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Rathinasamy Vs. Komalavalli and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 3288 of 1980
Judge
Reported inAIR1983Mad45
ActsTamil Nadu Buildings (Lease and Rent Control) Act, 1960 - Sections 23(1); Tamil Nadu Buildings (Lease and Rent Control) (Amendment) Act, 1973; Limitation Act, 1963 - Sections 3, 4 to 24, 5 and 29(2); Rent Control Act
AppellantRathinasamy
RespondentKomalavalli and anr.
Appellant AdvocateT. Somasundaram and ;A.S. Venkatachalamurthi, Advs.
Respondent AdvocateG. Subramaniam, Adv.
Cases ReferredK. Chalapathi Rao v. B. N. Reddy
Excerpt:
tamil nadu buildings (lease and rent control) act (xviii of 1960) as amended by act (xxiii of 1973), section 23(1) (b)--appeal filed beyond the limitation period--whether limitation act, (xxxvi of 1963), sections 4 to 24 would apply to appeals filed before the appellate authority and whether the appellant authority could condone the delay in filing the appeal as a court--held in affirmative;the petitioner-tenant filed an appeal before the appellate authority against the order of eviction passed by the rent controller (district munsif) for wilful default. there was a delay of 28 days in preferring the said appeal by the tenant. he filed an interlocutory application under section 5 of the limitation act 1963, to excuse the delay i preferring the appeal under section 23(1) (b) of the tamil.....1. this matter has come before the bench on a reference by ratnam j. on account of conflicting views expressed in the judgments of single judges, namely by balasubrahmanyam j. in venkalmorban v. dakshinamurthy, c. r. p. 1667 of 1978; by n. s. ramaswami j. in j. eswaan v. palaniammal, 1974 tnlj 380 and by gokulakrishnan j. (as he then was) in s. ganapathi v. kumaraswami, on theimportant question whether s. 5 of the limitation act, 1963 applied to appeals preferred under s. 23(1)(b) of the tamil nadu buildings (lease and rent control) act, 18 of 1960 as amended by act 23 of 1973.2. the first respondent herein obtained an order of eviction against the petitioner and his wife, who is the second respondent herein in crop 18 of 1979 on the file of the rent controller (district muncie, srikali)......
Judgment:
1. This matter has come before the Bench on a reference by Ratnam J. on account of conflicting views expressed in the judgments of single Judges, namely by Balasubrahmanyam J. in Venkalmorban v. Dakshinamurthy, C. R. P. 1667 of 1978; by N. S. Ramaswami J. in J. Eswaan v. Palaniammal, 1974 TNLJ 380 and by Gokulakrishnan J. (as he then was) in S. Ganapathi v. Kumaraswami, on the

important question whether S. 5 of the Limitation Act, 1963 applied to appeals preferred under S. 23(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 18 of 1960 as amended by Act 23 of 1973.

2. The first respondent herein obtained an order of eviction against the petitioner and his wife, who is the second respondent herein in CROP 18 of 1979 on the file of the Rent Controller (District Muncie, Srikali). The eviction order was passed on 11-4-1980. The petitioner filed an appeal against the said order before the appellate authority(Sub Court, Mayuram) on 18-6-1980 after a delay of 28 days. The petitioner filed I. A. 458 of 1980 under Section 5 of the Limitation Act, for condoning the delay of 28 days. The first respondent raised an objection inter alia, that Section 5 of the Limitation Act is not applicable to appeals filed under S. 23(1)(b) of the Act 18 of 1960.

3. The appellate authority took up the question 5 of the Limitation Act would apply to an appeal filed under the Rent Control Act for consideration in the first instance. Relying upon the decisions in Ganapathy v. Kumaraswamy, , and Easwaran v.

Palaniammal, 1974 TNLJ 380, the appellate authority gave the finding that Section 5 of the Limitation Act will not have any application in respect of applications filed under the Tamil Nadu Act 18 of 1960. Therefore, he did not go into the merits of the grounds stated for condoning the delay of 28 days.

