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1981 DIGILAW 257 (KER)

VENKITASWAMI CHETTIAR v. INDIRA BAI

1981-09-25

GEORGE VADAKKEL, P.SUBRAMONIAN POTI

body1981
Judgment :- 1. The salient facts are:- On 12-10-1972 the Rent Control Court passed an eviction-order against the C. R. petitioners under S 11 (2) (b) of the Buildings (Lease and Rent Control) Act, 1965 (hereinafter, the Act) on the ground of arrears of rent. The tenants who are the Civil Revision Petitioners did not avail of S.11 (2) (c) of the Act to get the said order vacated by deposit of the amounts mentioned therein. The landlord-respondent took out execution of the order. On 20-12-1974 the Executing Court ordered to effect delivery of possession on 2-1-1975. The tenants filed R. C. R P. 1 of 1975 against that order. The Revisional Court dismissed it on 15-6-1976. Thereafter, the tenants preferred R C. A. 15 of 1977 from the eviction order of 12-10-1972. The appellate authority rejected it as one filed out of time. The tenants took up the matter in R CR P. 91 of 1977 before the Revisional Court. That court dismissed this revision on 28-6-1978 Within a month thereof the tenants filed I. A. 2093 of 1978 in purported compliance of S 11 (2) (c) depositing the amounts mentioned therein and sought to have the eviction order vacated. The Rent Control Court, the appellate authority and the Revisional Court held that there has been no compliance with S 11 (2) (c). Hence this C. R. P. under S.115 of the Code of Civil Procedure, 1908. 2. In Kurian v. Saramma Chacko (1964 KLT. 1) a Full Bench of this Court said that S 11(2) (c) (then: S 11(2) (b) ) would be attracted even when the deposit contemplated by that provision is made within the time mentioned therein, reckoning such time from the date of the appellate and revisional orders passed in appeal and revision preferred against the eviction order. The Full Bench construing the expression the 'order of the Rent Control Court' said that the legislative intent is that that expression will include orders of the appellate authority and revisional court. This decision is relied on by the Revision Petitioners. The respondent's learned counsel sought to distinguish the said decision on the ground that in the instant case the appeal said to have been filed was out of time and that therefore, there has been no appeal at all to attract the principle laid down by the Full Bench in Kurien's case. 3. The respondent's learned counsel sought to distinguish the said decision on the ground that in the instant case the appeal said to have been filed was out of time and that therefore, there has been no appeal at all to attract the principle laid down by the Full Bench in Kurien's case. 3. The Supreme Court in Immigartion Service v. Stanisic (AIR. 1970 SC. 1) said on the right of appeal as follows: "Such a right was one of entering a superior Court and invoking its aid and interposition to redress the error of the Court below. Two things which were required to constitute appellate jurisdiction were the existence of the relation of superior and inferior Court and the power on the part of the former to review decisions of the latter." 4. S.18(l)(b) of the Act provides: "Any person aggrieved by an order passed by the Rent Control Court may, within thirty days from the date of such order, prefer an appeal in writing to the appellate authority haying jurisdiction. In computing the thirty days aforesaid, the time taken to obtain a certified copy of the order appealed against shall be excluded." 5. A Full Bench of this Court in Jokkim Fernandez v. Amina Knnhiumma (1973 KLT. 138) has ruled out the application of S.5 of the Limitation Act, 1963 to appeals preferred under S.18 of the Act. Nor is there any provision in the Act enabling the appellate authority to admit to consideration an appeal filed beyond time on being satisfied that the appellant had sufficient cause for not preferr ing it within the time specified in that behalf. In other words, the fate of a belated appeal, namely, whether the same should be entertained or not, is in no way dependant upon the discretionary jurisdiction of the appellate authority to condone or not the delay in filing it. Therefore, an appeal purported to have been presented, but so presented out of time cannot even be treated as merely an irregular appeal suffering only from some defect that is curable by the exercise of its discretionary jurisdiction by the appellate authority on being satisfied that the appellant had sufficient cause for not presenting it in time, or, as an inchoate appeal that may become a proper and regular appeal. Shortly put. Shortly put. after the period of time prescribed in that behalf, the person aggrieved by an order passed by the Rent Control Court, has no 'right of entering a superior court and invoking its aid and interposition to redress the error' (if any) 'of the court below', nor has the superior court, the appellate authority, the power to review the decision of the inferior court, the Rent Control Court. Hence, by merely purporting to have presented an appeal out of time, it cannot be said that an appeal has been preferred from the order of the Rent Control Court. If that be so, there has been no appeal in this case, tor admittedly no appeal has been filed by the Revision Petitioners within the time allowed by the statute in that behalf. 