T.R. Kantian vs K. Govindan

K.M. Natarajan, J.—This revision is directed against the order passed by the second Judge, Court of Small Causes, Madras, dismissing the petition filed under S. 5 of the Limitation Act. The facts which are necessary for the disposal of this revision can be briefly stated as follows :- The petitioner herein is the respondent in H.R.C. 1874 of 1981 which is filed by the tenant for permitting to deposit the rent. It seems that the petitioner herein did not file counter. He was set ex parte and an ex parte order was passed. He filed M.P. 1108 of 1981, to set aside the ex parte order and the same was dismissed. On 11th February, 1982 he has filed a copy application for the purpose of preparing the appeal and the same was made ready on 19th August. 1982 and the certified copy was taken delivery on 25th June, 1982. But the appeal was filed on 3rd July, 1982. Since there is a delay of six days in filing the appeal, petition in M.P. 1913 of 1982 was filed under S. 5 of the Limitation Act, to excuse the delay. In support of the petition the registered clerk of the counsel for the petitioner filed an affidavit wherein he has stated that he had gone to his native place on 4th June, 1982, and returned to Madras on 25th June, 1982 and hence the copies could not be taken delivery in time. The petitioner also filed an affidavit wherein he has stated that the registered clerk had been away from Madras from 4th June, 1982, up to 25th June, 1982, and he had misplaced the bundle in his Master''s office and hence the certified copy of the order was not taken delivery from the copy section till his arrival. Further, since he was not satisfied with the way in which the counsel conducted the case and obtaining the certified copies of the order, he himself filed the appeal as party in person. The said application was resisted by the respondent herein contending that in spite of the lower court showing great indulgence in granting time to file counter, the petitioner did not file the same throwing the blame every time on the counsel. Further, it was stated that there is no explanation for his not filing the appeal from 25th June, 1982 to 3rd July, 1982, and that the delay is willful and wanton. The learned appellate authority dismissed the application holding that the petitioner has not given any valid and sufficient reason to condone the delay.

Aggrieved by the same this revision is filed.

The learned counsel for the petitioner Mr. Meenakshisundaram submitted that the lower court did not take into consideration of the affidavit filed by the petitioner giving reasons for the delay in filing the appeal and on the other hand, erroneously drew adverse inference on the ground that the petitioner has not filed any affidavit. Further, since the petitioner was depending upon the clerk of the counsel and the counsel appearing for him in the lower court, he could not file the appeal in time. It is to be noted that though the copy of the order was taken delivery on 25th June, 1982, no proper explanation was offered for not filing the appeal from 25th June, 1982 to 3rd July, 1982, But, on that score the petitioner should not be deprived of the opportunity of prosecuting the appeal since the delay is only about 6 days and I am of the view that the same can be condoned on heavy terms.

Now the learned counsel for the respondent only submitted that the appellate authority is not a civil court and it has no jurisdiction to condone the delay and on that ground the revision has to be dismissed holding that the petition to condone delay in the lower court itself is not maintainable. In support of his contention the learned counsel for the respondent drew my attention to a decision in Sakuru v. Tanaji AIR 1985 SC. 1279, where it was held as follows :

The Provisions of the Limitation Act 1963 apply only to proceedings in ''courts'' and not to appeals of applications before bodies other than courts such as quasi-judicial tribunals or executive authorities, not withstanding the fact that such bodies or authorities may be vested with certain specified powers conferred on courts under Codes of Civil or Criminal Procedure. But even in such a situation the relevant special statutes may contain an express provision conferring on the appellate authority the power to extend the prescribed period of limitation on sufficient cause being shown by laying down the provision of S. 5 of the Limitation Act, shall be applicable to such proceedings.

As the effect of S. 93 of the A.P. (Telangana Area Tenancy and Agricultural Land Act. 1958 before its amendment in 1979 is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to ''occupation of the period of limitation'' and since it is only after the process of computation is completed and it is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under S. 5 can arise, S. 93 of the A.P. Act did not have the effect of rendering the provisions of S. 5 of the Limitation Act, 1963, applicable to the proceedings before the Collector. In this connection, the provisions of S. 93 (as amended by Act 2 of 1979) and making S. 5 of the Limitation Act applicable to appeal and revision under the special Act are also of no assistance what has been done by the amendment is to amend the section with only prospective effect. The amendment cannot be considered to be clarificatory of the unamended S. 93 since the provisions of S. 93, as they stood prior to the amendment were free from any ambiguity and called for no clarification.

