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Samudrala Nagabhushanam Vs. Venkana Raghavayya - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. S.R. No. 16475 of 1963
Judge
Reported inAIR1968AP70
ActsAndhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 - Sections 22; Andhra Pradesh High Court Appellate Side Rules, 1958 - Rules 23(1), 41, 41A and 41A(2); Limitation Act, 1908 - Sections 3, 12 and 29(2) - Schedule - Articles 29(2) and 156; Code of Civil Procedure (CPC), 1908 - Sections 25, 115 and 122; Provincial Small Cause Courts Act - Sections 25; Madras Buildings (Lease and Rent) Control Act, 1949; Hyderabad (Rent, Eviction and Lease) Control Act, 1954 - Sections 3(1) and 20; Representation of the People Act - Sections 116A(3); Constitution of India - Articles 225 and 372; Charter Act; Government of India Act - Sections 14, 21, 25, 30(2) and 35; Code of Criminal Procedure (CrPC) , 1898
AppellantSamudrala Nagabhushanam
RespondentVenkana Raghavayya
Appellant AdvocateN.V. Suryanarayana Murty, Adv.
Respondent AdvocateG. Venkatarama Sastry, Adv.
Excerpt:
.....of rs.4,15,150/- awarded by the tribunal was enhanced to rs.8,20,000/-. - --no application in civil revision shall he presented after ninety days from the date of the order complained of, provided that the court may, on sufficient cause shown, excuse the delay in presentation. in other words, while specific periods of limitation were provided for specified proceedings, so far as revision is concerned, the legislature, for reasons best known to it enacted that it could be filed at any time the party liked. this observation clearly supports the position that 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 a limitation to a particular proceeding under the limitation act. now coming to the..........a revision petition at any time. the madras high court, however, made a conventional rule that the civil revision petitions should be filed within the same period as appeals, viz., 90 days. that rule was framed not on the ground that the period of limitation for filing revision petitions was 90 days, but that revisional jurisdiction being within the discretion of the high court, it would not consider a civil revision petition filed after that date--vide muthu chettiar v. narayanan chettiar, air 1928 mad 528 (530).6. in order to remove this uncertainty, rule 41-a was introduced in 1931 in the appellate side rules of the madras high court. rule 41 of the rules as originally framed dealt with civil revision petition under section 115, c.p.c. or under section 25 of the provincial small cause.....
Judgment:

Venkatesam, J.

1. The only point for determination in this S.R. is, whether a revi-sion petition filed under Section 22 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, XV of 1960 (hereinafter referred to as 'the Act') is barred by limitation if not filed within 90 days from the date of the order as laid down by Role 41-A (2) of the Appellate Side Rules of the High Court of Andhra Pradesh (hereinafter called 'the Rules'). If that rule governs the case, the revision petition is barred by limitation and the petitioner should get the delay condoned on sufficient cause being shown. The contention on behalf of the petitioner is that the rule has no application to the case as it is governed by Section 22 of the Act, according to which the revision petition could be filed at any time.

2. Considering the importance of the question raised, one of us (Chandrasekhara Sastry, J.) directed that the matter should be posted before a Bench. At our request, Sri G. Venkatarama Sastry has argued the question supporting the view taken by the office.

3. The revision petition is filed by the landlord under Section 22 of the Act to revise the order of the Principal Subordinate Judge, Vijayawada, by which he held, agreeing with the Rent Controller, that the landlord was not entitled to claim eviction of the tenant on the ground that his application for possession of the non-residential premises is not bona fide. That, order was passed on 3-7-1962, and the revision petition in this Court was filed on 19-4-1963, admittedly beyond 90 days. It is not disputed that if the period of limitation is 90 days, the revision is beyond time. The contention on behalf of the petitioner is that this petition is filed under Section 22 of the Act, under which the revision could be preferred at any time, and Rule 41-A has no application .

