Devi Ammal vs G.T. Transports

The petitioner has filed the above revision against the order passed in R.C.A.No.73 of 1994, on the file of the learned appellate authority,

Tiruchirapalli, dated 28.11.1997. The application for the certified copies of the order was made on 3.12.1997 and the same was made ready on

1.4.1998, and it was delivered on 2.4.1998. According to section 25(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960, the

revision has to be preferred within one month from the date on which the order or proceeding to which the application relates is communicated to

the applicant. On that basis the last date for filing the revision was 26.4.1998. But the revision was filed on 8.6.1998 with the petition to condone

the delay in C.M.P.S.R.No.37100 of 1998.

The Registry on the basis of proviso to section 25(2) of the Act found that the High Court has power to condone the delay of 30 days only. It

also found that the revision filed was beyond the period prescribed under the proviso to section 25(2) of the Act and so it raised a doubt as to

whether the petitioner can maintain this revision as the same has been filed beyond two months from the date on which the order of the appellate

authority has been communicated to the applicant, namely, 2.4.1998. So, the Registry was directed to post the case before this Court for orders.

The learned counsel appearing for the petitioner has submitted that though the last date for filing the revision fell on 26.4.1998, as per Section

25(2) of the Act, the High Court has jurisdiction to condone the delay of another one month, in view of the proviso to section 25(2) of the Act. As

the last date of the said one month fell on summer holidays, the petitioner filed the revision on the reopening date, namely 8.6.1998. On that basis

the learned counsel has further submitted that the Registry is not correct in saying that revision itself is not maintainable.

Section 25(2) of the Act reads as follows:

25(1)...........

(2) Every application to the High Court for the exercise of its power under sub-Section (1) shall be preferred within one month from the date on

which the order or proceeding to which the application relates is communicated to the applicant;

Provided that the High Court may, in its discretion, allow further time hot exceed in one month for the filing of any such application, if it is satisfied

that the applicant had sufficient cause for not preferring the application within the time specified in this sub-section"".

According to the said section, the revision to the High Court has to be filed within one month from the date on which the order or proceeding of

the appellate authority was communicated to the petitioner. If the petitioner could not file the same within one month as stipulated, the High Court

in its discretion can allow further time not exceeding one month for filing of such application, if it is satisfied that the applicant had sufficient cause

for not preferring the application within the time specified in sub-Section (2) to section 25 of the Act. In the present case, admittedly, the petitioner

could not prefer the revision within one month from the date of receipt of the order of the appellate authority as stipulated u/s 25(2) of the Act.

Invoking the jurisdiction under the proviso to Section 25(2) of the Act, the petitioner has also filed C.M.P.S.R.No.37100 of 1998 to condone the

delay in filing the revision. In the normal Course, the revision with petition to condone the delay should have been filed on or before 28.5.1998 as

the High Court has power to allow further time only for one month for filing the revision. In the present case, the petitioner could not file the

revision on or before the said date in view of the fact that the Court was closed for summer vacation. So he filed the revision on the reopening

date.

It has been the practice of the Courts in this country excepting the Original Side of the Bombay High Court to treat the summer vacation as the

period during which the Court remain closed except with regard to functioning of vacation judge nominated by the respective Chief Justices. When

there was no arrangement made for receipt of the petitions during vacation which is not in the nature of urgency, according to the vacation officer,

no petition can be filed during the vacation. So, only on reopening date such a petition can be filed.

No law would ever compel a man to do what he was unable to do and that act of Court would prejudice no man. This is based on the maxim -

(1) lex non cogit ad impossibilia; and (2) actus coria neinem gavavit dammosus.

Only on the basis of these principles, section 4 of the Limitation Act were enacted. According to those provisions, in such event, it is open to a

litigant to present the proceeding on the next working day when the Court was open for transaction of business as per its normal working hours.

While construing Section 4 of the Limitation Act,

A.R.Lakshmanan, J., in Pattanswami Vs. Amirtha Jothi, has held as follows:

Section 4 of the Limitation Act can also be beneficially looked into in this context. It reads thus:

''4. Expiry of prescribed period when court is closed. Where the prescribed period for any suit, appeal or application expires on a day when the

court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court reopens''.

This section enables a party to a legal proceeding to initiate the same on the next day if the previous day happened to be the last day and on that

day the court remained closed for any part of the day. The language of the Section indicates that it does not extend the period prescribed for the

presentation of any suit or appeal or application but that it Only provides that where the period prescribed expires on a particular day when the

court is closed, not with standing that fact the application may be made on the day that the Court re-opens. Thus, section 4 of the Limitation Act

does not extend the period of Limitation. It provides for the contingency when the prescribed period expires on a holiday and the only contingency

contemplated is ''when the Court is closed''. ""The expression ''when the court is closed'' refers to the Court in which the revision ought to have

been made"".

K.B.N.Singh, C.J., as His Lordship then was in Ramanatha Rao, T.E. v. K. Janardhanan, 95 L.W. 742, while dealing with an application filed

under the proviso to sub-section (2) to Section 25 filed after 30 days, has held as follows:

It is settled law that what is not permitted to be done directly cannot be permitted to be done indirectly. If the original period of limitation expires

during the vacation and if the revision petition has not been filed on the day when the court re - opened under S. 4 of the Limitation Act as in the

instant case, the discretionary period of one month as provided for in the proviso to S. 25(2) of the Act will start running from the original date of

expiration of the period of limitation during the vacation. The power of this Court in the instant case is restricted and not unlimited as in the case of

appeals under the Code of Civil Procedure, by the Application of S. 5 of the Limitation Act, the Court can condone any delay for sufficient

reasons, In the instant case, the last date of filing the revision was on 15th May, 1980 and the revision not having been filed on the date of

reopening of the court, but having been filed only on the 9th July 1980, there is no discretion left to the Court, but to reject it on the ground that it is

barred by limitation. The petitions are accordingly rejected as not maintainable"".

In view of the above, Section 4 of the Limitation Act cannot be said to be extending the limitation, but it provides for contingency when the period

mentioned in the provision expires on a holiday. In the present case, admittedly, the petitioner could not present the revision during the vacation,

i.e., before 8.6.1998. So, taking into consideration of the principles that the petitioner cannot be compelled in law to do what he was unable to do,

due to the summer vacation, the presentation of C.R.P.S.R.No.37099 of 1998 on 8.6.1998 alongwith the application in C.M.P.S.R.No.37100 of

l998 should be held to be in accordance with the proviso to Section 25(2) of the Act.

Consequently, C.M.P.S.R.N0.37100 of 1998 is directed to be numbered, if otherwise it is in order.