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1990 DIGILAW 315 (BOM)

Bhagwantibai Shrigovind Agrawal v. Damodar Sheoprasad Agrawal

1990-08-10

H.W.DHABE

body1990
JUDGMENT - DHABE H.W., J.:---The question which arises for consideration in the instant writ petition is whether to a provision of an appeal under Clause 21(1) of the C.P. and Berar Letting of Houses and Rent Control Order, 1949 (for short 'the Rent Control Order') section 5 of the Limitation Act, 1963, is applicable. Briefly the facts are that the petitioner landlady filed an application against the respondent tenant seeking permission of the learned Rent Controller under Clauses 13(3)(i), (ii), (vi), (viii) and (ix) of the Rent Control Order. The learned Rent Controller dismissed the said application by an order dated 31-3-1984 except as regards the permission sought under Clause 13(3)(i) in regard to which he directed that the respondent tenant should pay the arrears of rent as found by him within two months from the date of his order, failing which the permission thereunder would be deemed to be granted to the petitioner landlady. The petitioner landlady preferred an appeal against the aforesaid order of the learned Rent Controller before the Resident Deputy Collector (for short the 'R.D.C.'), Akola under Clause 21(1) of the Rent Control Order. Since there was delay in filing the appeal, the petitioner made an application for condonation of delay. The said application for condonation of delay was rejected by the learned R.D.C. by his order dated 10-3-1986 with the result that the appeal filed by the petitioner stood dismissed as barred by limitation. The application for review of the aforesaid order passed by the learned R.D.C. was also dismissed by him on 31-12-1986. Feeling aggrieved, the petitioner has preferred the instant writ petition in this Court. 2. The principal question raised on behalf of the respondent-tenant in the instant writ petition is that section 5 of the Limitation Act is not applicable to the proceedings in appeal before the learned R.D.C. under Clause 21(1) of the Rent Control Order and hence the application for condonation of delay filed by the petitioner was liable to be dismissed on this short ground as there was no provision made in the Rent Control Order itself for condonation of delay in filing the appeal. In support of the above contention, the learned Counsel for the respondent has relied upon two decisions one is of the Supreme Court in the case of (Sakaru v. Tanaji)1, A.I.R. 1985 S.C. 1279 and another is of this Court (S.B.) in the case of (Janrao Ganpatrao Ohe v. Bhimrao Madhavrao Aware)2, 1986 Mh.L.J. 516. 3. The question involved in the decision of the Supreme Court cited supra was whether section 5 of the Limitation Act was applicable to the proceedings in appeal before the Collector under the A.P. (Telangana Area) Tenancy and Agricultural Land Act (for short the A.P.). In para 3 of the said judgment, the Supreme Court has held that 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 the Code of Civil or Criminal Procedure. In taking the view that the Collector under the Act (ibid) is not a "Court" within the meaning of the said expression used in the Limitation Act, 1963, the Supreme Court has relied upon its previous decisions in (Nityananda M. Joshi v. Life Insurance Corporation of India)3, A.I.R. 1970 S.C. 209, (Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli)4, A.I.R. 1969 S.C. 1335 and (Sushila Devi v. Ramanandan Prasad)5, A.I.R. 1976 S.C. 177. On facts before it, since the Supreme Court had held that the Collector before whom the appeal was preferred under section 90 of the A.P. Act was not a 'Court' it held that the Limitation Act as such had no applicability to the proceedings before him. 4. The Supreme Court has then proceeded to examine the question whether section 5 of the Limitation Act is made applicable by the A.P. Act itself and in that regard it has considered the provisions of section 93 of the said Act, which has not only prescribed a period of limitation for filing an appeal or revision under the said Act but has also provided that in filing the suit, appeal or revision, the provisions of the Limitation Act would be applicable for the purpose of computation of the said period of limitation. In interpreting section 93 of the A.P. Act, the Supreme Court held that the provisions of the Limitation Act which were made applicable under the A.P. Act were the provisions relating to computation of the period of limitation contained in sections 12 to 24 included in Part III of the Limitation Act and not the provisions of section 5 of the Limitation Act as it was not the provisions dealing with the computation of the period of limitation. The Supreme Court thus rejected the contention in the said