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1993 DIGILAW 298 (KER)

Pankajakshi Amma v. Sarojam

1993-07-01

K.SREEDHARAN, M.JAGANNADHA RAO

body1993
Judgment :- Jagannadha Rao, C..J. The point arising in these two O.Ps. deals with the applicability of O.XXII of CPC to proceedings under the Kerala Buildings (Lease & Rent Control) Act, 1965 (hereinafter called the 'Rent Control act). The matter has been referred to a Division Bench by a learned Single Judge of this Court. 2. In O.P.No.8350 of 1989, the legal representatives of the deceased-tenant are the petitioners. In that case what happened was that when the matter was pending in appeal before the appellate authority (Subordinate Judge) the tenant died on 1-1-1989, and the legal representatives filed an application, I.A.No.218 of 1989 on 16-2-1989 as per Ext.P5. Subsequently, they filed another application, LA. No.367of 1989 on 15-3-1989 under O.XXII, R.9(3) read with S.22 of the Rent Control Act for condonation of delay, and sought for settling aside abatement. Those two applications were dismissed by the appellate authority under Ext.P5 order dated 10-7-1989, and on the same day, under Ext.P5(a) the appeal itself was dismissed. Against the said orders the petitioners filed R.CR.P.Nos.34 and 35 of 1989 before the District Court. The learned District Judge dismissed both the Revisions as per Ext.P7 order dated 6-9-1989. It is against this order that O.P.No.8350 of 1959 has been filed. 3. In O.P.N.13410 of 1991, the tenant is the petitioner. In that case eviction petition was filed in 1983 and was allowed on 31-10-1985 as per Ext.P1 order. The tenant preferred appeal before the appellate authority (Sub Court) and the same was dismissed on 11-1-1989 as per Ext.P2. Then the tenant preferred R.C.R.P.No.22 of 1989 before the District Court, Kozhikode. During the pendency of that' Revision, the landlord died on 15-1-1990. The tenant filed I.A.No.721 of 1990 on 21-3-1990 for impleading the legal representatives of the landlord in the revision petition and I.A.No. 722 of 1990 to amend the cause title. These two I.As. were dismissed by the learned District Judge under Ext.P3 order dated 19-11-1991. On the same day under Ext.P4 the Revision itself was dismissed. Questioning the same the tenant has preferred O.P.No.13410 of 1991, 4. There are decisions of this Court holding that S.5 of the Indian Limitation Act, 1963 is not attracted to the proceedings under the Rent Control Act. We need not in these petitions before us go into the said question. Questioning the same the tenant has preferred O.P.No.13410 of 1991, 4. There are decisions of this Court holding that S.5 of the Indian Limitation Act, 1963 is not attracted to the proceedings under the Rent Control Act. We need not in these petitions before us go into the said question. Here, we are concerned with a limited question as to whether/by virtue of S.22 of the Rent Control Act, O.XX11, R.9(3) including provision regarding condonation of delay by the application of S.5 of the Limitation Act is attracted to the facts of this case. 5. Section 22 of the Rent Control Act reads as follows: "S.22. Proceedings by or against legal representatives: The provisions of S.14(3 and O.XXII of the Code of Civil Procedure, 1908 (5 of 1908), as far as possible, be applicable to the proceedings under this Act." Rule 10 of the Rules made in 1979 under the Act provides: "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." Order XXII R.9 of the CPC reads as follows: "Effect of abatement or dismissal. - (1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same course of action. (2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal, and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit. (3) The provisions of S.5 of the 'Indian Limitation Act, 1877 (15 of 1877), shall apply to application under sub-rule (2)." 6. Inasmuch as S.22 of the Rent Control Act attracts the provisions of O.XXII R.9 as far as may be, we have to read the word' suit' as' petition', 'appeal' or' Revision', as the case may be, and the word 'plaintiff as 'petitioner'. By virtue of R.11 of O.XXII, whenever an appeal is preferred, we have to read word 'plaintiff in O.XXII.R.9 as including an appellant, and the 'defendant' as including respondent. By virtue of R.11 of O.XXII, whenever an appeal is preferred, we have to read word 'plaintiff in O.XXII.R.9 as including an appellant, and the 'defendant' as including respondent. Therefore for matters covered by S.22 of the Rent Control Act, there can be no difficulty in resorting to O.XXII, R.9(3) of the CPC, thereby invoking the application of S.5 of the Indian Limitation Act, 1963. We accordingly hold that whenever applications falling under S.22 of the Rent Control Act read with R.10 of the Rules made thereunder, come up before the Rent Controller or the appellate authority or the revisional authority, there can be no difficulty in going into the