M.A. Krishnaswamy (deceased) and Others vs Devaki

A. Abdul Hadi, J.—C.M.P. No. 4140 of 1990 prays to bring on record the wife and children of the deceased petitioner - tenant in this

C.R.P. as his legal representatives.

The C.R.P. is under the Tamil Nadu Buildings (Lease and Rent Control) Act, hereinafter referred to as the Act'', and the deceased petitioner

therein died on 4.6.1988. But, this C.M.P. has been filed only on 2.9.1988.

Rule 25 of the Tamil Nadu Buildings (Lease and Rent Control) Rules, 1974 provides that application for making the legal representatives of the

deceased person, party to a proceeding under the Act, shall be preferred within one month from the date of death of the person concerned. Since

there is a delay of 60 days in filing the said L.R. Petition, C.M.P. No. 4139 of 1990 has been filed to condone the said delay.

Very recently in the decision reported in Arya Vysia Samajam v. Murugesa Mudaliar 1990 T.L.N.J. 2 a Bench of this Court has held that even

to a L.R. Petition under the Act, Section 5 of the Limitation Act is applicable. But, the learned Counsel for the respondent-landlord contends that,

applying the relevant Rules of C.P.C. (Order 22, Rule 3(2) read with Order 22, Rule 11, C.P.C which have been held to be applicable even to

revision proceedings as per the decision in Anandamoyee Dasi v. Rudha Mahanti 21 I.C. 407 : 18 Cal. L.J. 141 the C.R.P. has abated after the

expiry of 30 days prescribed in the above said Rule 25 and that, a petition to set aside the abatement having not been filed under Order 22, Rule

9, C.P.C., the C.R.P. should be declared to have abated so and that hence these C.M.Ps. should be dismissed. The said Counsel''s submission is

that, though the above said Rule 25 read with Section 27 of the Act enables legal representatives of a deceased party to come on record within 30

days from the date of death of the party and to continue the rent control proceeding, the said Act and Rules therein are silent about abatement of

the proceeding after the expiry of the above said 30 days prescribed in the above said Rule 25 and that hence the provisions under the CPC

regarding abatement become applicable to the proceeding. In this connection, he drew my attention to the decision reported in T.N.

Krishnamoorthy Vs. Jagat Textiles, where Sathiadev, J., has held that when the High Court, a court of Record has been conferred with the powers

to entertain a revision u/s 25 of the above said Act and when on any particular aspect of the procedure no specific provision has been made in the

above said Act or Rules it (the High Court), dealing with a revision petition therein will have to decide the revision petition by following the Civil

Procedure Code. Applying the said principle, this Court in that case held that a petition to review the order passed in the revision petition would

lie. Thus, since the power of review was not specifically provided for in the Act or Rules, the said power given under the CPC was made

applicable to the revision petition before this Court under the Act. The said decision has also been approved by a Division Bench of this Court in

Arya Vysia Samajam v. Murugesa Mudaliar, T.L.N.J. 1990 TLNJ 82 referred to above.

That apart, another direct decision, viz., M.K. Venkatachalapathy Shetty v. Sanarasaah AIR 1985 Kar 88 was also cited by the said learned

Counsel. The very same question of abatement was in issue in the above said Karnataka case under the Karnataka Rent Control Act and Rules.

Rule 30 of the Karnataka Rent Control Rules is the Rule corresponding to the above said Rule 25 of the Tamil Nadu Rent Control Rules and the

said Rule 30 runs as follows:

Applications for making legal representatives of deceased persons parties to proceedings under the Act - Applications by or against legal

representatives u/s 51 of the Act shall be made within fifteen days from the date of death of the party or person concerned or the date of the

knowledge of the death of the party or person concerned, and for this purpose, the provisions of Order 22 of the Code of Civil P.C., 1908, shall

as far as may be and with necessary modifications be followed.

