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Ulahannan Chacko v. Pareed Marakkar
Structured Summary of the Opinion (Gopalan Nambiyar, C.J.)
Factual and Procedural Background
These three revision petitions arise from proceedings under the Kerala Buildings (Lease and Rent Control) Act. The respondent had filed an application for eviction before the Rent Control Court and thereafter preferred an appeal under the Act. Due to uncertainty as to the proper forum, the matter "flitted" between the Sub Court, Parur, and the District Court, Ernakulam. This Court in O.P. Nos. 353, 363 and 364 of 1971 decided that the proper forum for presentation of the appeal was the Sub Court, Ernakulam, and that because delay had intervened the appeal should be presented there along with a petition to excuse the delay under S. 5 of the Limitation Act. The appeals were presented accordingly.
The Sub Court, following the Full Bench decision in Jokkim Fernandez v. Amina Kunhi Umma (1973 KLT 138) which held that the Limitation Act applied only to Courts, ruled that it had no power to condone delay; the applications to condone delay were dismissed and the appeals were consequently dismissed. A revision was preferred to the District Court which held that although S. 5 of the Limitation Act could not apply (per the Full Bench decision), the principle of S. 14 of the Limitation Act would permit exclusion of the time spent bona fide prosecuting the litigation while the appeals flitted between courts. The District Court allowed the condonation applications and directed that the appeals be taken on file. The present revision petitions challenge that District Court order.
Legal Issues Presented
- Whether the Limitation Act (in particular S. 5) applies to the appellate authority under the Rent Control Act or only to "Courts" as held in Jokkim Fernandez v. Amina Kunhi Umma (1973 KLT 138).
- Whether the Full Bench decision in Jokkim Fernandez requires reconsideration in the light of later Supreme Court authority (notably Mohd. Ashfaq v. S.T.A.T. and Kerala State Electricity Board v. T.P.K.).
- Whether the principle of S. 14 of the Limitation Act (exclusion of time spent bona fide prosecuting litigation) can be applied by analogical extension to appeals presented to an appellate authority that is not a Court, thereby permitting condonation of delay.
- Whether the District Court had jurisdiction to apply S. 14 or otherwise direct that the delayed appeals be taken on file despite the Sub Court's dismissal for delay.
Arguments of the Parties
Submission seeking reconsideration (as presented to the Court)
- It was submitted before the learned Judge that the Full Bench decision in Jokkim Fernandez v. Amina Kunhi Umma (1973 KLT 138) required reconsideration in the light of the decision of the Supreme Court in Mohd. Ashfaq v. State Transport Appellate Tribunal, U.P. (1976) 4 SCC 330 and related authorities.
Respondent's Arguments (as recorded)
- Counsel for the respondents relied on the Privy Council decision in Ramdutt v. E.D. Sassoon & Co. (AIR 1929 P.C. 103) to contend that the principle in S. 14 of the Limitation Act would be attracted and that delay could be excused on that basis. The respondents argued by analogy to arbitration law that principles excluding time spent bona fide prosecuting a claim should apply.
