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T.R Kannan v. K. Govindan

Madras High Court

Aug 26, 1987

Judgment

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Factual and Procedural Background

This revision challenges an order of the Second Judge, Court of Small Causes, Madras, which dismissed a petition under S. 5 of the Limitation Act seeking condonation of delay in filing an appeal.

The essential facts as recorded in the opinion are:

The petitioner was the respondent in H.R.C. 1874 of 1981, a proceeding initiated by the tenant to permit deposit of rent.
The petitioner did not file a counter and was set ex parte; an ex parte order was passed. An application (M.P. 1108 of 1981) to set aside the ex parte order was dismissed.
On 11th February 1982 the petitioner filed an application for certified copies to prepare an appeal. The opinion records the copies as being "made ready on 19th August, 1982" and also states that the certified copy was taken delivery on 25th June, 1982. The appeal was filed on 3rd July, 1982, resulting in a delay of six days.
To excuse the delay, the petitioner filed M.P. 1913 of 1982 under S. 5 of the Limitation Act. The registered clerk of the petitioner's counsel filed an affidavit saying he had gone to his native place from 4th June, 1982 to 25th June, 1982 and therefore copies could not be taken delivery in time. The petitioner filed an affidavit attributing delay to the clerk being away and a misplacement of the bundle in his master's office; he also stated that dissatisfied with counsel's conduct he filed the appeal in person.
The respondent opposed the M.P., arguing (inter alia) that the petitioner had no explanation for the period from 25th June, 1982 to 3rd July, 1982 and that the delay was wilful and wanton. The appellate authority dismissed the petition for condonation of delay. The petitioner filed this revision against that dismissal.

Legal Issues Presented

Whether S. 5 of the Limitation Act is applicable to the appellate authority in this case (the Second Judge, Court of Small Causes, Madras) — i.e., whether that appellate authority qualifies as a "court" for purposes of the Limitation Act.
Whether the six-day delay in filing the appeal (from the date of delivery of the certified copy to the date of filing) should be condoned under S. 5 of the Limitation Act.

Arguments of the Parties

Petitioner's Arguments (Appellant)

The lower court failed to take into account the petitioner's affidavit explaining the delay and erroneously drew an adverse inference that no affidavit had been filed.
The petitioner relied on the registered clerk and the counsel in the lower court; because of this dependence he could not file the appeal in time.
Although the copy was taken delivery on 25th June, 1982, and no full explanation was offered for the period up to 3rd July, 1982, the delay was only about six days and therefore could be condoned (the petitioner suggested condonation on heavy terms).
The petitioner relied on precedent (Rathinasami v. Komalavalli) holding that, for purposes of Ss. 3, 5 and 29(2) of the Limitation Act, the appellate authority is a court and S.5 is applicable.

Respondent's Arguments

The appellate authority is not a civil court and therefore, it has no jurisdiction to condone delay under S. 5 of the Limitation Act; accordingly the petition to condone delay is not maintainable before that authority.
The respondent relied on the decision in Sakuru v. Tanaji (A.I.R. 1985 S.C. 1279) and associated authorities to argue that the Limitation Act applies only to proceedings in "courts" and not to appeals or applications before quasi-judicial tribunals or executive authorities unless a special statute expressly applies S. 5 to those bodies.
The respondent pointed out that a Division Bench decision of the Andhra Pradesh High Court in Venkiah and others v. Venkateswara Rao and another had been confirmed by the Supreme Court on the applicable ratio.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sakuru v. Tanaji, A.I.R. 1985 S.C. 1279	Held that the Limitation Act (1963) applies only to proceedings in "courts" and not to appeals/applications before bodies other than courts (quasi-judicial tribunals or executive authorities); S. 5 applies to such bodies only if a special statute expressly makes S. 5 applicable.	The court considered the principles stated in Sakuru and examined whether the appellate authority in the present case qualifies as a "court" for the purposes of applying S. 5. The court used the decision as part of its analysis of whether a non-civil tribunal could invoke S. 5 absent express statutory provision.
Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli (1971 S.C.R. 51 = A.I.R. 1969 S.C. 1335)	Authority cited for the proposition that the Limitation Act applies only to proceedings in "courts" and not to other bodies such as quasi-judicial tribunals.	Referenced (through Sakuru) as part of the Supreme Court's established line of authority that the Limitation Act is confined to "courts" unless a special statute provides otherwise.
Nityananda Joshi v. Life Insurance Corporation of India (1970-1 S.C.R. 396 = A.I.R. 1970 S.C. 209)	Authority supporting the proposition that the Limitation Act applies to courts and not to other quasi-judicial bodies in the absence of express statutory provision.	Quoted in the opinion (via Sakuru) to demonstrate the settled principle relied upon by the Supreme Court.
Sushila Devi v. Ramanandan Prasad (1976-2 S.C.R. 845 = A.I.R. 1976 S.C. 177)	Another authority cited for the same principle regarding the Limitation Act's applicability to courts only.	Used (via the Supreme Court's discussion in Sakuru) to show consistent precedent on the Limitation Act's reach.
Venkiah and others v. Venkateswara Rao and another (Division Bench of Andhra Pradesh High Court)	Considered whether certain authorities under the Hyderabad Tenancy Act (Tahsildar, Tribunal, Collector, Board of Revenue) could be termed "courts" within the meaning of S. 5; the decision confined its view to tribunals under that Act.	Referenced by the respondent and noted by the court: the Supreme Court in Sakuru confirmed the view taken in Venkiah's case, but also observed that the Venkiah decision was confined to tribunals under the Hyderabad Tenancy Act. The present court examined Venkiah in deciding whether the appellate authority before it is a "court."
Rathinasami v. Komalavalli, 95 L.W. 552 (Division Bench of Madras High Court)	Held that for purposes of Ss. 3, 5 and 29(2) of the Indian Limitation Act the appellate authority (in that case) was a "court" and that S.5 was applicable to appeals before an appellate authority constituted under S. 23(1)(b) of the Madras Buildings (Lease and Rent Control) Act.	The petitioner relied on this decision. The court referred to Rathinasami as authority supporting the proposition that the appellate authority in the present matter (a Judge of the Court of Small Causes exercising powers under the Rent Control Act) is a "court" for purposes of S.5; this influenced the court's conclusion that the petition under S.5 was maintainable.