In the said Karnataka decision, the application for setting aside the abatement and the application for condonation of delay in filing the said

application for setting aside the abatement were held maintainable under the Karnataka Rent Control Law. The reasoning of the said Division

Bench of the Karnataka High Court is that Order 22, Rules 4 and 9, C.P.C. are not inconsistent with the above Rule 30 and the inconsistency is

only regarding the period of limitation prescribed under the limitation Act. The Division Bench held thus:

Whereas under Rule 30 the period is restricted to 15 days, to bring the legal representatives on record, under Article 120 of the Limitation Act, it

is 90 days.... If the period prescribed as 15 days is not consistent with the period of 90 days, inview of the application of Order 22, C.P.C., the

inconsistency exists to that extent only. It cannot be understood as pervading with the remaining provisions of Order 22.... In view of the

conclusion arrived at in the preceding paragraphs, an application under Order 22 Rule 1. C.P.C, and an application u/s 5 of the Limitation Act, if

there has been delay, and an application for bringing the legal representatives of a deceased person on record, would be in accordance with the

provisions of law. They ought to be considered and disposed of on their merits.

In coming to the above said conclusion, the Division Bench of the Karnataka High Court has also relied on the decision in Balram and Others

Vs. IIIrd Additional District Judge and Another, where the Supreme Court has held, while considering the U.P. Imposition of Ceiling of Land

Holdings Act, that the fact that only three Sections of the Limitation Act have been specifically extended to the proceedings under the Act by

Section 42 thereof, is of no consequence once it is held that Order 22 of the Code is applicable to the appeals under the said Act and that

consequently an application to have the legal representative of the deceased applicant made a party, has to be made within 90 days from the date

of death of the appellant, in view of Article 120 of the Limitation Act and that in view of Article 121, application for an order to set aside the

abatement from the date of abatement is to be made within sixty days. Therefore, the Supreme Court concluded as follows:

We are, therefore, not inclined to accept the submission advanced before us by Mr. Sen that the principles of abatement and delay were not

applicable to the case in question.

But, the learned Counsel for the petitioner pointed out that under the abovesaid Rule 30 of the Karnataka Rent Control Rules, it is specifically

provided that Order 22 of the CPC should be followed and that in the corresponding Rule 25 of the Tamil Nadu Rent Control Rules, there is no

such stipulation added and that hence the provisions of Order 22 could not be applied in this revision petition. But though the statutory Rule viz.,

Rule 25 does not specifically say that Order 22, C.P.C. should be followed, this Court has held as stated above in T.N. Krishnamoorthy Vs. Jagat

Textiles, (which has also been approved by the Division Bench of this Court in Arya Vysia Samajam v. Murugesa Mudaliar 1990 T.L.N.J. 82

referred to above, that C.P.C. is applicable to the revision petition before this Court under the Tamil Nadu Rent Control Act. So, Order 22,

C.P.C. is certainly applicable to this revision proceeding also.

Further, Section 27(1) of the Act itself cannot also be considered as being inconsistent with the abatement Rule under Order 22, Rule 3(1),

C.P.C. It may be argued that while Order 23, Rule 3(1), C.P.C. prescribes that where the sole plaintiff dies and The Right To Sue Survives, the

Court on an application made in that behalf shall cause the legal representative of the deceased party to be made a party and shall proceed with the

suit, Section 27(1), of the Act seems to suggest that in all cases-even in a case where The Right To Sue Does Not Survive the proceeding say ""be

continued"" by his legal representatives and that hence there is inconsistency and consequently Order 22, C.P.C. is not applicable at all. But, this

argument is not correct. In Salima Bi v. Malika Begum (1972) 2 M.L.J. 21 Ramanujam, JJ. has also held that the said Section 27 is general in

nature and has application only to cases where the cause of action survives even after the death of the original party to the proceedings. So, there is

no inconsistency and consequently no bar for the application of Order 22, C.P.C.

The learned Counsel for the petitioner also drew my attention to the decision reported in Krishna and Ors. v. Kunha Baksha and Ors. 1984)

T.L.N.J. 60 and contends that Order 22, C.P.C. was not applicable. In the said Judgment rendered by Shanmugam, J. in a civil revision position

against the order made by the learned Rent Controller, dismissing application under Order 22 Rule 10, C.P.C. in the execution proceeding under

the Rent Control Act, it was held that the said application was not maintainable. In that context it was no doubt observed as follows:

The deeming provision u/s 1B would not permit such application of Order 22, C.P.C....

When there are express provisions such as Section 27 of the Act and Rule 25 of the Rules, proceeding governed under this Act shall only be

governed by these provision and therefore, there is an express exclusion of the application of the C.P.C.

