this court
held that Article 137 of the Limitation Act, 1963 governs only applications
presented to courts under the Civil and Criminal Procedure Codes. The use of
the word `other' in the first column of the article giving the description of
the application as `any other application for which no period of limitation is
provided elsewhere in this decision', indicates that the Legislature wanted to
make it clear that Bhiva (1964 (3) SCR 709, 722-723) on Article 181 of the
1908-Act on the basis of ejusdem generis should be applied to Article 137 of
1963-Act also, the language of which, is only slightly different from that of
Article 181 of the 1908-Act. That is, in interpreting Article 137 of the 1963-
Act regard must be had to the provisions contained in the earlier articles.
These articles refer to applications under the Code of Civil Procedure, except
in two cases of applications under the Arbitration Act, in two cases of
applications under the Code of Criminal Procedure. This held that the reference
to applications under the Arbitration Act had no effect on the interpretation
of Article 181 of the 1908-Act and that, that article applied only to
applications under the Code of Civil Procedure. On the same principle, the
further alteration made in the articles in 1963-Act containing reference to
applications under the Code of Criminal Procedure could not alter the scope of
Article 137 of the 1963-Act. Moreover even the applications under the
Arbitration Act were to be presented to courts whose proceedings are governed
by the Code of Civil Procedure. The further amendment including applications
governed by the Criminal Procedure Code still shows that the applications must
be to courts. The alterations in the 1963-Act, namely, the inclusion of the
words `other proceedings' in the long title to the 1963-Act, the omission of
the preamble and change in the definition so as to include `petition' in word
`application', do not show an intention to make Article 137 applicable to
proceedings before bodies other than courts such as quasi-judicial tribunals
and executive bodies.
We
fail to appreciate how the aforesaid decision is of any avail to Mr. Nariman on
the facts of the present case.
It is
obvious that schedule to the Limitation Act is a part and parcel of the
Limitation Act. It has therefore to be read in conjunction with Section 3.
Sub-section (1) of Section 3 of Limitation Act lays down that subject to the
provisions contained in Sections 4 to 24 (inclusive), every suit instituted,
appeal preferred and application made after the prescribed period shall be
dismissed although limitation has not been set up as a defence. It becomes
therefore clear that the Act as such governs period of limitation prescribed
for suit, appeal or application under the schedule and the schedule to the
Limitation Act which consists of different divisions relates to proceedings
which are to be filed before full-fledged civil or criminal courts as the case
may be. First division deals with suits. Part I deals with suits relating to
accounts. Part II deals with suits relating to contracts. Part III deals with
suits relating to declarations. Part IV deals with suits relating to decrees
and instruments. Part V deals with suits relating to immovable property. Part
VI deals with suits relating to movable property. Part VII deals with suits
relating to tort. Part VIII deals with suits relating to trusts and trust
property. Part IX deals with suits relating to miscellaneous matters. Part X deals
with suits for which there is no prescribed period. It is obvious that
provisions of these parts in first division will govern suits to be filed
before regular courts functioning under Civil Procedure Code. When we turn to
the second division it deals with appeals which may be filed under Civil
Procedure Code or Criminal Procedure Code or from a decree or order of any High
Court to the same Court. They would obviously refer to appeals before regular
Civil or Criminal Courts or High Courts as the case may be. The third division
deals with applications. These applications also have to be filed before
regular civil courts or High Court or Supreme Court as the case may be. To all
these proceedings of these courts, the entire machinery of the Civil Procedure
Code would get attracted and they can be considered to be full- fledged civil
courts before whom applications can be moved.
