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Rethinasamy Vs. Komalavalli and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1982)2MLJ406
AppellantRethinasamy
RespondentKomalavalli and anr.
Cases ReferredK. Chalapathi Rao v. B.N. Reddy
Excerpt:
- order1. the question that arises for decision in this civil revision petition is, whether section 5 of the limitation act, 1963 applies to appeals preferred under section 23(1)(b) of the tamil nadu buildings (lease and rent control) act (xviii of 1960) as amended by act xxiii of 1973 (hereinafter referred to as the act). the facts are not in controversy. in r.o.c.p. no. 18 of 1979 on the file of the rent controller (district munsif), sirkali, the first respondent herein obtained an order of eviction against the petitioner herein and his wife, the second respondent herein, on the ground that they had committed wilful default in the payment of rents and also on the ground of personal occupation. the order of eviction was passed on 11th april, 1980, and an appeal against this order of.....
Judgment:
ORDER

1. The question that arises for decision in this civil revision petition is, whether Section 5 of the Limitation Act, 1963 applies to appeals preferred under Section 23(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act (XVIII of 1960) as amended by Act XXIII of 1973 (hereinafter referred to as the Act). The facts are not in controversy. In R.O.C.P. No. 18 of 1979 on the file of the Rent Controller (District Munsif), Sirkali, the first respondent herein obtained an order of eviction against the petitioner herein and his wife, the second respondent herein, on the ground that they had committed wilful default in the payment of rents and also on the ground of personal occupation. The order of eviction was passed on 11th April, 1980, and an appeal against this order of eviction was filed before the Appellate Authority (Sub-Court, Mayuram) on 18th June, 1980. It is not disputed that a delay of 28 days had occurred in preferring the appeal. In I.A. No. 458 of 1980, the petitioner prayed that the delay in filing the appeal should be condoned. In the affidavit in support of the application, the petitioner had attempted to explain the delay that had occurred in the filing of the appeal. In the course of the counter filed1 by the first respondent herein, the attempted explanation of the petitioner for the delayed filing of the appeal before the Appellate Authority was disputed and a further objection was also raised that Section 5 of the Limitation Act is inapplicable to appeals under Section 23(1)(b) of the. Act.

2. The Appellate Authority (Subordinate Judge) Mayuram, who enquired into this application, held relying upon S. Ganapathy v. N. Kumaraswami : AIR1975Mad383 and J. Easwaran v. Palaniammal (1974) T.N.L.J. 380, that Section 5 of the Limitation Act, will not have any application as far as the provisions of the Rent Control Act are concerned. In this view, the merits were not gone into, but the application was dismissed. It is the correctness of this order that is challenged in this civil revision petition.

3. The learned Counsel for the petitioner contends on the strength of the decision in E.K. Venkaimarban v. Dakshinamurthy (1981) 2 M.L.J. 275 : 94 L.W. 243, that Section 5 of the Limitation Act, would be applicable to appeals filed under Section 23(1)(b) of the Act. On the other hand, the learned Counsel for the first respondent, besides contending that on the merits the petitioner has not established a case for excusing the delay, relied upon the judgment of N.S. Ramaswami, J., in J. Easwaran v. Palaniammal (1974) T.N.L.J. 380, and the decision of Gokulakrishnan, J., (as he then was) in S. Ganapathy v. N. Kumaraswami : AIR1975Mad383 , for the position that Section 5 of the Limitation Act, 1963, will not apply to appeals under Section 23(1)(b) of the Act.

4. In the first of these decisions in J. Easwaran v. Palaniammal (1974) T.N.L.J. 380, N.S. Ramaswami, J., had taken the view that the Rent Controller and the Appellate Authority under the Act are not Courts, but only persona designata and, therefore, Section 5 of the Limitation Act cannot be invoked before those authorities which are not Courts. In S. Ganapathy v. N. Kumaraswami : AIR1975Mad383 , Gokulakrishnan, J. (as he then was), referred to the judgment in J. Easwaran v. Palaniammal (1974) T.N.L.J. 380, and ultimately held at page 175 that the authorities constituted under the Act are persona designata and the provisions of the Limitation Act applicable to proceedings before Courts cannot be invoked before such authorities. The learned Judge has also expressed the view that the Act is a compact Code by itself providing for the period of limitation for preferring appeals and that the provisions of Section 5 of the Limitation Act cannot be applied to proceedings thereunder. In doing so, the learned Judge considered the Full Bench decision of the Kerala High Court in J. Fernandez v. A.K. Umma : AIR1974Ker162 , and felt inclined to follow the ratio in that case in preference to the decision of a Division Bench of the Calcutta High Court in Imperial Bucket Co. v. Sm. Bhagwati Basik : AIR1954Cal520 , and that of the Bombay High Court in Vasanji Chela and Co. v. State of Maharashtra (1968) 22 S.T.C. 104.

