OBALAPPA v. ALAMELAMMA — 1982 DIGILAW 241 (KAR)

N. D. VENKATESH, J. ( 1 ) PETITIONER, Obalappa, has filed this in- terlocutory application under S. 5 of the limitation Act, 1963 (the Act of 1963) read with S. 151 of CPC seeking condonation of delay in preferring this revision. ( 2 ) HE has preferred this revision under sub sec. (1) of S. 50 of the Kar. Rent Control Act, 1961 (the Act) against the order dt. 16 3 1981 of the X Addl. Small Causes judge, Bangalore City, in HRC No. 77 of 1980 on his file. Proceeding on the assumption that such a revision is required to be preferred within 90 days of the order of the Court below, and on the further assumption that S. 5 of the Act of 1963 is attracted to get, the delay condoned, he has preferred this IA I. It is also supported by an affidavit sworn to by him in person. ( 3 ) TWO questions that arise for consideration in this revision are : (i) Is any time prescribed to prefer a revision under sub-sec. (1) of S. 50 of the Act ? and (ii) If law does not prescribe any period of limitation as such, how should, in the matter of admission of a revision, the Court to proceed in dealing with the delay of laches, if any, on the part of the revision petitioner in preferring a revision ? ( 4 ) S. 50 was incorporated into the Act by the amending Act-Kar. Act No. 31 of 1975. The Act envisages only a revision against an order of "the Court". The court is a "court" as constituted under the Act. And, in respect of the area comprised within the City of Bangalore it is the Court of Small Causes which is "the court" empowered to try certain category of cases arising under the Act. Sub-Cl. (ii) of Cl. (d)of S. 3of the Act enables the state Government to constitute in any other area of the State, in consultation with the High Court, the Court of Civil judge having territorial jurisdiction over such area, as 'the Court' under the Act. In all other cases, as provided in sub-cl (iii) of Cl. Sub-Cl. (ii) of Cl. (d)of S. 3of the Act enables the state Government to constitute in any other area of the State, in consultation with the High Court, the Court of Civil judge having territorial jurisdiction over such area, as 'the Court' under the Act. In all other cases, as provided in sub-cl (iii) of Cl. (d) of S. 3, it is the Court of the Munsiff, having territorial jurisdiction over such area, that is constituted as 'the court' under the Act (See S. 15 of the bangalore City Civil Court Act, 1979 ). Against any decision rendered by the courts of the former category a revision directly lies to this Court under sub-sec. (1) of S. 50 of the Act, and as against a decision rendered by the Munsiff, a revision lies to the Dist. judge under sub-sec. (2) of S. 50 of the Act. ( 5 ) AS observed by Venkataramaiah, J. , (aa he then was) in a Division Bench ruling of this Court in R. Govindaswamy v. C. S, Pannalal (1) "the Kar. Rent Control act is a self-contained enactment governing creation of a lease in respect of a building to which the Act applies. " again as observed by this Court in Metal box of India Ltd. , v. M. V. Appiah (2) "the court, as it is constituted under the Act, is a Court of limited jurisdiction" and "its powers are circumscribed by the provisions of the Act". ( 6 ) S. 50 of the Act reads as follows :"50. Revision. '- (1) The High Court may at any time call for and examine any order passed or proceeding taken by the court of Small Causes or the Court of civil Judge under this Act or any order passed by the Controller under sections 14, 15, 16 or 17 for the purpose of satisfying itself as to the legality or correctness of such order or proceeding and may pass such order in reference thereto as it thinks fit. (2) The Dist. Judge may, at any time call for and examine any order passed or proceeding taken by the Court of munsiff referred to in sub cl. (iii) of cl. (d) of S. 3 for the purpose of satisfying himself as to the legality or correctness of such order or proceeding and may pass such order in reference theieto as he thinks fit. (iii) of cl. (d) of S. 3 for the purpose of satisfying himself as to the legality or correctness of such order or proceeding and may pass such order in reference theieto as he thinks fit. The order of the Dist. Judge shall be final. (3) The costs of and incidental to all proceedings before the High Court or the Dist. Judge shall be in the discretion of the High Court or the Dist. Judge, as the case may be". ( 7 ) THE Act also does not prescribe any period of limitation to prefer a revision under S 50 of the Act. On the other hand, s. 50 provides that the High Court and the Dist. Judge, as the case may be, "may at any time, call for and examine any order passed or proceeding taken by the court" concerned. ( 8 ) COUNSEL for the respondent, while opposing the admission of this revision, submitted that the revision has been pre ferred after a long lapse of time from the