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1986 DIGILAW 490 (MAD)

Marie Lazarine Gacillia Rasson Represented By Her Power Agent And Husband Emmanuel Jean Everent Rassou v. Annie Joseph

1986-12-03

K.M.NATARAJAN

body1986
ORDER K. M. Natarajan, J. 1. The matter is posted before this Court regarding the maintainability of the petition on the question of limitation. The short point that arises for consideration in this matter is whether the petitioner is entitled to deduct the time taken for obtaining the certified copy of the order passed by the lower court in computing the period of limitation in filing the revision under Section 25 of the Pondicherry Buildings (Lease and Rent Control) Act, 1969, hereinafter referred as Act. According to the petitioner, she applied for copy of the judgment in appeal MA. No. 45 of 1981 on 6.7.1983 though the order was passed on 18.6.1983. The copy was made ready on 18.7.1983 and the revision was filed on 2.9.1983. But under section 25 of the Act, a revision has to be filed within 60 days, even after the provision to extend the time limit by 30 days is taken into consideration, and there is a delay of 3 days. According to the petitioner, she applied for certified copy of the judgment of the Rent Controller in H.R.C.O.P. No. 139 of 1980 on 8.7.1983 and the same was received on 28.7.1983 and if the period for obtaining the copy of the order in H.R.C.O.P is taken into consideration the revision is within sixty days. Learned counsel for the applicant submits that under the Pondicherry Buildings (Lease and Rent Control), Rules, procedures were prescribed under Rule 22 for filing appeal but not for filing revision under Section 25 of the said Act and that revision is filed under Section 115 of the Code of Civil Procedure. As per Order 4, Rule 21 of the Rules of the Madras High Court Rules on the Appellate Sides, 1965, a certified copy of the judgment or order, if any, of the court or Tribunal of the first instance should also be accompanied along with the revision petition besides the copy of the decree or order which is to be revised and the certified copy of the judgment and as such the same has to be taken into consideration and that the revision is in time. The office put a note to the effect that the provisions of the Limitation Act are not applicable to a revision since the matter relates to Rent Control Act which is a special and self-constrained enactment and that as per the established official method of calculation, the aforesaid C.R.P.S.R. is presented after 63 days, exceeding the total time-limit of 60 days and hence the petition is not maintainable. It is further stated that the revision petition could have been filed immediately on receipt of the Appellate Court order, with a petition to dispense with the production of the Trial Court order in R.C.OP. 2. It is not in dispute that the revision petition filed before this court is under Section 115 Code of Civil. Procedure and this Court exercises the power only as High Court and not as persona designata and that the procedure followed is as per Order 4, Rule 21, of the Rules of the Madras High Court Rules on the Appellate Side. The limitation provided under the Special Act for filing the revision, inclusive of the permitted period under Section 25 of the Act is sixty days. This Court and other courts in a catena of cases held that the Appellate authority is a persona designata and as such Section 5 of the Limitation Act is not applicable and it is needless to enumerate the same, since that position is not disputed. In M.M. Thimmiah v. M.G. Krishna Reddy and Company C.M.P.Nos. 2618 and 2619 of 1983 - (1983) 2 M.L.J. (N.R.C) 4, Sathiadev, J. held Held that the Supreme Court has taken the view in Hukum Dev Narain v. Lalit Narain A.I.R. 1974 S.C.480, that if on an examination of the relevant provisions of the special enactment and by looking into the scheme of the special enactment and each of the remedies provided therein, it appear that the Legislature has intended to be a complete code, then necessarily the provisions of the Limitation Act would be excluded, even in the absence of an express exclusion. There is no section in the Act XVIII of 1960 to the effect that sections 4 to 24 of the Limitation Act would not apply in respect of matters arising under the Act. There is no section in the Act XVIII of 1960 to the effect that sections 4 to 24 of the Limitation Act would not apply in respect of matters arising under the Act. But when section 25(2) not only prescribes and special period of limitation for preferring revision petitions to the High Court to condone the delay in filing the revision within the prescribed period on sufficient cause shown it being unlike that what has been provided under section 23 of the Act (Sic) and having regard to the decisions of the Supreme Court in Mohammed Ashfaq v. S.T.A.T., Uttat Pradesh and Commissioner of S. T., Uttat Pradesh v. Parson Tools and Plants, Kanpur, it has to be held that section 25(2) confers a discretion in the High Court to allow further time not exceeding one month for filing of any such application, if it is satisfied that the applicant has sufficient cause for not preferring the application within the time limit of one month, as specified in that sub-sections. This provision being similar to what came before the Supreme Court in Commissioner of S.T., Uttar Pradesh v. Parson Tools and Plants, Kanpur and Mohammed Ashfaq v. S.T.,A.T., Uttat Pradesh. it has to be held that when such express exclusion is in-built in the proviso to section 25 (2), section 5 of the Limitation Act would not be applicable, and hence the petition filed to condone the delay has to be dismissed as not maintainable. In view of the ratio laid down in the above decision, Section 5 of the Limitation Act cannot be invoked. 