5. In E.K. Venkaimarban v. Dakshinamurthy : (1981)1MLJ275 , Balasubrahmanyan, J., struck a totally different note. According to the learned Judge, neither principle nor precedent stood in the way of holding that the Appellate Authorities constituted under Section 23(1)(b) of the Act are Courts within the meaning of Section 5 of the Limitation Act, 1963. In addition, the learned Judge further proceeded to hold that by reason of Section 29(2) of the Limitation Act, 1963, Section 5 of the Limitation Act would be applicable and its applicability not having been excluded by any of the provisions of the Act, the Appellate Authority will have the power to entertain the application under Section 5 of the Limitation Act to condone the delay. Thus, the view expressed by Balasubrahmanyan, J., is not in conformity with the earlier expression of opinion in this regard by this Court including that of N.S. Ramaswami, J., in J. Easwaran v. Palaniammal (1974) T.N.L.J. 380, and Gokulakrishnan, J., (as he then was) in S. Ganapathy v. N. Kumaraswami : AIR1975Mad383 . Indeed, Balasubrahmanyan, J., has pointed out that the decision of the Supreme Court in Central Talkies Limited v. Dwaraka Prasad : 1961CriLJ740 , renders all the earlier decisions of this Court incorrectly decided when they had laid down that the Appellate Authority under Section 23 of the Act is persona designata.

6. Having regard to the contradictory and conflicting views expressed by N.S. Ramaswami, J., and Gokulakrishnan, J., (as he then was) in the decisions referred to earlier on the one hand and by Balasubrahmanyan, J., in the decision referred to later on the other hand, it is desirable that this important question which is likely to arise frequently, namely, the applicability of Section 5 of the Limitation Act, 1963 to appeals under Section 23(1)(b) of the Act is authoritatively decided by a Division Bench of this Court in order to lay down the correct position and also to be of guidance to the authorities under the Act. Under these circumstances, I direct that the papers in the above civil revision petition be placed before My Lord the Officiating Chief Justice for orders regarding the pesting of the above civil revision petition before a Bench for disposal.

In pursuance of the aforesaid reference this petition coming on for bearing on Wednesday the 22nd April, 1981, in the presence of the said Advocate and having stood over for consideration till this day, the Court made the following Order:

The Judgment of the Court was delivered by Fakkir Mohammad, J.--This matter has come before the Bench on a reference by Ratnam, J., on account of conflicting views expressed in the judgments of Single Judges1, namely, by Balasubrahmanyan, J., In Venkaimarban v. Dakshinamoorthi (1981) 2 M.L.J. 275, by N.S. Ramaswami, J,, in J. Easwaran v. Palaniammal (1974) T.N.L.J. 380 and by Gokulakrishnan, J. (as he then was), in S. Ganapathy v. Kumaraswamy : AIR1975Mad383 , on the important question whether Section 5 of the Limitation Act, 1963 applies to appeals preferred under Section 23(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control Act (XVIII of 1960 (as amended by Act XXIII of 1973).

7-9. The first respondent herein obtained an order of eviction against the petitioner and his wife, who, is the second respondent herein in R.C.O.P. No. 18 of 1979 on the file of the Rent Controller (District Munsif, Sirkali). The eviction order was passed on 11th April, 1980. The petitioner filed an appeal against the said order before the appellate authority, Sub-Court, Mayuram) on 18th June, 1980, after a delay of 28 days. The petitioner filed I.A. No. 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 Section 23(1)(b) of the Act, XVIII of 1960.

