ARYA VYSIA SAMAJAM Vs. MURUGESA MUDALIAR

JUDGEMENT

(1.) THESE matters have come up before this Bench on a reference by Nainar Sundaram, J. on account of conflicting views expressed in the judgments of learned single Judges, namely: ? 1. M. M. Ismail, J. (as he then was) in Chakrapani v. Gengammal 1 , 2. Maheswaran, J., in Rathnam T.V. v. P. Janakiraman 2 , 3. Ratnam, J. in Sakthhel v. R.S. Govindan 3 , and 4. K. M. Natarajan, J. in K. Namashivayam v. C. S. Ramakrishna 4 . C.M.P. SR. Nos. 10980 and 10981 of 1985 in C.R.P. No. 161 of 1983, on the important question whether S. 5 of the Limitation Act 1963 applies to proceedings to bring on record legal representatives in revision before this court under R. 25 of the Tamil Nadu Buildings (Lease and Rent Control) Rules 1974. For a proper appreciation of the facts, it is necessary to quote the order of reference made before us which reads as follows: ?The above (C.M.P. S.R. Nos. 101067 to 101069 of 1987) are proceedings taken in relation to the demise of the parties in the main revisions. Proceedings have been taken to bring on record the legal representatives and for ancillary reliefs as well as for condonation of delay in taking steps beyond time. Objections are being taken by the opponents on the ground that as per R. 25 of Tamil Nadu Buildings (Lease and Rent Control) Rules, 1974, hereinafter referred to as the Rules, framed pursuant to the powe r conferred by S. 34 of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of I960, hereinafter referred to as the Act, the time limit for taking steps is 30 days either from the date of the demise of the person concerned or from the date of having knowledge of such demise. The office of this Court is experiencing difficulties in processing the present proceedings in view of pronouncements of this Court which have expressed Conflicting views on the question of condonation of delay in taking steps. There are three pronouncements, all of learned single Judges of this Court, which take the view that R. 25 of the Rules is mandatory and there could not be entertaining of proceedings to bring on record the legal representatives of a deceased party in a proceeding under the Acts beyond the time prescribed in R. 25 of the Rules (vide (1) Chakrapani v. Gengammal 1 , (2) Ratnam, TV v. Janakiraman 2 , (3) Sakthivel v. R.S. Govindan 3 .?

(2.) THERE is a pronouncement of a learned single Judge of this Court taking a contrary view in K. Namasivayamv. C.S. Ramakrishna 4 C.M.P. S.R. Nos. 10980 and 10981 of 1985 in C.R.P. No. 161 of 1983, order dated 16-10-1985. In this pronouncement, the learned single Judge has opined that S. 5 of the Limitation Act could be invoked to proceedings to bring on record the legal representatives in a revision before this Court, even though the proceedings were taken beyond the time prescribed by R. 25 of the Rules.

(3.) C.R.P. S.R. No. 24937 of 1984 in C.R.P. No. 2941 of 1983, is stated to be a petition to bring on record the legal representatives of the deceased original petitioner and it is stated to have been preferred on 28-2-1984 and it is further stated that the papers relating to the same are not traceable and hence the fresh proceedings as per C.M.P.S.R. Nos. 68643 to 68645 of 1988 were filed subsequently. The counsel appearing for the petitioners in this matter shall reconstruct the papers in C.M.P.S.R. No. 24937 of 1984 in C.R.P. No 2941 of 1983 and place them for reference before the appropriate Bench before which the matters may go. But the office of this Court need not postpone the placing of the papers in the above matters other than the papers in C.M.P. S.R. No. 24937 of 1984 in C.R.P. No. 2941 of 1983 before My Lord, the Officiating Chief Justice, for referring the matters to an appropriate Bench.? For a proper appreciation of the question involved in these revisions, it is also worthwhile to extract the relevant provisions of the Rules and Sections in the relevant Rules and Act. R. 25 of the Tamil Nadu Buildings (Lease and Rent Control) Rules 1974, hereinafter referred to as the Rules, reads as follows:? ?25. Time limit for bringing the legal representatives on recordiin proceedings: Every application for making the legal representative or representatives of a deceased person, party to a proceeding under the Act, shall be preferred within one month from the date of the death of the person concerned or the date of having knowledge of the death of the person concerned.? The relevant Section which deals with proceedings by or against legal representatives is S. 27 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 18 of 1960, hereinafter referred to as the Act, which reads as follows: ??27. Proceedings by or against legal representatives;-(1) Any application made, appeal preferred, or proceeding taken, under this Act by or against any person, may in the event of his legal representatives; (2) Where any application, appeal or other proceeding could have been made, preferred or taken under this Act by or against any person, such application, appeal or other proceeding may, in the event of his death, be made, preferred or taken by or against his legal representatives.? S. 