3. Learned counsel for the petitioner Mr. G. Masilamani submitted that under Order 4, Rule 21 of the Rules of the Madras High Court Rules on the Appellate Sides it is provided that along with the impugned judgment and decree, the judgment of the trial court is also to be filed and as such the for obtaining the said copy is to be excluded in computing the period limitation. Section 25(2) of the Pondicherry Buildings (Lease and Rent Control) (Amendment) Act, 1980 reads as follows: Every application to the High Court for the exercise of its power under Sub-section (1) shall be preferred within one month from the date on which the order or proceedings to which the application relates is communicated to the applicant. Section 25(2) of the Pondicherry Buildings (Lease and Rent Control) (Amendment) Act, 1980 reads as follows: Every application to the High Court for the exercise of its power under Sub-section (1) shall be preferred within one month from the date on which the order or proceedings to which the application relates is communicated to the applicant. Provided that the High Court may in its discretion allow further time not exceeding one month for the filing of any such application, if it is satisfied that the applicant had sufficient cause for not preferring the application within the time specified in this sub-section. It has to be noted that procedure for filing appeal are prescribed under Rule 22, but not for revision. Limitation to be computed is only from the date on which the petitioner applied for the order or proceeding and the copy is communicated to the appellant as is seen from the above provision and there is no scope for excluding the time taken for obtaining the copy of the order of the Rent Controller. Even under Section 12 of the Limitation Act, though it is not applicable to the Rent Control Act, the time taken for obtaining copy of the order which is to be revised alone has to be excluded and not the order passed by the lower court, though it is to be produced alongwith the revision or appeal. Learned counsel for the petitioner in this connection, drew my attention to the decision of the Lahore High Court reported in Jagiri Ram v. Daulat Khan A.I.R. 1928 Lahore 755. In the above quoted case, there were two sets of judgments, which were the subject matter for review and in the circumstances, it was held that the judgment passed prior to the review and after review were one judgment from which the appeal was made and in the circumstances, the time taken for obtaining certified copy was excluded by applying the provision of section 12 of the Limitation Act. The said decision is not helpful to the petitioner. Even in that case it is observed: It is consequently been held that the Court is not entitled to extent the operation of that section, though by a rule made by this Court it is necessary to file a copy of the judgment of the trial court. The said decision is not helpful to the petitioner. Even in that case it is observed: It is consequently been held that the Court is not entitled to extent the operation of that section, though by a rule made by this Court it is necessary to file a copy of the judgment of the trial court. Learned counsel for the petitioner also relied on another decision reported in Prithi Pal Singh v. Hans Raj A.I.R. 1939 Lahore 378 wherein, without discussing the scope and applicability of Section 12 of the Limitation Act, the Learned Judge observed: Under the law the appellant is not entitled as of right to deduct the period spent in obtaining copy of the first court's judgment, but if the appellant has applied for a copy before limitation for filing appeal had expired, High Court may allow the time spent in obtaining that copy if he had filed the copy on the day he obtained it or very soon afterwards. With due respect to the Learned Judge, there is no scope for extending the time, under section 12 of the Limitation Act, in obtaining the copy of the first court's judgment. Section 12 deals with the computation of the period of limitation in respect of obtaining copy of the judgment which is to be appealed or revised and there is no scope for extending the same for obtaining the first court's judgment. Hence I am of the view that those decisions will not help the petitioner. As pointed out by the office, in case where the petitioner was not able to produce the copy of the lower court's order he can file a petition to dispense with the same and present the revision in time and he cannot wait for receipt of the same. In the instant case, admittedly the revision is filed after a lapse of three days after the expiry of the period of limitation and there is no scope for condonation of the delay even after the extended period of 60 days provided under section 25 of the Act. Hence the revision is liable to be rejected as barred by limitation and the same cannot be taken on file.