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PETITIONER:

MUKRI GOPALAN

Vs.

RESPONDENT:

CHEPPILAT PUTHANPURAYILABOOBACKER

DATE OF JUDGMENT12/07/1995

BENCH:

MAJMUDAR S.B. (J)

BENCH:

MAJMUDAR S.B. (J)

FAIZAN UDDIN (J)

CITATION:

1995 AIR 2272 1995 SCC (5) 5

JT 1995 (5) 296 1995 SCALE (4)438

ACT:

HEADNOTE:

JUDGMENT:

THE 12TH DAY OF JULY, 1995

Present:

Hon'ble Mr.Justice Faizan Uddin

Hon'ble Mr.Justice S.B.Majmudar

Mr. G.V.Iyer, Sr. Adv. Mr.G. Prakash and Mr.B.V.Deepak,

Advs. with him for the Appellant

Mr. R.F.Nariman, Sr. Adv. Mr.E.M.S.Anam, Adv. with him for

the Respondent.

J U D G M E N T

The following Judgment of the Court was delivered:

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1305/95

Mukri Gopalan

Versus.

Cheppilat Puthanpurayil Aboobacker

J U D G M E N T

MAJMUDAR, J.

In this appeal by special leave a short but an

interesting question falls for determination. It is to the

effect `whether the appellate authority constituted under

Section 18 of the Kerala Buildings (Lease and Rent Control)

Act, 1965 (hereinafter referred to as the `Rent Act') has

power to condone the delay in the filing of appeal before it

under the said section'. Majority of the Kerala High Court

in the case of Jokkim Fernandez Vs. Amina Kunhi Umma (AIR

1974 Kerala 162) has taken the view that the appellate

authority has no such power. Following the said decision a

Division Bench of the Kerala High Court by its judgment and

order under appeal has dismissed the revision application

moved by the appellant herein whose appeal before the

appellate authority was dismissed as time barred and the

application for condonation of delay was treated to be not

maintainable before the appellate authority.

A few relevant facts leading to these proceedings may

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now be looked at. The appellant is a tenant occupying the

suit premises belonging to respondent-landlord. The

respondent filed Rent Control Petition No. 117/92 before the

Rent Control Court, Kannur, Kerala State, seeking eviction

of the appellant-tenant under Section 11(2) (a) (b) and

Section 11(3) of the Rent Act on the grounds of default in

payment of rent and bonafide need for the purpose of

conducting grocery shop for his son, plaintiff no. 2. The

Rent Control Court exercising its power under Section 11 of

the Rent Act, passed an order for possession against the

appellant on 28th October, 1993. The appellant applied for

certified copy of the said order on 29.10.93. He obtained

certified copy of the order on 23.11.93. It is the case of

the appellant that he entrusted on 4.12.93 all the relevant

papers to his counsel for filing appeal. His counsel called

him in the next following week for signing vakalatnama and

for completing other formalities relating to filing of

appeal. It is the further case of the appellant that he

suffered paralytic attack on 5.12.93 and was bed ridden

until 27.12.93. On 28.12.93 he came to know for the first

time from his counsel that the time for filing appeal had

elapsed. It may be noted at this stage that as per Section

18(1) (b) of the Rent Act an appeal has to be filed within

thirty days from the date of order of Rent Control Court. In

computing thirty days, the time taken to obtain a certified

copy of the order appealed against has to be excluded.

Ultimately the appeal was filed by the appellant on 31.12.93

before the appellate authority, namely, District Judge,

Thalassery under Section 18 of the Act. The said appeal was

also accompanied by I.A.No. 56/94 for condonation of delay

supported by the affidavit of the appellant. The appellate

authority by its order dated 11th January, 1994 dismissed

the appeal as barred by time. The appellate authority took

the view that being not a court but a persona designata it

has no power to condone the delay in filing appeal by

invoking the provisions contained in Section 5 of the

Limitation Act, 1963. As noted earlier the said order of the

appellate authority was confirmed by the High Court in Civil

Revision Petition moved by the appellant and that is how the

appellant is before us.

The learned counsel for appellant-tenant vehemently

contended that the majority view of Kerala High Court in

Jokkim Fernandez Vs. Amina Kunhi Umma (supra) to the effect

that Section 29(2) of the Limitation Act cannot apply to the

proceeding before the appellate authority under Section 18

of the Rent Act was not correct and that the appellate

authority had full powers under Section 29(2) of the

Limitation Act to consider on merits the question of

condonation of delay in filing appeal as per Section 5 of

the Limitation Act. The learned counsel for respondent-

landlord on the other hand supported the decision rendered

by the High Court.

