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1985 DIGILAW 211 (KER)

SULEKHA UMMA v. KALAIVANI

1985-07-10

U.L.BHAT

body1985
Judgment :- 1. Revision petitioners, landlords, filed R.C.P. No. 44/1979 before the Rent Controller, Palghat against Ramanathan, the predecessor-in-interest of the respondents, seeking his eviction from the disputed premises under sub-sections (2) and (3) of S.11 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'). Tenant raised a contention that he is a kudikidappukaran entitled to immunity from eviction under the provisions of the Kerala Land Reforms Act, 1963. Land Tribunal upheld the claim of the tenant and forwarded the finding to the Rent Controller. Thereupon, the Rent Controller dismissed the eviction petition but without costs. 2. Landlords filed appeal before the Appellate Authority (Subordinate Judge) Palghat in R.C.A. 24/1982. Pending appeal, the tenant died. R.10 of the Kerala Buildings (Lease and Rent Control) Rules, 1979 (for short 'the Rules') prescribes a period of 15 days for impleading legal representatives of a deceased person, party to a proceeding. Appellants filed an application I.A. 3996/1983 seeking to implead as additional respondents in appeal the legal representatives of the tenant viz , the respondents herein. The application was filed out of time. They filed I.A. 3997/1983 for consequential amendment of the appeal memorandum. They also filed I.A. 4189/1983 seeking to set aside abatement which occurred on account of the delay in filing the impleading petition. Appellate Authority dismissed I.A. 3996 of 1983 on the ground that it had no authority to implead legal representatives beyond the time prescribed in the Rules and to condone the delay in filing the application. I.A. 4189/1983 was dismissed on the ground that it had no power to set aside abatement. I.A. 3997/1983 filed for consequential amendment was also dismissed. The appeal itself was dismissed as abated. 3. Against the orders in the three interlocutory applications and the judgment in the appeal, landlords filed revision petitions before the District Court, Palghat as R.C.R.P. Nos. 20, 21, 22 and 23 of 1984. These revision petitions were dismissed. Hence the present revision petitions. 4. The appeal itself was dismissed as abated. 3. Against the orders in the three interlocutory applications and the judgment in the appeal, landlords filed revision petitions before the District Court, Palghat as R.C.R.P. Nos. 20, 21, 22 and 23 of 1984. These revision petitions were dismissed. Hence the present revision petitions. 4. Learned counsel for the revision petitioners would contend that the Appellate Authority has power to implead legal representatives of a deceased party even after the expiry of the period prescribed by the Rules, that the Appellate Authority has power to condone the delay in taking steps and also to set aside abatement; learned counsel further contended that even if there is no such power granted by the Act or the Rules, Appellate Authority, as a Tribunal, has inherent power to do so in the interests of justice. 5. The Act has been enacted to regulate the lease of buildings and to control rent of such buildings in the State of Kerala. The Act permits eviction under certain circumstances as also fixation of fair rent and other incidental matters. S.3 of the Act enables the Government to appoint a person who is qualified to be appointed a Munsiff to be the Rent Control Court to perform these functions. S.5 relates to determination of fair rent. S.6 lays down in what cases increase in fair rent is admissible. S.10 enables the tenant in certain cases to deposit rent in the Rent Control Court. S.11 enables the Rent Controller to pass orders of eviction. S.18 deals with appeals against orders passed by the Rent Controller. Government may confer on such officers and authorities not below the rank of a Subordinate Judge the powers of Appellate Authorities for the purpose of the Act. 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 having jurisdiction. In computing the thirty days aforesaid, the time taken to obtain a certified copy of the order appealed against shall be excluded. S.18 lays down the powers of the Appellate Authority. S.20 enables revision petition being filed before the District Court against the orders of the Appellate Authority. 6. In computing the thirty days aforesaid, the time taken to obtain a certified copy of the order appealed against shall be excluded. S.18 lays down the powers of the Appellate Authority. S.20 enables revision petition being filed before the District Court against the orders of the Appellate Authority. 6. S.22 of the Act states that the provisions of S.146 and Order XXII of the Code of Civil Procedure, 1908 (for short 'the Code'), shall, as far as possible, be applicable to the proceedings under the Act. S.23 states, inter alia, that subject to such conditions and limitations as may be prescribed, the Rent Control Court and the Appellate Authority shall have the powers which are vested in a Court under the Code when trying a civil suit in respect of the matters enumerated therein. S.31 invests with the Government the power to make rules to carry out the purposes of the Act. Such rules may provide, inter alia, for all matters expressly required or allowed by the Act to be prescribed, the procedure to be followed by these authorities in the performance of their functions under the Act, applications for making legal representatives of persons parties to the proceedings under the Act and the time within which such applications shall be preferred etc. 7. Rules have been framed by the Government in exercise of the power conferred by S.31 of the Act. R.15, 16 and other rules deal with appeals. R.10 which deals with impleadment of legal representatives reads thus: "Every application for making the legal representative, or, the legal representatives of a deceased person, party to a proceeding under the Act shall be preferred within 15 days from the date of the death of the person concerned." 