case that section 5 of the Limitation Act is applicable to the proceedings in appeal before the Collector under the A.P. Act. 5. In the decision of this Court cited supra, the question was whether the period of limitation provided under the residuary Article 137 of the Limitation Act, 1963 was applicable to an application filed under section 120(c) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short the 'Tenancy Act') which confers upon the Collector the power of summary eviction of the persons who are in unauthorised occupation of the agricultural lands. Relying on the aforesaid decision of the Supreme Court, this Court held that the Collector exercising power under section 120(c) of the Tenancy Act was not a 'Court' within the meaning of the said expression under the Limitation Act and, therefore, Article 137 of the Limitation Act was not applicable to the proceedings before the Collector under section 120(c) of the said Act. 6. As against the above decisions relied upon on behalf of the respondent, the learned Counsel for the petitioner has relied upon certain other decisions in support of his contention that the Resident Deputy Collector exercising appellate powers under Clause 21(1) of the Rent Control Order is a 'Court' within the meaning of the said expression occurring in the Limitation Act, 1963 and, therefore, the provisions of section 5 of the Limitation Act are applicable to the proceedings in appeal before him. In particular, he has relied upon the decision of the learned Single Judge of this Court in the case of (Ranchhoddas Atmaram Bairagi v. Gupta Brass Stores and others)6, 1983 Mh.L.J. 933. In particular, he has relied upon the decision of the learned Single Judge of this Court in the case of (Ranchhoddas Atmaram Bairagi v. Gupta Brass Stores and others)6, 1983 Mh.L.J. 933. He has also drawn support for his submission from the decisions in the case of (J.C. Patel v. Employees' State Insurance Corporation)7, 1987 Mh.L.J. 280, in which it is held that Article 137 of the Limitation Act is applicable to the Employees' State Insurance Court in the proceedings filed before it under section 75 of the Employees' State Insurance Act (for short the ESI Act) as the E.S.I. Court was a 'Court' within the meaning of the Limitation Act. 7. The learned Counsel for the petitioner has further, in the alternative urged before me that even assuming that the Resident Deputy Collector is not a 'Court' within the meaning of the Limitation Act, still the provisions of sections 4 to 24, both inclusive, of the Limitation Act, 1963 are applicable to the proceedings in appeal before him under Clause 21(1) of the Rent Control Order in view of the provisions of section 29(2) of the Limitation Act, 1963. In support of the above contention, the learned Counsel for the petitioner has relied upon the decision of the Supreme Court in the case of (Justiniano Augusto De piedade Barreto v. Antonio Vicente Da Fonseca and others)8, A.I.R. 1979 S.C. 984, and the decision of this Court in the case of (M/s. New India Structural and Crane Works v. Abdul Rashid Abdul Majid and another)9, 1988(1) Bom.C.R. 320 . The learned Counsel for the respondent has, however urged before me that the decisions of this Court holding that the learned Rent Control Appellate Authorities or the learned E.S.I. Court are 'Courts' within the meaning of the Limitation Act are no more a good law in view of the later decision of the Supreme Court, cited supra. It is not necessary for me to go into the above question for the purpose of the instant appeal because even assuming that the learned Rent Control Appellate Authority is not the 'Court' within the meaning of the Limitation Act, section 29(2) of the Limitation Act can be directly pressed into service for application of section 5 of the Limitation Act, 1963 to the proceedings in appeal under Clause 21(1) of the Rent Control Order. 8. 8. It is pertinent to see that in the decision of the Supreme Court in the case of Sakaru v. Tanaji, cited supra, the question whether in view of section 29(2) of the Limitation Act the provisions of section 5 were applicable to the proceedings before the Collector under the A.P. Act was not before the Supreme Court, presumably because of section 93 of the A.P. Act, which expressly made certain provisions of the Limitation Act relating to computation of the period of limitation only applicable to the limitation prescribed for an appeal and revision under the said Act. It may be seen that the application of certain provisions of the Limitation Act only under section 93 of the A.P. Act would mean that the other provisions of the Limitation Act were excluded from their application to the proceedings in appeal or revision under the A.P. Act and hence section 29(2) of the Limitation Act would not