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Citation Codes
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Case Number
Attorney(S)
  • For the Appellant: T.P. Kelu Nambiar, Advocate.
Judges
  • K.S Paripoornan
  • D.J Jagannadha Raju, JJ.
Acts
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Cites
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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • For the Appellant: T.P. Kelu Nambiar, Advocate.
Judges
  • K.S Paripoornan
  • D.J Jagannadha Raju, JJ.
Acts
See more information ...
Smart Summary

Structured Summary of the Opinion (Paripoornan, J.)

Factual and Procedural Background

The petitioners (along with respondents 5 to 10) were tenants under the 1st respondent (landlord). The landlord initiated eviction proceedings under Section 11(2), 11(3), 11(4)(ii) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act ("the Act"). By Ext. P1 order dated 26-2-1986 the Rent Control Court ordered eviction on the ground of arrears (Section 11(2)) and directed surrender of vacant possession within one month. Arrears were found to be Rs. 11,969.86 (inclusive of interest). The tenants paid Rs. 6,000 within the ordered time and obtained a two-month extension on I.A. No. 1005 of 1986. A subsequent application (I.A. No. 2014 of 1986) for further extension was dismissed by the Rent Control Court by Ext. P4 (21-11-1986), relying on Lakshmi v. Kuppuswany Chettiar & Others.

The tenants challenged the eviction order in R.C.A. No. 83 of 1983 before the Appellate Authority but there was a delay in filing the appeal. They filed I.A. No. 2454 of 1986 seeking condonation of delay. By Ext. P2 order dated 28-2-1987 the Appellate Authority held Section 5 of the Limitation Act inapplicable and dismissed the petition. Ext. P2 was affirmed on revision by the District Court in R.C.R.P. No. 21 of 1988 by Ext. P3 dated 31-1-1990. The petitioners challenged Exts. P2 to P4 and sought a declaration entitling them to further extension for payment and condonation of delay under Section 5 of the Limitation Act.

On petition admission the matter was directed to a Division Bench in view of contention that a Full Bench precedent (Jokkim Fernandez) might require reconsideration in light of Kerala State Electricity Board v. T.P. Kunhaliumma. The present Division Bench heard the petition and delivered the opinion summarized here.

Legal Issues Presented

  1. Whether Section 5 of the Limitation Act is applicable so as to permit the Appellate Authority constituted under the Rent Control Act to condone delay in filing appeals before it.
  2. Whether a Rent Control Court, having granted an extension of time once for payment of arrears, can grant further or repeated extensions, or whether it becomes functus officio after granting extension once.

Arguments of the Parties

Petitioners' Arguments

  • Section 5 of the Limitation Act, read with Section 29(2) of the Limitation Act, entitles the Appellate Authority functioning under the Act to condone delay in filing the appeal.
  • The Rent Control Court is not functus officio by granting extension of time once; the court retains power to grant further extensions, potentially more than once or repeatedly.
  • The petitioners urged that the majority view in Jokkim Fernandez (Full Bench) should be re-considered in view of the later Supreme Court decision in Kerala State Electricity Board v. T.P. Kunhaliumma.

Appellate Authority / District Court / Respondents' Position (as reflected in orders)

