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Nathooram Kapoor Vs. E. Harbansilal Tuli (Deceased by Lrs.) and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Misc. Petn. Nos. 10527 and 10486 of 1981
Judge
Reported inAIR1982AP278
ActsAndhra Pradesh Building (Lease, Rent and Eviction) Control Act, 1960 - Sections 22; Code of Civil Procedure (CPC), 1908 - Sections 115 - Order 22, Rule 4; Andhra Pradesh Building (Lease, Rent and Eviction) Control Rules - Rule 19; Rent Control Act - Sections 22
AppellantNathooram Kapoor
RespondentE. Harbansilal Tuli (Deceased by Lrs.) and ors.
Appellant AdvocateN.V.B. Sankara Rao, Adv.
Respondent AdvocateM.L. Ganu, Adv.
Excerpt:
.....representatives of respondent - petitions resisted by respondent on ground of delay in filing applications - no limitation prescribed under act of 1960 or rules made thereunder for bringing on record legal representatives in revision petition - held, application allowed as no limitation prescribed for filing. - maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of..........died on 29-12-1980. the learned counsel for the respondent sent a letter dated 8-6-1981 to the learned counsel for the petitioner informing the date of death of the respondent. it is stated by the petitioner that the said letter was received on 9-6-1981 and as he was away from hyderabad from 1-6-1981 on pilgrimage where he had an heart attack and was brought to new delhi for treatment and returned to hyderabad on 6-9-1981 and on the next day immediately, this petition was filed in 7-9-1981. stating the above facts, the petitions are filed to bring on record the legal representatives in the two c. r. ps. these petitions are resisted by the respondent on the ground that there is a delay of 280 days in filing the applications, as calculated for the purpose of limitation under rule 19 of.....
Judgment:
ORDER

1. These two petitions are filed to bring on record the legal representatives of the respondent. The respondent died on 29-12-1980. The learned counsel for the respondent sent a letter dated 8-6-1981 to the learned counsel for the petitioner informing the date of death of the respondent. It is stated by the petitioner that the said letter was received on 9-6-1981 and as he was away from Hyderabad from 1-6-1981 on pilgrimage where he had an heart attack and was brought to New Delhi for treatment and returned to Hyderabad on 6-9-1981 and on the next day immediately, this petition was filed in 7-9-1981. Stating the above facts, the petitions are filed to bring on record the legal representatives in the two C. R. Ps. These petitions are resisted by the respondent on the ground that there is a delay of 280 days in filing the applications, as calculated for the purpose of limitation under Rule 19 of the A. P. Buildings (Lease, Rent and Eviction) Control Rules and even if the delay is calculated from the date of the knowledge, still, there is a delay of 91 days and the petitioner has not chosen to explain the delay. The allegations regarding the pilgrimage of the petitioner and heart attack were also denied.

2. The learned counsel for the petitioner contended that no limitation is prescribed under the A. P. Buildings (Lease, Rent and Eviction) Control Act or the Rules made thereunder for bringing on record the legal representatives in Revision Petitions and as such, the question of abatement or delay in filing the application does not arise. It is further contended that in the event of applicability of provisions of C. P. C. Order 22, C. P. C does not apply to Revisions. The learned counsel for the respondent contended that under Rule 19 of the Rules, the period of 30 days only is prescribed and the petition filed beyond 30 days cannot be entertained and Order 22, Rule 11, C. P. C. takes in the proceedings under revisions also and in any even sufficient cause is not made out for the delay in filing the application after the notice is given regarding the death of the respondent.

3. The petition for bringing on record legal representatives which appeared to be within small confines has latent wide dimensions and the learned counsel on either side focused upon all possible facets touching the issue. As the centre gravity is upon Rule 19 of the A. P. Buildings (Lease, Rent and Eviction) Control Rules 1961, it is necessary to extract the same.

'19. Every application for making the legal representative or, as the case may be, the legal representative of a decreased person party to a proceeding under the Act shall be preferred within thirty days from the date of the death of the person concerned.

Explanation:- For the purpose of this rule-

(1) XX XX (2) An application may be admitted after the period specified in this rule, if the applicant satisfies the Controller or appellate authority that he had sufficient cause for not making the application within such period.'

