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M.A. Rajarathnam Vs. T. Rajammal - Court Judgment

LegalCrystal Citation
SubjectTenancy;Limitation
CourtChennai High Court
Decided On
Case NumberC.M.P. No. 6569 of 1981 in C.R.P.S.R. No. 57927 of 1981
Judge
Reported inAIR1982Mad189
ActsTamil Nadu Buildings (Lease and Real Control) Act, 1960 - Sections 23, 23(1), 25 and 25(2); Limitation Act, 1963 - Sections 4 to 24, 25 M and 29(2); Tamil Nadu Buildings (Lease and Rent Control) Rules, 1974 - Rule 24; Tamil Nadu High Court (Appellate Side) Rules, 1965 - Order 4, Rule 21
AppellantM.A. Rajarathnam
RespondentT. Rajammal
Appellant AdvocateV. Krishnamurthi, Adv.
Respondent AdvocateK.C. Rajappa, Adv.
Cases Referred and Rakku v. Vasanthalakshmi
Excerpt:
.....of the time taken for obtaining a certified copy. rule 24 of the tamil nadu buildings lease and rent control rules, 1974 lays down that any person affected by any order passed by the appellate authority acting under section 23 of the act shall be entitled to be furnished with a copy thereof duly certified by the appellate authority an application. the rule further provides that the civil rules of practice and circular orders made by the high court in regard to the making of applications and grant of certified copies shall, so far as may be, apply to any application filed and the grant of any copies to be furnished by the appellate authority under the act.; section 25 of the rent control act does not expressly exclude the provisions of section 4 to 24 of the limitation act from being..........j. the question is whether in a revision filed under sec 25 of the tamil nadu buildings (lease and rent control) act 18 of 1960. the revision petitioner is entitled to exclude the time taken for obtaining a certified copy of the order of the appellate authority for purposes of limitation, since the learned judge felt some difficulty in the matter, he referred the question to be decided by a bench.2. under the scheme of the tamil nadu buildings (lease and rent control) act, 1960 (hereinafter referred to as the rent control act), proceedings in the first instance are heard and determined by the rent controller. against any order passed by the rent controller, see. 23 of the rent control act provides for an appeal to an appellate authority~ from an order passed by an appellate authority, a.....
Judgment:
1. This case comes before us on a reference by Swamikkannu J. The question is whether in a revision filed under Sec 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960. the revision petitioner is entitled to exclude the time taken for obtaining a certified copy of the order of the appellate authority for purposes of limitation, Since the learned Judge felt some difficulty in the matter, he referred the question to be decided by a Bench.

2. Under the scheme of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the Rent Control Act), proceedings in the first instance are heard and determined by the Rent Controller. Against any order passed by the Rent Controller, See. 23 of the Rent Control Act provides for an appeal to an appellate authority~ From an order passed by an appellate authority, a revision lies to this court under See. 25 of the Rent Control Act It has been held by the Supreme Court in a recent decision that notwithstanding the wide language used in describing the power of revision of the High Court under See. 25 of the Act, that. in essence, is Only a revisional jurisdiction and not an appellate jurisdiction. Section 25(2) provides for a period of limitation within which a revision petition can be filed before this Court. The same section also Provides for a limited jurisdiction, in the High Court to allow further time under certain circumstances. The provisions regarding limitation in Sec. 25 are cast in the following words

"25 (2). Every application to the High Court for the exercise of its power under sub-see, il) shall be preferred within one month from the date on which the order or proceeding to which the application relates is communicated to the applicant;

Provided that the High Court may, in its discretion. allow further time not exceeding one month for the filing of any such application, if it is satisfied that the applicant had sufficient cause for not preferring the application with in the time specified in this sub-section.

3. The period of limitation prescribed in See. 25(2) is one month from the date on which the appellate authority's order is communicated to the revision petitioner The question is whether in calculating the period of one month the revision petitioner is entitled to exclude the time taken by him for obtaining a certified copy of the order of the appellate authority which is sought to be subjected to revision.