  • The Appellate Authority and the District Court held that Section 5 of the Limitation Act is inapplicable to appeals before an Appellate Authority constituted under the Act and therefore declined to condone the delay (Ext. P2, affirmed by Ext. P3).
  • The Rent Control Court rejected the second application for further extension (Ext. P4), relying on precedent that limits the court to grant extension only once.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Jokkim Fernandez v. Amina Kunhi Umma 1973 Ker LT 138 (FB) : AIR 1974 Ker 162 (FB) Majority: Section 5 of the Limitation Act applies only to courts and is inapplicable to appeals filed before Appellate Authorities functioning under statutory Acts. The court held this Full Bench majority decision to be correct and refused to reconsider it; it formed the primary basis for holding Section 5 inapplicable to the Appellate Authority under the Act.
The Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma AIR 1977 SC 282 Supreme Court authority supporting limited application of Section 5 to courts (cited for consonance with Full Bench view). The court relied on this decision as being in accord with the view that Section 5 is applicable only for proceedings before courts.
Commissioner of Agricultural Income-tax v. Thalayar Rubber Industries Ltd. 1981 Ker LT 398 : AIR 1981 NOC 160 (FB) Full Bench decision following the Jokkim Fernandez majority: Section 5 limited to courts. The court noted that this subsequent Full Bench unanimously followed Jokkim Fernandez, reinforcing the view that Section 5 does not apply to Appellate Authorities under statutes.
Thilakan v. Mankai Coir Vyavasaya Co-operative Society Ltd. 1978 Ker LT 256 Division Bench support for the proposition that Section 5 is not applicable to tribunals/Appellate Authorities. Cited as one of the Division Bench decisions consistent with the Full Bench principle; used to show precedent continuity.
Ulahannan Chacko v. Pareed Marakkar 1978 Ker LT 330 : AIR 1978 Ker 161 Another Division Bench decision aligning with the view that Section 5 is inapplicable to tribunals. Used to demonstrate consistent Division Bench authority supporting the Full Bench rule.
Raman Pillai Thankappan Pillai v. Special Tahsildar, Land Acquisitions AIR 1982 Ker 350 Division Bench holding that applicability of Section 5 in relation to Tribunals is ruled out; Section 5 limited to courts. The court described this as the latest Division Bench decision which categorically held Section 5 inapplicable to tribunals and noted an exhaustive discussion of the law therein.
Lakshmi v. Kuppuswany Chettiar & Others (referred as Kuppuswamy Chettiar's case) 1983 Ker LT 703 Holds that once an extension of time for payment is granted by the Rent Control Court, the court becomes functus officio and cannot grant further extension. The court examined this decision and concurred with its dictum, holding that on a plain reading of the Act the Rent Control Court is functus officio after granting extension once; therefore the single judge's decision was followed.

Court's Reasoning and Analysis

The court proceeded in two analytical strands corresponding to the two principal issues.

First, on the applicability of Section 5 of the Limitation Act to appeals before an Appellate Authority constituted under the Rent Control Act, the court considered the majority Full Bench decision in Jokkim Fernandez which held that Section 5 applies only to courts and not to appeals before statutory Appellate Authorities. The court found that decision to be correctly decided. It observed that subsequent authoritative decisions — including the Supreme Court decision in Kerala State Electricity Board v. T.P. Kunhaliumma and a later Full Bench in Commissioner of Agricultural Income-tax v. Thalayar Rubber Industries Ltd. — were in accord with that view. Several Division Bench decisions (Thilakan, Ulahannan Chacko and Raman Pillai Thankappan Pillai) also followed the same principle. Having reviewed this line of authority, the court concluded that the majority dictum in Jokkim Fernandez does not require reconsideration and that Section 5 is inapplicable to the Appellate Authority under the statutory scheme.

Second, on whether the Rent Control Court could grant multiple extensions of time for payment of arrears, the court examined the decision in Lakshmi v. Kuppuswany Chettiar. On a plain reading of the Act, the court agreed with the holding in that case that once an extension of time is granted, the Rent Control Court becomes functus officio and cannot grant further extensions. The court expressly concurred with Narendran J.'s dictum in that case.

Applying these legal conclusions to the facts, the court found the petitioners' contentions unsustainable: Section 5 could not be invoked to condone the delay before the Appellate Authority, and the Rent Control Court was correct in refusing a second extension. Consequently, the challenge to Exts. P2 to P4 failed.

Holding and Implications

Holding: The Original Petition is dismissed. (Petition dismissed.)