Before we deal with the majority decision of the Kerala

High Court in Jokkim Fernandez Vs. Amina Kunhi Umma (supra)

it is necessary to note the relevant statutory provisions in

the light of which the present controversy has to be

resolved. The Rent Act is enacted to regulate the leasing of

buildings and to control the rent of buildings in the State

of Kerala. Section 2(5) defines `Rent Control Court' to mean

the court constituted under Section 3. Section 3 of the Rent

Act provides that the Government may by notification appoint

a person who is or is qualified to be appointed a Munsiff,

to be the Rent Control Court for such local areas. Section 5

of the Act deals with the dertermination of fair rent on

application of the tenant or landlord to the Rent Control

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Court. Section 11 deals with the grounds on which an

application can be made to the Rent Control Court by

landlord for evicting his or her tenant. Proviso of Section

11 lays down that where the tenant denies the title of the

landlord or claims right of permanent tenancy, the Rent

Control Court shall decide whether the denial or claim is

bona fide and if it records a finding to that effect, the

landlord shall be entitled to sue for eviction of the tenant

in a Civil Court and such court may pass a decree for

eviction on any of the grounds mentioned in this Section,

notwithstanding that the Court finds such denial does not

involve forfeiture of the lease or that the claim is

unfounded. Section 14 deals with execution of orders passed

by Rent Control Court. It provides that such orders after

the expiry of the time allowed therein be executed by the

Munsiff or if there are more than one Munsiff, by the

Principal Munsiff having original jurisdiction over the area

in which the building is situated as if it were a decree

passed by him provided that an order passed in execution

under this section shall not be subject to an appeal but

shall be subject to revision by the court to which appeals

ordinarily lie against the decisions of the said Munsiff.

Section 16 lays down that the orders of Rent Control Court

shall be pronounced in the open court on the day on which

the case is finally heard, or on some future day of which

due notice shall be given to the parties. Next relevant

provision is found in Section 18 dealing with appeals. As

the controversy centres round the powers of the appellate

authority under Section 18 it will be useful to extract the

said Section in extensio at this stage.

"18. Appeal. - (1) (a) The Government

may, by general or special order

notified in the Gazette, confer on such

officers and authorities not below the

rank of a Subordinate Judge the powers

of appellate authorities for the purpose

of this Act in such areas or in such

classes of cases as may be specified in

the order.

(b) 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.

(2) On such appeal being preferred, the

appellate authority may order stay of

further proceedings in the matter

pending decision on the appeal.

(3) The appellate authority shall send

for the records of the case from the

Rent Control Court and after giving the

parties an opportunity of being heard

and, if necessary, after making such

further inquiry as it thinks fit either

directly or through the Rent Control

Court, shall decide the appeal.

Explanation:- The appellate

authority may, while confirming the

order of eviction passed by the Rent

Control Court, grant an extension of

time to the tenant for putting the

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landlord in possession of the building.

(4) The appellate authority shall have

all the powers of the Rent Control Court

including the fixing of arrears of rent.

(5) The decision of the appellate

authority, and subject to such decision,

an order of the Rent Control Court shall

be final and shall not be liable to be

called in question in any court of law,

except as provided in Section 20."

Section 19 deals with power to award costs. It lays

down that subject to such conditions and limitations, if

any, as may be prescribed, the costs of and incident to all

proceedings before the Rent Control Court or the appellate

authority shall be in the discretion of the Rent Control

Court or the appellate authority. Section 20 deals with

revision. It lays down that in cases where the appellate

authority empowered under Section 18 is a Subordinate Judge,

the District Judge and in other cases the High Court may at

any time, on the application of any aggrieved party, call

for and examine the records relating to any order passed or

proceedings taken under this Act by such authority for the

purpose of satisfying itself as to the legality, regularity

or propriety of such order proceedings, and may pass such

order in reference thereto as it thinks fit. Section 20(A)

gives power to remand the proceedings and provides that in

disposing of an appeal or application for revision under

this Act, the appellate authority or the revising authority,

as the case may be, may remand the case for fresh disposal

according to such directions as it may give. Section 22

deals with proceedings by or against legal representatives.

As per the said section provisions of Section 146 and order

XXII of the Code of Civil Procedure, 1908 shall as far as

possible be applicable to the proceedings under this Act.

Then follows Section 23 which deals with procedure and

powers of the Rent Act and appellate authority and also of

the Accommodation Controller. It provides that the Rent

Control Court and the appellate authority shall have the

powers which are vested in a court under the Code of Civil

Procedure, 1908 in respect of listed matters which include

discovery and inspection; enforcing the attendance of

witnesses, and requiring the deposits of their expenses;

compelling the production of documents; examining witnesses

on oath, granting adjournments; reception of evidence taken

on affidavit; issuing commission for the examination of

witnesses and for local inspection; setting aside ex parte

orders; enlargement of time originally fixed or granted;

power to amend any defect or error in orders or proceedings

and power to review its own order. As per sub-section (2) of

Section 23 the Accommodation Controller, the Rent Control

Court or the appellate authority may summon and examine suo

moto any person whose evidence appears to it to be material

and it shall be deemed to be a Civil Court within the

meaning of sections 480 and 482 of the Code of Civil

Procedure, 1908. At this stage it will be useful to note

that the Govt. of Kerala in exercise of its power under

Section 18(1) has issued a notification conferring on

District Judges the powers of appellate authority for the

purpose of Kerala Rent Act. The said notification reads as

under:-

"BUILDINGS (LEASE & RENT CONTROL) ACT,

1965-NOTN. UNDER S.18(1) CONFERRING ON

DISTRICT JUDGES POWERS OF APPELLATE

AUTHORITIES.

