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Keshab Chandra Rana Vs. State of Orissa and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 230 of 1966
Judge
Reported inAIR1967Ori201
ActsOrissa House Rent Control Act, 1958 - Sections 12; Limitation Act, 1963 - Sections 29; Orissa House Rent Control Rules, 1959 - Rule 10
AppellantKeshab Chandra Rana
RespondentState of Orissa and anr.
Appellant AdvocateP.K. Mohanty, ;K.C. Panda and ;Prabhir Palit, Advs.
Respondent AdvocateR.N. Misra, Adv.
DispositionPetition allowed
Excerpt:
.....mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - ' in my opinion, therefore, even if the aggrieved party is present in court and order is delivered in his presence on the date fixed, under the aforesaid rule 10 of the orissa house rent control rules 1959, such delivery of the order in his presence may at best amount only to his knowledge of the order on that date but cannot amount to any 'communication' of that order to him, as contemplated by section 12 of the orissa house rent control act, 1958. the court is not a natural being;.....by the learned additional district magistrate, in dealing with the law of limitation, in the house rent control appeal no. 25 of 1966 this appeal arose out of an order passed on 14-2-1966 in the house rent control case no. 10 of 1964 the period of limitation provided in section 12 of the orissa house rent control act 1958 for such an appeal is fifteen days 'from the date on which the order is communicated' to the party aggrieved thereunder in the present case the finding given by the appellate court is that though the order under appeal was delivered on 14-2-1966, it was communicated to the petitioner (who had lost it in the court of the house rent controller) on 18-2-1966. therefore, according to the appellate court, the petitioner was entitled to prefer the appeal within fifteen days.....
Judgment:

Ahmad, C.J.

1. The sole question that falls for consideration in this case is one of illegality said to have been committed by the learned Additional District Magistrate, in dealing with the law of limitation, in the House Rent Control Appeal No. 25 of 1966 This appeal arose out of an order passed on 14-2-1966 in the House Rent Control Case No. 10 of 1964 The period of limitation provided in Section 12 of the Orissa House Rent Control Act 1958 for such an appeal is fifteen days 'from the date on which the order is communicated' to the party aggrieved thereunder In the present case the finding given by the appellate court is that though the order under appeal was delivered on 14-2-1966, it was communicated to the petitioner (who had lost it in the Court of the House Rent Controller) on 18-2-1966. Therefore, according to the appellate court, the petitioner was entitled to prefer the appeal within fifteen days from 18-2-1966.

Further, as provided in Section 12 read with Section 29 of the Limitation Act 1963 petitioner was also entitled to the time requisite for obtaining the certified copy of the order appealed from--Subject of course to the condition that the filing of a certified copy of the order appealed against along with the memorandum of appeal under the Orissa House Rent Control Act was at all necessary. The facts stated in the impugned order of the appellate court establish that the application for obtaining the certified copy of the order under appeal was made on 21-2-1966 and notice for supply of requisite folios and stamp was given on 24-2-1966 which was duly complied with on 28-2-1966. Thereafter, the certified copy was ready for delivery on 5-3-1966. Thus under the aforesaid Section 12 of the Limitation Act the entire period from 21-2-1966 to 5-3-1966--barring the period from 24-2-1966 to 28-2-1966 which was wasted due to the negligence on the part of the petitioner was to be excluded in computing the period of limitation for filing the appeal. This period, according to the rule laid down in that section comes in all to ten days and not to six days as wrongly calculated by the appellate court.

2. The court of appeal has therefore patently erred in law in holding, on the facts of the case, that the petitioner was entitled to the exclusion of six days only for securing the certified copy of the order in computing the period of limitation for filing the appeal This error has crept into the order because of the fact that the court of appeal under a misapprehension has refused to allow the period from 21-2-1966 to 24-2-1966 for the purpose of exclusion and it has deducted it out of the period from 24-2-1966 to 5-3-1966. I must confess that I have not been able to follow the logic of this mode of calculation followed by the court of appeal. That court did not perhaps realise that in following this mode of calculation it was doubling the period that was wasted, for the reason of negligence and default on the part of the petitioner. This the court of appeal could not do.

3. Mr. R. N. Misra appearing for the Opposite Party concedes that on correct calculation the petitioner is entitled to a total exclusion of ten days for obtaining the certified copy of the order appealed against--in computing the period of limitation for the appeal. Thus, the petitioner was entitled to prefer an appeal within 25 days (15 plus 10) from the 'date on which the order was communicated to him' This period of 25 days from 18-2-1966 (on which date according to the court of appeal, that order was communicated to the petitioner) expired on 15-3-1966: and on that date it is not denied the appeal was filed. As such the appeal was within time.

4. Therefore, the finding given by the court of appeal, that the appeal was barred by time is, on the very face of it, illegal and contrary to the law of limitation.

5. This conclusion, however, is based on the assumption as stated by the court of appeal, that the order under appeal was communicated to the petitioner on 18-2-1966. Mr. R. N. Misra appearing for the opposite party has, however, challenged the correctness of this assumption. The submission made by the learned counsel is on his own statement as referred to in the affidavit filed on behalf of his client, the petitioner was present in court on 14-2-1966 when the order was delivered by the House Rent Controller. As such it has been contended that the date of communication of the order to the petitioner should have been held to be 14-2-1966 and not 18-2-1966 on which date as stated by the Court of appeal, a copy of that order was form ally communicated to the petitioner This part of the submission made by the learned counsel is based on the footing that the expression 'the date on which the order is communicated to him' is equivalent to 'the date of knowledge to him.' In my opinion there is no substance in this contention.

6. Rule 10 of the Orissa House Rent Control Rules 1959, specifically provides that-

'Orders in each case shall be pronounced in the open court and shall contain a brief statement of the case, issues involved, and the decision on each issue with brief reasons therefor.'

Therefore, if the date of delivery of the order (which is always as a matter of course a date recorded in advance in the order-sheet), or the date of knowledge of the order was to be considered as the starting point for the period of limitation under Section 12 of the Orissa House Rent Control Act, the proper phrase to be used in that section should have been 'from the date of the order or from the date of knowledge of the order.' But neither of these two phrases has been used in that section and what has been used therein is the phrase 'from the date on which the order is communicated to him.' In my opinion, therefore, even if the aggrieved party is present in court and order is delivered in his presence on the date fixed, under the aforesaid Rule 10 of the Orissa House Rent Control Rules 1959, such delivery of the order in his presence may at best amount only to his knowledge of the order on that date but cannot amount to any 'communication' of that order to him, as contemplated by Section 12 of the Orissa House Rent Control Act, 1958. The Court is not a natural being; therefore, an order may be communicated by it only in writing and not by speech. As such, if any order has to be communicated by the court to the aggrieved party, it has to be sent to him in writing and that may be done only when the order is final and complete. But so far as the delivery part of the order in Court is concerned, that is nothing more than a part of the process itself which is necessary to be followed in order to give finality to that order. Therefore, anything done before that finality has been reached cannot amount to any communication of the completed and final order to the party aggrieved.

This can be said to have been done only when the order has been completed and steps have been taken thereafter to communicate it in writing to that party. Therefore, in my opinion, the submission made by Mr. Misra that mere knowledge on the part of the aggrieved party is sufficient to comply with the requirements as laid down in Section 12 of the Orissa House Rent Control Act for the purpose of the commencement of the period of limitation, as given thereunder, has to be rejected.

7. Accordingly the application is allowed, the order passed by the appellate court is quashed, and the case is sent back to that court for its disposal on merits in accordance with law as laid down above In the circumstances of the case, however, there will be no order for costs.

Barman, J.

8. I agree.


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