The opinion does not contain a detailed account of other specific party arguments beyond the submissions summarized above.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Jokkim Fernandez v. Amina Kunhi Umma (1973 KLT 138) (Full Bench) | Held that the Limitation Act applies only to Courts and to proceedings under the Code of Civil Procedure — i.e., periods of limitation are prescribed only for suits, appeals and applications filed in Courts. | The Sub Court followed this Full Bench and held it had no power to condone delay; the present Court treated this decision as authoritative on the point that the Limitation Act applies only to Courts and declined to refer the matter to a larger Bench for reconsideration at this stage. |
| Mohd. Ashfaq v. State Transport Appellate Tribunal, U.P. ((1976) 4 SCC 330 : AIR 1976 SC 2161) | Considered applicability of S. 5 of the Limitation Act to an application before the Regional Transport Authority and held that S. 29(2) could make S.5 applicable unless expressly excluded; interpreted sub-section (3) as expressly excluding condonation beyond 15 days for renewal applications. | The Court examined this authority but concluded that it does not support an assertion that S.5 would lie before the appellate authority in the present case; it was used to test whether the Full Bench decision required reconsideration, and the Court found Mohd. Ashfaq did not alter the relevant principle for the present facts. |
| Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli ((1969) 1 SCC 873 : AIR 1969 SC 1335) | Held that the Limitation Act applies only to proceedings governed by the Code of Civil Procedure and only to proceedings in Courts. | The Full Bench in Jokkim Fernandez relied on this decision. The present Court observed that a later Supreme Court decision (KSEB v. T.P.K.) differed only on the "CPC" limb, but not on the requirement that the proceedings be in a Court; the "in Court" aspect remained authoritative for present purposes. |
| Nityanand M. Joshi v. The Life Insurance Corporation of India ((1969) 2 SCC 199 : AIR 1970 SC 209) | Restated the principle that the Limitation Act governs only applications made to Courts. | Referenced as supporting authority relied upon by the Full Bench in Jokkim Fernandez; used in the Court's historical recounting of the law. |
| Kerala State Electricity Board v. T.P.K (1976 KLT 810) | Supreme Court observed that Article 137 of the 1963 Limitation Act applies to any petition/application filed under any Act to a civil court and declined to confine Article 137 to applications under the Code of Civil Procedure. | The present Court noted that the Supreme Court differed only on the "CPC-limited" view and that the requirement that an application be made to a "court" was emphasised; therefore KSEB v. T.P.K. did not alter the aspect of law asserting that the Limitation Act applies only to proceedings before Courts. |
| Kerala State Electricity Board v. Parvathi Amma (1973 KLT 1004) | Division Bench decision referred to in KSEB v. T.P.K. addressing applicability of the Limitation Act. | Referred to in the opinion as part of the doctrinal context; used in the Court's analysis of whether later decisions disturbed the Full Bench position. |
| Ramdutt v. E.D. Sassoon & Co. (AIR 1929 P.C. 103) | Privy Council held (in the arbitration context) that Limitation Act principles (S.3) apply to arbitration as an implied term that arbitrators decide according to existing law; defences available in courts can be proposed before arbitrators. | Respondents relied on this decision to invoke an analogous application of S.14; the Court rejected the analogy for the present case, holding that the principle cannot be pressed to cover appeals returned by an authority without jurisdiction. |
| A.S.K. Krishnappa v. S.V.V. Somiah (AIR 1964 SC 227) | Held that the Limitation Act cannot be extended by analogy to proceedings to which it would not apply. | The Court cited this decision to support its view that S.14 cannot be extended by analogy from suits to appeals before an authority that is not a Court. |
| Maharashtra State Road Transport Corporation v. R.H. Lad (AIR 1977 Bombay 1) | Reiterated the principle that Limitation Act cannot be analogically extended to proceedings to which it does not apply. | Referenced as a recent reiteration consistent with A.S.K. Krishnappa and relied upon to refuse the respondents' analogical claim. |
| Vareed v. Mary (1968 KLT 583) (Full Bench) | Held that the appellate authority under the Rent Control Act is not a Court. | The Court relied on this Full Bench ruling to conclude that the appellate authority in question is not a Court and therefore the Limitation Act principles limited to Courts do not apply to that authority. |
Court's Reasoning and Analysis
The Court proceeded by reciting the factual trajectory and the controlling authorities. It identified the dispute as essentially about whether the Limitation Act (notably S. 5) and related principles can be applied to an appellate authority under the Rent Control Act which is not a Court.
First, the Court summarized the Full Bench decision in Jokkim Fernandez (1973 KLT 138) which had held that the Limitation Act applied only to Courts (proceedings under the Code of Civil Procedure). The Sub Court had acted on that holding to deny power to condone delay; the District Court attempted a different route by excluding time under S.14 of the Limitation Act.
The Court then considered whether later authorities required re-examination of Jokkim Fernandez. It analyzed Kerala State Electricity Board v. T.P.K. (where the Supreme Court held Article 137 applies to any petition filed under any Act to a civil court) and observed that the Supreme Court in that case differed only on the "CPC-limited" ground of Athani but did not disturb the requirement that proceedings be before a "court." Thus KSEB v. T.P.K. did not undermine the Full Bench's essential statement that the Limitation Act is applicable only when the application is made to a court.