(Published in Kerala Gazette No.38 dated

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26th September, 1989: SRO:1631/89)

NOTIFICATION

S.R.O.No. 1631/89-In exercise of

the powers conferred by clause (a) of

sub-section (1) of S.18 of the Kerala

Buildings (Lease and Rent Control) Act,

1965 (2 of 1965) and in supersession of

all previous notifications on the

subject, the Government of Kerala hereby

confer on the District Judges having

jurisdiction over the areas within which

the provisions of the said Act have been

extended, the powers of the Appellate

Authorities for the purposes of the said

Act, in the said areas."

In the background of the aforesaid relevant statutory

provisions and the notification issued thereunder we have to

proceed to tackle the question posed for our consideration.

As noted earlier the appellate authority, namely the

District Judge, Thallassery has taken the view that since he

is a persona designata he cannot resort to Section 5 of the

Limitation Act for condoning the delay in filing appeal

before him. So far as this reasoning of the appellate

authority is concerned Mr. Nariman, learned counsel for

respondent fairly stated that he does not support this

reasoning and it is not his say that the appellate authority

exercising powers under Section 18 of the Rent Act is a

persona designata. In our view the said fair stand taken by

learned counsel for respondent is fully justified. It is now

well settled that an authority can be styled to be persona

designata if powers are conferred on a named person or

authority and such powers cannot be exercised by anyone

else. The scheme of the Act to which we have referred

earlier contra indicates such appellate authority to be a

persona designata. It is clear that the appellate authority

constituted under Section 18(1) has to decide lis between

parties in a judicial manner and subject to the revision of

its order, the decision would remain final between the

parties. Such an authority is constituted by designation as

the District Judge of the district having jurisdiction over

the area over which the said Act has been extended. It

becomes obvious that even though the concerned District

Judge might retire or get transferred or may otherwise cease

to hold the office of the District Judge his successor in

office can pick up the thread of the proceedings from the

stage where it was left by his predecessor and can function

as an appellate authority under Section 18. If the District

Judge was constituted as an appellate authority being a

persona designata or as a named person being the appellate

authority as assumed in the present case, such a

consequence, on the scheme of the Act would not follow. In

this connection, it is useful to refer to a decision of this

court in the case of Central Talkies Ltd., Kanpur Vs. Dwarka

Prasad (AIR 1961 SC 606). In that case Hidayatullah, J

speaking for the court had to consider whether Additional

District Magistrate empowered under Section 10(2) of

Criminal Procedure Code to exercise powers of District

Magistrate was a persona designata. Repelling the contention

that he was a persona designata the learned Judge made the

following pertinent observations:

"......A persona designata is a "a

person who is pointed out or described

as an individual, as opposed to a person

ascertained as a member of a class, or

as filling a particular character." (See

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Osborn's Concise Law Dictionary, 4th

Edn., p.253). In the words of Schwabe,

C.J. in Parthasaradhi Naidu Vs.

Koteswara Rao, ILR 47 Mad 369: (AIR 1924

Mad 561) (FB), personae designatae are

"persons selected to act in their

private capacity and not in their

capacity as Judges." The same

consideration applies also to a well

known officer like the District

Magistrate named by virtue of his

office, and whose powers the Additional

District Magistrate can also exercise

and who can create other officers equal

to himself for the purposes of the

Eviction Act. The decision of Sapru, J.

in the Allahabad case, with respect, was

erroneous."

Applying the said test to the facts of the present case it

becomes obvious that appellate authorities as constituted

under Section 18 of the Rent Act being the District Judges

they constituted a class and cannot be considered to be

persona designata. It is true that in this connection, the

majority decision of the High Court in Jokkim Fernandez Vs.

Amina Kunhi Umma (supra) also took a contrary view. But the

said view also does not stand scrutiny in the light of the

statutory scheme regarding constitution of appellate

authority under the Act and the powers conferred on and the

decisions rendered by it.

Once it is heldthat the appellate authority functioning

under Section 18 of the Rent Act is not a persona designata,

it becomes obvious that it functions as a court. In the

present case all the District Judges having jurisdiction

over the areas within which the provisions of the Rent Act

have been extended are constituted as appellate authorities

under Section 18 by the Govt. notification noted earlier.

These District Judges have been conferred the powers of the

appellate authorities. It becomes therefore, obvious that

while adjudicating upon the dispute between the landlord and

tenant and while deciding the question whether the Rent

Control Court's order is justified or not such appellate

authorities would be functioning as courts. The test for

determining whether the authority is functioning as a court

or not has been laid down by a series of decisions of this

court. We may refer to one of them, in the case of Thakur

Jugal Kishore Sinha Vs. Sitamarhi Central Co-operative Bank

Ltd. & Anr. (1967(3) SCR 163). In that case this court was

concerned with the question whether the Assistant Registrar

of Co-operative Societies functioning under Section 48 of

the Bihar and Orissa Cooperative Societies Act, 1935 was a

court subordinate to the High Court for the purpose of

Contempt of Courts Act, 1952. While answering the question

in the affirmative, a division bench of this court speaking

through Mitter, J placed reliance amongst others on the

observations found in the case of Brajnandan Sinha Vs. Jyoti

Narain (1955 (2) SCR 955) wherein it was observed as under:

"It is clear, therefore, that in

order to constitute a court in the

strict sense of the term, an essential

condition is that the court should have,

apart from having some of the trappings

of a judicial tribunal, power to give a

decision or a definitive judgment which

has finality and authoritativeness which

are the essential tests of a judicial

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pronouncement."