4. For a full appraisal of the respective contentions, it may be useful to state the history of Rule 41-A.

5. The Limitation Act of 1908 had not prescribed any period for filing revisions to the High Court under Section 115 of the Code of Civil Procedure, and a litigant could file a revision petition at any time. The Madras High Court, however, made a conventional rule that the civil revision petitions should be filed within the same period as appeals, viz., 90 days. That rule was framed not on the ground that the period of limitation for filing revision petitions was 90 days, but that revisional jurisdiction being within the discretion of the High Court, it would not consider a civil revision petition filed after that date--vide Muthu Chettiar v. Narayanan Chettiar, AIR 1928 Mad 528 (530).

6. In order to remove this uncertainty, Rule 41-A was introduced in 1931 in the appellate Side Rules of the Madras High Court. Rule 41 of the Rules as originally framed dealt with civil revision petition under Section 115, C.P.C. or under Section 25 of the Provincial Small Cause Courts Act, and specified the enclosures which should accompany such civil revision petitions. In 1931 Rule 41-A was added, which, omitting unnecessary words, is in the following terms:--

'No application in civil revision shall he presented after ninety days from the date of the order complained of, provided that the Court may, on sufficient cause shown, excuse the delay in presentation.'

7. The result was that as per the Rules, civil revision petitions under Section 115, C.P.C. and under Section 25 of the Provincial Small Cause Courts Act had to be filed within 90 days from the date of the order. Rule 41 was amended on 31-8-1961 by the High Court of Andhra Pradesh, and the words 'every Civil Revision petition' were substituted for 'the words 'Civil Revision Petitions under Section 115 of the Code of Civil Procedure, 1908 or Section 25 of the Provincial Small Cause Courts Act, 1887'. Therefore, according to Rule 41 as amended in 1961, read with Rule 41-A, every civil revision petition should be filed within 90 days from the date of the order.

8. It is contended that since Section 22 of the Act enables the High Court to entertain a revision, the revision petition is governed by Rule 41-A. Sri Suryanarayana Murthy, the learned counsel for the petitioner, refutes this view on the ground that the Act repealed the Madras Buildings (Lease and Rent) Control Act of 1949, and the Hyderabad (Rent, Eviction and Lease) Control Act of 1954, and is a consolidated and amending Act and came into force on 21-4-1960. It is a self-sufficient Act, and the Tribunals functioning under it are not Courts and the Code of Civil Procedure does not apply to proceedings under the Act. He contends that the Act has provided the periods of limitation for various proceedings, and invited our attention to the several provisions, e.g., Section 3 (1) (a) requires that the notice of vacancy shall be given within ten days after the building becomes vacant; Section 20 provides that an appeal against the order of the Controller should be filed within thirty days; Rule 8 (3) lays down that an ex parte order has to be set aside within fifteen days from the date of receipt of the order; and according to Rule 23 (1), an application for execution of the order passed under the Act shall be filed within six months from the date of the order. He then invited our attention to Section 22 of the Act, which is in the following terms:--

'(1) 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 the Controller in execution under Section 13 or by the appellate authority on appeal under Section 20, for the purpose of satisfying itself as to the legality, regularity, or propriety of such order or proceeding, and may pass such order in reference thereto as it thinks fit.

(2).....'

9. Relying on these provisions it is argued that whenever a period was intended to be enacted for filing any appeal, revision or any other proceeding the Act or the Rules provided for the same. Section 22 expressly enacts that a revision petition may be entertained at any time. This is a period of limitation prescribed by a special law within the meaning of Section 29 (2) of the Limitation Act of 1908 and as such the provision of Section 3 of that Act shall apply as if such period was prescribed in the First Schedule of the Limitation Act. At this stage it may be mentioned that both parties concede that this revision petition is governed only by the provisions of the Limitation Act of 1908, but not the Act of 1963.

