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Jai Prakash Vs. Jean Conea - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Miscellaneous Appeal No. 1724 of 1980 and Civil R. Appeal No. 510 of 1980
Judge
Reported in1981RLR152
ActsDelhi Rent Control Act, 1958 - Sections 25B(8)
AppellantJai Prakash
RespondentJean Conea
Advocates: J.R. Goel and; S.S. Rana, Advs
Cases ReferredAct. In Subhash Chancier v. Rehmat Ullah
Excerpt:
- .....is : what is the period of limitation for filing a petition under section 25-b (8) of the delhi rent control act, 1958 (hereinafter called 'the act'). the petitioners-landlords filed an application for eviction of the respondent under section 14(1)(e) rsad with section 25-b of the act which was dismissed by the controller on 29th april, 1978. an appeal filed before the rent control tribunal on 3rd july, 1978 was dismissed on 10th january, 1980 on the ground that no appeal was maintainable under section 25-b(8) of the act. the petitioners applied for certified copy of the controller's order on 11th january, 1980 and it was ready on 27th february, 1980. the present revision petition under section 25-b(8) of the act was filed on 17th may, 1980. an application c.m. no. 1724 of 1980) was.....
Judgment:

Sultan Singh, J.

(1) The question for decision is : What is the period of limitation for filing a petition under Section 25-B (8) of the Delhi Rent Control Act, 1958 (hereinafter called 'the Act'). The petitioners-landlords filed an application for eviction of the respondent under Section 14(1)(e) rsad with Section 25-B of the Act which was dismissed by the Controller on 29th April, 1978. An appeal filed before the Rent Control Tribunal on 3rd July, 1978 was dismissed on 10th January, 1980 on the ground that no appeal was maintainable under Section 25-B(8) of the Act. The petitioners applied for certified copy of the Controller's order on 11th January, 1980 and it was ready on 27th February, 1980. The present revision petition under Section 25-B(8) of the Act was filed on 17th May, 1980. An application C.M. No. 1724 of 1980) was also filed by the petitioners under Sections 5 and 14 of the Limitation Act praying that the time spent for prosecuting the appeal before the Rent Control Tribunal be excluded and the delay in filing the revision be condoned.

(2) Learned counsel for the petitioners contends that no period of limitation is prescribed for filing the revision petition under Section 25-B(8) of the Act in any of the Articles of the Limitation Act or anywhere else and as such he submits that Article 137 of the Limitation Act is applicable and thereforee the present petition is within time. In the alternative he submits that the delay in filing the revision petition be condoned. Learned counsel for the respondent on the other hand submits that the period of limitation for the exercise of revisional powers by a Civil Court is 90 days from the date of the order under Article 131 of the Limitation Act.

(3) Rule 23 of the Delhi Rent Control Rules, 1959 provides that in deciding any question relating to procedure not specially provided by the Act and these rules, the Controller and the Rent Control Tribunal shall as far as possible be guided by the provisions contained in the CPC. Learned counsel for the respondent submits that as the Code of Civil Procedure is applicable to the proceedings under the Rent Control Act, the present petition is deemed to have been filed under CPC. Section 25-B(8) of the Act reads : 25-B (8) : No appeal or second appeal shall lie against an order for the recovery of possession of any premises made by the Controller in accordance with the procedure specified in this section ; Provided that the High Court may, for the purpose of satisfying itself that an order made by the Controller under this Section is according to law call for the records of the case and pass such order in respect thereto as it thinks fit.'

(4) Under Section 115 of the CPC', a revision lies against an order of a Subordinate court. The Rent Controller is not a court and thereforee it seems that a revision under Section 115 of the Code is not maintainable. On the other hand, it is contended on behalf of the petitioners that there is a specific provision as contained in the proviso to subsection (8) of Section 25 of the Act for the exercise of the revisional process by this court to satisfy itself that the order made by the Controller is in accordance with law. The revisional powers under this section are wider than the revisional powers under Section 115 of the Code. It thereforee appears that the revision as provided in Section 25-B(8) of this Act is a special right conferred upon the party to approach the court and that such a revision is not a. revision under CPC. Under Article 131 of the Limitation is 90 days from the date of Act, limitation order to be revised by means of an application to any court for the exercise of its power of revision under Civil Procedure Code or the Code of Criminal Procedure, 1898. As the present revision is not under Cpc, 1908, Article 131 of tho Limitation Act is not attracted. Now the question is which other Article of the Limitation Act is applicable. Prior to the Limitation Act, 1963 there was Article 181 of the Limitation Act, 1908 providing for applications for which no period of limitation was prescribed elsewhere in the schedule of that Act or by Section 48 of the CPC. The period of limitation was three years from the date when the right to apply accrues. in Mohd Usman vs . Union of India, : [1969]2SCR232 it is observed that Article 181 of the Limitation Act, 1908 was restricted to the applications under the CPC. Similarly in Town Municipal Council Athani vs . Presiding Officer, Labour Court, Hubli and others etc. : (1969)IILLJ651SC the scope of Article 181 of the Limitation Act, '1908 was considered by the Supreme Court and after considering the various authorities it was held that Article 137 of the Limitation Act, 1963 is also confined to applications under the CPC. But in Nityanand M. Joshi vs . The Life Insurance Corporation, : (1969)IILLJ711SC , the Supreme Court after referring to its previous judgdments made the following observation :

'IT seems to us that it may require serious consideration whether applications to courts under other provisions, apart from Cpc, are included within Article 137 of the Limitation Act, 1963 or not.'