be available to such proceedings in appeal or revision under the A.P. Act because section 29(2) of the Limitation Act does not extend the provisions of sections 4 to 24 thereof if their application is expressly excluded by the special or local law in question. The above judgment of the Supreme Court is, therefore, of no assistance to the learned Counsel for the respondent in considering the question whether section 29(2) of the Limitation Act is of assistance to the petitioner or not in the instant case. 9. For consideration of the question whether section 29(2) is applicable or not, the said sub-section is reproduced below for ready reference: "29(2). Where any special or local law prescribed for any suit, appeal or application a period of limitation different from the period prescribed by the schedule the provisions of section III shall apply as if such period were the period prescribed by Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as and to the extent to which they are not expressly excluded by such special or local law." The first question which is to be seen as to application of section 29(2) is whether the Rent Control Order is the special or local law within the meaning of the said section or not. The Supreme Court has held in the case of Justiniano Augusto v. Antonio Vicente, cited supra that there is only one general law of limitation for the entire country and that is the Limitation Act, 1963 and therefore, all other laws prescribing the period of limitation are either special or local laws. The Supreme Court has further held that they are special laws if they prescribe periods of limitation for specified cases and they are local laws if their applicability is confined to specified areas. In my view Clause 21(1) of the Rent Control Order which prescribes a period of limitation of 15 days for filing an appeal before the Resident Deputy Collector is a special law as well as local law within the ratio of the decision of the Supreme Court, cited supra as it prescribes a period of limitation for specified cases under the Rent Control Order and its application is confined to the specified areas viz. the Vidarbha Region or the State of Maharashtra. 10. There cannot be any dispute that Clause 21(1) of the Rent Control Order prescribes the period of limitation different from the period prescribed under the First Schedule to the Limitation Act, 1963 for filing an appeal. It may then be seen that for application of section 29(2) which extends the provisions of sections 4 to 24 of the Limitation Act to the proceedings in any suit, appeal or application under any special or local law, it is not necessary that the judicial or quasi judicial authorities constituted thereunder should be Court stricto sensu within the meaning of the Limitation Act. If the special or local law is not a self-contained enactment itself in the sense that it not only provides for a period of limitation itself but also provides for its computation so that it can be said that the provisions of sections 4 to 24 are expressly excluded from their application to the said special or local law, the said provisions would be applicable in the proceedings under the said laws. 11. The scheme of Clause 21(1) of the Rent Control Order does not show that it is a self-contained Code on the question of limitation so that the provisions of sections 4 to 24 of the Limitation Act can be held to be excluded in their application to the proceedings in appeal thereunder. 11. The scheme of Clause 21(1) of the Rent Control Order does not show that it is a self-contained Code on the question of limitation so that the provisions of sections 4 to 24 of the Limitation Act can be held to be excluded in their application to the proceedings in appeal thereunder. It is true that the proviso to Clause 21(1) of the Rent Control Order provides for the exclusion of the time taken for obtaining certified copy of the order complained of in appeal in computing the period of limitation provided thereunder, but from the said proviso an inference cannot flow that the provisions of sections 4 to 24 of the Limitation Act are thereby intended to be expressly excluded from their application to the proceedings in appeal under the Rent Control Order. The Rent Control Order, therefore, cannot be held to be a self-contained enactment on the question of computation of the period of limitation. If the provisions of section 29(2) of the Limitation Act can validly be pressed into service by the learned Counsel for the petitioner it has to be held that section 5 of the Limitation Act is available to the petitioner in an appeal under Clause 21(1) of the Rent Control Order. For this view, to a certain extent, support can be drawn from the decision of this Court in the case of New India, Structural and Crane Works v. Abdul Rashid, cited supra. The contention raised on behalf of the respondent that section 5 of the Limitation Act is not applicable to the proceedings under Clause 21(1) of the Rent Control Order cannot, therefore be accepted. 