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M.K. Venkatachalapathy Setty and anr. Vs. Sannarasaiah and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtKarnataka High Court
Decided On
Case NumberC.R.Ps. Nos. 2293 to 2304 of 1982
Judge
Reported inILR1984KAR362
ActsKarnataka Rent Control Rules, 1961 - Rules 30 and 35; Code of Civil Procedure (CPC), 1908 - Order 22, Rules 3, 4 and 9; Limitation Act - Sections 5
AppellantM.K. Venkatachalapathy Setty and anr.
RespondentSannarasaiah and ors.
Appellant AdvocateB.N. Dayanarda, Adv.
Respondent AdvocateD.R. Basavaraju, Adv. for ;R.B. Sadashivappa, Adv., B.R. Najundaiah and ;S.G. Bhat, Advs.
Excerpt:
.....of the property which was subject to the offence was received or retained, or was required to be returned or accounted for, by the accused person. on facts held, the six wind operated electricity generators were leased to petitioners and petitioners had to account for the same at manipal. the lease was accepted by petitioners at manipal. therefore, trial of a case of criminal breach of trust before jurisdiction court at udupi is in conformity with provisions under section 181(4) of cr.p.c., -- section 482: quashing of proceedings offences under sections 406, 409 and 420 o f i.p.c., - rejection of application made under section 227 of cr.p.c., - held, it is well settled law when a petition filed under section 482 cr.p.c. seeking quashing of charges framed against accused, the high..........of 15 days. here again we find that his lordship has reasoned in this behalf, that because 15 days period- of limitation prescribed in r. 30 is not consistent with o. 22 c.p.c. in that regard, provisions in r. 30 are inconsistent with o. 22 rr. 4 and 9 c.p.c. we are unable to see the link in the reasoning. if the period prescribed as 15 days is not consistent with the period 90 days, in view of the application of o. 22 c.p.c., the inconsistency exists to that extent only. it cannot be understood as pervading with the remaining provisions of o. 22. therefore, we reiterate that with due respect, we disagree with the learned judge.9. in view of the conclusion arrived at in the preceding paragraphs, an application under o. 22 r. 9 c.p.c., and. an application under s. 5 of the limitation.....
Judgment:

Nesargi, J.

1. These petitions have been placed before this Division Bench for Disposal, on an order of reference made by Malimath, Ag. C. J. (as he then was), being of opinion, that an important question of law arises.

2. The petitioners in all these petitions are the same persons, while the respondents are different persons. These petitioners and three others who are their brothers, filed HRC No. 1551 of 1977 New No. 1183 of 1980, HRC No. 1545 of 1977 New No. 1 110 of 1980, HRC No. 1515 of 1977 New No. 1096 of 1980, FIRC No. 1541 of 1977 New No. 1107 of 1980, H. R, C. No. 1517 of 1977 New No. 1098 of 1980, H. R. C. No. 1509 of'1977 New No. 1092 of 1980, H. R. C. No. 1499 of 1977 New No. 1089 of 1980, HRC No. 1547 of 1977 New No. 1111 of 1980, HRC No. 1513 of 1977 New No. 1094 of 1980, HRC No. 1543 of 1977 New No, 1108 of 1980, H.R.C. 1497 of 1977 New No. 1109 of 1980 and H. R, C. No. 1505 of 1977 New No. 1091 of 1980, against the respondents in these civil revision petitions respectively. The said three persons were the brothers of the petitioners. They were petitioners Nos. 2, 3 and 5 in all the said H. R. C. applications.

3. The undisputed facts are that during the pendency of the applications in the Court of the XV Additional Small Cause Judge, Bangalore, three landlords namely, petitioners 2, 3 and 5 in the trial court expired. Three applications - one for bringing the legal representatives of the three deceased landlords on record, under O. 22 R. 3 C.P.C. another application under O. 22 R. 9 C.P.C. for setting aside the abatement, consequent to the death of the three landlords, and another application under S. 5 of the Limitation Act, requesting the Court to condone the delay in filing the application for setting aside the abatement order-came to be filed in each of these H. R. C. cases. Those 1. As, are given different numbers in different cases. Clarification of that is not, in our opinion, necessary for purpose of this order.

3A. The trial court passed its order on 182-1982. It rejected the applications by simply following the decision of this Court in Allamma v. Balagel Basappa (C-RP No. 1982 of 1968, disposed of on 1.5-7-1969). It has to be stated here that the contents of all the orders in all these H. R. C. cases are almost same. The trial court has simply referred to the decision in that case and proceeded to dismiss the said cases. No other reasoning is found in the impugned orders.

4. This takes us to 'the reasoning in the order passed by this Court in Allamma's case,

5. The facts in the said case were that the respondent in a H, R. C. application had died on 5-3-1968, pending proceedings in the trial court. Application to bring his legal representatives on record was filed on 24--9-1968 i.e. 6 months 19 days after the death. Other applications for setting aside the abatement and also for condonation of delay in filing the application for setting aside the abatement had also been filed. This Court referred to the provisions in Rr. 30 and 35 of the Karnataka Rent Control Rules (hereinafter referred to as the Rules) and held, that as R. 30 had expressly provided the period of limitation to bring the- legal representatives of a deceased person to be 15 days, as against 90 days, available in Art. 120 of the Limitation Act, when an application is filed under O. 22 Rr. 4 and 9 C.P,C., those would be inconsistent with the provisions of the special Statute, namely R. 30 of the Rules. His Lordship has excerpted Rr. 30 and 35 of the Rules. R. 35 reads as follows :

'The provisions of the Civil Procedure Code to be generally followed : - In deciding any question relating to procedure not specifically provided by these Rules, the Court shall as far as possible be guided by the provisions contained in the Code of Civil Procedure, 1908'.