4. Against the order of the appellate authority, this revision petition has been filed. The revision petition initially came before Ratnam J. Before Ratnam J. a recent decision dated 30-1-1980 of Balasubrahmanyam J. in C. R. P. 1667 of 1978 holding that Section 5 of the Limitation Act would be applicable to appeals files under S. 23(1)(b) of the said Act, was relied on by the petitioner. The decisions in 1974 TNLJ 380 and taking a different view were however relied on by the other side. In view of the conflicting views expressed in these decisions the case has been referred to this Bench.

5. In 1974 TNLJ 380, N. S. Ramaswami J. had taken the view that the Rent Controller and the appellate authority acting under the Act 18 of 1960 are not Courts, but only persons designata. In Gokulakrishnan, J. (as he then was) has also held that the authorities constituted under the Act are person designate and hence the provisions of the Limitation Act cannot be invoked before these authorities.

6. Section 5 of the Limitation Act 36 of 1963 reads as follows:-

"Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period."

(underlining by us)

7. The only point that poses for consideration is whether the appellate authority constituted under Section 23(1)(b) of the Tamil Nadu Act 18 of 1960 as amended by Act 23 of 1973, is a Court as described in S. 5 of the Limitation Act. No doubt, for arriving at a decision on the aforesaid point, the question whether the authorities constituted under Act 18 of 1960 are persona designate may have to be considered incidentally but not necessarily so. The word Court has not been defined in the Limitation Act 36 of 1963 or in the old Limitation Act 9 of 1908. Either in the General Clauses Act or in the Civil Procedure Code, we do not find any definition of 'Court'. In the Evidence Act and in the Madras Court-fees Act, 1965, we find the definition of Court. In the Indian Penal Code, we find the definition of 'Court of justice'.

8. In Section 3(ii) of the Court-fees Act, we find the following definition-

"In this Act unless the context otherwise requires-'Court' means any Civil, Revenue or Criminal Court and includes a Tribunal or other authority having jurisdiction under any special or local law to decide questions affecting the rights of parties."

9. In Section 3 of the Evidence Act, we find the following definition of Court-

"In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context:-

'Court' includes all Judges and Magistrates and all persons, except arbitrators legally authorised to take evidence."

10. In Section 20 of the Indian Penal Code, we find the following definition-

"The words 'Court of Justice' denote a Judge, who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially."

11. In the absence of the definition of Court in the Tamil Nadu Act 18 of 1960 (Rent Control Act) and in the Limitation Act, the definition of Court in the other enactments will help to some extent as to the intention and purpose regarding the mention of the word 'Court' in Section 5 of the Limitation Act.

12. In the old Indian Limitation Act 9 of 1908, the Preamble runs as follows-

"An Act to consolidate and amend the law for the limitation of suits and for the other purposes;

Whereas it is expedient to consolidate and amend the law, relating to the limitation of suits, appeals and certain applications to Courts; and whereas it is also expedient to provide rules for acquiring by possession the ownership of easements and other property: It is hereby enacted as follows-

13. But we find a change in the Preamble to the new Limitation Act 36 of 1963 which reads as follows-

"An Act to consolidate and amend the law for the limitation of suits and other proceedings and for purpose connected therewith." The new preamble refers to proceedings other than the suits and there is no reference to 'Courts'. According to the oft quoted saying the law is not static and so also the case law.

14. In Section 5 of the Limitation Act also we find the change from the old Limitation Act. In the old Act, Section 5 reads as follows:-

"Any appeal or application for a review of judgment or for leave to appeal or any other application to which this section may be made applicable(by or under any enactment) for the time being in force may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies the Court that he had sufficient cause for preferring the appeal or making the application within such period."

15. The explanation to the section is not necessary for our purpose. But in the new Limitation Act Section 5 reads as follows-

"Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period." In our opinion, Section 5 of the old Limitation Act had restricted its application to certain proceedings, whereas in the new Act 36 of 1963, it has wider application. But the common feature in Section 5 of both the Act is the term 'Court'.

