Balanarayana Marar, J.:— Revision arises from an order in a Rent Control Petition. Revision petitioners are respondents-tenants of the building sought to be evicted by respondent-landlord. Petitioners failed to appear on the date of hearing and after setting them ex parte the Rent Control Court allowed the application. Petitioners moved the Rent Control Court by I.A 2056/1989 to get the ex parte order set aside. Another petition was also filed as I.A 2035/1989 to excuse the delay in filing the petition to set aside the ex parte order. The reason for the absence is alleged to be the illness of petitioners. Respondent resisted the petition. The Rent Control Court after hearing both sides dismissed both the petitions by a common order dated 1-1-1990. The reason for the absence was not satisfactorily explained according to the Rent Control Court and the reason for the delay was also not established. On appeal Addl. District Court, Palakked concurred with that order and dismissed the appeal. The appellate Court further stated that the petition to set aside the ex parte order is barred by limitation and S. 5 of the Limitation Act does not apply to the Rent Control Court so as to enable petitioner to get the delay in filing the petition excused. Hence the revision.
2. Heard counsel on both sides.
3. It is argued in the main that S. 5 of the Limitation Act applies to proceedings before the Rent Control Court and the Appellate Authority. Section 5 reads as follows:—
“Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.”
4. Section 29(2) of the Limitation Act provides that the provisions contained in Ss. 4 to 24 shall apply to the extent to which they are not expressly excluded by any special or local law where any special or local law prescribes a period of limitation different from the period prescribed by the Schedule to the Limitation Act. It is therefore contended that in the absence of an exclusion provided in the Rent Control Act, S. 5 of the Limitation Act applies and petitioners have got a right to get the petition admitted on satisfaction that they had sufficient cause for not making the application within the prescribed period. On the other hand, it is argued by learned counsel for the respondent that S. 5 applies only to Courts and Rent Control and the Appellate Authority are persona designata and not Courts so as to attract the provision contained in S. 5 of the Limitation Act. The position as far as this Court is concerned has been concluded by the Division Bench decision in Jokkim Fernandez v. Amina Kunhi Umma, AIR 1974 Ker 162. Since counsel has argued the matter at length and has referred to various decisions, it is only appropriate to refer to those decision before expressing our views in the matter.
5. Counsel for revision petitioners has drawn attention to the Division Bench decision of the Madras High Court in Rethinasamy v. Nomalavalli, AIR 1983 Mad 45. The Division Bench was considering the applicability of Ss. 4 to 24 of the Limitation Act to a proceeding under S. 23 of the Tamil Nadu Buildings (Lease and Rent Control) Act. It was held that for the purpose of Ss. 3, 5 and 29(2) of the Limitation Act, the Appellate Authority constituted under the Rent Control Act is a Court and S. 5 was found to be applicable to an appeal preferred before the Appellate Authority constituted under Section 23(1)(b) of the Rent Control Act. This decision cannot be relied on since a Full Bench of this Court in Jokkim Fernandez's case (supra) has held otherwise. The Full Bench by a majority speaking through Gopalan Nambiar J. (as be then was) held that Limitation Act, 1963 applies only to Courts and prescribes periods of limitation in respect of suits, appeals and applications filed only in Courts. It was further held that S. 18 of the Kerala Buildings (Lease and Rent Control) Act is clear that the Appellate Authority constituted under it is not a Court, but only an authority persona designata and S. 5 of the Limitation Act is not applicable to proceedings before the Appellate Authority under the Rent Control Act. It is observed that the Kerala Buildings (Lease and Rent Control) Act was made to be a self-contained Code in the matter of prescribing the periods of limitation and granting exemption therefrom.
6. Various authorities were brought to our notice by learned counsel for the respondent in support of his contention that S. 5 is applicable only to proceedings before Courts and not before any other authority. The Supreme Court in Sushila Devi v. Ramanandan Prasad, (1976) 1 SCC 361 : (AIR 1976 SC 177) held that the Collector to whom an application was made under S. 5 of the Kosia Area (Restoration of Lands to Raiyats) Act, 1951 was not a Court though S. 15 of that Act vested him with, certain specified powers under the Code of Civil Procedure. It was therefore held that S. 5 cannot be invoked for an application made under S. 3 of that Act.