Consequently,
it has to be held that the entire schedule to the Limitation Act prescribes
various periods of limitation for suit, appeal or application to be moved
before full- fledged civil or criminal courts. As Article 137 deals with one of
such applications as found in third division this Presiding Officer, Labour Court, Hubli & Ors. (supra), that the
said Article could apply only to application before full-fledged civil court
and as the labour court was not one of such courts though established under
special or local law, Article 137 could not apply to govern proceedings before
it. Such is not the case before us. We are not concerned with applicability of
any of the Articles of the schedule for governing the period of limitation as
prescribed by Section 18 of the Rent Control Act. That period of limitation is
prescribed not by Article 137 or any other article under the schedule but by
Section 18 itself which is a part and parcel of special or local law. So far as
that period of limitation is concerned Section 29(2) is the only Section which
can apply. For interpreting Section 29(2) the decision rendered by this court
in connection with applicability of any of the Articles to the schedule to the Limitation
Act would be totally irrelevant. Mr. Nariman then invited our attention to the
decision of this court in the Corporation of India & Ors. (1971(1) SCR
396). That decision also was concerned with the applicability of Article 137 of
the Limitation Act of the schedule to the Limitation Act of 1963 to proceedings
before Labour Court under Section 33(C) (2) of
Industrial Disputes Act. The reasons given by us Presiding Officer, Labour Court, Hubli & Ors. (supra) would
squarely get attracted so far as this decision is concerned and would make it
inapplicable to the facts of the present case. The third decision to which our
attention was invited was rendered in the case of Kerala State Electricity
Board, SCR 996). In that decision this court was concerned with similar
question whether Article 137 of the Limitation Act, 1963 could be made
applicable to petitions under Indian Telegraph Act, 1885.Under the said Act
petition could be filed under Section 16(5) by anyone claiming financial
compensation against Electricity Board which tried to put up electricity poles
in the land of such a person. Such application would lie before District Judge
of the District.
The
question was whether to such applications under special or local law, Article
137 would apply. It was held that the District Judge under the Telegraph Act
acts as a Civil Court in dealing with applications under Section 16 of the
Telegraph Act and therefore Article 137 of the 1963-Act applies to applications
under Section 16 as filed before such courts. In our view even this decision is
in line with earlier decisions of this court in the cases of Town Court, Hubli & Ors. (supra) and Nityananda
M. Joshi & Ors. cannot be of any assistance to Mr. Nariman in the present
case as we are not concerned with applicability of Article 137 to the
proceedings of appellate authority under Section 18 of the Rent Act. Mr. Nariman
then peached his faith on a later decision of this court rendered in the case
of The Tools and Plants, Kanpur (1975 (3) SCR 743). In that case a Bench of
three learned Judges of this court was concerned with the question whether the revisional
authority functioning under U.P. Sales Tax Act, 1948 could extend the period of
limitation beyond six months even on sufficient cause being shown and whether
the principle of Section 14(2) of the 1963 Act could be imported into Section
10(3) (B) of that Act by analogy. Section 10(3) (B) of the U.P. Sales Tax Act
provided for filing revisions under the Act. As per sub- section 3(B) of
Section 10 such applications had to be made within one year from the date of
service of order but the revising authority may on proof of sufficient casue
entertain an application within a further period of six months. In view of this
express provision in the special Act it was held by this court that the general
provisions of Section 14(2) of the Limitation Act could not get attracted.
It is
trite to observe that as per Section 14(2) of the Limitation Act if the
applicant was persuing any civil proceedings with due diligence in a first
court or any higher court therein against the same party for the same relief
the period spent shall be included if such proceedings were found to have been
filed in good faith in a court which from defect of jurisdiction or other cause
of a like nature was unable to entertain it. The entire period spent in such
fruitless proceedings had to be excluded for computing the period of limitation
for any application as laid down by Section 14(2) of the Limitation Act. It is
easy to visualise that if Section 14(2) applied to applications for revisions
under Section 10 (3) (B) of the U.P. Sales Tax Act, then even if such fruitless
proceedings had lingered on for one or two years or even more the entire period
spent in such proceedings would get excluded for computing the period of
limitation for filing such revisions under Section 10(3) (B) of the U.P. Sales
Tax Act. However, there was an express provision in sub-section (3) (B) of
Section 10 of the U.P.
Sales
Tax Act putting a ceiling on the powers of the revisional authority even on
proof of sufficient cause to entertain such applications and that was only upto
a further period of six months beyond one year as prescribed.