15-A. So far as the appellate authority is concerned, Section 23(1)(b) of Act 18 of 1960, prescribes a period of 15 days, for filing an appeal against an order passed by the Rent Controller and, in computing 15 days period, the time taken to obtain certified copy of the order appealed against shall be excluded. Thus, there is a special period of limitation prescribed in the Rent Control Act, for filing an appeal before the appellate authority. There is no specific exclusion of the application of Section 5 of the Limitation Act anywhere in Act 18 of 1960. Of course, in the proviso to S. 25(2) of the said Act, if the revision application is filed beyond one month from the date on which an order of the appellate authority was passed, the High Court may in its discretion allow further time not exceeding one month for the filing of any such application. Therefore, Section 5 of the Limitation Act cannot be invoked to a revision petition filed in the High Court under Section 25 of the Act 18 of 1960, because the said application of S. 5 is impliedly excluded by prescribing a special period of extension of time for limitation.

16. The other legal aspects, which also have to be borne in mind before proceeding to give our finding are the definitions of authorised officer and Controller in S. 2(1) and (3) respectively and S. 23(1)(a) and (iv) of the present Rent Control Act and the case law. The authorised officer means any officer authorised by the Government under sub-section (1) of Section 3. Sub-section (1) of Section 3 only provides that the officer authorised by the Government for the purpose of certain provisions of the said Act, will be entitled to perform certain functions under the Act. Under Section 2(3) of the Act, the Controller means any person appointed by the Government, by notification to exercise the powers of a Controller under this Act for such area as may be specified in the notification. Under Section 23(1)(a) the Government, may, by general or special order notified in the Tamil Nadu Government Gazette, confer on such officers and authorities as they think fit, the powers of appellate authorities for the purpose of this Act, in such areas and in such classes of cases as may be specified in the order. Under Section 23(4) the decision of the appellate authority and subject to such decision, an order of the Controller shall be final and shall not be liable to be called in question in any Court of law, except as provided in Section 25. One more provision in the Act which has to be borne in mind is Section 18. Under Section 18(1) every order made under Sections 10, 14, 15, 16 and 17 and every order passed an appeal under Section 23 or on revision under Section 25 shall be executed by the Controller, as if such order is an order of a Civil Court and for this purpose, the Controller shall have all the powers of a Civil Court. Under Section 18(2) an order passed in execution under sub-section (1) shall not be subject to any appeal or revision.

17. In this connection, certain rules framed under the Rent Control Act also have to be borne in mind for purposes of proper appreciation of the point in issue. Under R. 14, the appellate authority or the Chief Judge, Court of Small Causes, Madras, may transfer a case from the file of one Controller to that of another Controller within its or his jurisdiction-

(i)for administrative grounds; or

(ii) If the controller on whose file the case is pending is personally interested and reports the matter: or

(iii) If, on the application for transfer by any party in the case the appellate authority or the Chief Judge, Court of Small Causes, Madras. is satisfied that there are sufficient grounds for the transfer.

Rule 16 deals with the procedure for the disposal of appeals under Section 23. Rule 17 deals with the transfer of appeals from one appellate authority to another by the Principal Judge, City Civil Court, Madras, in respect of cases arising in the City of Madras, and the District Court in respect of other cases. Rule 25 relates to time limit for bringing the legal representatives on record in proceedings under the said Act.

