BHAGIRATHPRASAD KALURAM GUPTA Vs. MOTILAL BUDHOMAL TALREJA

JUDGEMENT

(1.) This revision is preferred against the order of the learned District Judge, Parbhani, dated 22-6-1979, dismissing Miscellaneous Civil Application No. 14 of 1979 which was an application under section 5 of the Limitation Act to condone the delay in filing the appeal which was from the order of the Rent Controller, Sailu, District Parbhani. The Deputy Collector who is also the Rent controller, dismissed the said application on 4-1-1979. This he did so purportedly in view of the decision of the Bombay High Court directing the petitioner before me to give possession to the landlord. According to the petitioner no hearing was given to the petitioner on the said objection application. According to Mr. Agrawal, as no hearing was given to him and this order was made and remained in the file, he came to know of this order much later than the appearance date thereof which is his explanation for filing the appeal late.

(2.) The appeal was filed, as was required, before the District Judge, Parbhani. As there was ostensible delay, an application for condonation of delay was made. The learned District Judge, held that the application could not be granted. In his view the provisions contained in section 5 of the Limitation Act were not applicable. As stated in paragraph 12 of the impugned order, the provisions for appeals contained in the Hyderabad House (Rent, Eviction and Lease) Control Act, 1954 to be found in section 25 were self contained provisions. On a number of footings to be found contained in paragraphs 12, 13 and 14 the learned District Judge held that the application was required to be dismissed.

(3.) There are two questions which are required to be considered. The first question is whether section 5 of the Limitation Act which permits extension of period in certain cases is available to the appellant (revision-petitioner before me). Mr. Kikla drew my attention to the phraseology of section 5, the definition of the expressions "period of limitation" and "prescribed period" to be found in section 2(j) of the Limitation Act, as also to section 29(2) of the said Act. He submitted that since the Limitation Act, did not prescribe any period of limitation for such appeal in the Schedule, section 5 could not be resorted to. On the other hand, Mr. Agarwal submitted that the point was concluded in his favour by a majority decision of the Supreme Court in (Vidyacharan Shukla v. Khubchand Baghel) A.I.R. 1964 S.C.p. 1099. Chief Justice B.P. Sinha, Subba Rao, J. and Ayyangar, J. (Raghubar Dayal and Madholkar, JJ. dissenting) have in the said decision taken the view that section 5 would be applicable even in such cases. In their view, which is binding on me, under the Limitation Act as no period was prescribed in respect of such appeals, such appeals could be filed without any period of limitation, but for the restricted period of limitation under the Hyderabad Houses (Rents, Eviction and Lease) Control Act, 1954. In their view, therefore, the Limitation Act, must be deemed to provide an unlimited period for filing such appeals. Under section 25 appeals are required to be filed within thirty days from the date of order and this being a restricted or a shorter period than the position as contemplated under the Limitation Act (in the opinion of the Supreme Court) section 5 could be resorted to if a proper case for extension of time is made out by the party applying for relief on that footing.