Ahmed v. Purushothaman — 1994 DIGILAW 211 (KER)

Judgment :- Balanarayana Marar, J. These three revision petitions arise from the same proceeding before the Rent Control Court. Respondents in these petitions are the landlords of a building which was entrusted to one Shamsuddin against whom petition was filed as R.C.P. 48/85 for eviction. The petition was allowed by the Rent Control Court. On appeal, the Appellate Authority reversed that order and the request for eviction was disallowed. The matter was carried by the landlords to the Revisional Court as R.C.R.P.103/89. The tenant died on 19-4-1990. Three petitions were filed by the landlords-revision petitioners before District Court, Kozhikode as I. A. 1479/90, 2248/90 and 2249/90 to get the legal representatives impleaded, to set aside the abatement and to excuse the delay in getting the legal representatives impleaded. The petitions were strongly opposed by the legal representatives of the deceased tenant. By a common order dated 18-9-1991 District Court, Kozhikode allowed the impleading petition I.A.No.1479/ 90 holding that the request for impleadment was made within 15 days of the dale of knowledge of the death of the tenant. For this reason the other two applications were dismissed. C.R.P. 1960/91 is directed against the order in I.A. 1479/90 in R.C.R.P.103/ 89. 2. In the meantime the landlords filed a petition for review of the judgment as I.A. 53/90 wherein two other interlocutory applications were filed as I.A. 1481/90 and I.A. 1482/90 for getting the legal representatives of the deceased tenant impleaded and for amendment of the review petition. Both the interlocutory applications were allowed by the Appellate Authority. The other two revisions, C.R.P. 1655/91 and 1657/91 are directed against those orders. 3. Since all these revisions arise from the same rent control petition they were heard jointly and are being disposed of by this common order. 4. Heard counsel on both sides. 5. The main contention advanced by Sri. Surendran, learned counsel for revision petitioners is that the legal representatives having been sought to be impleaded after the period of 15 days prescribed under R.10 of the Kerala Buildings (Lease and Rent Control) Rules the revision has abated. The petitions seeking to set aside abatement and for excusing the delay were dismissed by the court observing that they are unnecessary. 1n the absence of such delay being excused by the court the impleadment of the legal representatives is improper, argues counsel. The petitions seeking to set aside abatement and for excusing the delay were dismissed by the court observing that they are unnecessary. 1n the absence of such delay being excused by the court the impleadment of the legal representatives is improper, argues counsel. R.10 stipulates that 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. Interpreting this rule a Learned Single Judge of this Court in the decision in Surendran v. Munsiff (1989(2) KLT 648) held that the words "date of death" in R.10 has to be read as "date of knowledge of death". Such an interpretation was found necessary since the delay in filing the application cannot be condoned under S.5 of the Limitation Act. 6. Interpreting the very same provision a Division Bench in the decision in Radhakumari v. Sukumuran (1991(1) KLT 144) observed that R.10 is clear, certain and precise and mat there is no ambiguity. It applies to all applications to bring on the party array legal representatives of the deceased person. The question which arise for consideration therein was whether R.10 will not apply to a case where the impleading application is filed by the legal representatives who are not on the party array, whereas the rule will apply only whether the application is filed by one of the parties. That contention was rejected by the Division Bench. It was pointed out before the Division Bench that in some cases legal representatives of a party may not be aware of the proceeding or even if aware of the proceeding may not be in possession of the details and numbers of the litigation in which case it may not be possible for them to approach the court-within the time prescribed. The Bench observed that such a situation can be rectified only by the rule making authority and not by the court. It was suggested that the positive object of the rule could be achieved and the adverse impact of the rule in its present form could be avoided if specific power is conferred on the Appellate Authority to condone delay in filing such applications. 7. It was suggested that the positive object of the rule could be achieved and the adverse impact of the rule in its present form could be avoided if specific power is conferred on the Appellate Authority to condone delay in filing such applications. 7. The aforementioned decisions were rendered on the impression that the Rent Control Court and the Appellate Authority were not competent to condone the delay in filing the-petition for getting the legal representatives impleaded. It is settled law that S.5 of the Limitation Act is not applicable to proceedings before the Rent Control Court and the Appellate Authority. It may be for that reason that the Division Bench suggested amendment of R.10 so as to enable a party to move the Rent Control Court and the Appellate Authority for getting the legal representatives of a party impleaded even after the prescribed period showing reasons for the delay. The attention of this Court is not seen to have been drawn to S.22 of the Rent Control Act which makes the provisions in S.146 and 0.22 of the Code of Civil Procedure applicable to proceedings under the Act as far as possible. 