7. The question whether S. 5 of the Limitation Act is applicable to an appeal before the Agricultural Income-tax Appellate Tribunal came up for consideration before a Full Bench of this Court in Commr. of Agrl. Income-tax v. Thalayar Rubber Industries Ltd., 1981 KLT 398 : (AIR 1981 (NOC) 160 (Ker) (FB)). It was held that Ss. 5 and 14 of the Limitation Act can be relied on for extension of time in respect of a proceeding in Court and not before a Tribunal or other authority under any local or special law. The Tribunal has no jurisdiction to invoke Sections 5 and 14 of the Limitation Act to condone the delay in presenting an application under sub-section (1) of Sec. 60 of the Agricultural Income-tax Act. Reference was also made to Sec. 69 of that Act which indicates that the provisions of Ss. 4 to 24 of the Limitation Act are not attracted to proceedings under the Act. It is observed that the Act is intended to be a self-contained code in the matter of prescribing the periods of limitation for proceedings under the Act. It was further observed that the special provision in Sec. 69 of that Act prescribing the period of limitation would be unnecessary if Sec. 29(2) were to attract Sec. 12 of the Limitation Act. It was therefore held that the Agricultural Income-tax Appellate Tribunal has no jurisdiction to condone the delay in filing an application for reference under sub-sec. (1) of Sec. 60 of the Act. Learned Counsel for petitioners had relied on two decisions of the Supreme Court: Surjit Lal Chhabda v. Commr. of Income-tax, Bombay, AIR 1976 SC 109 : (1976 Tax LR 108) and Sarojini Tea Co. (P.) Ltd. v. Collector of Dibrugarh, AIR 1992 SC 1264 : (1992 AIR SCW 1217). In Surjit Lal Chhabda's case the Supreme Court was considering whether Sec. 5 of the Limitation Act was applicable to a petition for leave under Sec. 417(3) of the Criminal Procedure Code. It was held that in a case where an application for special leave to appeal from an order of acquittal is filed after the coming into force of the Limitation Act, 1963, Sec. 5 would be available to the applicant if he can show that he had sufficient cause for not preferring the application within the time limit of 60 days prescribed in sub-sec. (4) of Sec. 417, the application would not be barred and despite the expiration of the time limit of 60 days, the High Court would have the power to entertain it. In that case the Supreme Court was only considering the powers of the High Court to entertain an application filed after the expiry of the prescribed time. The question whether Sec. 5 is applicable to authorities other than courts, did not come up for consideration before the Supreme Court in that case, nor was any decision rendered on that aspect. This decision is therefore of no assistance to respondent.
8. In Sarojini Tea Co.'s case (supra) the appeal was presented before the District Judge under the Assam Fixation of Ceiling on Land Holdings Act. Observing that there is nothing in the Ceilding Act which excludes the applicability of Ss. 4 to 24 of the Limitation Act to proceed under the Ceiling Act, it was held that the District Judge was competent to condone the delay in filing the appeal. That decision also is of no help to respondents since the appeal was presented before a court and not before any other authority. Section 5 confers power on a court to consider an application or appeal filed after the prescribed period of limitation and the District Judge was competent to consider whether there was sufficient cause for not filing the appeal within the period prescribed.