Section 22 of the Rent Control Act does not prescribe any limitation for filing the Revision petition. In the decision reported in S. Nagabhushanam v. V. Raghavayya, : AIR1968AP70 this Court held that in view of the expression 'at any time' used in S. 22 of the Rent Control Act, the revision petition can be filed at any time without any fetter or limitation and Rule 41-A of the appellate side rules prescribing limitation for revisions does not apply to the revisions filed under this Act. In the view of thef act that there is absolutely no limitation for filing revision petition itself, it is anomalous to say that the limitation is contemplated under the rules regarding the petition to bring on record the legal representatives in the event of death of either of the parties. It is not without context or relevance to say at this juncture that the revision petitions under this Act or under C. P. C or other enactments are generally contemplated to have a supervisory jurisdiction over the orders of proceedings under the Act and correct the same and with a view to effectively implement this object, the time for filing such revision petition is enlarged. Under this Act, it was thought fit that no time limit should be prescribed for correcting the manifest errors in the orders or proceedings that may be brought to the surface. Rule 19 prescribes a period of limitation of 30 days from the date of death of the deceased for bringing on record legal representatives. Rule 19 read in isolation is susceptible to the interpretation that the petition has to be filed within 30 days of the date of the death of the person in all proceedings order the Act. However, Rule 2 of the explanation appended to Rule 19 makes an inroad into this provision, by providing that the application may be admitted after the expiry of 30 days provided sufficient cause is made out for the delay and this satisfaction of the delay is confined to the application before the Controller or the appellate authority. In view of the specific mention of the Controller of appellate authority, the revisional authority is excluded. Therefore, Rule 19 is conjunction with c. 2 of explanation makes it abundantly clear that the application for bringing on record the legal representatives and the follow up of such provision by application for condonation of the delay are confined only to the proceedings before the primary authority and the appellate authority only As contended by the learned counsel for the petitioner, this provision is also analogous to Order 22, C. P. C.. which is confined to suits and appeals only but not for the petitioner referred to the decision of the Madras High Court reported in Manickam v. Ramanathan, AIR 1949 Mad 435, wherein it is held that neither O.22, C. P. C. nor the Limitation Act applies to the Civil Revision Petitions and therefore, the question of abatement of Revision Petitions does not arise. The view of the Lahore High Court in Mohd. Sadaat Ali v. Lahore Corpn., AIR 1949 Lah 186 (FB), and Rajasthan High Court in Babulal v. Mannilal, (FB), is to the same effect. This court in Hari Krishan Singh v. B. Narayana. (1971) 1 Andh LT 29, held that without offending Andh LT 29, held that without offending the special provisions made under as special provisions made under a special enactment, the provisions of C. P. C. can be applied in a situation where no specific or adequate provision is made specific or adequate provision is made under the Act or Rules. Cl. 2 of explanation to Rule 19 is sufficiently eloquent to exclude revision petition from the brackets of limitation and even if the Act and Rules are construed to be silent or inadequate, the same position prevails under C. P. C also in respect of revisions.

4. The learned counsel for the respondent contended that Rule 19 fixes a period of limitation of thirty days in respect of the entirety of the proceedings under the act and as such, the limitation prescribed under Rule 19 is applicable to the petitions in the Revision Petitions also. According to the learned counsel, the wide language employed in Rule 19 is not abridged or coloured by clause 2 of explanation and the exception is carved out by clause 2 in respect of proceedings before the Rent Controller or appellate authority. It is further contended that Section 20 (2) (e) of the Rent Control Act confers power on the rule-making authority to make rules regarding the application for bringing legal representatives of the deceased persons in proceedings under the Act and the time within which such applications shall be preferred and pursuant to this power, the rule making authority framed Rule 19 covering all the proceedings under the Act and an explanation. It is contended that the rule-making authority cannot be attributed of silence or exclusion regarding the Revision Petitions. I am not inclined to agree with the contentions of the learned counsel for the respondent. Bearing in mind the principle of harmonious construction, Rule 19 should be interpreted as lifting the bar of limitation in respect of Revision Petitions as otherwise, it leads to an anomalous situation of the rule casting cloud on the width of Section 22. Clause 2 of the explanation to Rule 19 furnishes a clue to the interpretation of the entire Rule 19 as it explains the limited coverage of Rule 19. Further, the rule-making authority cannot be attributed with an intention to deny the benefit of condonation of delay in respect of applications in Revision Petitions only. The construction which lands the rule contrary to or deviation from the intent embodied in Section 22 should be avoided.