Reliance was also placed on another decision of this court

in the case of Virindar Kumar Satyawadi Vs. The State of

Punjab (1955 (2) SCR 1013). Following observations found at

page 1018 therein were pressed in service.

"It may be stated broadly that what

distinguishes a court from a

quasijudicial tribunal is that it is

charged with a duty to decide disputes

in a judicial manner and declares the

rights of parties in a definitive

judgment. To decide in a judicial manner

involves that the parties are entitled

as a matter of right to be heard in

support of their claim and to adduce

evidence in proof of it. And it also

imports an obligation on the part of the

authority to decide the matter on a

consideration of the evidence adduced

and in accordance with law. When a

question therefore arises as to whether

an authority created by an Act is a

court as distinguished from a quasi-

judicial tribunal, what has to be

decided is whether having regard to the

provisions of the Act it possesses all

the attributes of a court."

When the aforesaid well settled tests for deciding whether

an authority is a court or not are applied to the powers and

functions of the appellate authority constituted under

Section 18 of the Rent Act, it becomes obvious that all the

aforesaid essential trappings to constitute such an

authority as a court are found to be present. In fact, Mr.

Nariman learned counsel for respondent also fairly stated

that these appellate authorities would be courts and would

not be persona designata. But in his submission as they are

not civil courts constituted and functioning under the Civil

Procedure Code as such, they are outside the sweep of

Section 29(2) of the Limitation Act. It is therefore,

necessary for us to turn to the aforesaid provision of the

Limitation Act. It reads as under:

"S.29(2) Where any special or local

law prescribes for any suit, appeal or

application a period of limitation

different from the period prescribed by

the Schedule, the provisions of Section

3 shall apply as if such period were the

period prescribed by the 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 insofar as,

and to the extent to which, they are not

expressly excluded by such special or

local law."

A mere look at the aforesaid provision shows for its

applicability to the facts of a given case and for importing

the machinery of the provisions containing Sections 4 to 24

of the Limitation Act the following two requirements have to

be satisfied by the authority invoking the said provision.

(i) There must be a provision for period of limitation

under any special or local law in connection with any

suit, appeal or application.

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(ii) The said prescription of period of limitation under

such special or local law should be different from the

period prescribed by the schedule to the Limitation

Act.

If the aforesaid two requirements are satisfied the

consequences contemplated by Section 29(2) would

automatically follow. These consequences are as under:

(i) In such a case Section 3 of the Limitation Act would

apply as if the period prescribed by the special or

local law was the period prescribed by the schedule.

(ii) For determining any period of limitation prescribed by

such special or local law for a suit, appeal or

application all the provisions containing Sections 4 to

24(inclusive) would apply insofar as and to the extent

to which they are not expressly excluded by such

special or local law.

In the light of the aforesaid analysis of the relevant

clauses of Section 29(2) of the Limitation Act, let us see

whether Section 18 of the Rent Act providing for a statutory

appeal to the appellate authority satisfies the aforesaid

twin conditions for attracting the applicability of Section

29(2) of the Limitation Act. It cannot be disputed that

Kerala Rent Act is a special Act or a local law. It also

cannot be disputed that it prescribes for appeal under

Section 18 a period of limitation which is different from

the period prescribed by the schedule as the schedule to the

Limitation Act does not contemplate any period of limitation

for filing appeal before the appellate authority under

Section 18 of the Rent Act or in other words it prescribes

nil period of limitation for such an appeal. It is now well

settled that a situation wherein a period of limitation is

prescribed by a special or local law for an appeal or

application and for which there is no provision made in the

schedule to the Act, the second condition for attracting

Section 29(2) would get satisfied. As laid down by a

majority decision of the Constitution Bench of this court in

the case of Vidyacharan Shukla Vs. Khubchand Baghel and Ors.

(AIR 1964 SC 1099), when the first schedule of the

Limitation Act prescribes no time limit for a particular

appeal, but the special law prescribes a time limit for it,

it can be said that under the first schedule of the

Limitation Act all appeals can be filed at any time, but the

special law by limiting it provides for a different period.

While the former permits the filing of an appeal at any

time, the latter limits it to be filed within the prescribed

period. It is therefore, different from that prescribed in

the former and thus Section 29(2) would apply even to a case

where a difference between the special law and Limitation

Act arose by the omission to provide for limitation to a

particular proceeding under the Limitation Act.