10. The Appellate Authority took up the question whether Section 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 : AIR1975Mad383 and Easwaran v. Palaniammal (1974) T.N.L.J. 380, the appellate authority gave the finding that Section 5 of the Limitation Act will not have any application in respect of application filed under the Tamil Nadu Act XVIII of 1960. Therefore, he did not go into the merits of the grounds stated for condoning the delay of 28 days.

11. 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 30th January, 1980 of Balasubrahmanyan, J., in Venkaimarban's case : (1981)1MLJ275 , holding that Section 5 of the Limitation Act, would be applicable to appeals filed under Section 23(1)(b) of the said Act, was relied on by the petitioner. The decisions in Easwaran's case (1974) T.N.L.J. 380, Ganapathy's case : AIR1975Mad383 , 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.

12.In Easwaran's case (1974) T.N.L.J. 380, N.S. Ramaswami, J., had taken the view that the Rent Controller and the Appellate Authority acting under the Act XVIII of 1960, are not Courts, but only' persona designata. In Ganapathy's case : AIR1975Mad383 , Gokulakrishnan, J. (as he then was), has also held that the authorities constituted under that Act are persona designata and, hence, the provisions of the Limitation Act cannot be invoked before these authorities.

Section 5 of the Limitation Act XXXVI of 1963, reads as follows:

Any appeal or any application, other than an application under any of the provisions of Order 21 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.

(Italics by us.)

13. The only point that poses for consideration is whether the appellate authority constituted under Section 23(1)(b) of the Tamil Nadu Act (XVIII of 1960) (as amended by Act XXIII of 1972), is a Court as described in Section 5 of the Limitation Act. No doubt, for arriving at a decision on the aforesaid point, the question: whether the authorities constituted under Act (XVIII of 1960) are persona designata may have to be considered incidentally but not necessarily so. The word Court has not been defined in the Limitation Act (XXXVI of 1963) or in the old Limitation Act (IX 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.'

14. 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 and1 includes a Tribunal or other authority having jurisdiction under any special or local law to decide questions affecting the rights of parties.

15. 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 authorized to take evidence.

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.

In the absence of the definition of Court in the Tamil Nadu Act (XVIII of 1960) (Rent Control Act), and in the Limitation Act, the definition of Court in the other enactment 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.

16. In the old Indian Limitation Act (IX of 1908) the Preamble runs as follows:

An Act to consolidate and amend the law for the limitation of suits, and for 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:

(Italics by us.)

17. But we find a change in the preamble to the new Limitation Act (XXXVI of 1963) which reads as follows:

An Act to consolidate and amend the law fox the limitation of suits and other proceedings and for purposes connected therewith.

18. 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.

19. 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 not preferring the appeal of making the application within such period.

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 21 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.

20. In our opinion, Section 5 of the old limitation Act had restricted its application to certain proceedings, whereas in the new Act (XXXVI of 1963) it has wider application. But the common feature in Section 5 of both the Acts is the term 'Court'.

21. So far as the appellate authority is concerned, Section 23(1)(b) of the Act (XVIII 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 (XVIII of 1960). Of course, in the proviso to Section 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 (XVIII of 1960), because the said application of Section 5 is impliedly excluded by prescribing a special period of extension of time for limitation.

22. 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 Sections 2(1) and 3 respectively, and Section 23(1)(a) and (b) 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 clauses of cases as may be specified in the order. Under Section 3(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 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 on 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.

23. 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 Rule 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 an 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.

24. When the Madras House 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 en forced, the Principal District Munsif was appointed as the Rent Controller, though the Revenue Divisional Officer continued to be the Accommodation 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 has undergone several amendments year after year and even Act XVIII of 1960 is in existence as amended by Act I 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 required change of hands from non-judicial officers to judicial officers, who are functioning as Courts.

25. Now, we will consider the decisions, which gave rise to this reference. The latest decision hay been rendered by Balasubrahmanyan, J., in C.R.P. No. 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 (XXXVI 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 limitation 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 limitation 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. 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 Sections 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.

(Italics by us.)

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 the local laws of which the Rent Control Act is one.