18. When the Madras Rent Control Order 1941, was first introduced, under Clause 2 (1) of the Order, it was the Revenue Divisional Officer, who was appointed as the Rent Controller for performing the functions of both the authorised officer and the Rent Controller. It is only after march of time, probably because it was felt that the provisions of the Act should be judicially interpreted by Courts and enforced, the principal District Munsif was appointed as the Rent Controller, though the Revenue Divisional Officer continued to be the Accomodation Controller for performing the function of the authorised officer. Similarly, under Clause 8 of the Order, 1941, the appellate authority was the Collector of the District and later on the Principal Subordinate Judge was vested with appellate powers. Thus, the forum of Rent Control litigation has been gradually shifted from the Revenue Officers to the Courts though the Rent Controller and appellate authority were omitted to be described as Courts in the Act. The fact remains that the Rent Control legislation had undergone several amendments year after year and even Act 18 of 1960 is in existence as amended by Act 1 of 1980 at present. Evidently, there was awakening among all the concerned quarters that to suit the changed conditions and circumstances, the administration of Rent Control law also requires change of hands from non-judicial officers to judicial officers , who are functioning as Courts.

19. Now, we will consider the decisions, which gave rise to this reference. The latest decision has been rendered by Balasubrahmanyan J. in C. R. P. 1667 of 1978, which is contrary to the previous decisions of this Court. The learned Judge has expressed the view that the new Limitation Act 36 of 1963, a central legislation on a concurrent subject has laid down generally the law relating to limitation and that Section 29(2) of the Limitation Act, 1963 however takes note of special or local laws, which might prescribe special periods of limitations not found in the schedule to the Limitation Act. The learned Judge is of the opinion that Section 29(2) saves those special periods of limitations declaring that such special period shall be deemed to have been incorporated in its own schedule and has further provided that to these special periods of limitation prescribed by the special and local laws, the provisions of Sections 4 to 24 of the Indian Limitation Act shall, as a rule apply, except where the special or local law concerned expressly excludes or limits the application of these sections.

20. Section 29(2) of the Indian Limitation Act reads as follows-

"Where any special or local law prescribed for any suit, appeal or application a period of limitation, different from the period prescribed by the schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Section 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which they are not expressly excluded by such special or local law."

21. We have found in Section 23, under which the appellate authority has been constituted and in which special period of limitation has also been prescribed for the filing of an appeal there is no specific exclusion of the application of Section 5 of the Indian Limitation Act, just as there is a specific exclusion in Section 25. Therefore, we are in agreement with the opinion expressed by the learned Judge. It follows, therefore, that Section 29(2) of the Limitation Act governs special periods prescribed in the special and local laws of which the Rent Control Act is one.

22. In interpreting the word 'Court' in Section 5 of the Indian Limitation Act, N. S. Ramaswami J. in 1974 TNLJ 380 has held that the appellate authority under the Rent Control Act is not a Court, since the appellate authority is a persona designate and hence he cannot be regarded as a Court for the purpose of invoking Section 5 of the Indian Limitation Act. In Ganapathi v. Kumaraswami, ,

Gokulakrishnan J. as he then was, has held that the authorities constituted under the Act are persona designate and the provisions of the Limitation Act applicable to proceedings before Courts cannot be invoked before such authorities. But the view expressed by Balasubrahmanyan, J. is that as settled by the Supreme Court in Central Talkies Ltd.v. Dwaraka Prasad, , a persona designate is a person who is pointed out or described as an individual, as opposed to a person ascertained as a member of the class or as filling a particular character, and hence the appellate authority constituted under the Rent Control Act is a Court. Under the Gazette Notification II (i) 3006 (f) dated 30-6-1973, all the Sub Judges in the districts as members of a class have been constituted as the appellate authorities, whereas the city limits all the Judges of the Courts of Small Causes, except the VI, VII and VIII Judges, are constituted as the appellate authorities. Balasubrahmanyan J. has, applying the ratio in the decision in , expressed the view that the appellate authorities constituted as above are Courts. The learned Judge has distinguished the other earlier judicial decisions of this Court on the ground that the learned Judges have not taken the trouble to explain what they meant by a persona designate in so far as the appellate authority constituted under the Rent Control Act is concerned. In our view, the question whether the appellate authorities are persona designate or not is not a criterion for invoking the application of S. 5 of the Limitation Act since the main question to be considered is whether the appellate authority is a Court as defined in Section 5 of the Indian Limitation Act.