question of sufficient cause as envisaged under S.5 of the Limitation Act, and this is because of the special provisions contained in O.XXII, R.9(3), which are expressly made applicable by S.22 of the Rent Control Act itself. Our attention is however drawn to the decision of a learned Single Judge of this Court in Annamma Pally v. Thomas Mary, 1983 KLT 313. In that case, the learned Single Judge took the view that even if by virtue of S.22 of the Rent Control Act, O.XXII is attracted, the provisions of O.XXII R.9(3) are not attracted, but only provisions of O.XXII, R.4(5) relating to procedure are attracted. We are unable to agree with the learned Single judge that the effect of S.22 of the Rent Control Act is to be limited to O.XXII, R.4(5) only. In our view, the language of S.22 of the Rent Control Act is wide enough to attract the provisions of O.XXII R.9(3) also to proceedings under the Rent Control Act. We accordingly overrule the decision of the learned Single Judge in Annamma Paily v. Thomas Mary, 1983 KLT 313 in so far as his construction with regard to S.22 of the Rent Control Act is to the contrary. 7. In this context we may also have to refer to G.O.Ms. No.31/91/Heg. dated 28-8-1991, issued by the Government of Kerala, Housing (C) Department, which was published in-the Kerala Gazette Extraordinary only on 29-8-1991. In that notification, the Government of Kerala has issued an amendment to R.10 of-the Kerala Buildings (Lease and Rent Control) Rules, 1979 by adding proviso to R.10. In this context we may also have to refer to G.O.Ms. No.31/91/Heg. dated 28-8-1991, issued by the Government of Kerala, Housing (C) Department, which was published in-the Kerala Gazette Extraordinary only on 29-8-1991. In that notification, the Government of Kerala has issued an amendment to R.10 of-the Kerala Buildings (Lease and Rent Control) Rules, 1979 by adding proviso to R.10. That proviso reads as follows: Provided that where the application for impleadment is filed by legal representatives who are not in the party array, the Appellate Authority may in appropriate cases condone the delay in filing applications." Explanatory note contained in the said notification states that the above said amendment is issued consequent to the decision of this Court in CRP.No.2427 of 1990, aim to remove the hardship caused in several cases. In view of the said amendment to R.10 of the Rules by adding the proviso, it will therefore be clear that in a proceeding arising under the Rent Control Act, for bringing the legal representatives on record, the delay can be condoned, if there is sufficient cause. 8. Now we shall take up the individual petitions. In O.P.No.8350 of 1989, we set aside P7 order passed by the District Judge on 6-9-1989, and we also set aside Exts.P5 and P5(a) orders passed by the appellate authority on 10-7-1989. The result will be that the appeal preferred by the legal representatives will get revived along with i.a.nos. 218 of 1989 and 367 of 1989. 9. The question however will be which court will decide the above said appeal and the two interlocutory applications. A notification dated 26-9-1989 was published in the Kerala Gazelle constituting the District Court as the first appellate authority and the High Court as the Revisional Authority. The appeal, R.C.A.No.20 of 1988, which was pending before the Sub Court, Alleppey will therefore stand transferred to the District Court, Alleppey. The District Judge, Alleppey will now take up the RCA and the two interlocutory applications mentioned above and shall go into the question of condonation of delay in filing the application for bringing the legal representatives on record, and in setting aside the abatement. The District Judge shall dispose of the RCA and the I As in accordance with law. 10. The District Judge shall dispose of the RCA and the I As in accordance with law. 10. Coming to CXP.No.13410 of 1991, for the reasons aforementioned the order of the District Judge Ext.P3 dated 19-11-1991, as also Ext.P4 order passed in the Revision Petition, are set aside and the Revision, R.C.R.P.No.22 of 1989, along with I.A.Nos.721 and 722 of 1990 will stand revived, on the file of the District Court, Kozhikode. However, in view of the change of jurisdiction of court, the said Revision Petition along with I.As. are withdrawn to this Court and will be posted for final hearing before a Division Bench of this Court. 11. What we have done in O.P.No. 8358 of 1989 in directing the appeal to be transmitted to the District Court, Alleppey, and what we have done in O.P.No..13410 of 1991 in withdrawing the Revision Petition from the District Court to this Court, in view of change of jurisdiction of court, is consistent with the view expressed by a Division Bench of this Court in Kakkaiidi Choyi v. Ayimbadimeeihalamoo, AIR 1991 Ker. 145 as well as Vasu v. Pathooty Umma,1990 (!) KLT 670. The O.Ps. are allowed and disposed of as stated above.