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Kunnummal Chovvaru Vs. A.K. Janaki and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 1769 of 1979-B
Judge
Reported inAIR1981Ker169
ActsKerala Land Reforms Act, 1964 - Sections 72-B; Kerala Land Reforms (Tenancy) Rules, 1970 - Rule 94
AppellantKunnummal Chovvaru
RespondentA.K. Janaki and anr.
Appellant Advocate T.L. Viswanatha Iyer,; P.S. Narayanan,; K.S. Menon,;
Respondent AdvocateGovt. Pleader
DispositionRevision dismissed
Cases ReferredLucknow v. Nand Singh
Excerpt:
.....to the parties of an order is necessary, as it would be necessary in the case of orders passed by officers like the one which came up for consideration before the supreme court in the decision in air 1980 sc 15. in the case of a land tribunal governed by the statutory rules referred to above the 'date of the order' could only be the actual date of the order and not the date of communication......has been shown as the landlord. he did not put in appearance and after the usual enquiry the land tribunal allowed the application. the revision petitioner filed an appeal before the appellate authority with a petition under section 5 of the limitation act to condone the delay in filing the appeal. the appellate authority was not satisfied that there were any valid grounds to condone the delay and accordingly dismissed the petition as well as the appeal. hence the revision.2. the order of the land tribunal is dated 17-10-1973. the revision petitioner applied for copies on 9-10-1976 and obtained copies on 25-10-1976. he filed the appeal on 9-12-1976. the appeal, it is clear, was hopelessly barred by time. the only ground on which the revision petitioner contends that the delay in.....
Judgment:
ORDER

U.L. Bhat, J.

1. The first respondent herein filed an application before the Land Tribunal under Section 72-B of Kerala Act 1 of 1964 for purchase of the landlord's right in the tenancy holding. In the application, the revision petitioner has been shown as the landlord. He did not put in appearance and after the usual enquiry the Land Tribunal allowed the application. The revision petitioner filed an appeal before the appellate authority with a petition under Section 5 of the Limitation Act to condone the delay in filing the appeal. The appellate authority was not satisfied that there were any valid grounds to condone the delay and accordingly dismissed the petition as well as the appeal. Hence the revision.

2. The order of the Land Tribunal is dated 17-10-1973. The revision petitioner applied for copies on 9-10-1976 and obtained copies on 25-10-1976. He filed the appeal on 9-12-1976. The appeal, it is clear, was hopelessly barred by time. The only ground on which the revision petitioner contends that the delay in filing the appeal is liable to be condoned is that the notice issued by the Land Tribunal was never tendered to him nor refused by him and that he came to know about the proceedings and the order only on 7-10-1976. He did not care to reveal under what circumstances he became aware of the proceedings and the order. The appellate authority was not satisfied that the ground urged is true or sufficient to condone the delay.

3. The records of the Land Tribunal show that Form E notice of the claim made by the first respondent was issued to the revision petitioner and the process server reported that notice was tendered to the revision petitioner, that he refused to receive it and therefore the process server served it by affixture. The affixture was evidenced by witnesses. The same thing happened when Form 'F' notice of the preliminary order was attempted to be served on the revision petitioner. Return on that notice also shows that the revision petitioner refused to receive the notice and thereupon the notice was served by affixture. The Land Tribunal noted that the respondent was absent.

The return of the process server is prima facie entitled to some weight. It was open to the revision petitioner to examine himself or adduce other evidence before the Appellate Authority to controvert the averments in the returns and show that notices were never tendered to him and he never refused the same and that the notices were never affixed. He did not care to adduce any such evidence. There was, therefore, nothing wrong in the appellate authority acting on the two returns of the process server and holding that the ground urged has not been established.

4. To get over this difficulty learned counsel for the revision petitioner contended that the period of 60 days for filing the appeal must be computed not from the date of the order as stated in Rule 94 of the Kerala Land Reforms (Tenancy) Rules but must be computed from the date of communication of the copy of the order to the revision petitioner. For this purpose, reliance is placed on the decision reported in the Assistant Transport Commissioner, Lucknow v. Nand Singh, (AIR 1980 SC 15). That was a case where the party applied to the taxation officer claiming exemption from payment of motor vehicles tax. The order dated 24-10-1964 was communicated to the party on 29-10-1964. The period for appeal is 30 days from the date of the order. The Supreme Court held that the time can begin to run only from the date of the communication of the order and not from the date of the order. In so holding the Supreme Court observed as follows (at p. 16):--

'It is plain that mere writing an order in the file kept in the office of the Taxation Officer is no order in the eye of law in the sense of affecting the rights of the parties for whom the order is meant. The order must be communicated either directly or constructively in the sense of making it known, which may make it possible for the authority to say that the party affected must be deemed to have known the order.'

5. On a consideration of the provisions of the Act and the Rules I am of the opinion that the above dictum will not apply to an order passed by the Land Tribunal. The Land Tribunal is a quasi judicial statutory body created under this statute and is controlled by the various provisions of the statute and the statutory rules. Rule 98 of the Tenancy Rules lays down that the sittings of the Land Tribunal shall be held openly. In otherwords, the Tribunal has to function in so far as the sittings are concerned in the same way as a civil Court is expected to function. The Tribunal shall also maintain a posting book as contemplated in Rule 99. A roll call in accordance with the entries in the posting book in each sitting is required under Rule 100. Rule 101 relates to maintenance of a daily register. It states that it is the duty of the Bench clerk to enter the gist of the orders passed and other proceedings in the daily register and that it is the duty of the Land Tribunal to initial the entries. Parties are entitled to obtain copies of extracts from the daily register. The Land Tribunal is also mandated to maintain an order sheet under Rule 103 of the Rules. A reading of the above mentioned rules shows that in procedural matters covered by these rules there is practically no difference between the functioning of a Land Tribunal and the functioning of a Civil Court. Since the Tribunal holds its sittings openly and since cases are called and disposed of in such open sittings, no separate communication to the parties of an order is necessary, as it would be necessary in the case of orders passed by officers like the one which came up for consideration before the Supreme Court in the decision in AIR 1980 SC 15. In the case of a Land Tribunal governed by the statutory rules referred to above the 'date of the order' could only be the actual date of the order and not the date of communication. Hence I find that the Appellate Authority was right in holding that the appeal was barred by time. The appellate authority was also right in holding that sufficient ground for condoning the delay in filing the appeal was not made. I do not find any ground to interfere with the order of the appellate authority. The revision is dismissed, but without costs.


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