26. In interpreting the word 'Court' in Section 5 of the Indian Limitation Act, N.S. Ramaswamy, J., in Easwaran's case (1974) T.N.L.J. 380, has held that the appellate authority under the Rent Control Act is not a Court, since the appellate authority is a persona designata and hence he cannot be regarded as a Court for the purpose of invoking Section 5 of the Indian Limitation Act. In Ganapathy v. Kumaraswamy : AIR1975Mad383 , Gokulakrishnan, J., as he then was, has held, that the authorities constituted under the Act are persona designata 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 : 1961CriLJ740 , a persona designata 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 30th June, 1973, all the Sub-Judges in the Districts as members of a class have been constituted as the appellate authorities, whereas in the city limits all the Judges of the Court 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 Dwaraka Prasad's case : 1961CriLJ740 , 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 designata 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 designata or not is not a criterion for invoking the application of Section 5 of the Indian Limitation Act. since the main question to be considered is whether the appellate authority is a Court as described in Section 5 of the Indian Limitation Act.

27. The Supreme Court in Dwaraka Prasad's case : 1961CriLJ740 , refers to the Full Bench decision of the High Court in Parthasarathy Naidu v. Koteswara Rao I.L.R. 47 Mad. 369 : 46 M.L.J. 201 : 19 L.W. 402 : A.I.R. 1924 Mad. 561 (F.B.). In Koteswara Rao's case I.L.R. 47 Mad. 369 : 46 M.L.J. 201 : 19 L.W. 402 : A.I.R. 1924 Mad. 561 (F.B.), 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 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 form 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, as Judge or in his personal 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.

At page 363, Ramesam, 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 Section 57, a revision petition 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 accordance with the ratio in the decision in Parthasarathy Naidu's case I.L.R. 47 Mad. 369 : 46 M.L.J. 201 : A.I.R. 1924 Mad. 561. Balasubrahmanyan, J., has observed that even if the appellate authorities are held to be not Courts, yet the principle behind 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., Commissioner of Sales-tax v. Parson Tools and Plants (1975) 35 S.T.C. 413 : 1975 Tax. L.R. 1529 and Commissioner of Sales-tax v. Madanlal and Sons (1976) 38 S.T.C. 543. In Madanlal and Sons case (1976) 38 S.T.C. 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 Uttar Pradesh 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 Commissioner of Sales-tax v. Parson Tools and Plants (1975) 35 S.T.C. 413 : 1975 Tax. L.R. 1529, that the Judge in revision under the Uttar Pradesh 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 Uttar Pradesh 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 Uttar Pradesh Sales Tax Act.

28. In the instant case, the Tamil Nadu Buildings (Lease and Rent Control) Act, is a special and local enactment. The application of Sections 4 to 24 of Indian Limitation Act are not excluded in their 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 Sections 4 to 24 of the said Act to the Rent Control Act.

29. Learned Counsel for the petitioner has cited a decision in Jugal Kishore Singa v. Co-operative Bank : 1967CriLJ1380a , in support of the decision of Balasubrahmanyan, J., In the above case the point that fell for consideration inter alia was whether the Assistant Registrar of Cooperative Societies was a Court within the meaning of Contempt of Courts Act, 1952, and if a Court, whether it was a Court subordinate to the Patna High Court. The Supreme 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, the observations 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 authoritativeness which are the essential tests of a judicial pronouncement.

In the same page at the end, the following observations made in Brajnandan Singha v. Jyoti Narain : 1956CriLJ156 , have been reproduced with approval.

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 declares 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 on 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.

We have already reproduced some of the important provisions in the Indian Limitation Art 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 that of a Court, as observed by the Supreme Court in Jugal Kishore Singa's case (1967) 3 S.C.R. 163 : (1967) L.W. (Crl.) 105 : A.I.R. 167 S.C. 1494. 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.

30. In the old Limitation Act the preamble and Section 29(2), were in conservative form 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 therefor by the First Schedule, the provisions of Section 3 shall apply, as if such period were prescribed therefor 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 Section 4,. Sections 9 to 18 and Section 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.

But under the new Limitation Act (XXXVI 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 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 Sections 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, Sections 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 Sections 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 Easwaran case (1974) T.N.L.J. 380 and Ganapathy case : AIR1975Mad383 , which have decided that Section 5 of the Indian Limitation Act cannot be invoked in the proceedings under the Rent Control Act.