10. Prior to the addition of Rule 41-A we have noticed there was no period of limitation for filing the revision petitions. After the addition of That Rule in 1931, the revision petitions under Section 115 C. P. C. and Section 25 of the Provincial Small Cause Courts Act alone had to be filed within ninety days. Otherwise, they were time-barred and the delay had to be condoned by Courts for sufficient cause shown. In that state of the law, the Act came into force on 21st April, 1961 providing a period of limitation different from that enacted in Rule 41-A. It is therefore, argued that only Section 22 should govern the revision petitions filed in the High Court notwithstanding a different period prescribed by Rule 41-A. It is, no doubt, true that by amendment of Rule 41, the period of ninety days is made applicable to every Civil Revision Petition filed in the High Court. But the amendment to Rule 41 which was made on 31-8-1961 cannot have the effect of overriding the special period of limitation provided by Section 22, and if it purports to nave that effect, it is ultra-vires. So ran the argument of the learned counsel for the petitioner.

11. We shall not examine the validity of these contentions.

12. Section 22 of the Act lays down that the revisional powers of the High Court may on the application of an aggrieved party be exercised at any time. The answer to the question now before us mainly depends on the meaning of the phrase 'at any time'. Does it connote any period of limitation or does it tantamount only to an omission to fix a period of limitation. The argument of Sri Suryanarayana Murthy is that the phrase 'at any time' amounts to providing a period of limitation viz.. at any time that the aggrieved party chooses, and therefore, that special period cannot be cut down by the Rules.

As already stated, the Limitation Act of 1908 had not prescribed any period for filing revision petitions to the High Court, and a litigant could file a revision petition at any time. It was held by a Bench of the Madras High Court in AIR 1928 Mad 528, already referred to as follows:

'.... When this Court made a conventional rule to the effect that such civil revision petitions should be filed within the same period as appeals namely, 90 days it was not on any ground that the period of limitation was so fixed for the purpose of filing civil revision petition but, as it is a revisional jurisdiction and therefore within the discretion of the Court, the Court said it would not consider a civil revision petition filed after that date'.

In that case, the revision petition was filed more than four years after the order was passed, and the High Court set aside the impugned order in revision.

13. Recently, in Central Bank of India, Ltd. Amritsar v. Hartford Fire Insurance Co. Ltd. : AIR1965SC1288 , the Supreme Court had to consider the meaning of the phrase 'at any time' which was employed in one of the clauses of a policy of insurance. According to that clause, 'the insurance may be terminated at any time at the request of trie insured'. And 'the insurance may also at any time be terminated at the option of the Company'. Sarkar, J. (as he then was) adverting to the phrase 'at any time', observed thus:

'The words 'at any lime' can only mean 'at any time the party concerned likes'. Shortly put Clause 10 lays 'either party may at its will terminate the policy'. No other meaning of the words used is conceivable'.

14. We have, therefore, no hesitation in holding that Section 22, rightly interpreted, means and can only mean that an aggrieved party can file a revision petition at any time he likes. In other words, while specific periods of limitation were provided for specified proceedings, so far as revision is concerned, the Legislature, for reasons best known to it enacted that it could be filed at any time the party liked. That being the correct position in our judgment, and Section 22 being a special law, which has provided for a period of limitation different from that laid down by Rule 41-A of the Rules, Section 22 governs the case, but not Rule 41-A.

15. In Vidyacharan Shukla v. Khubchand Baghel, : [1964]6SCR129 , the Supreme Court had to consider whether an appellant under the Representation of the People Act was in law, entitled to exlude the time taken under order of the Election Tribunal. Under Section 116-A(3) of the Representation of the People Act, the period of limitation for preferring an appeal in the High Court against the decision of the Election Tribunal is thirty days while under Article 156 of the Limitation Act, the period of limitation for appeals under the Code of Civil Procedure to a High Court except in cases of appeals against decrees in the exercise of its original jurisdiction is ninety days. In that context, the applicability of Section 29(2) of the Limitation Act was considered. It was held by majority that under Section 116-A(2) of the Representation of the people Act the appeal by fiction is equated to an appeal filed under the Code of Civil Procedure in Matters not only of exercise of powers, jurisdiction and authority but also in the matter of procedure to be followed from the date of receipt of the appeal to its final disposal that it is thus an appeal in respect of which tne Limitation Act has pres-scribed a period of limitation under Article 156 of the First Schedule, that the special Act, namely, the Representation of the People Act of 1951 has prescribed a period of limitation different from the period prescribed therefor by the first schedule to the Limitation Act within the meaning of Article 29(2) of the Limitation Act, and that consequently Section 12 of the Limitation Act is attracted and the time taken for obtaining the copy of the order could be excluded. Subbarao, J. quoted with approval the observations of Dixit, C. J., in Beharilal Chaurasiya v. Regional Transport Authority, : AIR1961MP75 .