23. The Supreme Court in refers to the Full Bench decision of the High Court in Parthasarathy Naidu v. Koteswara Rao, AIR 1924 Mad 561, the question that arose for decision was where, by statute, matters are referred to the determination of a Court of record with no further provision, the necessary implication is that the Court will determine the matters as a Court: whether the right of appeal from the decision of such forum will arise to the party. In the above case, it was decided that where by statute matters are referred to the determination of a Court of record with no further provision, the necessary implication is that the Court will determine the matters as a Court, that its jurisdiction is enlarged with all the incidents of such jurisdiction including the right of appeal from its decision. At page 562, the following observations are found-

"Although no appeal would lie in this particular case because an appeal has been expressly precluded, for by Section 57(2) of the Act, and by the rules "this decision is to be final." But as the word 'Judge' is used and not the word 'Court' one has to look carefully to see whether the word 'Judge' was used for him in his capacity and I think great light is thrown upon this by two other rules. Rule 12 (2) of the Rules for election refers to 'an election or other competent Court' and it is quite clear that it is there referring to a Court of District Judge or Subordinate Judge in certain cases 'to direct any Court subordinate to him to hold the enquiry'. I find it impossible to hold that a reference to a Judge with power to refer to a Court subordinate to him can mean anything else than reference to a Judge sitting as a Judge in the exercise of his ordinary jurisdiction extended for that purpose. For these reasons, in my judgment, the power of revision lies."

24. At page 563 Ramesami J. has observed as follows-

"I agree with my Lord's conclusion in the judgment delivered that, in the light of the rules made under the Act, the District Judge must be considered to be a Court and that, notwithstanding the use of the word "final" in Sec. 57, a revision lies to this Court."

At this juncture, we must refer to the change of law in constituting the authorities under the Rent Control Act from the Revenue Divisional Officer to the District Munsif so far as the Rent Controller is concerned. The inference is that sitting as Rent Controller, the District Munsif and as an appellate authority, the Sub Judge have exercised their power as District Munsif and sub Judge in AIR 1924 Mad 561 (FB). Balasubrahmanyan J. has observed that even if the appellate authorities are held to be not Courts, yet, the principle behind the Section 5 of the Limitation Act must be applied according to the dictates of justice, equity and good conscience and has cited two decisions in support of the above view, viz., Commr. of Sales Tax v. Madanlal & Sons, and Commr. of Sales Tax v. Parson Tools and Plants, (1976) 38 STC 543 the Supreme Court had to consider the validity of the proceedings before the sales tax revisional authority, designated as `Judge revision', functioning under Section 10 of the U. P. Sales Tax Act, 1948. In the above case, the Supreme Court has held that Section 12(2) of the Limitation Act, is applicable to the revision filed by the assessee even though the Supreme Court had held in (1975) 35 STC 413 that the Judge in revision under the U. P. Sales Tax Act was not a Court within the meaning of Section 14 of the Limitation Act. The Supreme Court has applied Section 29(2) of the Limitation Act since the U. P. Sales Tax Act was a special and local Act and since there was no exclusion of the application of Section 12(2) of the Limitation Act in the U. P. Sales Tax Act.

25. In the instant case, the Tamil Nadu Buildings (Lease and Rent Control) Act is a special and local enactment. The application of Section 4 to 24 of India Limitation Act, are not excluded in there application to the appeal filed under Section 23 of the Rent Control Act. Therefore, we are in agreement with Balasubrahmanyan J. on the question that Section 29(2) of the Limitation Act enables the application of Section 4 to 24 of the said Act to the Rent Control Act.