31. 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 field 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 word '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.

32. In the decision in Commissioner of Sales-tax v. Madanlal : [1977]1SCR683 , the Supreme Court has held that the provisions of Section 12(2) of the Limitation Act to revision petitions 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 Section 29(2) of the new Limitation Act for the purpose of invoking Section 12(2) to the revision petition before the 'judge revision' has been relied on for arriving at the decision.

33. Learned Counsel for the respondents has cited a decision in K.R. Sankar v. Bavanambal Ammal : AIR1971Mad368 , in which it has been decided by the Division Bench of the Madras High 'Court that:

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.

34. The next ruling cited by the learned Counsel for the respondents is: the decision in Coonoor Mosque v. Abdul Hamid Sahib, in which it was held that the court-fee payable on application under Section 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 of the Indian Limitation Act and since the subsequent Supreme Court's decisions on the point in issue directly apply.

35. Learned Counsel has also cited the decision in Seethalakskmi Ammal v. Rajammal (1965) 1 M.L.J. 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 Coonoor Mosque's case ( : (1969)IILLJ651SC , we distinguish the above decision also as not applicable.

36. In the decision in Town Municipal Council v. Labour Court : (1969)IILLJ651SC , the Supreme Court has laid down that Article 137 of the Limitation Act, 1963, governs only applications presented to Courts under the Civil and Criminal Procedure Code, 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 Legislature wanted to make it clear that the interpretation put by the Supreme Court in Mutchand and Co. v. Jawahar Mills : [1953]4SCR351 , on Article 181 of the 1908 Act on the basis of ejusdem generis should be applied to Article 137 of 1963 Act also, the language of which is only slightly different from that of Article 181 of the 1908 Act, and that the interpretation of the 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. Life Insurance Corporation : (1969)IILLJ711SC , 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 Section 33-C(2) of the Industrial Disputes Act are governed by Article 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 appeals, 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 the Act goes.

37. Learned Counsel for the respondents has cited the decision in J. Fernandez v. A.K. Umma : AIR1974Ker162 , 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 designata and that, therefore, Section 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 Section 5 of the Limitation Act applies to the case by the force of Section 29(2) and that Section 5 is not excluded by any provision of the Rent Control Act. The learned Judge has relied upon the decision in Athani Municipality v. Labour Court (1970) 1 S.C.J. 1 : A.I.R. 1969 S.C. 335. It is seen at page 165 of the Full Bench decision that the majority view was based upon the immunity of Section 31 found in the previous Act to that of the current Kerala Buildings (Lease and Rent Control) Act (II of 1965) which had specifically provided that the provisions of Section 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 in Jugal Kishore v. Sitamarhi Central Co-operative Bank Limited : 1967CriLJ1380a , 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.

38. In the decision in Rayala Corporation (Madras) v. Syed Rawker and Co. : AIR1957Mad385 , the Division Bench of the Madras High Court has held in construing Sections 4 and 12-E and rule 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 Code of Civil Procedure, and that 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 told that the expression 'require the attendance in Sub-rule (7) of Rule 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.

39. 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 Section 29(2) to the authorities constituted under the special enactment for doing functions of a Court in tune with the definitions of the Court or Court of justice which have been discussed supra.

40. In the decision in Rafeeq Ahmed Sahib v. Istiaq Ahmed : (1975)2MLJ4 , it has been held that Section 195(2), Criminal Procedure Code, 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 Section 195(2) that it includes the rent-controller and the appellate authority within the definition of the term 'Court' as given in Section 195(2) as these tribunals have far greater trappings of a Court than a Registrar or Sub-Registrar under the Indian Registration Act.

41. In the decision in K. Chalapathi Rao v. B.N. Reddy (1968) 2 A.W.R. 587, it has been held for the purpose of Section 3 of the Contempt of Courts Act, that the Rent Controller is a Court sub-ordinate to the High Court falling under Section 3 of the Act and that refusal to receive the injunction order of the Rent Controller constituted contempt of Court.

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

43. Accordingly, we allow the revision petition and set aside the order of the appellate authority who will restore the I.A. No. 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.


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