It is also obvious that once the aforesaid two

conditions are satisfied Section 29(2) on its own force will

get attracted to appeals filed before appellate authority

under Section 18 of the Rent Act. When Section 29(2) applies

to appeals under Section 18 of the Rent Act, for computing

the period of limitation prescribed for appeals under that

Section, all the provisions of Sections 4 to 24 of the

Limitation Act would apply. Section 5 being one of them

would therefore get attracted. It is also obvious that there

is no express exclusion anywhere in the Rent Act taking out

the applicability of Section 5 of the Limitation Act to

appeals filed before appellate authority under Section 18 of

the Act. Consequently, all the legal requirements for

applicability of Section 5 of the Limitation Act to such

appeals in the light of Section 29(2) of Limitation Act can

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be said to have been satisfied. That was the view taken by

the minority decision of the learned single Judge of Kerala

High Court in Jokkim Fernandez Vs. Amina Kunhi Umma(supra).

The majority did not agree on account of its wrong

supposition that appellate authority functioning under

Section 18 of the Rent Act is a persona designata. Once that

presumption is found to be erroneous as discussed by us

earlier, it becomes at once clear that minority view in the

said decision was the correct view and the majority view was

an erroneous view.

It is also necessary to note the change in the

statutory settings of Section 29(2) as earlier obtained in

the Indian Limitation Act, 1908 and the present Limitation

Act of 1963. Section 29(2) as found in Indian Limitation

Act, 1908 read as follows:-

"Where any special or local law

prescribes for any suit, appeal or

application a period of limitation

different from the period prescribed

therefor by the First Schedule, the

provisions of Section 3 shall apply, as

if such period were prescribed therefor,

in that Schedule, and for the purpose of

determining any period of limitation

prescribed for any suit, appeal or

application by any special or local

law:-

(a) the provisions contained in

Section 4, Sections 9 to 18, and Section

22 shall apply only in so far as, and to

the extent to which, they are not

expressly excluded by such special or

local law; and

(b) the remaining provisions of

this Act shall not apply."

As per this sub-section, the provisions contained in

certain sections of the Limitation Act were applied

automatically to determine the periods under the special

laws, and the provisions contained in other sections were

stated to apply only if they were not expressly excluded by

the special law. The provision (Section 5) relating to the

power of the court to condone delay in preferring appeals

and making applications came under the latter category. So

if the power to condone delay contained in Section 5 had to

be exercised by the appellate body it had to be conferred by

the special law. That is why we find in a number of special

laws a provision to the effect that the provision contained

in Section 5 of the Limitation Act shall apply to the

proceeding under the special law. The jurisdiction to

entertain proceedings under the special laws is sometimes

given to the ordinary courts, and sometimes given to

separate tribunals constituted under the special law. When

the special law provides that the provision contained in

Section 5 shall apply to the proceedings under it, it is

really a conferment of the power of the court under Section

5 to the Tribunals under the special law-whether these

tribunals are courts or not. If these tribunals under the

special law should be courts in the ordinary sense an

express extension of the provision contained in Section 5 of

the Limitation Act will become otiose in cases where the

special law has created separate tribunals to adjudicate the

rights of parties arising under the special law. That is not

the intension of the legislature.

In view of the aforesaid provision of Section 29(2) as

found in Indian Limitation Act, 1908, Section 5 would not

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have applied to appellate authorities constituted under

Section 18 as Section 5 would not get attracted as per the

then existing Section 29(2) of Indian Limitation Act, 1908

which did not include Section 5 as one of the provisions to

be applied to such special or local laws. That appears to

the reason why during the time when the Limitation Act,1908

was in force, the Rent Act of 1959 which is the forerunner

of present Rent Act of 1965 contained a provision in Section

31 of that Act which read as under:-

"31. Application of the Limitation

Act:- The provisions of Section 5 of the

Indian Limitation Act, 1908 (9 of 1908),

shall apply to all proceedings under

this Act;"

After repealing of Indian Limitation Act, 1908 and its

replacement by the present Limitation Act of 1963 a

fundamental change was made in Section 29(2). The present

Section 29(2) as already extracted earlier clearly indicates

that once the requisite conditions for its applicability to

given proceedings under special or local law are attracted,

the provisions contained in Sections 4 to 24 both inclusive

would get attracted which obviously would bring in Section 5

which also shall apply to such proceedings unless

applicability of any of the aforesaid Sections of the

Limitation Act is expressly excluded by such special or

local law. By this change it is not necessary to expressly

state in a special law that the provisions contained in

Section 5 of the Limitation Act shall apply to the

determination of the periods under it. By the general

provision contained in Section 29(2) this provision is made

applicable to the periods prescribed under the special laws.

An express mention in the special law is necessary only for

any exclusion. It is on this basis that when the new Rent

Act was passed in 1965 the provision contained in old

Section 31 was omitted. It becomes therefore apparent that

on a conjoint reading of Section 29(2) of Limitation Act of

1963 and Section 18 of the Rent Act of 1965, provisions of

Section 5 would automatically get attracted to those

proceedings, as there is nothing in the Rent Act of 1965

expressly excluding the applicability of Section 5 of the

Limitation Act to appeals under Section 18 of the Rent Act.