26. Learned counsel for the petitioner has cited a decision in Thakur Jugal Kishore Sinha v. Sitamarhi Central Co-op. Bank, in support of the decision of Balasubrshmanyan, J. In the above case, the point that fell for consideration inter alia was whether the Assistant Registrar of Co-operative Societies was a Court within the meaning of Contempt of Courts Act, 1952, and if a Court has held that the Assistant Registrar was functioning as a Court in deciding the dispute in question and his adjudication was not based upon a private reference nor was his decision arrived at in a summary manner, but with all the paraphernalia of a Court and the powers of an ordinary Civil Court of the land. At page 171 (of SCR):(at page 1499 of AIR) the observation in previous judicial decision have been reproduced and run as follows--

"It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial tribunal, power to give a decision or a definite judgment, which has finality and authorativeness which are the essential tests of a judicial pronouncement.'

In the same page at the end, the following observation made in Brajnandan Sinha v. Jyoti Narain,have been

reproduced with approval (at p. 1500):

"It may be stated broadly that what distinguishes a Court from a quasi judicial tribunal is that it is charged with a duty to decide disputes in a judicial manner and declare the rights of parties in a definitive judgment. To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it, and it also imports an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law. When a question therefore arises as to whether an authority created by an Act is a Court as distinguished from a quasi-judicial tribunal, what has to be decided is whether having regard to the provisions of the Act it possesses all the attributes of a Court."

27. We have already reproduced some of the important provisions in the Indian Limitation Act and the Rent Control Act and how the decisions given by the Rent Controller and the appellate authority have been given a finality under Section 23(4). Though the authorities are not described as Courts the procedure and final decisions are akin to those of a Court, as observed by the Supreme Court in . The above view is in tune with the definition of the word `Court' found in Section 3 of the Madras Court-fees Act, Section 3 of the Evidence Act and Section 20 of the Indian Penal Code.

28. In the old Limitation Act the preamble and Section 29(2) were in conservative from so far as the application of the provisions of the Limitation Act to the special or local laws. The old section reads as follows--

"Where any special or local law prescribes for any suit , appeal or application a period of limitation different from the period prescribed therefore by the First Schedule, the provisions of Section 3 shall apply, as if such period were prescribed therefore in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law--(a) the provisions contained in S. 4, Section 9 to 18 and S. 23 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and (b) the remaining provisions of this Act shall not apply."

29. But under the new Limitation Act 36 of 1963, we find the following provisions--

"Where any special or local law prescribed for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provision of Section 3 shall apply as if such period were the period prescribed by the schedule and for the purposes of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Section 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which they were not expressly excluded by such special or local law." In the above new Act Section 29(2) there is no restriction as found in the old Act Section 29(2)(b). thus, Section 4 to 24 are made applicable to the period of limitation prescribed for any suit, appeal or application by any special or local law, whereas under the old Section 29(2) only Ss. 4, 9 to 18 and 22 are made applicable to the special or local law. It is significant to note that the scope and the application of Section 29(2) of the new Indian Limitation Act have not been considered in 1974 TNLJ 380 and , which have

decided that Section 5 of the Indian Limitation Act cannot be invoked to the proceedings under the Rent Control Act.

30. Here again, we are inclined to hold that the principle of liberal and benevolent construction of the statute is also attracted. The Indian Limitation Act is not applicable to specified Courts or tribunals alone. Moreover, the new Indian Limitation Act was alive to the changed circumstances and causes due to developed litigation and advancement in the litigious filed of life. That is evident from the change in the preamble to the new Limitation Act, 1963, which refers to not only suits, but also other proceedings, whereas the old Act contained the words `for other purposes'. The term `other proceedings' will, in our opinion, include and embrace proceedings under the special and the local laws. If the intention of the Parliament was to restrict the Limitation Act only to the Civil Courts, it would have certainly defined the `Court' in the Limitation Act. The Parliament has brought: out changes in the preamble and also to Sections 5, 12, 14, 29 etc.