12. Turning to the merits of the question whether the petitioner has made out sufficient cause for condonation of delay in filing the appeal before the R.D.C. Akola a few facts which need to be noticed are that the order of the learned Rent Controller impugned in the appeal was communicated to the learned Counsel appearing for the petitioner on 26-4-1984. The certified copy of the order of the learned Rent Controller was applied for on 22-5-1984 and it was received on the same day. The appeal was thereafter filed by the petitioner under Clause 21(1) of the Rent Control Order on 28-5-1984. The application for condonation of delay was also filed. The certified copy of the order of the learned Rent Controller was applied for on 22-5-1984 and it was received on the same day. The appeal was thereafter filed by the petitioner under Clause 21(1) of the Rent Control Order on 28-5-1984. The application for condonation of delay was also filed. The reason pleaded for condonation of delay in filing the appeal was that the petitioner landlady was bed ridden from 22-4-1984 to 25-5-1984 and was under the treatment of Dr. O.P. Begade of Karanja. The medical certificate of Dr. Begade was also filed by the petitioner in support of the application for condonation of delay. 13. The learned Rent Control Appellate Court has dismissed the application of the petitioner for condonation of delay for the following reasons : (a) that the petitioner did not file an affidavit in support of her application for condonation of delay although she had enough time to do so before the impugned order was passed: (b) the medical certificate ought to have been obtained prior to 25-5-1984 or at least on 22-4-1984 when the doctor prescribed rest for the petitioner from the said date i.e. 22-4-1984 and (c) when the petitioner was an outdoor patient, it was possible for her Counsel to get from her the application for obtaining a certified copy and present the appeal under her signature within the prescribed time as it was done on 28-5-1984 i.e. immediately after three days of the period of rest prescribed for her upto 25-5-1984. 14. In our approach to the question of condonation of delay, we are guided by the principles laid down by the Supreme Court in its recent case of (Collector, Land Acquisition, Anantanag and another v. Mst. Katiji and others)10, A.I.R. 1987 S.C. 1353. In the said case the Supreme Court has held that "every day's delay must be explained" does not mean that there should be a pedantic approach to the said question. It has further laid emphasis on the further fact that ordinarily a litigant does not stand to benefit by lodging an appeal late and that rejecting the application for condonation of delay can result in a meritorious matter being thrown out at the very threshold which can thus defeat the cause. There is thus a liberal approach adopted by the Supreme Court in the above case in considering the question of condonation of delay. 15. There is thus a liberal approach adopted by the Supreme Court in the above case in considering the question of condonation of delay. 15. In appearing the facts in the instant case, relating to the question of condonation of delay, it is true that the petitioner should have filed an affidavit in support of her application for condonation of delay. The petitioner is, however an old village woman and her Counsel should have, therefore, obtained her affidavit in support of the application for condonation of delay when she had come to him for filing the appeal. Be that as it may the reason about her illness on the basis of which condonation by filing the appeal was claimed in the application for condonation of delay is also given in the instant writ petition which is supported by her affidavit. The next question, therefore, to be considered is whether the medical certificate obtained by the petitioner is genuine or not or is an afterthought. In this regard, it may be seen that when a medical certificate of a registered medical practitioner i.e. the doctor possessing an M.B.B.S. degree is filed, unless there is some material to show that it is false, it cannot be held that it is not genuine, particularly when issuing a false certificate can result in the cancellation of registration of the doctor. 