1nterpreting this provision a Division Bench in Pankajakshi Amma v. Sarojam (1993(2) KLT 313) held that the delay in bringing the legal representatives on record can be condoned if sufficient cause is shown. 8. S.146 and Order 22 C.P.C. are made applicable to the proceedings under the Rent Control Act as far as possible. S.146 enables any party to take the proceeding against the legal representatives of the party proceeded against. When Order 22 as such has been made applicable the intention is to make all the rules contained in mat Order applicable to the proceedings. If that be so, the Rent Control Court and the Appellate Authority has every power to condone the delay in bringing the legal representatives on record. 1n particular, reference has to be made to sub-rule (5) of rule 4 and sub-rule (3) of rule 9. 9. Such rule (3) of R.4 states that the suit shall abate as against the deceased defendant in case no application has been made under sub-rule (1) within the time limited for causing the legal representatives to be made parties to the suit. 9. Such rule (3) of R.4 states that the suit shall abate as against the deceased defendant in case no application has been made under sub-rule (1) within the time limited for causing the legal representatives to be made parties to the suit. But it is provided in sub-rule (5) that where the plaintiff was ignorant of the death of a defendant and could not for that reason make an application for the substitution of the legal representative of the defendant and the suit has in consequence abated and an application is made by the plaintiff after the expiry of the period for setting aside the abatement and also for the admission of that application under S.5 of the Limitation Act on the ground that he had by reason of the ignorance of death sufficient cause for not making the application within the period specified in the said Act the court shall in considering the application under the said Section 5 have due regard to the fact of such ignorance, if proved. This sub-rule has been introduced by the amendment of 1976 to provide that the court shall have due regard to the fact of plaintiff's ignorance of the death of the defendant while considering an application under S.5 of the Limitation Act for condonation of delay in support of an application for setting aside the abatement. The ignorance of death is therefore a factor to be taken note of by the court while considering the application for condonation of delay in bringing the legal, representatives on record. Sub-rule (3) of R.9 makes the provisions of S.5 of, the Limitation Act applicable to applications filed under sub-rule (2) under which a right is given to the party to apply for an order to set aside the abatement. In case it is proved that the plaintiff or the person claiming to be the legal representative of a deceased plaintiff was prevented by any sufficient cause from continuing the suit the court has to set aside the abatement or dismissal. In case it is proved that the plaintiff or the person claiming to be the legal representative of a deceased plaintiff was prevented by any sufficient cause from continuing the suit the court has to set aside the abatement or dismissal. On a combined reading of sub-rule (5) of rule 4 and sub-rule (3) of rule 9 of Order 22 C.P.C. if is clear beyond doubt that a plaintiff who is ignorant of the death of the defendant can move an application for bringing the legal representatives after the period of limitation and the delay is liable to be condoned and the abatement has to be set aside if plaintiff is able to prove the fact of ignorance or if there are other sufficient reasons for the delay in making the application. The provisions of Order 22 having been made applicable to proceedings under the Rent Control Act the authorities under the Act have power to entertain an application for impleadment of the legal representatives even after the period prescribed in rule 10 of the Buildings Lease and Rent Control Rules provided the reason for the delay has been satisfactorily explained as provided in the two sub rules referred above. Necessary provision having been made in S.22 of the Act itself a specific power as suggested in Radhakumari's case (supra)-need not be conferred on the Appellate Authority to condone the delay in filing such applications. As observed by this court in Radhakumari 's case R.10 is clear, certain and precise. It applies to applications to bring on the party array the legal representatives of a deceased person. The period of limitation starts from the date of death of the person and the period prescribed is .15 days from such date. Under Limitation Act the period prescribed to have the legal representatives of a deceased plaintiff or appellant or of a deceased defendant or respondent to be made a party is 90 days. The period