31. In the decision in Commr, of Sales Tex v. Madanlal, the Supreme Court has held that the provisions of

Section 12(2) of the Limitation Act to revision petition filed under Section 10 of the U. P. Sales Tax Act shall apply and to the extent to which they are not expressly excluded by such special or local law and there is nothing in the U. P. Sales Tax Act expressly excluding the application of Section 12(2) of the Limitation Act. At page 685, the enabling provision of S. 29(2) of the new Limitation Act for the purpose of invoking S. 12(2) to the revision petition before the `judge revision' has been relied on for arriving at the decision.

32. Learned counsel for the respondents has cited a decision in K. R. Sankar v. Buvanambal Ammal,in which it has been

decided by the Division Bench of the Madras High Court that (at p. 369):--

"When the investiture by the notification is specifically on the principal District Munsif, it cannot be said that because in other respects the Additional District Munsif has the same powers as the District Munsif, the former could also function as a Controller." In the above ruling, the point in issue before us was not raised, considered and decided.

33. The next ruling cited by the learned counsel for the respondents is the decision in Coonoor Mosque v. Abdul Hamid Sahib, (1960) 1 Mad LJ 135, in which it was held that the court fee payable on application under S. 7(2) of the Madras Buildings (Lease and Rent Control) Act, 1949 made before the Subordinate Judge as Rent Controller is not to be determined with reference to the office which the officer, who has been appointed as the Controller holds, nor could the Rent Controller (even though he may be a judicial officer) be deemed a Court for purposes of Court-fee. The above decision is not helpful to us since there was not much of discussion as to what is a Court for the purpose for the Indian Limitation Act and since the subsequent Supreme Court's decision on the point in issue directly apply.

34. Learned counsel has also cited the decision in Seethalakshmi Ammal v. Rajammal, (1965) 1 Mad LJ 287, wherein it was held by a single Judge of this High Court that the Rent Controller is not a Court and the Civil Procedure Code is not applicable and that, therefore, the Rent Controller has no power to appoint a Commissioner to inspect the premises. For the same reasons on which we have distinguished (1960) 1 Mad LJ 135, we distinguish the above decision also as not applicable.

35. In the decision in Town Municipal Council v. Labour Court, , the Supreme Court has laid down that Art. 137 of the Limitation Act 1963 governs only applications presented to Courts under the Civil and Criminal Procedure Codes, that the use of the word 'other' in the first column of the Article giving the description of the application as "any other application for which no period of limitation is provided elsewhere in this division", indicated that the interpretation put by the Supreme Court inMulchand and Co. v. Jawahar Mills, on Art. 181 of the 1908 Act, on the basis of ejusdem generis should be applied to Art. 137 of 1963 Act also, the language of which is only slightly different from that of Art. 181 of the 1908 Act, and that the interpretation of words 'any other application' must refer only to applications under the Code of Civil Procedure and the Criminal Procedure Code. To the same effect is the decision of the Supreme Court in Nityananda v. L. I. C. of India, , in which it has been held that the scheme of the Indian Limitation Act, 1963 is that it only deals with applications to ordinary Courts and that as the Labour Court is not such a Court, it cannot be held that the applications under S. 33-C(2) of the Industrial Disputes Act are governed by Act. 137 of the Limitation Act. In our view, the above rulings which were given in respect of applications under the Industrial Disputes Act cannot be extended to appeal, which are governed by the Madras Buildings (Lease and Rent Control) Act, since the functions of the Tribunals and Courts constituted under the Industrial Disputes Act are to investigate and settle (adjudication) industrial disputes and for other purposes, as the preamble to that Act goes.