The Court next reviewed Mohd. Ashfaq v. S.T.A.T. (concerning S.5 read with S.29(2) and renewal applications before the Regional Transport Authority). The Supreme Court in that case held that sub-section (3) expressly excluded condonation beyond 15 days and that S.5 would be applicable under S.29(2) only unless expressly excluded. The present Court found nothing in Mohd. Ashfaq that supported a conclusion that S.5 could be invoked before the appellate authority under the Rent Control Act in this case; if the Limitation Act were to apply pro tanto to such authorities, Mohd. Ashfaq's conclusions would have been different. In short, Mohd. Ashfaq did not justify extending S.5 to the appellate authority here.
Addressing the respondent's reliance on Ramdutt (Privy Council), the Court explained that Ramdutt's reasoning turned on the nature of arbitration — that arbitrators decide according to the existing law and hence court defences apply — a reasoning that is different from the present situation. The Court also invoked A.S.K. Krishnappa and Maharashtra State Road Transport Corporation v. R.H. Lad to underscore that the Limitation Act cannot be extended by analogy to proceedings to which it does not apply.
Importantly, the Court relied on Vareed v. Mary (Full Bench, 1968 KLT 583) that the appellate authority under the Rent Control Act is not a Court. Given that, principles of the Limitation Act confined to Courts could not be analogically extended to that appellate authority. Consequently, the District Court's invocation of S.14 to exclude time and permit the delayed appeals to be taken on file was held to be without jurisdiction.
The Court concluded that it was not yet justified in convening a larger Bench to reconsider 1973 KLT 138 in respect of the proposition that the Limitation Act applies only to Courts. On that basis the Court allowed the revision petitions.
Holding and Implications
Holding: The Court ALLOWED the revision petitions, set aside the order of the District Court, and directed that the applications to excuse delay which gave rise to these revision petitions stand dismissed. There was no order as to costs.
Implications:
- Direct effect on the parties: The District Court's order permitting condonation/exclusion of time and directing that the delayed appeals be taken on file has been set aside; the applications to excuse delay are dismissed, which means the affected appeals remain rejected for want of timely presentation before the proper forum.
- On precedent and broader law: The Court declined to refer the question for reconsideration by a larger Bench and did not overrule or disturb the Full Bench decision in 1973 KLT 138 that the Limitation Act applies only to Courts. The Court also treated later authorities (including Mohd. Ashfaq and KSEB v. T.P.K.) as not warranting disturbance of the Full Bench's central holding for the facts before it.
- No new legal principle was laid down by this order; the decision principally enforces existing Full Bench and Supreme Court pronouncements as applied to the specific facts and forum in this case.
Final line in the opinion: "Allowed." (The opinion records "There will be no order as to costs.")
Gopalan Nambiyar, C.J:— These three revision petitions were adjourned by our learned brother Viswanatha Iyer, J. to be heard by a Division Bench. It was submitted before the learned Judge that the Full Bench decision of this Court in Jokkim Fernandez v. Amina Kunhi Umma (1973 KLT. 138) required reconsideration in the light of the decision of the Supreme Court in Mohd. Ashfaq. v. State Transport Appellate Tribunal, U.P ((1976) 4 SCC 330 : AIR. 1976 S.C 2161). The learned Judge felt that the question involved was fairly important.
2. The respondent in an application for eviction before the Rent Control Court under the Kerala Buildings (Lease and Rent Control) Act, filed an appeal against the order to the appellate authority under the Act. Owing to the uncertainty in the identity of the forum where the appeal had to be presented, it flitted between the Sub Court, Parur, and District Court, Ernakulam, till it was eventually decided by this Court in O.P Nos. 353, 363 and 364 of 1971 that the proper court for presentation of the appeal was the Sub Court, Ernakulam, and that in view of the delay that had intervened, the appeal had to be presented to that court with a petition to excuse the delay, under S. 5 of the Limitation Act. This was done.
3. Meanwhile, a Full Bench of this Court in Jokkim Fernandez v. Amina Kunhi Umma (1973 KLT. 138) had decided that the Limitation Act had application only to Courts. Following the principle of the said decision, it was ruled by the Sub Court that there was no power to excuse delay in filing the appeal. The application to condone the delay was dismissed; consequently the appeal was also dismissed. A Revision was preferred to the District Court. That Court held that although the Limitation Act and the provisions of S. 5 thereof cannot apply in view of the Full Bench decision in Jokkim Fernandez v. Amina Kunhi Umma (1973 KLT. 138), the principle of S. 14 of the Limitation Act would apply and the time spent in bona fide prosecuting the litigation, during the period when the appeals flitted between the Sub Court and the District Court, was liable to be excluded. The applications to excuse delay were accordingly allowed, and the appeals were directed to be taken on file. The Revision Petitions are before us against the said order.