date of the impugned order, that there is no satisfactory explanation for condoning such delay, and that therefore the revison should be rejected in limine. He further submitted that the provisions of the Act of 1963 are not attracted to a proceeding like this and, therefore, the question of condoning the delay, applying S. 5 thereof does not at all arise. ( 9 ) COUNSEL for the petitioner, taking me through the averments made in the affidavit filed in support of IA I, submitted that, in the circumstances of the case, there was no delay and that, even if the court were to bold that there is delay in preferring this revision; the same may be condoned accepting the explanation offered by his client in the aforesaid affidavit. According to him, a revision of this type is required to be preferred within 90 days from the date of the order complained of excluding the time taken to obtain the certified copy of the same. It is so, he pleads on two grounds. Firstly, according to him, the provisions of the Act' of 1963 govern a case like this also, and, accordingly, under sub-sec. (2) of S. 29 read with Art. 131 of the Act of 1963, the same has to be preferred within 90 days from the date of the order impugned. It is so, he pleads on two grounds. Firstly, according to him, the provisions of the Act' of 1963 govern a case like this also, and, accordingly, under sub-sec. (2) of S. 29 read with Art. 131 of the Act of 1963, the same has to be preferred within 90 days from the date of the order impugned. Secondly, that, even otherwise, under sub-rule (1) of R. 6 in Chap. VII of the High court of Kar. Rules, 1959 (the Rules), the same is required to be preferred within a period of 90 days from the date of the order complained of. In either case, he argues, if there is delay, that can be successfully explained away taking steps as provided under S. 5 of the Act of 1963. ( 10 ) FIRST to consider the applicability of the Rules. These are Rules framed under art. 225 of the Constitution of India and S. 54 of the States Reorganisation act, 1956 (Cenl. Act 37 of 1956) read with ss. 122 to 129 of the CPC 1908, and S. 19 of the Kar. High Court Act (1 of 1884 ). It is true that under sub-rule (1) of R. 6 of the Rules "petitions to revise the order or proceedings of any Court for which no period of limitation is prescribed by any law applicable to it shall be presented to the High Court within a period of 90 (ninety) days from the date of the order complained of. . . . . . . . ". In case of delay sub-rule (2) thereof provides for the filing of an application supported by an affidavit setting forth the grounds on which the petitioner relies to get the delay condoned. It is also a fact that the term 'subordinate court', as defined in Cl. (n) of R. 1 of chap. II of the Rules, includes not merely any Court but also a Tribunal or other Authority whose decisions are subject to appeal or revision to the High court under any law for the time being in force. But, the question is, can these rules, framed as they are, under the provisions referred to above, override the provisions of the Act ? As observed in prabhu Narayan v. A. K. Srivastva (3) by the Supreme Court "the rules made under art. 225 of the Constitution cannot make any substantive law. . . . But, the question is, can these rules, framed as they are, under the provisions referred to above, override the provisions of the Act ? As observed in prabhu Narayan v. A. K. Srivastva (3) by the Supreme Court "the rules made under art. 225 of the Constitution cannot make any substantive law. . . . . . . . ". Further, as observed by a Division Bench of this Court in Shivarudrappa Girintallappa v. Kapurchand meghajl (4), that "the Rules made by the High Court would cease to have any force if the Legislature makes any rules or any law on the subject". One of the questions involved in Shivarudrappa's (4) case was as to how far and to what extent the appellate jurisdiction conferred under Cl. 16 of the Letters Patent for the High Court of bombay, in so far as it related to the cases that stood transferred to the High Court of new Mysore State, had been affected by an appropriate law made by the Legislature of the new State of Mysore. Holding that the jurisdiction created by the Letters patent for the High Court of Bombay and transmitted to this Court by S. 52 of the states Reorganisation Act (37 of 1956), is subject to the Legislation made by the appropriate Legislature, this Court observed as follows:"in National Sewing Thread Co. Ltd. , v. James Chadwick Bros. Ltd. ( AIR 1953 sc 357 ) the Supreme Court explained that Legislative competence to alter the jurisdiction created by the Letters Patent also resulted in the Provincial Legislature. Likewise, the jurisdiction transmitted to this Court by S. 52 of the states Reorganisation Act is again as stated in S. 69 of that Act, subject to legislation which