Jessy Vaz and Others vs V.Z. Cherian and Others

Varghese Kalliath, J.—The legal representatives of a tenant file these revision petitions The landlord initiated proceedings under the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as the Act, for eviction of the tenant on the ground of arrears of rent and bona fide need for own occupation. The Rent Control Court allowed the application. The tenant then filed an appeal. The appeal was dismissed. The tenant filed a revision before the District Court. Pending the revision before the District Court, the tenant died. He died on 24-5-1983. The legal representatives of the deceased revision petitioner, filed an application to implead them as legal representatives of the tenant to continue the revision filed by the deceased tenant. This application is I.A. 254/83 in R.C.R.P No. 9 of 1983. Along with this application, the revision petitioners herein filed I.A. 255/83 to condone the delay occasioned in filing the application to implead them as the legal representatives of the deceased revision petitioner. The learned Judge after considering the application for condoning the delay in filing the application to implead the legal representatives in the place of the deceased revision petitioner, dismissed I.A. 255/83. The learned District Judge has written a considered order only on this application. Since the application to condone the delay in filing the application to implead the legal representatives has been dismissed, the application to implead the legal representatives, viz. I.A. 254/83 was also dismissed. Since the application to implead the legal representatives has been dismissed, the learned District Judge dismissed the revision petition holding that the revision petition has abated.

Against the dismissal of the revision petition, the legal representatives of the tenant have filed C.R.P. No 866 of 1985. Against the order refusing to implead them as the legal representatives, they have filed C.R.P. No 1255 of 1985 and against the order dismissing the application to condone the delay in filing the application to implead the legal representatives, they have filed C.R.P. No. 1256 of 1985. As t said earlier, the only reasoned order passed by the learned District Judge is the order impugned in C.R.P. No. 1256/85; and so all these C R Ps. can be disposed of on the basis of the decision in C.R.P. No. 1256/85.

The learned counsel for the revision petitioners, Shri M. Nazaruddin argued his case very ably. He raised certain points and advanced very attractive and persuasive arguments developing those points. He submits that the learned District Judge went wrong in holding that he has no jurisdiction to condone the delay in filing the application to implead the legal representatives applying section 5 of the Limitation Act. The application was filed u/s 5 of the Limitation Act. The learned counsel for the revision petitioners further submits that in view of section 22 of the Act, this court should hold that the provisions contained in Order XXII rule 1 C.P.C. are the provisions that are applicable as far as impleading of the legal representatives of a deceased party to the proceedings u/s 20 of the Act when the matter is before the District Court.

For the respondents, a senior member of the Bar, Mr. C.S. Narayanan made forceful and courageous submissions in defence to support the orders impugned in these revisions. He submits that as far as the time, within which the legal representative or legal representatives has/have to be impleaded is concerned, rule 10 of the Kerala Buildings (Lease of Rent Control) Rules. 1979 alone should govern the matter. He submits that rule 10 which provides for the impleading of legal representatives is a special provision which alone will control the proceedings under the Act including proceedings before the District Court u/s 20 of the Act. The counsel submits that the revision petitioners did not file the application for impleading the legal representatives of the deceased revision petitioner within the time prescribed under rule 10 of the Kerala (Buildings Lease and Rent Control) Rules. He tells me that however compelling and persistent in solicitation the reasons may be, for excusing the delay in filing the application for impleading, the court is helpless to meet the ends of justice since the statute has not given it any power to save the situation. He further warns me politely that this court should not innovate a power.

His further submission is that section 5 of the Limitation Act has no application since section 5 is applicable only to courts. He tells me that the District Court is not a court when it is dealing with a revision u/s 20 of the Act. He says that a Full Bench of this court in Jokkim Fernandez v. Ammini Kunhi Umma (1973 KLT 138) has held that section 5 of the Limitation Act has no application in regard to proceedings before the appellate authority under the Act.

I applaud the courage of these submissions but cannot accept its correctness.

The learned District Judge held that the Kerala Buildings (Lease dan Rent Control) Act, 1965 (Act 20/65) is a complete code by itself and the rules thereunder, specifically provide 15 days for filing the application for impleading the legal representatives of a deceased party and there is no provision for the condonation of delay when the application is filed out of time. The District Judge held that section 5 of the Limitation Act has no application in cases under the Kerala Buildings (Lease and Rent Control) Act.