36. Learned counsel for the respondents has cited the decision in J. Fernandez v. A. K. Umma, , wherein the Full Bench of the Kerala High Court has held that the Limitation Act, 1963, applies only to Courts and prescribes periods of limitation in respect of suits, appeals and applications filed in Court, that Section 18 of the Kerala Buildings (Lease and Rent Control) Act is clear that the appellate authority constituted under it is not a Court but only an authority persona designate and that, therefore Sec. 5 of the Limitation Act was not applicable to proceedings before the appellate authority. It is seen that in the dissenting judgment, Viswanatha Iyer, J. has held that the provisions contained in Sec. 5 of the Limitation Act applies to the case by the force of S. 29(2) and that Section 5 is not excluded by any provision of the Rent Control Act. The learned Judge has relied on the decision in Town Municipality Council v. Labour Court, . It is seen at page 165 of the Full Bench

decision that the majority view was based upon the immunition of S. 31 found in the previous Act to that of the current Kerala Buildings (Lease and Rent Control) Act, 2 of 1965 which had specifically provided that the provisions of S. 5 of the Indian Limitation Act, 1908 shall apply to all proceedings under the previous Kerala Act. In our view, the Full Bench decision of the Kerala High Court is not applicable to the present case, in view of the above mentioned Supreme Court's decision reported inThakur Jugal Kishore v. Sitamarhi Central Co-op Bank Ltd., and subsequent decisions. Moreover, in the Full Bench decision of the Kerala High Court it was not considered whether the appellate authority is not functioning as a Court within the definition of Court in the Indian Limitation Act, 1963.

37. In the decision in Rayala Corporation (Madras) v. Syed Bawker and Co., , the Division Bench of the Madras High Court has held in construing Ss. 4 and 12 (E) and R. 24 of the then Madras Buildings (Lease and Rent Control) Act, XXV of 1949, that the Controllers appointed under the Act, though persons belonging to the judicial service, they are not Courts governed by the provisions of the Code of Civil Procedure; nevertheless having regard to the several provisions of the Act relating to service of summons and hearing of parties etc., the Controllers or the Appellate Authority under the Act have the power to summon witnesses, other than public servants. It has further held that the expression 'require the attendance' in sub-rule (7) of R. 24, is wide enough to include requiring attendance by summoning. We have already observed that the law and the judicial decisions are not static, but have been changing and it is after the decision of the above Division Bench of the Madras High Court the Limitation Act has undergone material change. Furthermore, the above Division Bench has not considered whether the appellate authority under the Madras Buildings (Lease and Rent Control) Act, 1960 is a Court as defined under Section 3 of the latest Indian Limitation Act.

38. On the other hand, the trend of the latest judicial decisions lends support to the view expressed by the Supreme Court in the application of S. 29(2) to the authorities constituted under the special enactment for doing functions of a Court in tune with the definition of the Court or Court of justice which have been discussed supra.

39. In the decision in Rafeeq Ahmed Sahib v. Istiaq Ahmed, (1975) 2 Mad LJ 4: (1975 Cri LJ 1470), it has been held that Sec. 195(2), Criminal P. C. specifically excludes a Registrar or a Sub-Registrar under the Indian Registration Act from the purview of Court and that therefore it is evident from the language of S. 195(2) that it includes the Rent Controller and the appellate authority within the definition of the term 'Court' as given in S. 195(2) as those Tribunals have far greater trappings of a Court than a Registrar or Sub-Registrar under the Indian Registration Act.

40. In the decision in K. Chalapathi Rao v. B. N. Reddy, (1968) 2 Andh WR 587, it has been held for the purpose of Section 3 of the Contempt of Courts Act, that the Rent Controller is a Court subordinate to High Court falling under S. 3 of the Act and that refusal to receive the injunction order of the Rent Controller constituted contempt of Court.

41. In the result, we hold that for the purpose of Ss. 3, 5, and 29(2) of the Indian Limitation Act, the appellate authority is a Court and that Sec. 5 of the Limitation Act is applicable to an appeal preferred by the petitioner herein before the appellate authority, constituted under S. 23(1) (b) of the Madras Buildings (Lease and Rent Control) Act, 18 of 1960.

42. Accordingly, we allow the revision petition and set aside the order of the appellate authority who will restore the I. A. 458 of 1980 and dispose of the same on merits. Considering the intricate question of law involved, the parties shall bear their respective costs of this revision proceedings.

43. Revision allowed.


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