'A special law may provide a period of limitation and Schedule I may omit to do so. Nonetheless the special law would be different from the Limitation Act. Section 29(2) of the Limitation Act is not very happily worded. It must be construed so as to avoid absurdity. The expression 'a period of limitation different from the period prescribed therefor by the first schedule,' occurring in Section 29 (2) cannot be construed as meaning that Schedule I must also positively prescribe the period of limitation. Such a construction would not be in accordance with the intention of the legislature and would lead to an absurdity'.

The learned Judge also quoted the following observations of Sinha, C. J., in Kaushalya Rani v. Gopal Singh, AIR 1984 SC 260.

'Section 29 (2) is supplemental in its character in so far as it provides for the application of Section 3 to such cases as would not come within its purview but for this provision'.

and concluded thus:

'This observation clearly supports the position that 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 a limitation to a particular proceeding under the limitation Act.

I therefore, hold that in the instant case the Act provides a period of limitation different from that prescribed therefor by the First Schedule to the limitation Act and, therefore, it is governed by Section 29(2) of the said Act'

16. These observations, therefore, make it clear that even though the Limitation Act of 1908 had not prescribed for a period of limitation for revision petitions, since the special Act (The Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act) has provided for a period, Section 29(2) of the Limitation Act is attracted as if the period provided for under the special Act was prescribed therefor in the schedule to the Limitation Act. Following this decision, we hold that the phrase 'at any time' has been incorporated in Schedule to the limitation Act in the case of revision petitions under the Act, To accept the contention that the phrase 'at any time' does not mean at any time the aggrieved party wills or likes, is opposed to all canons of interpretation. The observation of Subbarao, J., in : [1964]6SCR129 , are very apposite:

'Now coming to the construction of the section the relevant rule of construction is well settled, 'A construction which will leave without effect any party of the language of a statute will normally be rejected' or to put it in a positive form, the Court shall ordinarily give meaning to every word used in the section'.

Giving, therefore, the full effect to the meaning of the phrase 'at any time' we hold that the petitioner is entitled to file the revision petition under the Act at any time he chooses.

17. Rule 41 after its amendment in 1961 is intended to be of general application and in a sense is a general provision while Section 22 of the Act is a specific provision dealing with Revision Petitions under the Act. In cases of conflict between a specific provision and a general provision, a specific provision prevails over the general one, and the general provisions applies only to such cases which are not covered by the special provision. In this view of the matter also, we hold that this Revision Petition is governed by Section 22 of the Act, but not Rule 41-A of the Rules.

18. We shall now consider the scope and effect of the Rules framed by the High Court governing the appeals and Revision Petitions.

19. In Narsingh Sahai v. Sheo Prasad, AIR 1918 All 389, it was held that under Section 122, C. P. C., the High Court has power to alter, amend and add to rules of procedure laid down by the Code but nowhere has any power been given to it to touch the Limitation Act. In that case the rule framed by the High Court purported to extend the time that could be excluded for obtaining copy under Section 12 of tha Limitation Act. It was held that the rule .vas not intended to alter and could not be construed as in any way altering the provisions of Section 12 of the Limitation Act.