4. There is no express provision in See. 25 of the Act which provides for the exclusion of the time taken for obtaining a certified copy. We may. how ever, refer to R. 24 of the statutory rules, called the Tamil Nadu Buildings (Lease and Rent Controll Rules 1974, governing the procedure for furnishing certified copies. This rule lays down that any person affected by any order passed by the appellate authority acting under Sec. 23 of the Act shall be entitled to be furnished with a copy thereof duly certified by the appellate authority on application. The rule further provides that the Civil Rules of Practice and Circular Orders made by the High Court in regard to the making of applications and the grant of certified copies shall so far as may be. apply to any applications filed and the grant of any copies to be furnished by the app4ftilts authority under the Act.

5. It is convenient, at this stage, -to refer to the procedure which has been prescribed by the Appellate Side Rules of this Court for proceedings in revision. 01 4 P, 21 of the Appellate Side Rules 1965, provides that civil revision Petitions under See. 115 of the Code or any other enactment shall be accompanied among other things, by a certified copy of the decree or order which is to be revised and a certified copy of the judgment, if any, on which the decree is based as well as a certified copy of the judgment or order, if any, of the Court or Tribunal of the first instance.

6. It is, therefore, clear from the Rent Control Act and the Appellate Side Rules that there is not only a provision for obtaining certified copies of the order of the appellate authority, but a revision to the High Court would not be regarded as having been properly presented unless the revision petition is accompanied by a certified copy of the order sought to be revised. In these circumstances, and in the absence of any express provision in Sec. 25(2) of the Rent Control Act, providing for exclusion of time for obtaining certified copies, the question is whether such time can be excluded for purposes of calculating the limitation for filing a revision petition. This question has got to be examined in the light of S. 29(2) of the Limitation Act 1963. This provision lays down that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, then those special periods of limitation shall be dealt with as if they were incorporated in the Schedule to the Limitation Act. See, 29(2) further provides that in computing the special period of limitation provided for under any special or local law, the provisions contained in Sees. 4 to 24 of the Limitation Act shall apply in so far as and to the extent to which they are not expressly excluded by such special or local law.

7. The inquiry under Sec. 29(2) of the Limitation Act would therefore be to find out whether the limitation provisions in any enactment other than the Lam Act can be regarded as limitation provisions in a 'special' or 'local' Act. The next part of the inquiry would be to find out if in that special or local Act. there is any express provision excluding the applicability of S ' ecs. 4 to 24 of the Lim, Act. If there is no express exclusion. then the special periods of limitation under the special or local law must be computed by applying Ss. 4 to 24 of the Limitation Act wherever applicable.

8. At one time the provisions of Section 29(2) of the Limitation Act 1963, and the comparable provisions in the earlier Indian Limitation Act. 1908 were construed to mean that there must be an express exclusion in the special or local law of Secs. 4 to 24 of the Limitation Act, otherwise, in the absence of any express exclusion, those provisions will automatically apply to the special or local law concerned. The Supreme Court in Hukumdev v. Lalit Narain, , however, held that even in cases where a special or local law does not contain express words of exclusion of Secs. 4 to 24 of the Limitation; Act, yet, those sections can be excluded by necessary intendment. on a construction of the scheme of the special or local Act, the nature of the provisions contained therein, and their subject matter.

9. We have already observed that in this case Sec. 25 of the Rent Control Act does not expressly exclude the provisions of Secs. 4 to 24 of the Limitation Act from being applicable in the matter of computing the period of limitation for filing revision petitions to the High Court against the order of the appellate authority. Amongst the groups of Secs. 4 to 24 of the Limitation Act, See. 12 deals with exclusion of time in legal proceedings. Sub-sec. (2) of this section enacts that in computing the period of limitation for a revision, the date on which the judgment complained of was pronounced and the time requisite for obtaining a certified copy of the decree or order sought to be revised shall be excluded. The question is whether under the particular scheme of the Rent Control Act, it could be said that S. 12(2) of the Lim. Act stands excluded from application.