Mr. Nariman, learned counsel for respondent tried to

salvage the situation by submitting that even if conditions

for applicability of Section 29(2) get satisfied, Section

29(2) itself will not apply to them unless it is held that

the appellate authority functioning as a court was

constituted under the Civil Procedure Code. He contended

that unless such courts functioning under special law or

local law are constituted under the Civil Procedure Code,

Section 29(a) cannot apply to them. This submission is

required to be stated to be rejected as it would amount to

moving in a circle. If according to Mr. Nariman Section

29(2) can apply to only those courts which are constituted

under the Civil Procedure Code then the entire scheme of

Limitation Act from Sections 3 to 24 onwards would apply to

proceedings of such courts on its own force and in that

eventuality provisions contained in Section 29(2) for

applying Sections 4 to 24 of Limitation Act, 1963 to such

court proceedings would be rendered otiose and redundant.

Mr. Nariman tried to get out of this situation by submitting

that because of provisions of first part of Section 29(2).

Section 3 of the Limitation Act, 1963 is treated to have

applied to the periods of limitation prescribed by such

special or local law by a deeming fiction. There may be

situations wherein even courts constituted under special or

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local law which are governed by Civil Procedure Code may

have prescribed period of limitation for suit, appeal or

application under such special or local law and for which

provision might not have been made under schedule to the

Limitation Act and only for such courts an express provision

has to be made for applying Sections 4 to 24 of the

Limitation Act as found in second part of Section 29(2) but

for which such a machinery may not be available for

computing such periods of limitation eventhough by a legal

fiction Section 3 of the Limitation Act would apply. It is

difficult to countenance this submission. The express

language of Section 29(2) clearly indicates that such

special or local law must provide for period of limitation

for suit, appeal or application entertainable under such

laws and for computing period of limitation under such

special or local law the Legislature has made available the

machinery of Sections 4 to 24 inclusive as found in

Limitation Act. Nowhere it is indicated that as per Section

29(2) the courts functioning under such special or local law

must be governed whole hog by Civil Procedure Code.

In order to support his contention Mr. Nariman invited

our attention to the relevant provisions of the Rent Act,

namely, Sections 20, 22, 23 as well as second proviso to

Section 11(1) and contended that a Rent Court functioning

under the Rent Control Act is not a fullfledged civil court.

If it was a full-fledged civil court there would have been

no occasion for the Legislature to provide that certain

provisions of Code of Civil Procedure, 1908 will govern such

proceedings. To that extent Mr. Nariman is right. We will

proceed on the basis that Rent Court functioning under the

Rent Act or for that matter the appellate authority

adjudicating disputes between landlords and tenants in a

judicial manner may not be considered strictly as civil

courts fully governed by the Code of Civil Procedure. Still

the question remains whether only because of that their

proceedings will go out of the provision of Section 29(2) of

the Limitation Act. Mr. Nariman submitted that Section 29(2)

will apply only to the proceedings of those courts

constituted under special or local law which are civil

courts, stricto sensu. In order to buttress his aforesaid

submission he invited our attention to four judgments of

this court. We will therefore turn to the consideration of

these judgments. The first judgment on which reliance was

placed by Mr. Nariman is rendered in the case of Town

Municipal Council, Athani Vs. Presiding Officer, Labour

Court, Hubli & Ors. (1970(1) SCR 51). In that case a bench

of two learned Judges of this court was concerned with the

short question whether any period of limitation governed an

application under Section 33(c) (2) of Industrial Disputes

Act, 1947. The High Court had taken the view agreeing with

the Labour Court that Article 137 of the Limitation Act,

1963 would govern such applications. Reversing that view it

was held that Labour Court exercising powers under Section

33 (C) (2) of Industrial Disputes Act may be acting as quasi

judicial authority or even a court but as it was not a civil

court contemplated by the Civil Procedure Code, Article 137

of the schedule to the Limitation Act could not get

attracted. Bhargava. J. speaking for this court held that

Article 137 of the Limitation Act, 1963 governs only

applications presented to courts under the Civil and

Criminal Procedure Codes. The use of the word `other' in the

first column of the article giving the description of the

application as `any other application for which no period of

limitation is provided elsewhere in this decision',

indicates that the Legislature wanted to make it clear that

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the interpretation put by this court in Mulchand & Co. Vs.

Jawahar Mills (1953 SCR 351) and Bombay Gas Co. Vs. Gopal

Bhiva (1964 (3) SCR 709, 722-723) on Article 181 of the

1908-Act on the basis of ejusdem generis should be applied

to Article 137 of 1963-Act also, the language of which, is

only slightly different from that of Article 181 of the

1908-Act. That is, in interpreting Article 137 of the 1963-

Act regard must be had to the provisions contained in the

earlier articles. These articles refer to applications under

the Code of Civil Procedure, except in two cases of

applications under the Arbitration Act, in two cases of

applications under the Code of Criminal Procedure. This

court in Mulchand & Co. Ltd. Vs. Jawahar Mills (supra) case

held that the reference to applications under the

Arbitration Act had no effect on the interpretation of

Article 181 of the 1908-Act and that, that article applied

only to applications under the Code of Civil Procedure. On

the same principle, the further alteration made in the

articles in 1963-Act containing reference to applications

under the Code of Criminal Procedure could not alter the

scope of Article 137 of the 1963-Act. Moreover even the

applications under the Arbitration Act were to be presented

to courts whose proceedings are governed by the Code of

Civil Procedure. The further amendment including

applications governed by the Criminal Procedure Code still

shows that the applications must be to courts. The

alterations in the 1963-Act, namely, the inclusion of the

words `other proceedings' in the long title to the 1963-Act,

the omission of the preamble and change in the definition so

as to include `petition' in word `application', do not show

an intention to make Article 137 applicable to proceedings

before bodies other than courts such as quasi-judicial

tribunals and executive bodies.

