RATHAKRISHNAN Vs. A CHELLADURAI

JUDGEMENT

(1.) THE civil revision petition is filed by one rathakrishnan, who claimed to be the brother/legal representative within the meaning of Rent Control Act of the deceased tenant Selvaraj. THE attempt made by the revision petitioner herein to bring him on record as legal representative when the matter was pending in the appellate stage was negatived by the Appellate Authority. Hence the revision petition.

(2.) AT the time when the revision petition came up for hearing on 2. 1. 1997, the learned counsel Mr. P. Peppin Fernando appearing for the respondent represented that possession of the property has been delivered as early as on 29. 8. 1988 and therefore, the petition has become infructuous. The counsel for the petitioner took time to verify. But, even today the counsel is not able to make any verification. The only way left to the counsel for the petitioner is to argue the matter on merits. The Appellate Authority has rejected the petition without even numbering the petition but yet holding that the brother cannot be the legal representative to continue the proceedings on behalf of the deceased tenant. His rejection is wholly unwarranted and on prima facie illegal. The Appellate Authority ought to have numbered the petition, ordered notice to the other side and decide the matter on merits. The learned counsel for the respondent submits that as per the affidavit of the revision petitioner, his brother died on 8. 1. 1988 and his application was filed on 4. 4. 1988 i. e. , beyond the time prescribed under Rule 25 of the Tamil Nadu buildings (Lease and Rent Control) Rules, 1974. But, unfortunately, the appellate Authority has not taken into consideration this aspect also. The learned counsel further submits that a petition to excuse the delay under section 5 of the Limitation Act ought to have been filed and as and when the same is filed, it should have been numbered and disposed of first and then only the next petition to bring on the legal representatives after deciding whether the brother could be a legal representative. This submission is correct. But, at the same time, I would like to make it clear that the non-application of mind by the Appellate Authority is thoroughly wrong and disposal is quite unsatisfactory. Therefore, I want to give a clear direction. This petition rejected should be taken on file on the SR. stage and should be returned to the petitioner saying that the petition to excuse the delay under Section 5 of the limitation Act is quite necessary. As and when such petition is field, the other petition may be numbered and disposed of and then the present petition, which is now remitted back can be taken on file and disposed of. The question whether Section 5 of the Limitation Act is applicable to such proceedings has been answered in the affirmative by the Division Bench of this Honourable Court in "arya Vysia Samajam, rep. by President S. K. Dhandapani Chettiar v. Murugesa Mudaliar and 10 others, 1990 TLNJ 82. The Division Bench has observed at page 89 as follows:- "for the foregoing discussion, we are of the view that since there is no specific exclusion of Section 5 of the Limitation Act, just as there is an exclusion in Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act and in view of the new provision, namely, Section 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, section 5 of the Limitation Act is certainly applicable for impleading legal representatives under Rule 25 to the proceedings in revision under Section 25 of the Act before this Court".