may be made by the appropriate Legislature in the same way in which the continuance of the old jurisdiction ensured by Art. 225 of the constitution or the continuance in operation of an existing law under Art. 372 is subject to similar Legislation. Cl. 44 of the Letters Patent for the High Court of Bombay emphasises the vulnerability of the jurisdiction created by Cl. 16 to appropriate Legislation. So, in my opinion, Mr. Savanur cannot derive any sustenasce for his argument from either s. 52 of the States Reorganisation Act or arts. 225 and 372 of the Constitution ; nor can be assert that Cl. 16 to appropriate Legislation. So, in my opinion, Mr. Savanur cannot derive any sustenasce for his argument from either s. 52 of the States Reorganisation Act or arts. 225 and 372 of the Constitution ; nor can be assert that Cl. 16 of the letters Patent created some kind of absolute jurisdiction". (Para 6 at page 172 ). Therefore, the discretion vesting in this court and in the Dist. Judge in the matter of entertaining of revisions cannot, in any manner, be circumscribed by the aforesaid rides. As to whether, in a given case, a revision suffers from laches or delay and is therefore not to be admitted is a matter entirely left to the discretion of the Court. ( 11 ) ART. 131 of the Act of 1963 governs a revision arising either under the CPC or the Code of Crl. Procedure. Evidently, the revision with which we are concerned, is not one such. This is a revision, as already stated, under S. 50 of the Act. Neither the Dist. Judge nor the High court, while exercising their powers under this provision, exercise the same as a court exercising its ordinary civil jurisdiction. S. 50 confers special jurisdiction on these Courts. While exercising this jurisdiction these Courts do not function as Civil Courts as understood under the act of 1963. If that is so, the provisions of the Act of 1963 cannot, ipso facto, apply to revisions like these. The following observations of the Supreme Court in town Municipal Council, Athani v. Presiding officer, Labour Court (5), may be noted :-"art. 137 of the schedule to the Limitation act, 1963, does not apply to applications under S. 33c (2) of the Industrial disputes Act, so that no limitation is prescribed for such applications. In considering the scope of the parallel provision contained in Art. 181 of the Limitation Act, 1908, it was held by the Supreme Court that that article had been held by a long catena of decisions to be confined to application under the civil PC, and there was no reason to hold that the subsequent amendment of the Arts. 158 and 178 of that Act had the effect of altering that long acquired meaning of Art. 181 on the sole and simple ground that after the amendment the reason on which the old construction was founded was no longer available. 158 and 178 of that Act had the effect of altering that long acquired meaning of Art. 181 on the sole and simple ground that after the amendment the reason on which the old construction was founded was no longer available. That view expressed by the Court must be held to be applicable even when considering the scope and applicability of Art. 137 in the new Limitation Act of 1963. When the Supreme Court held that all the articles in the third division to the schedule, including Art. 181 of the Limitation Act of 1908 governed applications under the CPC only, it clearly implied that the applications must be presented to a Court governed by the CPC. At best, the amendments now made in the act of 1963 enlarge the scope of the 3rd division of the schedule so as also to include some applications presented to Courts governed by the Code of Criminal procedure One factor at least remains constant and that is that the applications must be to Courts to be governed by the articles in this division. The scope of the various articles in this division cannot be held to have been so enlarged as to include within them applications to bodies other than Courts, such as a quasi judicial tribunal, or even an executive authority. An Industrial tribunal or a Labour Court dealing with applications or references under the Act are not Courts and they are in no way governed either by the CPC or code of Criminal Procedure". (Read Note 'c' ). ( 12 ) REFERENCE also may be made to a decision of the Supreme Court in Sushi la devi v. Ramanandan Prasad (6 ). The matter in dispute in that case had arisen out of a proceeding under a local land Legislation of Bihar State. The question was whether s. 5 of the Act of 1963 applied for preferring an appeal arising under that proceeding. The High Court was of the view that s. 5 applied fat view of the Act of 1963. Not agreeing with this view, the Supreme court observes as follows:"the third ground on which the decision of the High Court rests relates to the applicability of S. 5 of the Limitation act, 1963. We do not see how s. 5 could