Court's Reasoning and Analysis

The court's analysis proceeded by focusing on whether the appellate authority in this case qualifies as a "court" for the purposes of the Limitation Act and thus whether S. 5 of the Limitation Act is available to condone delay in filing the appeal.

The court reviewed the line of authority, particularly the Supreme Court decision in Sakuru v. Tanaji, which restated that the Limitation Act applies only to proceedings in "courts" and not to quasi-judicial bodies unless a special statute expressly makes the Limitation Act (or S.5) applicable. The court also noted that Sakuru considered and relied upon earlier precedents (Town Municipal Council, Nityananda Joshi, Sushila Devi) to that effect.

The court contrasted those authorities with a Division Bench decision of this Court in Rathinasami v. Komalavalli, which had held that for the purpose of Ss. 3, 5 and 29(2) of the Limitation Act an appellate authority constituted under S. 23(1)(b) of the Madras Buildings (Lease and Rent Control) Act is a "court" and S.5 applies.

Weighing these authorities, the court emphasized that some earlier decisions (notably Venkiah's case) were confined to the tribunals under the Hyderabad Tenancy Act and that the Supreme Court's pronouncements in Sakuru did not categorically confine the applicability of S.5 only to traditional civil and criminal courts; rather, they require examination whether the institution in question can be regarded as a "court" for Limitation Act purposes or whether a special statute makes S.5 applicable.

The court observed that the appellate authority in the present case is the Second Judge of the Court of Small Causes at Madras, exercising appeal powers under the Rent Control Act; after a careful analysis of the cited decisions, the court concluded that the appellate authority is a "court" and that a petition under S. 5 of the Limitation Act is maintainable before it.

On the factual question of delay, the court recorded that there was no fully satisfactory explanation for the period from 25th June, 1982 (date the certified copy was taken delivery) to 3rd July, 1982 (date appeal filed). Nevertheless, the court considered the delay to be short (about six days) and concluded that the delay could be condoned, subject to heavy terms.

Holding and Implications

Holding:

REVISION ALLOWED

The court set aside the order passed by the appellate authority dismissing M.P. 1913 of 1982 and allowed that application on terms.

Direct consequences and orders made:

The order of the appellate authority in M.P. 1913 of 1982 is set aside and the application for condonation of delay is allowed on payment of costs of Rs. 200 to the other side within two weeks from the date of the court's order; if the costs are not paid within that period the application will stand automatically dismissed.
In the circumstances of the case, there will be no order as to costs in this revision proceeding itself.
The petitioner was permitted to deposit the awarded costs to the credit of the C.R.P. (since the respondent was unwilling to receive them) and the time previously granted for deposit was extended by one more week from the date the matter was mentioned.

Broader legal implication stated by the court:

The court expressly held, after considering precedent, that the appellate authority in this case (Second Judge, Court of Small Causes exercising powers under the Rent Control Act) is a "court" for the purposes of the Limitation Act and that S. 5 is maintainable in that forum. The court relied upon Rathinasami v. Komalavalli and distinguished or interpreted other precedents in that context.

Note: This summary reproduces only what is stated in the provided opinion. No additional facts or inferences beyond the text have been introduced.

Show all summary ...

1. 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 fpr 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 cqunsel 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 ease 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 wilful 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.

2. 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 ha? 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, be 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.

3. 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. A.I.R 1985 S C. 1279., where it was held as follows:

“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 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 torender 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 Venkiah and others v. 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.

4. 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 Sakuri v.\Tanaji3, 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 v. Presiding Officer, Labour Court, Hubli 1971 S.C.R 51=A.I.R 1969 S.C, 1335., Nityananda Joshi v. Life Insurance Corpn. of India 1970-1-S.C R. 396=A.I.R 1970 S.C 209., and Sushila Devi v. Ramanandan Prasad 1976-2-S.C.R 845=A.I.R 1976 S.C 177., 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, 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. 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 case, 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 Civil Procedure Code or Criminal Procedure Code. It is also observed in the decision of a Division Bench of the A.P High Court in Venkiah's case, 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 ind the petition under S. 5 of the Limitation Act is certainly maintainable.

5. 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.

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