Rule 30 reads thus:

'Applications for making legal representatives of deceased persons parties to proceedings under the Act.- Applications by or against legal representatives under Section 51 of the Act shall be made within fifteen days from the date of death of the party or person concerned or the date of knowledge of the death of the party or person concerned, and for this purpose, the provisions of O. XXVI of the Code of Civil P.C. 1908, shall, as far as may be and with the necessary modifications, be followed'.

6. It may be noted here, that the word 'court' does not find a place in R. 30. Therefore it is manifest that R. 35 is provided to operate regarding the procedure in a court, while R. 30 operates in all proceedings under the Act.

7. There can be no quarrel with the proposition that when it provision of general Act is incorporated into a special Act, the provisions of the latter would prevail over, any of the former, with which they are inconsistent. His Lordship has come to the conclusion, that the provisions in O. 22 Rr. 4 and 9. C.P.C. are inconsistent with the provisions in R. 30. With due respect we disagree with this ruling. There is no inconsistency between O. 22 and R. 9 C.P.C.; (sic) the inconsistency is regarding the period of limitation. Whereas tinder R. 30 the period is restricted to 15 (lays, to bring the legal representatives on record, under Art. 120, of the Limitation Act, it is 90 days. There is no provision, corresponding to O. 22 R. 9 and Art. 121 of the Limitation Act. These provisions prevail, in view of the wordings of R. 35, as no corresponding provision is made under the Rules. This is also the law laid down by the Supreme Court in Balaram v. 3rd Addl. District Judge : [1983]2SCR734 . The Supreme Court: has held as follows while considering the U. P. Imposition of Ceiling on Land Holdings Act

'The fact that on1y three sections of the Limitation Act have been specially extended to proceedings under the Act by S. 42 thereof is of no consequence once it is held that O. 22 of the Code is applicable to appeals under the Act. Consequently, an application to have the legal representatives of the deceased applicant made a party has to be made within 90 days from the date of death of the appellant in view of Art. 120 of the Limitation Act and in view of Art. 121, application for an order to set aside abatement from the date of abatement is to be made within 90 days'.

8. Article 120 of the Limitation Act prescribes the period of limitation of 90 days from the date of the death of plaintiff or appellant or respondent as the case may be, for bringing the legal representatives of such deceased person on record. It is clear that in view of R. 30 of the Rules, this period of 90 days is reduced to a period of 15 days. That is all what is not consistent with the provisions of the Limitation Act. Application of O.22 only attracts the provisions of the Limitation Act. Therefore, there is no warrant to reason or conclude that the provisions of O. 22 Rr. 4 and 9 C. P.C. are inconsistent with any part of R. 30 of the Rules except for the period of 15 days. Here again we find that his Lordship has reasoned in this behalf, that because 15 days period- of limitation prescribed in R. 30 is not consistent with O. 22 C.P.C. in that regard, provisions in R. 30 are inconsistent with O. 22 Rr. 4 and 9 C.P.C. We are unable to see the link in the reasoning. If the period prescribed as 15 days is not consistent with the period 90 days, in view of the application of O. 22 C.P.C., the inconsistency exists to that extent only. It cannot be understood as pervading with the remaining provisions of O. 22. Therefore, we reiterate that with due respect, we disagree with the learned Judge.

9. In view of the conclusion arrived at in the preceding paragraphs, an application under O. 22 R. 9 C.P.C., and. an application under S. 5 of the Limitation Act, if there has been delay, and an application for bringing the legal representatives of a deceased person on record, would be in accordance with the provisions of law. They ought to be considered and disposed of on their merits.

10. Apart from the reasoning contained in the preceding paras, there is another line of reasoning which leads to the very conclusion.

11. It has been already noticed that the period of limitation prescribed by Art, 120 as 90 days, is reduced to 15 days by R. 30 of the Rules or special Statute. Section 29(2) of the Limitation Act reads as follows -

'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 S. 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 Ss. 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law'.

12. A plain reading of this provision shows that so far as S. 3 of the Limitation Act is concerned, the period of limitation prescribed for suits, appeals and applications should be read as 15 days instead of 90 days. It further shows that in regard to application filed by such parties, provisions in Ss. 4 to 24 (both inclusive) of the Limitation Act, have to apply. Therefore S. 5 of the Limitation Act will also apply. Hence an application for condonation of delay in filing the application for setting aside the abatement would be in accordance with law. This aspect has been totally ignored in Allamma's case.

13. The foregoing reasons leave no doubt in our mind that the impugned orders passed by the trial court cannot be sustained. Hence, we allow these petitions, set aside the orders in all these revision petitions; and remit the matters to the trial court with a direction that the concerned I. As be heard and disposed of on merits. No costs under the circumstances.

14. Petitions allowed.


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