be invoked in connection with the application made on Oct. 17, 1965, by the 1st respondent. Not agreeing with this view, the Supreme court observes as follows:"the third ground on which the decision of the High Court rests relates to the applicability of S. 5 of the Limitation act, 1963. We do not see how s. 5 could be invoked in connection with the application made on Oct. 17, 1965, by the 1st respondent. Under S. 5 of the Limitation Act an appeal or application 'may be admitted after the prescribed period if the appellant or applicant satisfied the Court that he had sufficient cause for not preferring the appeal or making the application within such period'. The Collector, to whom the application was, made, was not a court, though S. 15 of the Act vested him with certain specified powers under the CPC; also, the kind of application that was made had no time limit prescribed for it, and no question of extending the time could, therefore, arise. We, therefore, think that the High Court misdirected itself in referring to S. 5 of limitation Act" (para 6 ). ( 13 ) THE petitioner also cannot rely on sub sec. (2) of S. 29 of the Act of 1963. That provision is not attracted to this case. It applies only to a case where a local law prescribes a period of limitation different from the period prescribed by the schedule to the Act of 1963. To such a case in determining the period of limitation the provisions contained in Ss. 4 to 24 (both inclusive) of the Act of 1963 are made applicable unless they are expressly excluded by such special or local law. Since the Act does not prescribe any period of limitation at all in the matter of preferring a revision, S. 29 (2) of the Act of 1963 does not apply. In this connection the observations of the Supreme Court in vidyacharan Shukla v. Khab Chand (7) may be noted. In that case the Court was dealing with S. 29 (2) of the Limitation act, 1908. That provision is in pari materia with S. 29 (2) of the Act of 1963. The argument was that the second part of sub-sec. (2) of S. 29 would apply even to a case where the special or local law does not prescribe any period of limitation. That provision is in pari materia with S. 29 (2) of the Act of 1963. The argument was that the second part of sub-sec. (2) of S. 29 would apply even to a case where the special or local law does not prescribe any period of limitation. Repelling that argument and holding that the second part of S. 29 (2) should be read with the first part, and further holding that if so read the second part applies only to a case where the first part is attracted. That is, that Ss. 4 to 24 would be attracted only if the special or local law prescribed any period of limitation different from the period prescribed by the schedule, and not otherwise. The following observations at paras 9 and 10 may be noted :"in order that the second part might be held to be independent of the first part, it should by itself be complete and be capable of operating independently. Unless this test were satisfied, the conjunction 'and' would have to be read as importing into what follows it, the conditions or considerations set out earlier as otherwise even the first part would be incomplete. Further, a construction which would lead to aa anomalous result cannot be accepted and it must be held therefore, that subject to the construction put upon sub-sec. (2) of S. 29 both the parts are to be read as one whole and that the words following the conjunction 'and' for the purpose of determining any period of limitation etc. , attract the conditions laid down by the opening words of the sub-section". (Head Note ). ( 14 ) IN that case the Court also dealt with the question whether the provisions of the Limitation Act, 1908 are attracted to appeals or revisions preferred, not under the Code, but under some special law. Holding that the provisions of the limitation Act, 1908 unless made applicable under that special enactment, would not apply, the Court observes as follows ;"further, it is well established that the Limitation Act and the Code are to be read together, because both are statutes relating to procedure and they are in pari materia and, therefore, to be taken and construed together as one system as explanatory of each other. So construed it may reasonably be held that an. 156 provides for an appeal governed by the procedure prescribed by the CPC. So construed it may reasonably be held that an. 156 provides for an appeal governed by the procedure prescribed by the CPC. There is no warrant for holding that an appeal which was not given by the code would still be one under the Code merely because the procedural provisions thereof would govern its course. Where the right of appeal is given by some other law, the appeal must be regarded as one under that law and not under the code. There is no valid reason for construing the words 'under the CPC' as