Before proceeding further, I should refer to the provisions of the statutes and the rules, which are relevant for the resolution of the controversy raised in this case. Section 22 of the Act provides that the provision of section 146 and Order XXII of the CPC 1908 (5'' of 1908) shall, as far as possible, be applicable to the proceedings under this Act. Rule 10 of the Buildings (Lease and Rent Control) Rules provides that every application for making the legal representative, or, the legal representatives of a deceased person, party to a proceeding under the Act shall be preferred within 15 days from the date of the death of the person concerned.

u/s 20 of the Act, what is provided is that in cases where the appellate authority empowered u/s 18 is a Subordinate Judge, the District Court and in other cases, the High Court may on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under the Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings and may pass such order in reference thereto as it thinks fit. In my view, the scope of section 20 is simply a question of extending the jurisdiction of an existing court of law with all Us incidents to a new matter closely allied and resembling in character of those matters over which it had already jurisdiction as a court of law. This court has held in Vareed v. Mary (1968 KLT 583) that a decision of the District Court exercising the power u/s 20 of the Act is subject to revision by the High Court u/s 115 C.P.C. In that decision it has been held that the District Judge is not functioning as a persona designata though the power is provided under a specific statute. The controversy is received by the District Court for adjudication; not by the District Judge as a person designated or nominated by the Act. It is plain and clear from the wording of the section that the Act nominates the District Court as the final adjudicatory forum for settling the controversy. Unless otherwise indicated normally the proceeding of the District Court are subject to all the provisions of the Code of Civil Procedure. The Act does not give an indication contra.

It is significant to note that section 23 of the Act by which, only certain provisions of CPC are made applicable for the proceedings under the Act stops with proceedings before the Accommodation Controller, the Rent Control Court and the Appellate Authority Significantly, section 23 of the Act consciously omits to say that the provisions of the CPC are applicable to the proceedings before the District Court when it exercises the power u/s 20 of the Act. Likewise in section 18 (5) the statute mandates that the decision of the appellate authority shall be final and shall not be liable to be called in question in any court of law except as provided in section 20 of the Act. Regarding the rules to regulate the procedure for entertaining, dealing and disposing of the revision u/s 20 before the District Court, the Act is silent. This is obviously for the reason that the District Court as a court is always enjoined with the rules under the C.P.C. to regulate its own procedure being an established court under the Code of Civil Procedure.

Viscount Haldane L. C. in National Telephone Co. Ltd. v. Post Master General (1913) AC 546 said the law very clearly thus:-

When a question is stated to be referred to an established Court without more, it in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decision likewise attaches.

I shall now refer to three decision of the Supreme Court; National Sewing Thread Co. Ltd. Vs. James Chadwick and Bros. Ltd. (J. and P. Coats Ltd., Assignee), , Associated Cement Companies Ltd. Vs. P.N. Sharma and Another, and Collector of Varanasi Vs. Gauri Shankar Misra and Others, .

In National Sewing Thread Co. Ltd. Vs. James Chadwick and Bros. Ltd. (J. and P. Coats Ltd., Assignee), , the Supreme Court was considering a question whether the power exercised by the High Court u/s 76 (1) of the Trade Marks Act, 1940, which Act does not provide specifically any procedure for the future conduct or regarding appeals in the High Court, will take in a power for entertaining a Letters Patent Appeal. Section 76(1) of the Trade Marks Act runs thus:-

Save as otherwise expressly provided in the Act an appeal shall lie, within the period prescribed by the Central Government, from any decision of the Registrar under this Act or the rules made thereunder to the High Court having the jurisdiction.

Relying on the Privy Council decision, the Supreme Court held:-

Though the facts of the case laying down the above rule were not exactly similar to the facts of the present case, the principle enunciated therein is one of general application and has an apposite application to the facts and circumstances of the present case. S 76. Trade Marks Act confers a right of appeal to the High Court and says nothing more about it. That being so, the High Court being seized as such of the appellate jurisdiction conferred by S. 76 it has to exercise that jurisdiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercised by a single judge, his judgment becomes subject to appeal under Cl. 15 of the Letters Patent there being nothing to the contrary in the Trade Marks Act.