Implications:

  • The orders challenged (Exts. P2 to P4) stand: the Appellate Authority properly held Section 5 of the Limitation Act inapplicable and the Rent Control Court properly refused a second extension for payment of arrears.
  • The court reaffirmed existing precedents rather than establishing a new principle: it upheld the Full Bench majority in Jokkim Fernandez and the line of subsequent authority (including the Supreme Court in T.P. Kunhaliumma and later Full and Division Bench decisions) that Section 5 of the Limitation Act applies only to courts and not to statutory tribunals/Appellate Authorities under the Act. It also affirmed the Lakshmi v. Kuppuswany Chettiar rule that the Rent Control Court becomes functus officio after granting an extension once.
  • No broader, novel precedent was created by this decision; the opinion applies and reaffirms earlier decisions to the facts before the court.
Show full summary ...

    Jeboy D'Cunhe And Another v. Subramonian And Others

    Paripoornan, J.:— There are two petitioners in this O.P The petitioners, as well as respondents 5 to 10, are tenants under the 1st respondent (landlord). The landlord initiated proceedings for eviction of the tenants under Section 11(2), 11(3), 11(4)(ii) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act (in short, the Act). The Rent Control Court ordered eviction on the ground of arrears of rent (Section 11(2) of the Act) by Ext. P1 order dated 26-2-1986. The tenants were directed to surrender vacant possession of the plaint schedule building within one month from the date of the order. The arrears of rent was found to be Rs. 11,969.86, inclusive of interest. The tenants deposited Rs. 6,000/- within the time ordered by the Rent Control Court. They also filed an application I.A No. 1005 of 1986 praying for time to deposit the balance. Two months' time was granted. The tenants filed another application I.A No. 2014 of 1986 for further extension of time for depositing the balance. It was rejected by the Rent Control Court, placing reliance on the decision of this Court in Lakshmi v. Kuppuswany Chettiar & Others 703 and stating that the Rent Control Court can grant extension of time only once and the power under Section 11(2)(i) is thereby exhausted. The tenants challenged the order of eviction in R.C.A No. 83 of 1983 before the Appellate Authority. Admittedly, there was delay in filing the appeal. The tenants filed I.A No. 2454 of 1986 for condoning the delay in filing the appeal. By Ext. P2 order dated 28-2-1987, the Appellate Authority held that Section 5 of the Indian Limitation Act is inapplicable and dismissed the petition. The said order (Ext. P2) was affirmed in revision by the District Court in R.C.R.P No. 21 of 1988, by order dated 31-1-1990 (Ext. P3.). The second application filed for extension of time for deposit of the balance was dismissed by Ext. P4 order dated 21-11-1986, passed in I.A No. 2014 of 1986. It is in these circumstances, the petitioners challenge Exts. P2 to P4 orders. There is also a prayer for the grant of a declaration that the petitioners are entitled to further extension of time for paying the balance of arrears of rent. It is also stated that the delay in filing the appeal before the 1st appellate authority merited condonation under Section 5 of the Limitation Act.

    2. When the O.P came up for admission, Sankaran Nair J. passed the following order on 28-6-1990:

    “According to petitioner the law laid down in Jokkim Fernandez v. Amina Kunhi Umma (1973 KLT 138) (FB) is no longer good, in the light of the decision in The Kerala State Electricity Board, Trivandrum v. T.P Kunhaliumma AIR 1977 SC 282. In view of the importance of the question raised, I adjourn the original petition to be heard by a Division Bench. The petitioner requested that the petition may be posted on 2-7-1990 for admission.

    Place for orders before the Hon'ble the Chief Justice.”

    In pursuance thereto, the matter has come up before this court for admission.