of limitation begins to run from the date of death of the plaintiff, appellant, defendant or respondent as the case may be. In R.10 the only difference is that a shorter period man that prescribed in the Limitation Act has been prescribed for bringing the legal representatives on record. Still the period of limitation begins to run from the date of death. In R.10 the only difference is that a shorter period man that prescribed in the Limitation Act has been prescribed for bringing the legal representatives on record. Still the period of limitation begins to run from the date of death. Since R.10 is clear on this aspect and is not ambiguous in any manner we hold that the legal representatives of a deceased party has to he brought on record within a period of 15 days from the date of death and not from the date of knowledge. We are of the view that Snrendran's case (supra) was not correctly decided. We make it clear that the application of the rule is subject to the provisions contained in 0.22 C.P.C. and a party can get the legal representatives brought on record by showing sufficient cause for the delay. 10. In the case on hand a counsel appeared for the respondent in the court below. The counsel communicated the fact of death to the court only on 26-7-1990 though the death took place on 19-4-1990. Within 8 days therefrom the landlords had moved the court below by means of an application to bring on record the legal representatives. Two other applications, one to set aside the abatement and the other to condone the delay were also filed. The question arises whether the delay is liable to be condoned. 11. The fact of ignorance of death of a defendant has now been recognised as a sufficient cause for not making the application to set aside the abatement within the period prescribed in the Limitation Act. Vide sub-rule (5) of R.4 of Order 22 C.P.C. This sub-rule was inserted in the context of the provisions contained in R.10(A). Counsel has a duty to communicate the death to the court and rule 10(A) introduced by the amendment of 1976 stipulates that on such communication being made the court has to give notice of such death to the other party. The court below has not adverted to the new provision introduced in 0.22 by the C.P.C. amendment of 1976. The Supreme Court had occasion to consider these provisions in the decision in Gangadhar v. Raj Kumar ( A.I.R 1983 SC 1202). That also was a case where the appellant failed to get the legal representatives of the respondent impleaded within the time prescribed by law. The Supreme Court had occasion to consider these provisions in the decision in Gangadhar v. Raj Kumar ( A.I.R 1983 SC 1202). That also was a case where the appellant failed to get the legal representatives of the respondent impleaded within the time prescribed by law. Request was made to set aside the abatement and for condonation of delay under S.5 of the Limitation Act. That request having been rejected by the High Court an appeal was preferred before the Supreme Court. It was held that the High Court had failed to take note of an important change in law deliberately made to cater to the situation. In that case the application for substitution was made within two weeks of the date on which the counsel communicated to the court the fact of death. The Supreme Court observed that the delay deserves to be condoned. The principle enunciated by the Supreme Court directly applies to the present case also. There has thus been satisfactory reason for the delay in bringing the legal representatives on record. The court below was therefore right in permitting the landlords to bring on record the legal representatives of the tenant. It can be said that the court has committed an error in dismissing the applications to set aside abatement and for excusing the delay. Those applications were dismissed by applying the law laid down by this court in Surendran's case (supra). Still the conclusion reached by the court is correct. Though for different reasons which we have mentioned in the foregoing paragraphs the order permitting the legal representatives to come on record has only to be sustained and we hold so. 12. The order in 1a. 1479/90 in R.C.R.P.103/89 having been sustained by us the legality or propriety of the order of the Appellate Authority has now to be considered by District Court, Kozhikode which is the Revisional Authority competent to consider this matter, the revision having been filed before the notification appointing the District Judges as the Appellate Authority under S.18(1) of the Act. District Court, Kozhikode has therefore to consider the revision on merits and pass appropriate orders. 13. In view of the direction to the District Court to consider the revision on merits the other two revision petitions, 1655/91 and 1657/91 are dismissed. District Court, Kozhikode has therefore to consider the revision on merits and pass appropriate orders. 13. In view of the direction to the District Court to consider the revision on merits the other two revision petitions, 1655/91 and 1657/91 are dismissed. 1n consequence the petition filed before the Appellate Authority for review of the order in appeal as I.A.53/90 is also dismissed. Revision Petitions are disposed of accordingly.