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P. Murugesan Vs. Hajee M.M.S. Hameed Maracayar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1956)1MLJ238
AppellantP. Murugesan
RespondentHajee M.M.S. Hameed Maracayar
Cases ReferredVenkataramayya v. Venkatasubbayya
Excerpt:
- .....but that was a case of a special act which while providing for a right of appeal did not provide a special period of limitation. no doubt there is the observations in that case to this effect.for instance it has been held that under section 20 of madras act iv of 1938 a special period of limitation is laid down for the filing of an application under section 19 by a person who has obtained a stay under section 20 and consequently section 5 of the limitation act cannot be applied to extend the period therefor prescribed under the special law.but that observation can be got over by the fact that there is article 181 of the limitation act which provides for all other applications not otherwise provided for under the first schedule whereas there is no similar article in the first schedule.....
Judgment:

Ramaswami Gounder, J.

1. These Revision Petitions are filed against the Orders of the learned Additional Judge of the Madras Small Causes Court functioning as a Court of appeal against the order of eviction passed against the petitioner. The order of eviction was made on 10th January, 1955, and as against that the petitioner the tenant, preferred an appeal on 8th February, 1955. It was alleged by him that he became aware of the order only on 31st January, 1955, when notice of execution proceedings was served upon him. According to him he applied for a copy of the order on Ist February, 1955 and obtained it on 7th February, 1955 and preferred the appeal on 8th February, 1955. Section 12(1)(b) of the Lease and Rent Control Act prescribes that any person aggrieved by the order passed by the Controller may, within 15 days from the date of such order, prefer an appeal in writing to the appellate authority having jurisdiction. The present appeal was not preferred within that period, and there was a delay of six days. So the petitioner filed an application before the appellate authority under Section 5 of the Limitation Act to excuse the delay and entertain his appeal. The learned Judge held that as the period of limitation was one prescribed by a special Act, Section 5 of the Limitation Act cannot be invoked to such cases, and that he had no powers to extend the time. In that view, he dismissed the application under Section 5 of the Limitation Act and consequently the appeal. As against those orders the present revisions are filed.

2. The learned Counsel for the petitioner contended that this was an appeal for which there is no provision in the First Schedule of the Limitation Act and when the special Act prescribes a period of 15 days, it cannot be said that the special Act was prescribing a period of limitation different from the period of limitation prescribed therefor under the First Schedule, within the meaning of Section 29 of the Limitation Act. It is true that in the First Schedule to the Limitation Act, in Articles 150 to 157, no limitation is prescribed for such appeals as appeals under the Madras Rent Control Act would certainly not have been in the contemplation of the Legislature which passed the Limitation Act. The learned Counsel therefore contended that inasmuch as there is no period of limitation prescribed for this appeal by the First Schedule, it cannot be said that the fixation of the period of limitation by the special Act was different from that prescribed therefor in the First Schedule. No doubt this argument appears to be attractive, and I was somewhat impressed by it in the first instance. It was also argued that Section 29 is intended to provide for cases where determination of the period of Limitation is in question, and that Section 5 has nothing to do with the determination of the period of limitation, but relates to the powers of Court to excuse the delay where the period of limitation had expired. This argument also appears to be plausible, as a first impression. It was also argued that Section 5 must be construed to apply to all appeals irrespective of the restricting provisions of the Limitation Act. But whatever my views might be on these contentions, my attention was drawn to a recent Bench decision of the Bombay High Court in which all these contentions have been carefully examined and answered against the petitioner. That decision is reported in Canara Bank, Ltd. v. Warden Insurance Co : AIR1953Bom35 . A similar view has been expressed by the Allahabad High Court in Chheda Lal v. Commanding Officer, Meerut Cant. A.I.R. 1941 All. 307. There is also a decision of our own High Court in Venkataramayya v. Venkatasubbayya : AIR1946Mad351 , but that was a case of a special Act which while providing for a right of appeal did not provide a special period of limitation. No doubt there is the observations in that case to this effect.

For instance it has been held that under Section 20 of Madras Act IV of 1938 a special period of limitation is laid down for the filing of an application under Section 19 by a person who has obtained a stay under Section 20 and consequently Section 5 of the Limitation Act cannot be applied to extend the period therefor prescribed under the special law.

But that observation can be got over by the fact that there is Article 181 of the Limitation Act which provides for all other applications not otherwise provided for under the First Schedule whereas there is no similar article in the First Schedule relating to appeals. However, in view of the recent Bench decision of the Bombay High. Court, which I respectfully follow, I dismiss both these Revision Petitions but in the circumstances without costs.


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