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 O. 21 of the C.P.C., 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.? S. 29(2) of the Indian Limitation Act reads as follows: ?Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the pertod prescribed therefor by the First Schedule, the provisions of S. 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 the provisions contained in Ss. 4. 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 sueh special or local law.? It is to be noted that there is no specific exclusion of the application of S. 5 of the Limitation Act anywhere in the Tamil Nadu Buildings (Lease and Rent Control) Act, Act 18 of 1960, except with reference to the delay in filing revision before the High Court under S. 25. In the Proviso to S. 25(2) of the Act it is stated that if the revision is fiied beyond one month from the date of the order of the Appellate Authority, the High Court may in its discretion allow further time not exceeding one month for filing any such application. In view of the said Proviso, where a discretion has been given for extending time by another one month and provision is made for extending the time, S. 5 of the Limitation Act cannot be invoked when the revision is filed in the High Court under S. 25, because the said application of S. 5 of the Limitation Act is impliedly excluded by prescribing a special period of extension of time for limitation. The scope of applicability of S. 5 of the Limitation Act to the proceedings under the Tamil Nadu Buildings (Lease and Rent Control) Act and also the applicability of S. 29(2) of the Limitation Act have been dealt with in a Bench decision of this court reported in Rathinasamy v. Komalavalli 1 where, on a reference before the Bench on account of conflicting views on the question whether S. 5 of the Limitation Act, 1963, applies 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, it was held:? ??For the purpose of Ss. 3, 5 and 2P(2) of the Indian Limitation Act, the Appellate Authority is a court and that S. 5 of the Limitation Act is applicable to an appeal preferred by fthe petitioner herein before the Appellate Authority constituted under S. 23(1)(b) of the Madras Buildings (Lease and Rent Control)Act 18 of 1960.? The Bench also found in the above decision ?We have found in S. 23, under which the Appellate Authority has been constituted and in which a special period of limitation has also been prescribed for the filing of an appeal that there is no specific exclusion of the application of S 5 of the Indian Limitation Act, just as there is a specific exclusion in S 25. Therefore, we are in agreement with the opinion expressed by the learned Judge. It follows, therefore, that S. 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.? After considering the old Act and the new Act, it was observed: ?The principle of liberal and benevolent construction of the statute is also attracted here. The Indian Limitation Act is not applicable to specified courts or tribunals alone Moreover, the New Indian Limitation Act is 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 words ?for other purposes?. The term ?other proceedings? will 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 Ss. 5, 12, 14, 29, etc.? It is clear from the above Bench decision that the Appellate Authority constituted under the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 is a Court and for the purposes of Ss. 3, 5 and 29(2) of Indian Limitation Act, the Appellate Authority is a eourt and S. 5 of the Limitation Act is applicable to an appeal preferred before the Appellate Authority constituted under S. 23(1)(b) of the Act. Further, there is no specific exclusion as in Ss. 25 and 5 of the Limitation Act is applicable to appeal before the Appellate Authority. In that decision the scope of Ss. 3, 5 and 29(2) has been dealt with with reference to the old Limitation Act, 1908. In Krishnamurthy v. Jagath Textiles 1 while considering the power of review of this court in respect of the proceedings under S. 25 of the Tamil Nadu Buildings (Lease and Rent Control Act), Act 18 of 1960 it was held that the power of revision conferred under S. 25 of Act 18 of 1960 is on the High Court and while entertaining the revision it exercises the power of a court created under the Constitution. It is not a persona designata . When power is conferred on a Court, and no other special procedure is prescribed for disposal of matters under a particular statute, as held in P.N. Thakersey v. Pradyuman Singhji 2 by such conferment of power, there is necessary implication that the Code of Civil Procedure, would apply and in turn the power of review would be available to the High Court. It is clear from a reading of S. 25 that the High Court exercises its power as one created under the Constitution and not under special statute. In Kantian, T.R. v. K. Govindan 3 , rendered by one of us, namely K.M. Natarajan, J., relying on the Division Beneh decision in Rathinasami v. Komalavalli 4 , and other decisions, held that the Appellate Authority under the Act is a Court and the petitioner