9. Reliance is then placed on a Division Bench decision of this Court in Pankajakshi Amma v. Sarojam, 1993 (2) Ker LJ 256. The question that arose was whether by virtue of Sec. 22 of the Rent Control Act, Order 22, Rule 9(3) including provision regarding condonation of delay by the application of S. 5 of the Limitation Act was attracted to the facts of the case. Section 22 of the Rent Control Act makes the provisions of Sec. 146 and Order 22 of the Code of Civil Procedure applicable to proceedings under that Act as far as possible. Order 22, Rule 9(3) stipulates that the provisions of Sec. 5 of the Indian Limitation Act shall apply to an application under sub-rule (2) of Rule 9 and that enables a person claiming to be the legal representative of a deceased petitioner to get the abatement set aside by showing sufficient cause. On the basis of these provisions the Division Bench held that whenever application falling under Sec. 22 of the Rent Control Act read with Rule 10 of the Rules made thereunder come up before the Rent Controller or the Appellate Authority or the Revisional Authority, there can be no difficulty in coming into the question of sufficient cause as envisaged under Sec. 5 of the Limitation Act. This, according to the Bench, is because of the special provisions contained in Rule 9(3) of Order 22 which was made applicable by S. 22 of the Rent Control Act. The principle laid down by the Division Bench in the aforesaid decision is applicable only to cases where Order 22 of the Code of Civil Procedure is resorted to. The power of the Rent Control Court, the Appellate Authority and the Revisional Authority to go into the question of sufficient cause as envisaged under Sec. 5 of the Limitation Act is obtained under Rule 9(3) of Order 22 which has been specially made applicable to proceedigs under the Rent Control Act by Sec. 22 of that Act. That principle cannot be made applicable to a petition to get the ex parte order set aside. This decision also is of no assistance to petitioners.
10. The position therefore is well-settled that Sec. 5 of the Limitation Act is applicable only to proceedings before courts and not before any authority other than courts. The position may be different if the special statute authorises a body or authority constituted under that Act to apply Sec. 5 while dealing with applications for condonation of delay. This aspect was considered by the Supreme Court in Sakuru v. Tanaji, (1985) 3 SCC 590 : (AIR 1985 SC 1279). In that decision also the Supreme Court held that the provisions of the Limitation Act, 1963 apply only to proceedings in courts, and not to appeals or applications before 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 Codes of Civil or Criminal Procedure. It was observed that the relevant statute 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 that the provisions of Sec. 5 of the Limitation Act shall be applicable to such proceedings. When the relevant statute contains such express provision, the authority can invoke the provisions of Sec. 5 of the Limitation Act for condonation of the delay in filing the appeal or application. The Rent Control Act does not contain such a provision and the conclusion is irresitible that the provisions of Sec. 5 cannot be made applicable to proceedings under the Rent Control Act before the Rent Control Court and the Appellate Authority.
11. It may be contended that the Full Bench of this Court in Jokkim Fernandez's case was dealing with the powers of an Appellate Authority constituted under the Act and not a Rent Control Court. The Appellate Authority is a persona designata. The Rent Control Court is an authority constituted under the Rent Control Act. Both the authorities cannot therefore be held to be a court. The Full Bench decision is therefore applicable to the case of a proceeding before a Rent Control Court also. The position may be different as far as the revisional Court is concerned since that is either the District Court or the High Court.
12. The next question that requires consideration is what is the period of limitation within which a petition to set aside an ex parte order has to be filed and what is the date from which limitation starts to run. The relevant rule is Rule 13(3) of the Rules framed under the Rent Control Act. That rule reads:
“In any case in which an order is passed ex parte, against a tenant or a landlord, the tenant or the landlord, as the case may be, may within fifteen days from the date of receipt of the order apply to the Accommodation Controller or the Rent Control Court, as the case may be, by whom the order was passed, for an order to set aside, and if tenant or the landlord satisfies the Accommodation Controller or the Rent Control Court, as the case may be, that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the application was called on for hearing, the Accommodation Controller or Rent Control Court, as the case may be, shall make such order as it deems fit, an order passed against the tenant or landlord, as the case may be, and shall appoint a day for proceeding with the application.
Provided that no order shall be set aside on any such application as aforesaid unless notice thereof has been served on the opposite party.”