5. The learned counsel for the respondent contended that on the assumption that provisions of C. P. C. are attracted Order 22, Rule 11, C. P. C. applies to Revision Proceedings also. The learned counsel relied upon the decision of the Madras High Court reported in Chidambara v. Rama, AIR 1937 Mad 385 (FB). The Full Bench of the Madras High Court in that case is concerned with the issue whether the expression 'appeal' in Article 122 of Limitation Act is confined only to Courts exercising appellate power only and not revisional powers. Reliance is made on the decision of the Supreme Court reported is Shankar v. Krishnaji, : [1970]1SCR322 , which approved the decision in AIR 1937 Mad 385 (FB) (supra). The Supreme Court is concerned with the issue of merger of the order of the appellate Court in the order made in Revision and whether the appellate order can be attacked in collateral proceedings under Article 226 or 227 of the Constitution without reference to the order of Revision in which the appellate order is merged. In this context, the Supreme Court held that the jurisdiction exercised in a Revision under Section 115 of the Civil Procedure Code or the exercise of powers in appeal are all engulfed in the appellate jurisdiction of the High Court and the High Court exercises power under the general appellate jurisdiction conferred as a superior Court within the limits circumscribed by revsional or appellate provisions. In this Context, the Supreme Court equated the appeal and revisional jurisdiction for the purpose of considering the ambit of the appellate of the High Court. Drawing inspiration from these two decisions, the learned counsel contended that the expression 'appeal' in Order 22, Rule 11, C. P. C. takes in its fold the revision proceedings. The issue involve in these two cases have absolutely no affinity to the issue involved in this matter and further, the scope and amplitude of Order 22, C. P. C. has not been considered in these decisions. The learned counsel for the respondent strongly relied upon the decision of the Calcutta High Court reported in State Bank of India v. Wazir Singh, : AIR1977Cal241 , the Calcutta High Court held that the provisions of Order 22, C. P. C. are applicable to the revision petitions also and as such, the application for substitution of legal heirs must be filed within 90 days from the date of death. The Calcutta High Court profusely referred tot he decision of the Supreme Court in : [1970]1SCR322 (supra) and also that of the Madras High Court reported in AIR 1937 Mad 385 (FB) (supra). The Calcutta High Court did not consider the ration propounded by the Supreme Court and the Madras High Court in proper respective and the principle deduced therein has been torn out of context. Therefore, I am not inclined to agree with the conclusion arrived at by the Calcutta High Court. The learned counsel also relied upon the decision of the Allahabad High Court reported is K. B. Agarwala v. Chandrawati, : AIR1976All15 . This decision is concerned with the specific period of limitation prescribed under the U. P. Urban Buildings (Regulations of Letting, Rent & Eviction) Rules 1972 and as such not applicable to the issue involved in this case. Lastly, the learned counsel relied upon the decision of India v. Ramcharan, : [1964]3SCR467 . It was held in this decision that the limitation for application to set aside the abatement starts from the date of death of the deceased and not from the knowledge thereafter. However for the purpose of assessing sufficient cause for the delay the base knowledge about the death of the opposite party is relevant and can be explained. This not relevant for the purpose of this case. The learned counsel for the respondent contended that even after notice regarding the factum of death is given, the petitioner is not diligent in taking steps to file the application. Immediately after the receipt of the letter intimating the death of the deceased, the application should have been filed and the reasons for the delay are not correct and convincing and therefore, this application should not be ordered on equitable considerations also. It is true that the explanation regarding the pilgrimage and heart attack are not supported by any cogent evidence and borders on the region of vagueness. However, it is not material in view of the fact that no limitation is prescribed as such for filing the application.

6. In the circumstances, the application are allowed.

7. Applications allowed.


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