In Associated Cement Companies Ltd. Vs. P.N. Sharma and Another, , Gajendragadkar, C.J. speaking for the majority observed thus:-

The expression ''court'' in the context denotes a tribunal constituted by the State as a part of the ordinary hierarchy of courts which are invested with the State''s inherent judicial powers. A sovereign State discharges legislative, executive and judicial functions and can legitimately claim corresponding powers which are described as legislative, executive and judicial powers. Under our Constitution, the judicial functions and powers of the State are primarily conferred on the ordinary courts which have been constituted under its relevant provisions. The Constitution recognised a hierarchy of courts and to their adjudication are normally entrusted all disputes between citizens and citizens as well as between the citizens and the State. These courts can be described as ordinary courts of civil judicature. They are governed by their prescribed rules of procedure and they deal with questions of fact and law raised before them by adopting a process which is described as judicial process. The powers which these courts exercise, are judicial powers, the functions they discharge are judicial functions and the decisions they reach and pronounce are judicial decisions.

The Supreme Court approved the above decision and National Sewing Thread Co. Ltd. Vs. James Chadwick and Bros. Ltd. (J. and P. Coats Ltd., Assignee), in Collector of Varanasi Vs. Gauri Shankar Misra and Others, and observed;

The hierarchy of courts in this country is an organ of the State through which its judicial power is primarily exercised.

I feel certain that when a legal controversy reaches for decision by virtue of certain provisions of a special statute before the ordinary courts of the country and the courts are seized of such controversy, though that controversy has to be determined on the basis of the provisions provided for the determination of that controversy in the special statute, the courts are governed by the ordinary rules of procedure applicable thereto and if an appeal or a revision is authorised by such rule, notwithstanding that the legal right has arisen under a special statute which does not in terms confer a right of appeal or revision, the aggrieved party can certainly maintain a revision or appeal. Of course the position may be different if the special statute, by a clear intendment or by an explicit provision ordains otherwise, This is what has been held in the Full Bench decision reported in Vareed v. Mary (1968 KLT 583). This I say in view of the pronouncement of the Supreme Court in Vishesh Kumar Vs. Shanti Prasad, The Supreme Court observed that a mutually exclusive jurisdiction has been assigned to the High Court and the District Court within the terms of sec. 115 C.P.C. To recognise a revisional power in the High Court over a revisional order passed by the District Judge would plainly defeat the object of the legislative scheme. The Supreme Court further said in this case that "the basis for determining that question Mows from the principle incorporated in the bifurcation of the revisional jurisdiction. And legislative history comes to our aid. The consistent object behind the successive amendments was to divide the work load of revision petitions between the High Court and the District Court and decentralise that jurisdiction. That purpose was sought to be achieved by classifying all cases into two mutually exclusive categories depending on the valuation of the suit out of which they arose."

Lord Shaw of the Judicial Committee of the Privy Council in Secretary of State for India v, Chellikam Rama Rao (A.I.R. 1916 P.C. 21 observed thus:-

It was contended on behalf of the appellant that all further proceedings in Courts in India or by way of appeal were incompetent, these being excluded by the terms of the statute just quoted. In their Lordships'' opinion this objection is not well-founded. Their view is that when proceedings of this character reach the District Court, that Court is appealed to as one of the ordinary Courts of the country with regard to whose procedure, orders and decrees the ordinary rules of the CPC apply.

Lord Simonds in AIR 1948 12 (Privy Council) restated the same principle.

Where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not, in terms confer a right of appeal.

Sir George Rankin in AIR 1936 93 (Privy Council) after quoting what I have quoted from AIR 1916 P.C. 21 said thus:-

The provision in the Gurudwaras Act that appeals from the tribunal are to be heard by a Division Court and not by a single Judge does not indicate that the High Court in dealing with such matters would be exercising a special jurisdiction The provisions of the CPC with reference to appeals to His Majesty apply to decrees of the High Court made under S. 34 and hence a right of appeal to the Privy Council from such decree exists

I have no doubt that the District Judge when deals with a revision u/s 20 of the Act is a court and is governed by the ordinary rules of procedure applicable to the civil courts.