8. Provisions relevant for the purpose of this discussion are S.22 of the Act and R.10 of the Rules. S.22 renders the provisions of S.146 and Order XXII of the Code applicable to the proceedings under the Act, as far as possible. S.146 of the Code states that save as otherwise provided by the Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him. S.146 of the Code states that save as otherwise provided by the Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him. Order XXII of the Code deals with procedure to be followed in the case of death, marriage and insolvency of parties. It lays down rules to meet different situations. Where a sole defendant dies and the right to sue survives, legal representatives may be impleaded and the suit proceeded with. Where within the time limited by law no application for impleadment is made the suit shall abate. 9. No doubt, several rules in Order XXII of the Code refer to "time limited by law" and "periods specified in the Limitation Act, 1963, Some of the rules refer to S.5 of the Limitation Act also. However, S.22 of the Act renders S.146 and Order XXII of the Code applicable to proceedings under the Act only "as far as possible". Provisions of the Code are applicable to proceedings before civil courts. Provisions of the Limitation Act are applicable only to suits instituted, appeal preferred and applications made in courts. The Appellate Authority constituted under the Act is not a court but a persona designata and therefore provisions of the Limitation Act are not applicable to proceedings before the Appellate Authority. Reference to provisions of the Limitation Act in Order XXII of the Code will not be of any avail. 10. A Full Bench of this Court in Ouseph Vareed v. Mary (1968 K.L.T. 583) has held that the person appointed to function as appellate authority, though a member of the judicial service of the State, is a persona designata and he will be functioning only as such and not as a court, while discharging his functions as appellate authority under the Act. This has been followed by another Full Bench of this Court in Jokkim Fernandez v. Amina Kunhi Umma (1973 K.L.T. 138). This has been followed by another Full Bench of this Court in Jokkim Fernandez v. Amina Kunhi Umma (1973 K.L.T. 138). In the latter decision, it has been further held that the Limitation Act applies only to courts and prescribes periods of limitation in respect of suits, appeals and applications filed only in courts, and the power under S.5 of the Limitation Act is exercisable only by courts and not by Tribunals or Authorities such as the Appellate Authority under the Act. A Division Bench of this Court in Sreedharan v. Muhammed Kunhi (1978 K.L.T. 20) has followed this decision. Another Division Bench of this Court in Ulahannan Chacko v. Pareed Marakkar (1978 K.L.T. 330) has held that the provisions of S.5 and 14 of the Limitation Act are not attracted to proceedings before the Appellate Authority under the Act. Dealing specifically with a case of condoning the delay in filing an application for impleading legal representatives before the Appellate Authority, a learned single judge of this Court has held in Annamma Paily v. Thomas Mary (1983 K.L.T. 313) that when an appeal abates, S.5 of the Limitation Act has no application and the Appellate Authority cannot set aside abatement or condone the delay in filing the application. 11. Being cognizant of this position, learned counsel for the revision petitioners raised an alternative contention viz, that the Appellate Authority, as a Tribunal, has inherent power to condone the delay in filing the application for impleadment and to set aside abatement. To support this proposition, learned counsel relied on decisions of this Court in Deputy Conservator of Forests v. Sarojini (1981 K. L. T 179), Cheru Ouseph v. Kunji Pathumma (1981 K. L. T. 495) and Abdulla v. Rent Controller (1984 K. L. T. 865). No doubt, in these decisions it has been affirmed that statutory tribunals exercising part of the judicial power of the State have inherent or residuary powers to do justice between the parties. But a close examination of these decisions will show that they are not helpful to the revision petitioners. In the earliest of these three decisions, this Court held that the District Court, as Appellate Authority under the Forests Act, 1962, has inherent power to pass interlocutory orders as such power is a necessary co-rolary to the power to entertain an appeal or revision. In the earliest of these three decisions, this Court held that the District Court, as Appellate Authority under the Forests Act, 1962, has inherent power to pass interlocutory orders as such power is a necessary co-rolary to the power to entertain an appeal or revision. Second decision dealt with the question whether the Rent Controller under the Act has power to set aside the order of dismissal of an eviction petition for default. It was held that the Rent Controller has the power in appropriate cases to restore an application dismissed for default. Last of the cases dealt with the question whether the Rent Controller has power to allow an amendment of the eviction petition. This Court held that he has such power. 