10. It would be useful, in this context to refer to S. 23 of the Act which provides for an appeal from -the Rent Controller's order as well as prescribes a time-limit for filing the appeal. Seeti6ii-_23 (1'~ N of the Rent Control Act provides for the 'Period. of, limitation -for filling an appeal. In the following terms

"Any person aggrieved by an order passed by the Controller may, within fifteen days from the date of such order, prefer an appeal in writing to the appellate authority having jurisdiction. ,

In computing the fifteen days aforesaid, the time taken to obtain a certified copy of the order appealed against shall be excluded."

This provision gives an indication that it is not either the policy or the scheme of the Act to ignore the time requisite for obtaining a certified copy of the order for the purpose of reckoning the limitation period for filing an appeal. On the contrary, the express provision is made for not counting the time for obtaining certified copy of the order. This provision is an indication, in our judgment, to show that it is not the purpose or intention of the scheme behind the Act to ignore the time taken by third party to obtain a certified copy of the order which is passed against him for the purposes of enabling him to pursue -further proceedings available to him under the Statute. We have earlier observed that under the scheme of the Rent Control Act, the authority who has to pass orders in the first instance is the Rent Controller, followed by an appellate authority having appellate powers, over whom the High Court is invested with powers of revision. In the face of this statutory hierarchy of authorities having control over the proceedings under the Act, it would be too much to hold that it was the intention of the Legislature not to take note of the time taken for obtaining certified copies of orders passed by each of these authorities for the purpose of further proceed-I Mgs. The Rules passed under the Rent Control Act relating to the application for and furnishing of certified copies Of orders of the Rent Controller and of the appellate authority have been framed by the State Government in exercise of the rule-making power conferred on them under Sec. 34 of the Act. The power has been granted generally for carrying out the purpose of the Act, Sub-sec. (5) of Sec. 34, indicates that the Ru I les framed' under the Act by the State Legislature have equal force with the provisions of the Act. since provision is, made for amendment of the Rules by the Legislature.

Taking note of the express provision made in Sec, - 23(1)(b) of the Act as well as the provision in the Rules for applying for, and obtaining, certified copies of the order, we cannot read into the scheme of the Act any intention to exclude the provisions of Sec. 12(3) of the Limitation Act from being operative for the purposes of limitation under Sec. 25 of the Act. We cannot imagine that the Legislature intended to apply one standard for an appeal, and quite a different standard for a revision under the Act. We may further observe that under the Rules framed under the Rent Control Act, governing the procedure for appeals before the appellate authority it is laid down that any appeal filed before the appellate authority shall be accompanied by a copy of the order of the Rent Controller appealed from. Apparently, this was the reason why the Rules also provide for the application for and furnishing of certified copies. The Rules made under the Act do not expressly provide for the procedure to be followed in the case of petitions for revision under Sec. 25 of the Act. The Rules are silent on the subject,. This is clear indication that the Appellate Side Rules of the High Court will have to be applied, as governing the procedure for filing revisions under Sec, 25 of the Act. To this extent, at any rate, the Rent Control Act and Rules are not a self-contained Code. We have earlier referred to the language of 0. 4 R. 21 of the Appellate Side Rules which regulate not only revisions filed under Sec. 115 C. P. Code. but also revision petitions filed under any other enactment. Having regard to the insistence by the Appellate Side Rules that in order to be a proper presentation, any memorandum of revision petition has got to be accompanied by a certified copy of the order sought to be revised, and also having regard to the provisions of the Rent Control Act and Rules, which we have referred to above, we are satisfied that the time taken by the revision petitioner for obtaining the certified copies of the appellate authority's order must be excluded in calculating the period of limitation under S. 25(2) of the Rent Control Act.