However, it should be noted that Shanmugam, J. dealt with the power of the Rent Controller to invoke Order 22, C.P.C. and held that he

cannot invoke Order 22, C.P.C. But, the learned Judge did not deal with the power of the High Court in revision. That has been dealt with by

Sathiadev, J., in the above referred to Krishnamurthy v. Jugat Textiles, 1981 I M.L.J. 394 which has been approved by the Division Bench in

Arya Vysia Samajam v, Murugesa Mudaliar 1990 T.L.N.J. 82 referred to above and I am bound by the same Division Bench Judgment,

particularly when the same question, whether C.P.C. is applicable to revision before the High Court, is also before me. No doubt, the learned

Counsel for the petitioner contended that in view of the said Bench decision, Krishnan v. Kunha Baksha 1984 T.L.N.J. 60 referred to above, was

no longer good law. But I think I need not go into that question for the purpose of deciding the issue before me, in view of the fact that

Shanmugam, J in Krishnan v. Kunha Baksha 1984 T.L.N.J. 60 dealt with the power of the Rent Controller to invoke CPC (particularly Order 22,

C.P.C.) while Sathiadev, J., dealt with the power of the High Court, a Court of Record, sitting in revision under the Rent Control Act, to invoke

the Civil Procedure Code.

Nextly, the learned Counsel for the petitioner argues that even assuming abatement has taken place in the present case and that Order 22,

C.P.C. is applicable regarding the same, then, the very C.M.P., viz., C.M.P. 4140 of 1990 for bringing the legal representatives on record can be

treated as application for setting aside the abatement also and that there was no necessity for a separate application for selling aside the abatement.

The learned Counsel, in support of his argument, cited the decision in Smt. Shakuntala Devi Vs. Banwari Lal and Others, and Bachan Ram v.

Gram Panchayat AIR 1971 P. & H. 243. But on the other hand, the learned Counsel for the respondent brought to my notice the decisions in

Union of India (UOI) Vs. Ram Charan and Others, and S.T. Gaitonde v. JJ. Fonseca AIR 1976 GoaDaman & Diu 11. Union of India (UOI) Vs.

Ram Charan and Others, referred same as to above, it was held

The procedure requires an application for making of the legal representatives of the deceased plaintiff or defendant a party to the suit.... If no such

application is made within the time allowed by law, the suit abates so far as the deceased plaintiff is concerned or as against the deceased

defendant.

Then in S.T. Gaitonde v. JJ. Fonseca AIR 1976 GoaDaman & Diu 11 referred to above, it was held that when no application was filed for setting

aside the abatement, the abatement which was automatic remained in force and legal representatives of the deceased could not be brought on

record. Further, the learned Counsel for the respondent submits that as one of the principles of interpretation of Statutes, no Rule in any Statute

could be construed as redundant and that hence the relevant provisions regarding abatement in C.P.C. could not be considered redundant.

Therefore, according to him, unless a petition is filed to set aside the abatement as provided under Order 23, C.P.C., the abatement could not be

set aside, by construing the application for bringing the legal representatives on record as also the application for setting aside the abatement. In

view of the abovesaid Supreme Court decision and the abovesaid principle of interpretation of Statutes, I follow the said Supreme Court ruling.

Therefore, I hold that the present C.R.P. has abated soon after the expiry of the abovesaid thirty days prescribed under the abovesaid Rule 25

from the date of death of the deceased petitioner and that, no petition having been filed for setting aside the abatement, no relief can be given in this

C.R.P. and hence the abovesaid C.M. Ps. have necessarily to be dismissed.

Further even assuming there is no abatement of the C.R.P., then, in C.M.P. No. 4139 of 1990, I do not think there is justification for excusing

the delay of sixty days. The allegation in the supporting affidavit of the proposed legal representatives, who are the wife and children of the

deceased that they were not aware of the pendency of the C.R.P. and that only on 30.8.1988 they came to know of the said pendency cannot be

believed, despite the fact that the deceased was not living in the building but only running a college in the building. The Rent Control proceedings

were pending ever since 1982 and the C.R.P. itself is pending ever since 1985. One of the sons of the deceased is even a B.Sc, Graduate and

another has completed P.U.C. The other daughters are also elderly persons already married. In the circumstances, I cannot believe the version of

the petitioners. In what context they came to know of the CRP. on 30.8.1988 only, is also not disclosed in the original supporting affidavit.

Hence, C.M.Ps. are dismissed. No costs.