12. The situations covered by the above cases were not dealt with specifically in the provisions of the Act or the Rules. In such situations it became necessary for the Court to pass appropriate orders in the interests of justice. Inherent power to pass such as order has been recognized by this Court but in none of the cases was a situation covered by a specific provision of the Actor Rules. There is nothing in the relevant Statutes or Rules which inhibit exercise of such power. It appears to me that this makes all the difference. 13. If a Statute is enacted for the purpose of enabling something to be done, but omits to mention in terms some detail which is of great importance or which is essential to the proper and effectual performance of the work which the statute has in contemplation, Courts are at liberty to infer that the statute by implication empowers that detail to be carried out. Courts or Tribunals can be said to possess all powers as may be necessary to do the right and undo the wrongs in the course of administration of justice. Such power is inherent in the Court and is called inherent power. In respect of procedural matters, all powers which are not denied by the statute or the Statutory Rules should be deemed to be vested in the body exercising judicial power so that it may effectually exercise its functions. But there can be no inherent power to do something which is prohibited by law or which would amount to circumventing any provision of law. But there can be no inherent power to do something which is prohibited by law or which would amount to circumventing any provision of law. Nor can the Court or the Tribunal ignore any specific provision of law in dealing with a case by resort to inherent power. Ends of justice cannot require that the Court or Tribunal should bypass or override statutory provisions by invoking inherent power. In Radhanath v. State Board of Religious Trusts (AIR 1968 Patna 110), a Division Bench of the Patna High Court observed that "a Court cannot circumvent law of limitation by exercising its inherent power". In Ratna Bai v. N. Narayani (AIR 1973 Mysore 174), the Court was dealing with a provision in the Mysore Rent Control Act to the effect that no order for recovery of possession can be made "if the tenant, inter alia, pays to the landlord or deposits in Court such further amount as should be determined by the Court to be due within one month from the date of the order of the Court". The Court noticed that the period within which such amount is to be deposited is statutorily fixed and therefore inherent power cannot be invoked to enlarge the time. In Shri. C. Gupta v. M. Lal (1973 A. L. J. 635) the Court was dealing with a similar provision in the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 and held that inherent power cannot be invoked to circumvent the mandate of the statute. 14. Provisions of the Limitation Act, 1963 are applicable only to courts and not to authorities appointed as persona designata. The Legislature with deliberation has provided for constitution of Appellate Authority as persona designata. The Legislature also has prescribed in the statute itself the time limit for preferring appeal and indicated exemption thereform. S.31 of the Act specifically enables the rule-making¬authority to provide for applications for making legal representatives of deceased persons, parties to proceedings under the Act and the time within which such applications are to be preferred. Provision is made in this behalf in R.10 of the Rules which states such applications should be filed within 15 days from the date of death of the person concerned. Provision is made in this behalf in R.10 of the Rules which states such applications should be filed within 15 days from the date of death of the person concerned. Perhaps, it would have been open to the rule making authority to have provided in the rule that for proper reasons and in appropriate cases applications could be entertained even beyond the period so fixed. The rule making Authority deliberately refrained from doing so. The rule is a statutory rule. The mandate of the statutory rule is that such an application shall be preferred within the time limited thereunder. This would clearly indicate that the authority cannot entertain an application filed beyond the period. Provisions of Order XXII of the Code read with S.22 of the Act clearly indicate that where such an application is not filed within the period limited by the rule, the proceeding must necessarily abate. This is the scheme provided by the Act and the Rules. In these circumstances, for the Authority to entertain and allow such an application filed beyond the period prescribed would be to go against the scheme of the Act and the Rules and the specific statutory rule. There cannot be any inherent power which enables the authority to do so. I therefore hold that the Appellate Authority constituted under the Act has no inherent power to condone the delay in filing an application for impleading legal representatives of a deceased party or to set aside abatement. No ground is made out to interfere with the orders of the Appellate authority or those of the District Court. Hence these revision petitions are dismissed. Dismissed.