11. Mr. K. C. Rajappa, learned counsel for the respondent, submitted that See. 12 of the Limitation Act cannot be invoked for the purposes of computing the limitation under Sec. 25(2) of the Rent Control Act, because Sec. 25(2) itself lays down that the limitation period must be reckoned not from the date of the order, but from the date on which the order is 'communicated to the applicant.' For construing this phrase, learned counsel relied on two Judgments of two learned single Judges of this court. They are reported in Sivaprakasam v. Radhakrishnan, 1975 TLNJ 328 and Rakku v. Vasanthalakshmi, (1975) 2 Mad LJ (Short Notes)

19. Both the decisions hold that the date of pronouncement of the order is also the date of communication of the order within the meaning of See. 25(2) of the Act. It is unnecessary for purposes of the present discussion to consider whether the interpretation placed by the learned Judges on the expression 'communicated' occurring in See. 25(2) of the Rent Control Act is or is not correct. For the inquiry in the present revision is whether Sec. 12 of the Limitation Act can be invoked for the purpose of calculating the period of limitation under Section 25(2) of the Act. In our judgment, for purposes of Sec. 12(2) of the Limitation Act, it does not matter if the date of the communication of the order is equated to the date of pronouncement of the order.

12. We may now refer to the particular facts and circumstances in the instant case, which have given rise to this reference by Swamikkannu J. It appears from the record, that the order of the appellate authority was made on 17-21981. The revision petitioner applied for a certified copy of that order on 26-21981. The copy was made ready on 22-5-1981. By this time the courts had closed for the summer vacation. The petitioner actually filed the revision in this court on 22-6-1981. The contention of the learned counsel for the revision petitioner is that although on the date of filing the revision petition the limitation period of 30 days had expired, still he is entitled to invoke the proviso to Sec. 25(2) of the Rent Control Act and invoke the discretion of this court for condoning the delay. It may be observed that this proviso put a ceiling on the power of this court when it lays down that in no case shall the High Court extend the time beyond the period of 30 days from the end of the time limit of one month fixed under See. 25 of the Rent Control Act. In this case, however, it is common ground that if the time taken for obtaining certified copies is excluded by applying Sec. 12 of the Limitation Act, then the further delay which the revision petitioner asks this court to condone it within the period of 30 days laid down in proviso to Sec. 25(2) of the Rent Control Act. The objection of Mr. Rajappa was based on a different calculation. If See. 12 of the Limitation Act is held not applicable, then the filing of the application on 26-2-1981 would exceed an aggregate of 60 days from the date of the order passed by the appellate authority. In that event, according to Mr. Rajappa, the revision would be irredeemably barred by time. In the view we have held that See. 12 of the Limitation Act must be applied to petitions for revision under Sec. 25(2) of the Rent Control Act, the question of condoning the delay in excess of 30 days does not arise. The delay on such calculation, would be only 12 davs.

13. We did not hear much of an argument from Mr. Rajappa on the question as to whether there was really sufficient cause for the 12 days delay, which had occurred petitioner filed this 1981. In the affidavit petition the revision represents that he was engaged in celebrating his nephew's marriage on the 11th June 1981 at Tuticorin and immediately after the marriage because of ill-health, which got aggravated by his exertions during the wedding, he had to undergo treatment under a medical practitioner. A certificate from the medical practitioner is part of the record. The explanation of the petitioner was that in his bad state of health, he could not undertake the long journey to Madras to hand over the papers to a lawyer for the purpose of filing the revision. We are satisfied that the explanation furnished by the petitioner for the delay of 12 days provides sufficient cause within the meaning of the proviso to Sec. 25(2) of the Rent Control Act.

14. In the result, C. M. P. No. 6569 of 1981 is allowed. The civil revision petition will be numbered and posted and dealt with in the usual course.

15. Petition allowed.


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