under S. 5 of the Limitation Act is certainly maintainable, the appeal having been filed under S. 23(1). The scope of Ss. 5 and 29 were also considered in the above quoted decision. In G.D.M. Rao v. Ranga Panaiah & Bros 5 , it was held that ?The Rent Controller acting under the Rent Control Act is a Court and the provisions of S. 5 of the Limitation Act are applicable to the proceedings before the Rent Controller under the Act. Hence an application under S. 5 of the Limitation Act to condone delay in filing an application to set aside an ex parte order of eviction of the Rent Controller is maintainable.? K. Namasivayam v. C.S. Ramakrishna 6 , while considering the question regarding maintainability of the application to bring on record the legal representatives of the deceased respondent and the applicability of S. 5 of the Limitation Act, relying on the Bench decision reported in Ratnaswami v. Komalavalli 1 and also after considering the relevant provisions of the new Limitation Act 1963, particularly Ss. 5 and 29(2) and the fact that there is no specific exclusion as in the case of revision under S. 25, it was held that the application filed under S. 5 of the Limitation Act to excuse the delay in filing the application to implead the legal representatives of the defeeased respondent is strictly in order. It is not in dispute that there is no specific express exclusion of the period of limitation to R. 25. 2. Let us now consider the contra decisions referred to in the reference. In Chakrapani v. Gengammal 2 , Ismail, J., (as he then was) considered the question whether O. 22, R. 4, C.P.C., as applicable or R. 25 of the Tamil Nadu Buildings (Lease and Rent Control) Rules 1974 is applicable, for impleading the legal representatives in revision pending under S. 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 before the High Court, and in that connection it was held that a revision petition filed against the order of the Appellate Authority under S. 25 of the Tamil Nadu Act 18 of 1960 is certainly a proceeding and consequently R. 25 applies to such proceeding. If R. 25 applies to such a proceeding, the period of limitation for impleading the legal representatives of the deceased respondent in the above quoted case is only 30 days, and as such, the Civil Miscellaneous Petition having been filed beyond 30 days is obviously barred by limitation. It may be stated that the applicability of S. 5 of the Limitation Act to revision under S. 25 of Act 18 of 1960 has not been considered in that decision and no decision was rendered. It is not in dispute that as per R. 25, the period of limitation for impleading the legal representative is only 30 days. Tne learned Judge held that since the proceeding was instituted under S. 25 of the Act 18 of 1960 R. 25 framed under Act 18 of 1960 is applicable and not O. 22, R4, C.P.C. Hence, it cannot be said that the learned Judge in that case has taken a contrary view that S. 5 of the Limitation Act is not applicable. As already stated, the present question was not at all the subject matter of the revision in that case. The next decision referred to is one rendered by Maheswaran, J., in Rathnam, T.V. v. P. Janakiraman 3 . That was a case where the petition to bring on record legal representatives of the deceased person was filed after a period of one month of the death of the petitioner. The learned Judge relying on the decision in Chakrapani v. Gangammal 2 , (rendered by Ismail, J., as he then was) already quoted above, held that R. 25 will apply to the above quoted case to bring on record the legal representatives of the deceased petitioner as the period of limitation for impleading as per R. 25 is only 30 days and since the petitions were filed admittedly after 30 days they are barred by limitation. The other reasoning given by the learned Judge (Maheswaran, J.,) is that R. 25 is mandatory and there is no provision in the H.R.C. Act (House Rent Control Act) to condone the delay and therefore the petitions to implead the legal representatives and to condone the delay are rejected. It is to be noted that the learned Judge has not considered the applicability of Ss. 5 and 29(2) of the Limitation Act The learned Judge only observed that there is no provision in the H.R.C. Act to condone the delay, that as per R. 25, only 30 days time is provided and that therefore the petitions are barred by limitation. As already observed by the Division Bench of this Court in Rethinasamy v. Komalavalli 1 , in S. 29(2) of the new Act, there is no restriction as found in the old Act S. 29(2)(b). Thus Ss. 