13. The rule enables the tenant or the landlord, as the case may be, to move the Rent Control Court for an order to set aside the order passed ex parte. The petition has to be filed within 15 days from the date of receipt of the order. Time therefore runs from the date of receipt of the order. The rules do not prescribe for service of a copy of the order either of the Accommodation Controller or the Rent Control Court. There was such a requirement in the rules of 1959 which were replaced by the rules of 1979 with effect from 24-5-1979. The requirement in Rule 11(8) of the Ruels of 1959 to serve a copy of the order was deleted. But consequential amendment was not made in Rule 13(3) of the Rules of 1979. A Division Bench of this Court in the decision in Moorthy v. Ramachandran, 1992 (2) Ker LT 206 felt that the rule provides a puzzle and an anomaly which have got to be resolved in exercise of this Court's interpretative powers. After referring to the provisions contained in the rules of 1959 and the rules of 1979 and some authorities, the Division Bench held that the time for filing an application for setting aside an ex parte order under Rule 13(3) runs from the date of knowledge of the order. We are in respectful agreement with this view.
14. After finding that time runs from the date of knowledge of the order, the Division Bench proceeded further to consider whether knowledge can be either of the party or of his counsel. It was held that the date of knowledge of either of these persons constitute the starting point of the period of limitation. There is no difficulty when the party himself has knowledge of the order. Similar is the case when he has engaged a counsel and the counsel has knowledge of the proceedings. Discrepancies may arise in cases where the party as well as his lawyer had no knowledge of a particular order. It was held that in that event and in that event alone could it be stated that there was no knowledge justifying a petition within fifteen days from the date of actual knowledge. Following the decision of the Gujarat High Court in Chunilal Nathubhai v. Abdul Razack Shaiku, AIR 1980 Guj 88, the Division Bench held that the knowledge of the pleader is binding on the party and is imputed to him as well. We are in agreement with the principles enunciated by the Division Bench in the aforesaid decision.
15. Have the petitioners approached the Rent Control Court within the prescribed time is the only question that survives for consideration. Relying on the decision in Moorthy's case (supra), it is urged by learned Counsel for respondents that the petition was presented within 15 days of the date of knowledge of the party. The ex parte order was passed on 19-10-1989. The petition to set aside the ex parte order was filed on 4-11-1989 supported by an affidavit alleging that the petitioners came to know of the order on 3-11-1989. Rule 13(3) insists filing of the petition within 15 days of the date of receipt of the order. That having been interpreted by this Court in Moorthy's case as the date of the knowledge of the parties, the petition was within time, according to counsel. But it is pointed out on behalf of respondent that a counsel appeared for petitioners before the Rent Control Court and he had knowlege of the order. If that be so, knowledge of the order has to be imputed to petitioners also in which case the petition presented on 4-11-1989 is beyond the period of limitation by one day. The question arises whether counsel had notice of the order and whether knowledge can be imputed to petitioners for that reason.
16. On a perusal of the original rent control petition, it is noticed that counsel appeared for respondents in the O.P and the petition had undergone three adjournments for filing counter-statement and for payment of the admitted arrears. No counter-affidavit was filed nor was the admitted arrears paid. The petition was thereafter posted to 19-10-1989. When the petition came up for hearing on that day, counsel for respondents reported no instructions. Respondents were also absent. The petition was allowed on that day. It is seen that counsel has appeared on that day, but he reported no instructions. Having reported no instructions, counsel cannot be said to have notice of the order, according to counsel for petitioners. It is also not clear as to whether counsel had given notice to his parties before he retired from the case. For these reasons it can be said that the counsel had no notice of the order and the revision petitioners cannot be imputed with such notice. But here is a case where the petition was posted for evidence to 19-10-1989. The presence of revision petitioners was therefore expected on that date. They having failed to appear and counsel having appeared though reported no instructions, revision petitioners have to be imputed with knowledge of the order. If that be so, the request for setting aside the ex parte order has come after the period of limitation. Having found that Sec. 5 of the Limitation Act is not applicable to a proceeding before the Rent Control Court, the question of condonation of delay does not arise. The relief was rightly denied by both the authorities below. The orders cannot be said to be unreasonable or perverse warranting interference in revision.
For the aforesaid reasons, the revision is found to be devoid of merits and is hereby dismissed, but without costs.
Revision dismissed.