4. In the Full Bench judgment in Jokkim Fernandez v. Amina Kunhi Umma (1973 KLT. 138), speaking for the majority (Viswanatha Iyer, J. dissenting), it was observed that the Limitation Act applied only to Courts and prescribed periods of limitations in respect of suits, appeals and applications filed only in Courts. For the said proposition, reliance was placed on the decision of the Supreme Court in Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli ((1969) 1 SCC 873 : AIR. 1969 SC. 1335) which ruled that the Limitation Act would apply only to proceedings governed by the Code of Civil Procedure and only in respect of proceedings taken in Courts. The principle that the Limitation Act would govern only to applications made to Courts was restated in Nityanand M. Joshi v. The Life Insurance Corporation of India ((1969) 2 SCC 199 : AIR. 1970 SC. 209). Following these two decisions, the Full Bench had laid down the principle that the Limitation Act would apply only to proceedings under the Code of Civil Procedure taken in courts.
5. What is now sought to be contended before us is that a different strand of reasoning was struck in a later ruling of the Supreme Court in Kerala State Electricity Board v. T.P.K (1976 KLT. 810). In view of the said decision it was stated that the earlier Full Bench decision requires re-examination. In 1976 KLT. 810 a petition under Ss. 10 and 16(5) of the Indian Telegraph Act, 1885 read with S. 51 of the Indian Electricity Act 1910 claiming compensation was filed before the District Judge, Tellicherry. Objection was raised that the petition was barred by time under Article 137 of the Limitation Act, 1963. For the Electricity Board, it was answered that the said Article did not apply to applications to District Judge under the Telegraph Act. It was ruled by this Court that in view of the decision in Kerala State Electricity Board v. Parvathi Amma (1973 KLT. 1004) by a Division Bench of this Court, the Limitation Act would apply only to proceedings under the Code of Civil Procedure. This Court in that case referred to the pronouncement of the Supreme Court in Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli ((1969) 1 SCC 873 : AIR. 1969 SC. 1335) that the Limitation Act applied only to proceedings under the Code of Civil Procedure and only to proceedings in Courts. It also referred to Nityanand M. Joshi v. The Life Insurance Corporation of India ((1969) 2 SCC 199 : AIR. 1970 SC. 209) which had endorsed the second of those grounds, but expressed doubt as to the first, viz., whether the Act would apply only to applications under the Code of Civil Procedure. In Kerala State Electricity Board v. T.P.K (1976 KLT. 810) the Supreme Court observed:
“The conclusion we reach is that Article 137 of the 1963 Limitation Act will apply to any petition or application filed under any Act to a civil court. With respect we differ from the view taken by the two Judge Bench of this Court in Athani Municipal Council case (supra) and hold that Article 137 of the 1963 Limitation Act is not confined to applications contemplated by or under the Code of Civil Procedure. The petition in the present case was to the District Judge as a court. The petition was one contemplated by the Telegraph Act for judicial decision. The petition is an application falling within the scope of Article 137 of the 1963 Limitation Act.” [page 814]
6. It would be seen that the Court “differed” only from one of the two grounds on which the decision about the non-applicability of the Limitation Act had been rested in Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli ((1969) 1 SCC 873 : AIR. 1969 SC. 1335), namely, that the proceedings must be under the Code of Civil Procedure. The second ground that the proceedings must be in Court was not shaken. Indeed, this aspect of the matter was emphasised by stating that the application under the Telegraph Act was made to a civil court. It is therefore clear that this aspect of the law laid down in (1969) 1 SCC 873 : AIR. 1969 SC. 1335 has not in any way been affected.
