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Sumitraben Ratilal Shah and ors. Vs. Meghraj Trikamdas and Co. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1979)1GLR856
AppellantSumitraben Ratilal Shah and ors.
RespondentMeghraj Trikamdas and Co.
Cases ReferredKerala State Electricity Board v. T.P. Kunhaliumma
Excerpt:
- - therefore, to the revisional application before an appellate bench of small causes court, article 131 evidently did not apply, because it bad no power of revision under the code of civil procedure......revisional court. the learned judges of the appellate bench refused to condone delay and held the revision application to be time barred on the basis that the period of limitation prescribed was 90 days. they, therefore, dismissed the revisional application. hence the present revisional application.2. the first contention urged on behalf of the petitioner was that the revisional application before the appellate bench of small causes was within time because article 137 of the limitation act applied. that article prescribed a period of three years for any other application for which no period of limitation is provided elsewhere in (he third division of the schedule to the limitation act. as against this, on behalf of the opposite party-tenant it was contended that the article applicable.....
Judgment:

D.P. Desai, J.

1. One of the questions and which is the main question which arises in this revisional application is what is the period of limitation for an application in revision under Section 29(3) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (the Act). For this purpose only a few facts may be stated. The petitioner is the landlord and opposite party is the tenant. The tenant filed an application for fixation of standard rent of the suit premises. That application was dismissed for default on July 17, 1971. It appears that on the same day it was restored. However, the case of the landlord is that he was not aware of this restoration because it was restored at his back and without intimation to him or his advocate. That restored application for fixation of standard rent proceeded to hearing in the absence of the present petitioner i.e. the landlord; and on November 6, 1971, the trial Court fixed the standard rent in respect to the two suit premises, at a lower figure. Against that order, the landlord filed a revisional application before the appellate bench of Small Causes Court at Ahmedabad under Section 29(3) of the Act en November 19, 1973. The case pleaded by him was that he was not aware of fixation of standard rent on November 6, 1971 and that he came to know about it only on March 30, 1972. On the very next day i.e. April 1, 1972 he applied for certified copies; and he got the certified copies on November 17, 1973. On November 19, 1973 he filed the revisional application before the appellate Bench of Small Causes. He, therefore, urged is the first instance that the time begins to run from March 30, 1972 and excluding the period spent in obtaining certified copies, the revisional application was within time. He also in the alternative urged for condonation of delay as can be seen from the order passed by the revisional Court. The learned Judges of the appellate Bench refused to condone delay and held the revision application to be time barred on the basis that the period of limitation prescribed was 90 days. They, therefore, dismissed the revisional application. Hence the present revisional application.

2. The first contention urged on behalf of the petitioner was that the revisional application before the appellate Bench of Small Causes was within time because Article 137 of the Limitation Act applied. That article prescribed a period of three years for any other application for which no period of limitation is provided elsewhere in (he third division of the Schedule to the Limitation Act. As against this, on behalf of the opposite party-tenant it was contended that the Article applicable was Article 131 and the period prescribed was 90 days. Now, Article 131 is applicable in a case of an application to any Court for the exercise of its powers of revision under the Code of Civil Procedure, 1908 or the Code of Criminal Procedure, 1898. It is clear that the said Article is applicable where powers of revision are sought to be exercised under either of the two Codes by the concerned court. In the present case, the power of revision is in terms conferred upon the Rent Court under Section 29(3) of the Act. Therefore, this is not a case wherein the appellate Bench was exercising its powers of revision under the Code of Civil Procedure, 1908 or the Code of Criminal Procedure, 1898. In fact, if we go by the Code of Civil Procedure, powers of revision can be exercised only by the High Court under Section 115 of that Code. There is no other provision in that Code for exercise of revisional powers. Therefore, to the revisional application before an appellate Bench of Small Causes Court, Article 131 evidently did not apply, because it bad no power of revision under the Code of Civil Procedure. If this is the correct position of law, it is clear that the only Article which would govern the present case would be the residuary Article 137 of the Limitation Act. The scope of Article 137 was examined by the Supreme Court in Kerala State Electricity Board v. T.P. Kunhaliumma : [1977]1SCR996 The Court, inter alia, stated that Article 137 of the Limitation Act will apply to any petition or application filed under any Act to a Civil Court. It is thus clear that the revision application before the appellate Bench of Small Causes Court was within time and the appellate Bench on a mistaken notion of law refused to exercise jurisdiction vested in it on the only ground that the application was barred by limitation.

3. Even otherwise, the appellate Bench of Small Causes Court did not consider the fact that it had suo motu power of revision; and in case of exercise of that power, no period of limitation was prescribed. It could have resorted to that power if it thought fit in the facts of this case, because the party coming before it was complaining that the standard rent fixed earlier was fixed ex parts without his knowing that the application for standard rent once having been dismissed for default, was restored to file. In any case, when the revisional application before the appellate Bench of Small Causes Court was within time, it is in fitness of things that it should examine the case on merits. In the result, present Revision Application is allowed. The order passed by the lower appellate Court is set aside; and the matter is remanded to it for disposal on merits after hearing both the sides. Rule made absolute in these terms with no order as to costs.


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