20. In Ranganayakulu In re, AIR 1956 Andhra 161 (FB), it was laid down that a combined reading of Articles 225 and 372 of the Constitution indicates that the powers of the High Court conferred on it by the Charter Act, the Letters Patent and the Government of India Act, which were repealed or otherwise, can be exercised after the Constitution and the Rules already made by the High Court before the Constitution in exercise of those powers are also continued after the Constitution. No doubt such powers or rules made thereunder will be subject to the laws made by a competent lagisla-ture or authority. It was held that the rules made by the High Court in exercise of the powers conferred under the letters patent, which have not been repealed are laws in force and will continue to be in force after the Constitution.

21. In Venkateswarulu v. Satyanarayana, AIR 1957 Andh-Pra 49, it was held by a Full Bench of our High Court that the Appellate Side Rules having been made by the High Court under statutory authority, if they have the meaning and effect inconsistent with the Acts authorising them or if they are in excess of the powers conferred thereunder, or if they contravene the provisions of other enactments, they are protanto ultra vires. Otherwise, they have me force of law and are binding on all the Judges of the Court.

22. In view of these decisions, it is manifest that Rule 41 which by an amendment in 1961 purports to apply to a Revision Petition filed under Section 22 of the Act contravenes the existing law passed by a competent legislature in 1960, and is, protanto ultra vires.

23. Sri Venkatarama Sastry, in support of the objection raised by the office, argued that Rule 41-A does not offend the Act, as, according to him, the phrase 'at any time' means more than one time or a reasonable time. Ha relied on the passage at page 225 in Stroud's Judicial Dictionary, Volume I, 3rd Edition, to the following effect.

'At any time. (1) A power to do a thing, e. g., to revoke uses, 'at any time' is not confined to one execution; the words are equivalent to from time to time as often as the donee of the power shall think good' (Digges' Case 1 Rep. 173).'

The learned counsel fairly conceded that his contention that at any time should mean within a reasonable time is devoid of any authority. Even otherwise, we cannot accept his contention which purports to curtail the effect of words intended to confer unlimited length of time by construing it as 'reasonable time'. There is also an inherent fallacy in that argument. What then is the reasonable time and who is to determine it? Is the period of limitation provided by Section 22 to be understood as depending on indefinite factors? We have, therefore, no hesitation in rejecting this argument.

24. It is also argued by the learned counsel that Sections 17, 21, 25, 30(2)(b) and 35 of the Act all contemplated and provided for a special procedure in cases governed by the Act. It is u special enactment and does not touch the provisions embodied in the Appellate Side Rules of the High Court, and therefore, Rule 41-A must be deemed to be subordinate to Section 22. It is also argued that the phrase at any time' in Section 22 cannot be understood as specifying any period of time and inasmuch as that section lays down that the power of revision is vested in the High Court, if follows that the period of limitation prescribed by the Appellate Side Rules should govern, espcially having regard to the introductory rule which says that the procedure indicated therein shall be observed in the High Court of Judicature of Andhra Pradesh in all cases and matters coming before that Court on the Appellate side. We have already indicated how we cannot accept the contention that the phrase 'at any time' does not specify a period. In the case of Revision Petitions under the Civil Procedure Code. Criminal Procedure Code, Small Cause Courts Act, and Provincial Insolvency Act, it is no doubt, true that the period provided for by Rule 41-A applies, but that is because the sections of those Acts providing for revision do not lay down that the aggrieved party could prefer revision at any time. When the legislature, for reasons best known to itself, used language to that effect, it would be violating the rules of interpretation not to give effect to those words. The learned counsel relied on the decision in National Sewing Thread Co., Chidambaram v. James Chadwick and Bros. Ltd. : [1953]4SCR1028 and Beg Ram v. Charandas, . But in our judgment those cases have no relevance. For all these reasons, we hold that the present revision is governed by Section 22 of the Act, and not Rule 41-A, and is not barred by limitation. It follows that there is no need for the petitioner to file a petition for condoning the delay, as there is none.

25. We are thankful to Mr. Venkatarama Sastry for having argued the case in all its aspects.

26. Revision held not barred by limitation.


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