The learned counsel for the respondent also submitted that in the above cited decision, the view taken by a Division Bench of the Andhra Pradesh High Court in K. Venkaiah and Others Vs. K. Venkateswara Rao and Another, , was confirmed applying the ratio laid down in the above decision that the appellate authority is a court but it is not a civil court, for the purposes of the Act and as such, the petition is to be dismissed.

On the other hand, the learned counsel for the petitioner drew my attention to a decision of a Division Bench of this Court in Rathinasami v. Komalavalli 95 L.W. 552, and submitted that in a similar situation the Division Bench held that for the purpose of Ss. 3, 5 and 29(2) of the Indian Limitation Act., the appellate authority is a court and that S. 5 of the Limitation Act is applicable to an appeal preferred by the petitioner herein before the appellate authority, constituted under S. 23 (1)(b) of the Madras Buildings (Lease and Rent Control) Act 18 of 1960. The learned counsel also further submitted that the decisions relied on by the learned counsel for the respondent relates to Tribunals other than civil and Criminal Courts which are empowered with the power under the special Act. On going through the decision of the Supreme Court, relied on by the learned counsel for the respondent I find that the Supreme Court had not laid down that S. 5 of the Limitation Act is applicable only to civil and criminal courts. In Para 3 of the judgment in Sakuru Vs. Tanaji, , the learned Judges of the Supreme Court have held as follows: It is well settled by the decisions of this Court in Town Municipal, Council, Athani Vs. The Presiding Officer, Labour Courts, Hubli and Others etc., , Nityananda, M. Joshi and Others Vs. Life Insurance Corporation of India and Others, and Smt. Sushila Devi Vs. Ramanandan Prasad and Others, , that the provisions of the Limitation Act 1963, apply only to proceedings in ''court'' and not to appeals or applications before bodies other than Courts such as quasi judicial tribunals or executive authorities, not withstanding the fact that such bodies or authorities may be nested with certain specified powers conferred on courts under the Codes of Civil or Criminal Procedure. The Collector before whom the appeal was preferred by the appellant herein under S. 90 of the Act not being a court, the Limitation Act. as such had no applicability to the proceedings before him. But even in such a situation the relevant special statutes may contain an express provision conferring on the appellate authority, such as the Collector, the power to extend the prescribed period of limitation on sufficient cause being shown by laying down that the provisions of S. 5 of the Limitation Act shall be applicable to such proceedings."

They upheld the decision of the Division Bench in Venkiah''s case1, on the ground that there is no express provision in the said Act, viz., A.P. (Telangana Area) Tenancy and Agricultural Lands Act, about extending the provision of S. 5 of the Limitation Act, but they also observed that subsequently the State Legislature enacted an amendment and by virtue of the said amendment, S. 5 has been expressly made applicable to appeals and revisions preferred under the Act, but not retrospectively. Hence, it is clear from the decision of the Supreme Court as well as the decision of the Division Bench of the A.P, High Court that the provisions of the Limitation Act apply to proceedings in courts and not to appeals or applications before the bodies other than Courts such as quasi-judicial tribunals or executive authorities, notwithstanding the fact that such bodies or authorities may be vested with certain specified powers conferred on Courts under the CPC or Criminal Procedure Code. It is also observed in the decision of a Division Bench of the A.P. High Court in Venkiah''s case1, that the point which came to be considered in the said appeal was whether the said authorities viz., Tahsildar, Tribunal, Collector and the Board of Revenue, while acting under the Act, can be called ''courts'' within the meaning of S. 5 of the Limitation Act. In para 13 of the judgment also they have made it clear as follows :

We must, however, make it clear, that our decision is confined only to the tribunals under the Hyderabad Tenancy Act and not to the tribunals created by other special enactments.

Admittedly, the appellate authority in this case is the second Judge of the court of Small Causes at Madras and he is empowered under the Rent Control Act to exercise the appeal powers. After a careful analysis of the decisions referred above, I am of the view that the appellate authority is a court and the petition under S. 5 of the Limitation Act is certainly maintainable.

In the result, the revision is allowed. The order passed by the appellate authority in M.P. 1913 of 1982 is set aside and the same is allowed on payment of costs of Rs. 200 to the other side within two weeks from the date of this order, failing which the said application will stand automatically dismissed. However, in the circumstances of the case, there will be no order as to costs in this revision. Order : 26th August, 1987 : This matter is posted today for being mentioned. It is represented by the learned counsel for the revision petitioner that the respondent is not willing to receive the costs awarded by this Court and hence the revision petitioner may be permitted to deposit the same to the credit of the C.R.P., and the time for deposit already granted may be extended by one more week from today. According by the petitioner is permitted to deposit the sum to the credit of the C.R.P., and the time already granted for deposit of the amount is extended by one more week from today.