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 S. 29(2), only Ss. 4, 9 to 18 and 22 are made applicable to the special or local law. The Bench categorically held that S. 29(2) of the Limitation Act enables the application of Ss. 4 to 24 of the Limitation Act to the Rent Control Act. Since there is no provision to condone the delay in the Special Act, namely, Rent Control Act, certainly S. 5 of the Limitation Act is applicable. The learned single Judge, Maheswaran, J., has not considered the scope of the provisions of the Limitation Act, particularly, Ss. 5 and 29 as well as the case-laws on the subject, while observing that R. 25 is mandatory and there is no provision in the H.R.C. Act to condone the delay. Since the learned single Judge has not considered the question of applicability of S. 5 of the Limitation Act, the reasoning of the learned single Judge that since there is no provision in the Act, the application is barred by limitation is, in our view, not sound reasoning. As observed already, S. 5 of the new Act, in view of S. 29(2), is applicable to local laws, and in view of the fact that there is no specific exclusion of the provision of Limitation Act and no specific period is prescribed under the Act to condone the delay, certainly S. 5 of the Limitation Act is applicable. The mere fact that there is no provision in the special Act to condone the delay is not a ground to hold that S. 5 is not applicable. 3. The other decision referred to was rendered by Ratnam, J., in Sakthivel v. R.S. Govindam 1 . That was a case where the question that arose for consideration was whether the application for impleading the legal representatives under O. 22, R. 4, C.P.C. was maintainable, or whether the application was to be filed only under R. 25, of the Tamil Nadu Buildings (Lease and Rent Control) Rules. It was held that the application filed under O. 22, R. 4, C P.C. was not maintainable and the same could not be entertained as it was beyond the time prescribed under R. 25 of the Rules framed under the Tamil Nadu Buildings (Lease and Rent Control) Act. It may be noted that applicability of S. 5 of the Limitation Act to the application under R. 25, has not at all been considered. The learned Judge further held in the above case that the filing of aa application to bring on record the legal representative of a deceased party is only to assist further prosecution of the proceedings and to regulate the procedure and does not in any manner affect any right or liability. Further, the effect of an order eitheir bringing or declining to bring on record a, legal representative in the proceeding under the Act is that the order passed is merely procedural assisting the continuation of the proceeding without in any manner affecting rights of parties and such an order not affecting rights of parties would not be appealable. The said decision cannot be taken as one where it is laid that S. 5 of the Limitation Act is not applicable to the application filed under R. 25 of the Rules framed under the Act for bringing legal representatives on record. As such, it cannot be said that a contrary view has been taken in the said decision. 4. Learned counsel for the respondents drew our attention to the decision of the Division Bench of this court in Settlement Officer, Salem v. K.V.K. Iyer 2 and submitted that it was held in that case that S. 5 of the Limitation Act to condone the delay in filing revision against the grant of patta under S. 11 of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 26 of 1948 was excluded, relying on the decision in K.V. Krishna Iyer v. The President, Panchayat Board, Meyyanur, Salem District and others 3 , rendered by Ismail, J. We have gone through the above decision. We find that a specific rule has been framed under the rule-making power provided in S. 67 on the reference to S. 11 that the revision petition to the Settlement Officer or a revision to the Director should be filed within a specified time. We find that a specific provision excluding applicability of S. 5 of the Limitation Act in respect of filing revision: against the grant of patta is incorporated, and in view of the specific proviso excluding the applicability of S. 5 of the Limitation Act in respect of revision against the order passed under S. 11 of the Act, it was that there was specific exclusion and only on that ground S. 5 of the Limitation Act is not applicable to the said proceedings. As already said, there is no specific exclusion of S. 5 of the Limitation Act to R. 25, of the Tamil Nadu Buildings (Lease and Rent Control) Act, and as such, the said decision is not helpful to the respondents and on the other hand, it supports the view that when there is no specific exclusion of S. 5 of the Limitation Act and there is no provision for condoning the delay under the said Rules, certainly S. 5 of the Limitation Act is applicable. For the foregoing dismission, we are of the view that since there is no specific exclusion of S. 5 of the Limitation Act, just as there is an exclusion in S. 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act and in view of the new provision, namely, S. 29(2) of the Limitation Act which governs special period under special and local laws, of which the Tamil Nadu Buildings (Lease and Rent Control) Act is one, S. 5 of the Limitation Aet is certainly applicable for impleading legal representative under R. 25 to the proceedings in revision under S. 25 of the Act before this court. We answer the reference accordingly. The office is directed to post the revisions before learned single Judge who is dealing with civil revision petitions for deciding the applications under R 25 on merits.