6. Appeals to which S.5 of the Limitation Act or any analogous provision would be attracted, would, perhaps, and on a different footing, for such appeals can and may be admitted after the prescribed period if the appellant satisfies the court that he had sufficient cause for not preferring the appeal within such period. Therefore, even when the application for condoning the delay in filing an appeal is dismissed and consequently, the appeal itself is dismissed, it is, perhaps, possible to say that there has been an appeal and the same was dismissed as barred by limitation. It is not necessary to pursue this point any further, except to caution that we have not decided that point herein and to point out that the same could not, at any rate, be said of appeals in respect of which S.5 of the Limitation Act, 1963 or any similar provision cannot be invoked. 7. Elaborate arguments were addressed at the bar on the question of merger of the inferior tribunal's decision in that of a superior tribunal to which the cause has been removed for subjecting the facts as well as the law, to a review and retrial in exercise of its appellate jurisdiction, or to which, without removing the cause itself for re-examination of the fact, the records in the case have been called up for examination of law in exercise of its revisional jurisdiction, but in our opinion, no question of merger of the decision of the inferior tribunal in that of any superior tribunal arises herein, as there has been no appeal at all. As already stated the tenants though attempted to enter the superior court, they did not enter it as they came late. 8. S.18 (5) reads: "The decision of the appellate authority, and subject to such decision, an order of the Rent Control Court shall be final and shall not be liable to be called in question in any Court of law. except as provided in S.20." 9. S.20 is as follows: "20. Revision:-(l) In cases where the appellate authority empowered under S.18 is a Subordinate Judge, the District Court, and in other cases the High Court may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings and may pass such order in reference thereto as it thinks fit. (2) The costs of and incident to proceedings before the High Court or District Court under sub-section (1) shall be in its discretion." 10. We have already found that in the instant case the CR. Petitioners have not preferred an appeal. Consequently the eviction-order, the Rent Control Court passed on 12-10-1972 has become final under S.18(5). S.20 provides for a revision only when there has been an appeal under S.18. This is clear from the language of S.20 Thereunder the District Court or the High Court may call for and examine the records relating to any order passed or proceedings taken under the Act 'by such authority', that is to say, 'the appellate authority' mentioned earlier in the opening portion of this provision. In relation to an order passed by a Subordinate Judge as the appellate authority the revisional power vests in the District Judge and, in other cases, it vests in the High Court. 11. Construing S.18(5) and S.20 of the Kerala Buildings (Lease and Rent Control) Act, 1959, both of which are identically worded as S.18(5) and S.20 of the present Act, a learned Single Judge of this Court said in Venkitasubramania Iyer v. Bharathan (1961 KLT. 11. Construing S.18(5) and S.20 of the Kerala Buildings (Lease and Rent Control) Act, 1959, both of which are identically worded as S.18(5) and S.20 of the present Act, a learned Single Judge of this Court said in Venkitasubramania Iyer v. Bharathan (1961 KLT. 540): "Under S.18(5) of the Act, the decision of the appellate authority, and, subject to the decision of the appellate authority, an order of the Rent Control Court is final and can be called in question only under S.20; and under S.20 it is only the decision of the appellate authority and not that of the Rent Control Court that can be called in question. Here the District Court bad no jurisdiction to act under S.20; the order it made cannot therefore be regarded as one under that section; and the finality conferred by S.18(5) attaches to the order of Rent Control Court and not the order of the District Court." Therein this court held that no revision lies to the District Court directly from the Rent Control Court's order. The same is the position in the case on band and this is so in view of our finding that there has been no appeal from the Rent Control Court's order dated 12-10-1972 to the appellate authority. Therefore the District Court had no jurisdiction in relation to the Rent Control Court's order dated 12-10-1972. and the order dated 28-6-1978 of the District Court in R. C. R. P. 91 of 1977 cannot be regarded as an order passed under S.20 of the Act. 12. The deposit under S.11(2)(c) was made only within one month of 28-6-1978, that is to say, long after the time allowed in that behalf by the Rent Control Court as per its order dated 12-10-1972 which has become final. The lower court therefore rightly held that the revision petitioners have not complied with S 11(2)(c) of the Act. Dismissed. No costs.