We fail to appreciate how the aforesaid decision is of

any avail to Mr. Nariman on the facts of the present case.

It is obvious that schedule to the Limitation Act is a part

and parcel of the Limitation Act. It has therefore to be

read in conjunction with Section 3. Sub-section (1) of

Section 3 of Limitation Act lays down that subject to the

provisions contained in Sections 4 to 24 (inclusive), every

suit instituted, appeal preferred and application made after

the prescribed period shall be dismissed although limitation

has not been set up as a defence. It becomes therefore clear

that the Act as such governs period of limitation prescribed

for suit, appeal or application under the schedule and the

schedule to the Limitation Act which consists of different

divisions relates to proceedings which are to be filed

before full-fledged civil or criminal courts as the case may

be. First division deals with suits. Part I deals with suits

relating to accounts. Part II deals with suits relating to

contracts. Part III deals with suits relating to

declarations. Part IV deals with suits relating to decrees

and instruments. Part V deals with suits relating to

immovable property. Part VI deals with suits relating to

movable property. Part VII deals with suits relating to

tort. Part VIII deals with suits relating to trusts and

trust property. Part IX deals with suits relating to

miscellaneous matters. Part X deals with suits for which

there is no prescribed period. It is obvious that provisions

of these parts in first division will govern suits to be

filed before regular courts functioning under Civil

Procedure Code. When we turn to the second division it deals

with appeals which may be filed under Civil Procedure Code

or Criminal Procedure Code or from a decree or order of any

High Court to the same Court. They would obviously refer to

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appeals before regular Civil or Criminal Courts or High

Courts as the case may be. The third division deals with

applications. These applications also have to be filed

before regular civil courts or High Court or Supreme Court

as the case may be. To all these proceedings of these

courts, the entire machinery of the Civil Procedure Code

would get attracted and they can be considered to be full-

fledged civil courts before whom applications can be moved.

Consequently, it has to be held that the entire schedule to

the Limitation Act prescribes various periods of limitation

for suit, appeal or application to be moved before full-

fledged civil or criminal courts. As Article 137 deals with

one of such applications as found in third division this

court held in the case of Town Municipal Council, Athani Vs.

Presiding Officer, Labour Court, Hubli & Ors. (supra), that

the said Article could apply only to application before

full-fledged civil court and as the labour court was not one

of such courts though established under special or local

law, Article 137 could not apply to govern proceedings

before it. Such is not the case before us. We are not

concerned with applicability of any of the Articles of the

schedule for governing the period of limitation as

prescribed by Section 18 of the Rent Control Act. That

period of limitation is prescribed not by Article 137 or any

other article under the schedule but by Section 18 itself

which is a part and parcel of special or local law. So far

as that period of limitation is concerned Section 29(2) is

the only Section which can apply. For interpreting Section

29(2) the decision rendered by this court in connection with

applicability of any of the Articles to the schedule to the

Limitation Act would be totally irrelevant. Mr. Nariman then

invited our attention to the decision of this court in the

case of Nityananda M. Joshi & Ors. Vs. Life Insurance

Corporation of India & Ors. (1971(1) SCR 396). That decision

also was concerned with the applicability of Article 137 of

the Limitation Act of the schedule to the Limitation Act of

1963 to proceedings before Labour Court under Section 33(C)

(2) of Industrial Disputes Act. The reasons given by us

while dealing with Town Municipal Council, Athani Vs.

Presiding Officer, Labour Court, Hubli & Ors. (supra) would

squarely get attracted so far as this decision is concerned

and would make it inapplicable to the facts of the present

case. The third decision to which our attention was invited

was rendered in the case of Kerala State Electricity Board,

Trivandrum Vs. T.P.K.K. Amsom and Besom, Kerala (1977 (1)

SCR 996). In that decision this court was concerned with

similar question whether Article 137 of the Limitation Act,

1963 could be made applicable to petitions under Indian

Telegraph Act, 1885. Under the said Act petition could be

filed under Section 16(5) by anyone claiming financial

compensation against Electricity Board which tried to put up

electricity poles in the land of such a person. Such

application would lie before District Judge of the District.

The question was whether to such applications under special

or local law, Article 137 would apply. It was held that the

District Judge under the Telegraph Act acts as a Civil Court

in dealing with applications under Section 16 of the

Telegraph Act and therefore Article 137 of the 1963-Act

applies to applications under Section 16 as filed before

such courts. In our view even this decision is in line with

earlier decisions of this court in the cases of Town

Municipal Council, Athani Vs. Presiding Officer, Labour

Court, Hubli & Ors. (supra) and Nityananda M. Joshi & Ors.