    3. We heard counsel for the petitioners Mr. T.P Kelu Nambiar. The Appellate Authority, as well as the District Court, have held that the delay caused in filing the appeal before the first Appellate Authority cannot be condoned and that Section 5 of the Limitation Act is inapplicable in the case of an appeal filed before the Appellate Authority functioning under the Act. The petitioners' counsel fairly stated that this view of the law is fortified by the majority judgment of the Full Bench decision of this Court in Jokkim Fernandez v. Amina Kunhi Umma 1973 Ker LT 138 : (AIR 1974 Ker 162) (FB). Counsel submitted that the dissenting judgment in the aforesaid Full Bench decision lays down the law correctly and the majority judgment rendered in the aforesaid decision requires re-consideration. It was argued that Section 5, read along with Section 29(2) of the Limitation Act will show that the Appellate Authority functioning under the Act has got jurisdiction to condone the delay in filing the appeal by virtue of the aforesaid provisions. Another plea, that was raised, was that the Rent Control Court will not become functus officio by granting extension of time for payment once. The court has power to grant extension of time more than once and even repeatedly. In the light of the above submission it was argued that Exts. P2 to P4 orders deserve to be annuled.

    4. We are of the view that the majority judgment rendered in Jokkim Fernandez v. Amuna Kunhi Umma, 1973 Ker LT 138 : (AIR 1974 Ker 162) (FB) lays down the law correctly. The majority Judges of the Full Bench held that Section 5 of the Limitation Act 1963 applies only to courts and prescribes period of limitation in respect of suits, appeals and applications filed only in courts. It is inapplicable to an appeal filed before an Appellate Authority, functioning under the Act. The subsequent decision of the Supreme Court in The Kerala State Electricity Board v. T.P Kunhaliumma, AIR 1977 SC 282 as also the Full Bench decision of this Court in Commissioner of Agricultural Income-tax v. Thalayar Rubber Industries Ltd. 1981 Ker LT 398 : (AIR 1981 NOC 160) (FB) are in accord with the view that Section 5 of the Limitation Act is applicable only for proceedings before courts. The subsequent Division Bench decisions of this Court have also taken the same view in Thilakan v. Mankai Coir Vyavasaya Co-operative Society Ltd. 1978 Ker LT 256, Ulahannan Chacko v. Pareed Marakkar, 1978 Ker LT 330 : (AIR 1978 Ker 161) and Raman Pillai Thankappan Pillai v. Special Tahsildar, Land Acquisitions AIR 1982 Ker 350. In the latest decision, Raman Pillai Thankappan Pillai's case AIR 1982 Ker 350, the Division Bench had categorically held that the applicability of Section 5 of the Limitation Act in relation to Tribunals is ruled out and the Section has limited its application, only to courts. There is an exhaustive discussion of the entire case law on the point in the latest decision. The majority decision rendered in Jokkim Fernandez case 1973 Ker LT 138 : (AIR 1974 Ker 162) (FB) has been unanimously followed by a subsequent Full Bench in Thalayar Rubber Industries Ltd. case 1981 Ker LT 398 : (AIR 1981 NOC 160) (FB). Three other Division Benches have also taken the same view. The said view is in accord with the latest decision of the Supreme Court in T.P Kunhaliumma's case, AIR 1977 SC 282 at page 286.

    5. In the circumstances, we are of the view that the dictum laid down by the majority Judges in the Full Bench decision reported in Jokkim Fernandez case, 1973 Ker 138 : (AIR 1974 Ker 162) (FB) does not require reconsideration. We repel the plea to the contrary.

    6. The only other plea made was that the Rent Control Court can grant extension of time more than once and the decision of a learned single Judge in Lakshmi v. Kuppuswany Chettiar & Others 703, which holds to the contrary does not lay down the law correctly. We perused through the said decision with care. We are of the view that on a plain reading of the provisions of the Act, it is evident that if extension of time is granted once, the court becomes functus officio and thereafter it is not open to the Rent Control Court to grant further extension of time. We concur with the dictum so laid down by Narendran J. in Kuppuswamy Chettiar's case, 1983 Ker LT 703.

    7. No other contention was raised at the time of hearing.

    The O.P is without merit. It is dismissed.

    Petition dismissed.

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    Comments

    Jeboy D'Cunhe And Another v. Subramonian And Others
    (Jul 5, 1990)