(5) The matter came up for consideration before the Supreme Court in The Kerala State Electricity Biard vs . i.P. Kunhaliumma : [1977]1SCR996 . After referring to its earlier decisions, the Supreme Court differed with the earlier view taken by it in Athani Municipal Council Ca:e (Supra) and held that Article 137 of the Limitation Act, 1963, is not confined to applications contemplated by or under the CPC. The interpretation, which was given to Article 181 of the Limitation Act, 1908, was held to be not applicable with regard to Article 137 of the Limitation Act, 1963. In view of this latest pronouncement of Supreme Court in The Kirala case (Supra), it seems that application or petition under any law for which no period of limitation is provided elsewhere in the Third Division of the Li?hitation Act is governed by Article 1 37 of the Limitation Act, 163. The petition under Section 25-B(8) of the Act is a revision petition to this court, and no period of limitation is specified in the Third Division of the Limitation Act and as such Article 137 of the Limitation Act is applicabla. This Article provided that any other application for which no period of limitation is provided elsewhere in this division i.e. Third Division of the Schedule of the Limitation Act, the period of limitation is three years from the date when the right to apply accrues. Thus I am of the view that the revision petition under the proviso to sub-section (8) of Section 25-B of the Act is governed by Article 137 to the Limitation Act. The impugned order of the Controller was passed on 29th April, 1978 and the present revision petition was filed on 17th May, 1980 and as such the revision petition seems to be within time,

(6) Learned counsel for the respondent refers to a judgment of Gujarat High Court reported as Noorbhal Jamalbhai vs. Ambalal Cfiunilal, 1969 R.C.J. [523. This was an application under Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1957 wherein it was observed that the application was governed by Article '131 of the Limitation Act and rule 17 of the Appellate Side Rules of the Gujarat High Court. Rule 17 of the Appellate Side Rules of the Gujarat High Court provides a limitation of 90 days for the revision - applications both under Section 115 of the Code or under special or local law as there were special rules providing limitation period of 90 days. The revision petition was held to be governed by the limitation period of 90 days provided by Article 131 of the Limitation Act and Rule 17 of the Appellate Side Rules of the Gujarat High Court. Learned counsel for the respondent then relies upon Dr. Mukhlar Ahmed vs. Smt. Masha Allah Begum, I.L.R. (1977) Ii Delhi 641 which is a case of revision under Section 25-B(8) of the Act. An application for condensation of delay was filed in that case and the learned Judge condoned the delay holding that the delay was on account of the Copying Agency directions and not on account of the petitioner's fault The learned Judge however further observed, 'this condensation of delay is allowed on the footing that the limitation period is 90 days even for revisions under Section 25-B(8) of the Delhi Rent Control Act, 1958'. There is no discussion whether Articles 131 , or 137 of the Limitation Act is applicable. Lastly, the learned counsel for the respondent relied upon another judgment of this Court in Raghur.ath Kukaria v. Mangal Singh, Civil Revision No. 354 of 1977 decided on 27th October, 1977 wherein the learned Judge pbserved that the Limitation Act, 1963 does not apply to the Delhi Rent Control Act in view of the observation made by the Division Bench in Subhash Chander vs. Rehmai Ullah 1972 R.C.R. 977. The learned Judge further held that for that reason neither Section 5 nor the residuary Article 137 would apply to a revision petition under Section 25-B of the Act. The delay in filing the revision petition was condoned. But there is no discussion whether Article 131 or Article 137 of the Limitation Act applies to the revision petition under Section 25-B(8) of the Act. In Subhash Chancier v. Rehmat Ullah (Supra) the division bench held as follows :

'IN our opinion, though the Controller under the Delhi Rent Control Act, 1958 may have some of the trappings of the Court, he is not a court stricto sensu and so not within the meaning of the Limitation Act.'

(7) Thus it was held that the Limitation Act, 1963 applies only to a court and not to the Controller. Thus it seems to me that the point in issue in the present case was not ' considered in the two judgments of this court referred to by the learned counsel for the respondent.

(8) I, thereforee, hold that the present revision petition being governed by Article 137 of the Limitation Act is within time and as such the question of condensation of delay does not arise.


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