Consequently,
this express provision to the contrary as found in Section 10(3) (B) of the
U.P. Sales Tax Act made the general provisions of Section 14(2) inapplicable as
it was an express provision to the contrary to what is provided by Section
14(2). It is precisely for that reason that this court in the aforesaid
decision speaking through Sarkaria, J. held that the object, the scheme and
language of Section 10 of the Sales Tax Act do not permit the invocation of
Section 14(2) of the Limitation Act, either, in terms, or in principle, for
excluding the time spent in prosecuting proceedings for setting aside the
dismissal of appeals in default for computation of the period of limitation
prescribed for filing a revision under the Sales Tax Act. It is true that in
the decision under appeal before this court learned single Judge, Hari Swarup,
J. had taken the view that the Judge (Revisions) Sales Tax while hearing the
revisions under Section 10 of the U.P. Sales Tax Act does not act as a court
but only as a revenue tribunal and hence the provisions of the Indian
Limitation Act cannot apply to proceedings before him. If the Limitation Act
does not apply then neither Section 29(2) nor Section 14(2) of the Limitation
Act would apply to proceedings before him. But so far as this court is
concerned it did not go into the question whether Section 29(2) would not get
attracted because the U.P. Sales Tax Act Judge (Revisions) was not a court but
it took the view that because of the express provision in Section 10 (3) (B)
applicability of Section 14(2) of the Sales Tax Act was ruled out. Implicit in
this reasoning is the assumption that but for such an express conflict or
contrary intention emanating from Section 10 (3) (B) of the U.P. Sales Tax Act
which was a special law, Section 29(2) would have brought in Section 14(2) of
Limitation Act even for governing period of limitation for such revision
applications. In any case, the scope of Section 29(2) was not considered by the
aforesaid decision of the three learned Judges and consequently it cannot be
held to be an authority for the proposition that in revisional proceedings
before the Sales Tax authorities functioning under the U.P. Sales Tax Act
Section 29(2) cannot apply as Mr. Nariman would like to have it.
On the
other hand, there are two decisions of this court which have directly spoken on
the point, and on which reliance was rightly placed by the counsel for
appellant.
The
first decision rendered in the case of Commissioner of SCR 683) by a bench of
three learned Judges of this court was concerned with the question whether
Section 12(2) of the Limitation Act, 1963 would be applicable to revision
petitions filed under Section 10 of the same U.P. Sales Tax Act. The appellant
had contended that the time spent by him in obtaining certified copy of the
order of the lower authority was required to be excluded for computing period
of limitation for filing revision under Section 10, as per provisions of
Section 12 of the Limitation Act. Khanna, J.
speaking
for this court held that for the purpose of determining any period of
limitation prescribed for any application by any special or local law, the
provisions contained in Section 12(2), inter alia, shall apply in so far as,
and to the extent to which they are not expressly excluded by such special or
local law, and there is nothing in the U.P. Sales Tax Act expressly excluding
the application of Section 12(2) of the Limitation Act.
Consequently,
the said provision was held applicable to the filing of revision applications
under Section 10 of the U.P. Sales Tax Act. It becomes therefore obvious that
the aforesaid decision clearly applied Section 29(2) to the revision petitions
filed before revision authorities under a special law like U.P. Sales Tax Act
and via Section 29(2) applied Section 12(2) of the Limitation Act to such revisional
proceedings. Mr. Nariman contended that the said decision was per incurium as
the earlier decision of three learned Judges in The Commissioner of Sales Tax
Uttar was not cited before them. As we have already held earlier the said
decision proceeded on the language of Section 10(3) (B) of the U.P. Sales Tax
Act for excluding the applicability of Section 14(2) of the Limitation Act. It
had no relevance for deciding the question whether Section 12(2) of the
Limitation Act could be applied to such revisional proceedings when there was
no express exclusion of Section 12(2) by the special law, namely, the U.P.
Sales Tax Act.
Consequently,
it cannot be said that the decision rendered Lal Dan & Sons, Bareilly (supra) was per incurium. On the
other hand, it is a direct decision on the point, namely, applicability of
Section 29(2) of the Limitation Act for computing periods of limitation
prescribed by local or special law even though the authority before which such
proceeding may be filed under the local or special law may not be full-fledged
civil courts.
Our
attention was also invited by counsel for the appellant to a later decision of
this court in the case of (P) Ltd., (AIR 1982 SC 119). In that case a bench of
two learned Judges was concerned with the question whether Divisional
Commissioner acting under the U.P. Sugarcane (Regulation of Supply and
Purchase) Act, 1953 acted as a revenue court or whether he was a persona designata.