16. The learned Resident Dy. Collector has placed much emphasis upon the fact that the said Medical Certificate should have been obtained by the petitioner prior to or at any rate on 22-4-1984 from which date she was advised bed rest, failing which it held that the said certificate was an afterthought. It is a matter of common experience that normally the medical certificate is obtained by any person from his doctor when it is needed by him for any particular purpose. The petitioner was not aware of the order of the learned Rent Controller on 22-4-1984 as no date was fixed by him for passing the order. Even on 26-4-1984 when the order was communicated by the learned Rent Controller to her Counsel, she was not apprised of the said order by him. The petitioner was not aware of the order of the learned Rent Controller on 22-4-1984 as no date was fixed by him for passing the order. Even on 26-4-1984 when the order was communicated by the learned Rent Controller to her Counsel, she was not apprised of the said order by him. It may be seen that the petitioner is an old village woman and it is only when she learnt about the order passed by the learned Rent Controller and also when the appeal was to be filed against the said order upon instructions from her Counsel that she came to know that the Medical Certificate was necessary to be filed in support of her application for condonation of delay in filing the appeal. The fact that she obtained the medical certificate on 25-5-1984 would not thus by itself show that it was an afterthought. The recitals in the medical certificate cannot thus be rejected on his spacious ground. The conclusion of the learned R.D.C. in this regard is, therefore, perverse particularly when his approach should have been to show grater latitude to the landlady who is an illiterate village woman because as held by the Supreme Court ordinarily a litigant does not stand to benefit by lodging an appeal late and, therefore, he/she would be diligent in filing the appeal as expeditiously as possible. 17. The next circumstance upon which the learned R.D.C. has rejected the application for condonation of delay is that the petitioner was not an indoor patient and, therefore, it was possible for her to instruct her Counsel to apply for the certified copy and present the appeal under her signature within the prescribed time. Again the whole approach of the learned R.D.C. in this regard is perverse. It is clear from the medical certificate that the petitioner was advised complete bed rest from 22-4-1984 to 25-5-1984 which would mean that she could not go to her Counsel to instruct him to apply for the certified copy or to file the appeal within time, particularly when the order itself was communicated to the Counsel for the petitioner on 26-4-1984. Even assuming that she was an outdoor patient in the sense that periodically she was required to go to the door for treatment it would not mean that she would be able also to undertake the strain of going to her Counsel to instruct him to file the appeal unless there was evidence to show that during this period she was also doing her routine work and was moving outside. It is further clear from the medical certificate that it was on careful examination 25-5-1984 on that the doctor had certified that the petitioner was fit for doing her routine work, which would mean that after 25-5-1984, she could move about and could visit her Counsel also for the purpose of filing the appeal. The reasoning of the learned R.D.C. in this regard cannot thus be accepted. 18. As regards the period from 25-5-1984 to 28-5-1984, it must be seen that some reasonable time would be taken by the Counsel to prepare an appeal. Moreover, as is clear from the application for condonation of delay, 26th and 27th May, 1984 were holidays. The delay after 25-5-1984, when the petitioner was declared fit for doing her routine work thus stands explained. It is pertinent to see that the petitioner is from Karanja, the Rent Controller's Court is at Murtijapur whereas the Rent Control Appellate Court is at Akola, for which reason also some latitude needs to be shown to the petitioner. In these facts and circumstances, it cannot be held that the petitioner was negligent in filing the appeal expeditiously after she became aware of the order of the learned Rent Controller. The delay in filing the appeal, therefore, needs to be condoned as there was sufficient cause for condonation of delay in filing the appeal. In the result, the instant writ petition is allowed. The impugned order of the learned Deputy Collector refusing to condone the delay is set aside. The delay in filing the appeal is condoned and the proceedings are remanded to the Resident Deputy Collector to decide the appeal on merits after hearing the parties. The Resident Deputy Collector is directed to decide the appeal within three months from the date of this order. The parties are directed to appear before him on 10-9-1990. Rule made absolute in the above terms. No order as to costs. R. and P. be sent back immediately. Petition allowed. -----