meaning 'governed in the matter of procedure by the CPC'. Moreover, by reading Art. 156 in the way it has done the High Court has virtually construed the only provision in the Limitation Act dealing with normal civil appeals to the High Court as a residuary Article which would take in all appeals by whatever law they may be provided, merely because the procedure relating to appeals contained in the cpc was applicable to them. This would go against the plain intendment of the Legislature". (Head-Note ). These observations apply with equal force while construing as to whether the provisions of the Act of 1963 are applicable to a case like the one with which we are dealing. Thus, looked at from any angle, the provisions of the Act of 1963 are not applicable to a revision arising under S. 50 of the Act. ( 15 ) IN the matter of admission of revisions the Legislature has conferred a discretion on the revisional authorities mentioned in S. 50 of the Act. In a given case, if it prima facie appears that the revision preferred suffers from laches or delay or if it is alleged by the other side that it is so, that question has to be examined by the revisional authority and a decision has to be taken exercising its judicial discretion. No hard and fast rule can be laid down In the matter. To approach the court under Art. 226 of the Constitution of India no period of limitation is prescribed. The Supreme Court, however, observes in State of MP v. Bhailal Bhai (8) that though it is so, the maximum period prescribed by the Legislature to claim an appropriate relief in a Civil Court may ordinarily be taken to be a reasonable standard by which delay in seeking relief under art. The Supreme Court, however, observes in State of MP v. Bhailal Bhai (8) that though it is so, the maximum period prescribed by the Legislature to claim an appropriate relief in a Civil Court may ordinarily be taken to be a reasonable standard by which delay in seeking relief under art. 226 can be measured. That ratio can be taken as a guide line in dealing with a revision of this type. To prefer a revision arising under the CPC the period of limitation prescribed is 90 days. As observed in Bhailal Bhai's (g) case "the Court may consider, the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period it will almost always be proper for the Court to hold that it is unreasonable" ( 16 ) IN the light of the above observations let me examine if there is any delay in the instant case, and, if so, as to whether it can be condoned as sought for. ( 17 ) WHILE narrating the facts I have stated above that, even according to the petitioner, this revision has been preferred after more than one year and 38 days, beyond a period of 90 days from the date of the impugned order, and, perhaps, even after deducting the period taken up for obtaining a copy of the impugned order. The petition indeed suffers from laches. The reason given in the affidavit in support of the interlocutory application (IA I) is that the party was suffering from cardiac asthma, that he was a chronic asthmatic patient, that he was unable to move about at about the time when the certified copy of the impugned order was obtained by his counsel, and that, in the circumstances, the delay be condoned. A medical certificate is also produced. It is issued by physician one Sri B. ' T. Parthasarathy, perhaps, a private practitioner. What is stated therein is that this petitioner was under his treatment from 15-12-1981 for congestive cardiac failure accompanied by dyssea with chronic bronchitis. It is not possible to say, either from the certificate or from the averments made in the affidavit, that this petitioner was so disabled as not even being in a position to contact his counsel to take steps to prefer this revision. It is not possible to say, either from the certificate or from the averments made in the affidavit, that this petitioner was so disabled as not even being in a position to contact his counsel to take steps to prefer this revision. The petitioner has failed to satisfactorily explain the delay in question. Therefore, IA I is hereby dismissed. ( 18 ) IN the circumstances, the revision petition is dismissed in limine. ( 19 ) AFTER the pronouncement of the order the learned counsel for the petitioner requested for two years time for his client to vacate the premises. This was opposed to by the learned counsel for the respondent-landlord. ( 20 ) HEARD both sides on this aspect of the matter. Time till the end of Feb. , 1983, is granted to the tenant to vacate and handover vacant possession of the premises provided he pays all the rental arrears now due by the end of this month and goes on paying current rents also as and when the same falls due. If the tenant does not comply with these conditions, the landlord would be at liberty to execute the order and recover possession of the premises. --- *** --- .