It was held that the Divisional Commissioner had been constituted as appellate
authority under the Act. That showed that the Divisional Commissioner was made
an appellate court not as persona designata but as a revenue court. That being
so it was obvious that Section 5 of the Act applied to appeals before
Divisional Commissioner and he could condone the delay in filing appeals. It
becomes obvious that this court in the aforesaid decision was dealing with
revenue court constituted under U.P. Sugarcane (Regulation of Supply and
Purchase) Act which was a special law. It was in terms held that Section 5 of
the Limitation Act was applicable to revisional proceedings before such Revenue
Courts. It is of course true as pointed out by Mr. Nariman that in the said
decision no other decision of this court was cited and Section 29(2) was not
expressly referred to but the ratio of the decision is necessarily and
implicitly based on the applicability of Section 29(2) but for which Section 5
of the Limitation Act would not have been made applicable to such revision
proceedings before revenue court functioning under the special law. Before
parting with the discussion on this question we may also refer to one
submission of Shri Nariman. He submitted that Sections 4 to 24 of the
Limitation Act would apply to civil courts as duly constituted under the Civil
Procedure Code and if that is so even if they are to be made applicable to
suit, appeal or application governed by periods of limitation prescribed by any
special or local law, they necessarily require such suit, appeal or application
to be filed under special or local law before full-fledged civil courts as
otherwise Sections 4 to 24 by themselves would not apply to them. It is
difficult to agree. It has to be kept in view that Section 29(2) gets attracted
for computing the period of limitation for any suit, appeal or application to
be filed before authorities under special or local law if the conditions laid
down in the said provision are satisfied and once they get satisfied the
provisions contained in Sections 4 to 24 shall apply to such proceedings
meaning thereby the procedural scheme contemplated by these Sections of the
Limitation Act would get telescoped into such provisions of special or local
law. It amounts to a legislative shorthand.
Consequently,
even this contention of Shri Nariman cannot be countenanced.
Before
parting with the discussion we may also note that a division bench of Madras
High Court in the case of took the view that the Tamil Nadu Buildings (Lease
and Rent Control) Act was a special and local enactment and as Sections 4 to 24
of the 1963 Act were not excluded in their application to the appeals filed
under Section 23 of the Rent Control Act, Section 29(2) enabled the application
of Sections 4 to 24 to Rent Control Courts. Consequently, Section 5 of the
Limitation Act is applicable to an appeal preferred before the appellate
authority, constituted under Section 23(1)(b) of the Rent Control Act. We
entirely agree with the aforesaid view. In the said decision the majority view
of the Full Bench of Kerala High Court in Jokkim and the minority view as found
therein was accepted. The said decision of the Madras High Court lays down the
correct law and has rightly dissented from the majority view of the full bench
of the Kerala High Court and has rightly accepted the minority view as
discussed by us earlier. Our attention was also invited by learned counsel for
the appellant to the decision of a learned single Judge of the Andhra Pradesh Annapurnamma
(AIR 1976 Andhra Pradesh 270). In that decision the learned Judge held relying
on Section 3 as found in Evidence Act, 1872 that Rent Controller acting under
the A.P. Buildings (Lease, Rent & Eviction) Control Act who is authorised
to record evidence of the parties before him by virtue of Rule 8(2) of the
Rules framed under the Act, is a court within the meaning of Section 3 and
therefore revision application against order of Rent Controller was
maintainable under Section 18 before the High Court. In the Lal Prem Kumar (AIR
1971 Punjab & Haryana 150) a full bench of the Punjab & Haryana High
Court was concerned with the question whether Rent Controller and appellate
authority under Punjab Rent Restriction Act are courts or civil courts for
purposes of Sections 195(1)(b), 476 and 479-A of Criminial Procedure Code. Tuli,
J speaking for the full bench held that they were such courts and could issue
show cause notice why complaint under Section 193 should not be filed against
persons committing perjury before Rent Controller and to file complaint under
Section 195(1)(b) of Criminal Procedure Code if it is found expedient in the
interest of justice.
As a
result of the aforesaid discussion it must be held that appellate authority
constituted under Section 18 of the Kerala Rent Act, 1965 functions as a court
and the period of limitation prescribed therein under Section 18 governing
appeals by aggrieved parties will be computed keeping in view the provisions of
Sections 4 to 24 of the Limitation Act, 1963 such proceedings will attract
Section 29(2) of the Limitation Act and consequently Section 5 of the
Limitation Act would also be applicable to such proceedings. Appellate
authority will have ample jurisdiction to consider the question whether delay
in filing such appeals could be condoned on sufficient cause being made out by
the concerned applicant for the delay in filing such appeals. The decision
rendered by the High Court in the present case as well as by the appellate
authority taking contrary view are quashed and set aside. The proceedings are
remanded to the court of the appellate authority, that is, District Judge, Thalassery.
Rent
Control Appeal No.9/94 filed before the said authority by the appellant is
restored to its file with a direction that the appellate authority shall
consider I.A.56/94 filed by the applicant for condonation of delay on its own
merits and then proceed further in accordance with law. Appeal is allowed
accordingly. In the facts and circumstances of the case there will be no order
as to costs.
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