7. Attention was then called to Mohd. Ashfaq v. S.T.A.T, U.P ((1976) 4 SCC 330 : AIR. 1976 SC. 2161). The question there considered was regarding the applicability of S. 5 of the Limitation Act to an application filed before the Regional Transport Authority for renewal of a permit, under S. 58(2) & (3) of the Motor Vehicles Act. Under sub-clause (2) the application for renewal of a permit had to be made within a specified time; and under sub-clause (3) the Regional Transport Authority may entertain an application for renewal of a permit after the specified date if the application is made not more than 15 days after the said date and is accompanied by the prescribed fee. The question considered was whether S. 29(2) of the Limitation Act could permit the Regional Transport Authority to entertain an application even beyond the outer limit of more than 15 days from the time specified for making an application for renewal. The Court observed:
“S. 29, sub-section [2] of the Limitation Act, 1963 makes S. 5 applicable in the case of an application for renewal unless its applicability can be said to be expressly excluded by any provision of the Act. The only provision of the Act sought to be pressed into service for this purpose was sub-section (3). Does sub-section (3) expressly exclude further extension of time under S. 5? If it does, then S. 5 cannot be availed of by the appellant for condonation of the delay. Sub-section (3) in so many terms says that the Regional Transport Authority may condone the delay in making an application for renewal and entertain it on merits provided the delay is of not more than is days. This clearly means that if the application for renewal is beyond time by more than 15 days, the Regional Transport Authority shall not be entitled to entertain it, or in other words, it shall have no power to condone the delay. There is thus an express provision in sub-section (3) that delay in making an application for renewal shall be condonable only if it is of not more than IS days and that expressly excludes the applicability of S. 5 in cases where an application for renewal is delayed by more than 15 days.” (para 8)
8. We do not see anything in the above decision to hold that an application to excuse delay would lie to the Regional Transport Authority under S. 5 read with S. 29(2) of the Limitation Act. On the other hand, if the Limitation Act would apply pro prio vigore even to the Regional Transport Authority, the principle stated by the Supreme Court and its conclusion should have been different.
9. Counsel for the respondents placed reliance on the decision of the Privy Council in Ramdutt v. E.D Sassoon & Co. (AIR. 1929 P.C 103) to contend that the principle of S. 14 of the Limitation Act would be attracted and delay could be excused on the said basis. In that case it was ruled by the Privy Council that although the Limitation Act does not in terms apply to arbitrations in mercantile references, it is an implied term of the contract that the arbitrator must decide the dispute in accordance with the existing law of contract, and that every defence which would have been open in a Court of law can be equally proposed for the arbitrator's decision unless the parties have agreed to exclude that defence. Hence it was ruled that S. 3 of the Limitation Act applies to arbitration proceedings. It was pointed out that arbitration under the Indian Arbitration Act are not prosecuted by filing suits and preferring appeals from the decrees in such suits, but by procuring awards and filing them in Court and resisting applications to set them aside. Therefore, an arbitrator should exclude the time spent in prosecuting in good faith the same claim before the arbitrator who was without jurisdiction. It will be noticed that the fundamental principle on which the decision was rested was quite different, namely, that the arbitrator had to decide in accordance with the existing law and that every defence could be taken before him which would have been open in a Court of law. We are afraid this principle cannot be pressed into service to cover the case of the appeals presented before the appellate authority which had no jurisdiction to entertain those appeals, and therefore returned the same for presentation to the proper authority. It was ruled in A.S.K Krishnappa v. S.V.V Somiah (AIR. 1964 S.C 227) that the Limitation Act cannot be extended by analogy to proceedings to which it would not apply. We are seeking to extend the principle of S. 14 from suits to appeals The same principle was reiterated recently in Maharashtra State Road Transport Corporation v. R.H Lad (AIR. 1977 Bombay 1). And we have the Full Bench ruling of this Court in Vareed v. Mary (1968 KLT. 583) that the appellate authority under the Rent Control Act, with which we are concerned in this case, is not a Court. We are therefore of the opinion that the order passed in revision by the District Court in proceedings herein impugned, were without jurisdiction and cannot be sustained. We do not think we would yet be justified in troubling a larger Bench with the question of reconsidering 1973 KLT 138 in so far as it decided that the Limitation Act applies only to Courts. We allow these Revision Petitions, set aside the order of the District Court and direct that the applications to excuse delay which have given rise to these three Revision Petitions, will stand dismissed. There will be no order as to costs.
10. Allowed.
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