Section 29 (2) of the Limitation Act provides thus:-

Where any special or local law prescribes 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.

This is a clear provision by which section 5 of the Limitation Act is made applicable to proceedings before a court under any special law, where there is no express provision under the special law excluding the applications of sections 4 to 24 of the Limitation Act. I hold that section 5 is applicable in the case.

Now, the only question that has to be considered is whether there are sufficient grounds to condone the delay u/s 5 of the Limitation Act.

The widow of the deceased tenant filed an affidavit stating that the delay was occasioned for the reason that she was not aware of that rule that an application to implead the legal representatives, has to be filed within 15 days of the demise of the party concerned It has to be noted that in fact, there is serious doubt about the correct provision that is applicable in this case. If the provisions under Order 22 of the CPC are applicable for impleading, the party gets an extended period of 90 days Taking it that the period prescribed for filing an application to implead the legal representatives in this case is only 15 days, there is a delay of 22 days in filing the application. It has to be noted that a vacation intervened and so the party was bound to file the petition on the re-opening date itself. This has not been done.

The learned counsel for the revision petitioners submitted that this is a case where the respondents have not been put to any damages. The delay was occasioned on account of a bona fide and unintentional mistake and that at any rate, it is a fit case where even if any damages have been occasioned to the respondents, the court could repair it by awarding cost. In Collins v. Vestry of Puddington (1880) 5 QBD Bramwell L J held thus:-

Has the mistake or carelessness of the applicant or his adviser been real and unintentional, and can any damages which may be occasioned to the respondent by granting the indulgence be repaired by costs or otherwise If so, grant it, if not refuse it.

In Ramachandran v. Sabapathy Mudaliar (A.I.R 1928 Mad 404), the Madras High Court was considering almost a similar question. la that case a suit was brought on behalf of a minor plaintiff by his mother acting as his next friend. During the pendency of the suit, the defendant died. The legal representatives were not impleaded in time. The suit abated as against the deceased. An application for setting aside abatement was also not made within the time allowed. The excuse put forward to condone the delay in filing the application to set aside the abatement was that the next friend was entirely ignorant of the fact that on the death of a party certain steps should be taken in the suit which was conducted on her behalf by her aged father and that when the latter went to her counsel for giving instructions, it then came to his knowledge that a necessary step had not been taken. The court excused the delay and the abatement was set aside. The court relied on the decision Coles v. Ravenshear (1907) 1 K.B 1 that the relation of rules of practice to the work of justice is intended to be that of hand-maid rather than mistress. The court further observed:-

If the mistake or carelessness is real and unintentional and no damage has been done to the other side that cannot be repaired by costs or otherwise, the application must be granted; if on the other hand, the negligence is culpable, or there are mala fides on the part of the applicant, or irreparable hurt would result to the other side, the application must be dismissed.

I feel that this is a fit case where I should grant the indulgence since the grant of indulgence in my opinion can be repaired by costs and the withholding of it may result in failure of justice. In the circumstances. I allow the application to condone the delay I.A. No. 255/83 on condition that the revision petitioners pay the entire arrears of rent amounting to Rs. 2099 60 and Rs. 300/- as costs to the counsel appearing for the respondents herein within six weeks from today. I set aside the order impugned in the above C.R.P. on the above condition,

C.R.P. No. 1255/85;

This is the Civil Revision Petition filed by the revision petitioners against the order dismissing their application to implead the legal representatives when their application to condone the delay has been dismissed. I have allowed the application to condone the delay in filing the application to implead the legal representatives in C.R.P. No, 1256/85, So I set aside the order impugned in this C.R.P I direct the District Court to consider the application for impleading afresh. I remit the application for fresh consideration since I am told that there are certain defects in the application. C.R.P. No. 866/85

This is the revision petition filed against the order dismissing the revision filed u/s 20 of the Act. The revision was dismissed when the application for impleading was dismissed. I have set aside the order dismissing the application for impleading. Hence I have to set aside the order impugned in this C.R.P. and remit the case for fresh disposal I do so. I make it clear that all these C.R.Ps. will stand dismissed, if the amount specified as cost and arrears of rent are not paid within the time stipulated for the same. Post the C.R.Ps. after six weeks.