Vs. Life Insurance Corporation of India & Ors. (supra) and

cannot be of any assistance to Mr. Nariman in the present

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case as we are not concerned with applicability of Article

137 to the proceedings of appellate authority under Section

18 of the Rent Act. Mr. Nariman then peached his faith on a

later decision of this court rendered in the case of The

Commissioner of Sales Tax, Uttar Pradesh, Lucknow Vs. Parson

Tools and Plants, Kanpur (1975 (3) SCR 743). In that case a

Bench of three learned Judges of this court was concerned

with the question whether the revisional authority

functioning under U.P. Sales Tax Act, 1948 could extend the

period of limitation beyond six months even on sufficient

cause being shown and whether the principle of Section 14(2)

of the 1963 Act could be imported into Section 10(3) (B) of

that Act by analogy. Section 10(3) (B) of the U.P. Sales Tax

Act provided for filing revisions under the Act. As per sub-

section 3(B) of Section 10 such applications had to be made

within one year from the date of service of order but the

revising authority may on proof of sufficient casue

entertain an application within a further period of six

months. In view of this express provision in the special Act

it was held by this court that the general provisions of

Section 14(2) of the Limitation Act could not get attracted.

It is trite to observe that as per Section 14(2) of the

Limitation Act if the applicant was persuing any civil

proceedings with due diligence in a first court or any

higher court therein against the same party for the same

relief the period spent shall be included if such

proceedings were found to have been filed in good faith in a

court which from defect of jurisdiction or other cause of a

like nature was unable to entertain it. The entire period

spent in such fruitless proceedings had to be excluded for

computing the period of limitation for any application as

laid down by Section 14(2) of the Limitation Act. It is easy

to visualise that if Section 14(2) applied to applications

for revisions under Section 10 (3) (B) of the U.P. Sales Tax

Act, then even if such fruitless proceedings had lingered on

for one or two years or even more the entire period spent in

such proceedings would get excluded for computing the period

of limitation for filing such revisions under Section 10(3)

(B) of the U.P. Sales Tax Act. However, there was an express

provision in sub-section (3) (B) of Section 10 of the U.P.

Sales Tax Act putting a ceiling on the powers of the

revisional authority even on proof of sufficient cause to

entertain such applications and that was only upto a further

period of six months beyond one year as prescribed.

Consequently, this express provision to the contrary as

found in Section 10(3) (B) of the U.P. Sales Tax Act made

the general provisions of Section 14(2) inapplicable as it

was an express provision to the contrary to what is provided

by Section 14(2). It is precisely for that reason that this

court in the aforesaid decision speaking through Sarkaria,

J. held that the object, the scheme and language of Section

10 of the Sales Tax Act do not permit the invocation of

Section 14(2) of the Limitation Act, either, in terms, or in

principle, for excluding the time spent in prosecuting

proceedings for setting aside the dismissal of appeals in

default for computation of the period of limitation

prescribed for filing a revision under the Sales Tax Act. It

is true that in the decision under appeal before this court

learned single Judge, Hari Swarup, J. had taken the view

that the Judge (Revisions) Sales Tax while hearing the

revisions under Section 10 of the U.P. Sales Tax Act does

not act as a court but only as a revenue tribunal and hence

the provisions of the Indian Limitation Act cannot apply to

proceedings before him. If the Limitation Act does not apply

then neither Section 29(2) nor Section 14(2) of the

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Limitation Act would apply to proceedings before him. But so

far as this court is concerned it did not go into the

question whether Section 29(2) would not get attracted

because the U.P. Sales Tax Act Judge (Revisions) was not a

court but it took the view that because of the express

provision in Section 10 (3) (B) applicability of Section

14(2) of the Sales Tax Act was ruled out. Implicit in this

reasoning is the assumption that but for such an express

conflict or contrary intention emanating from Section 10 (3)

(B) of the U.P. Sales Tax Act which was a special law,

Section 29(2) would have brought in Section 14(2) of

Limitation Act even for governing period of limitation for

such revision applications. In any case, the scope of

Section 29(2) was not considered by the aforesaid decision

of the three learned Judges and consequently it cannot be

held to be an authority for the proposition that in

revisional proceedings before the Sales Tax authorities

functioning under the U.P. Sales Tax Act Section 29(2)

cannot apply as Mr. Nariman would like to have it.

On the other hand, there are two decisions of this

court which have directly spoken on the point, and on which

reliance was rightly placed by the counsel for appellant.

The first decision rendered in the case of Commissioner of

Sales Tax, U.P. Vs. Madan Lal Dan & Sons. Bareilly(1977 (1)

SCR 683) by a bench of three learned Judges of this court

was concerned with the question whether Section 12(2) of the

Limitation Act, 1963 would be applicable to revision

petitions filed under Section 10 of the same U.P. Sales Tax

Act. The appellant had contended that the time spent by him

in obtaining certified copy of the order of the lower

authority was required to be excluded for computing period

of limitation for filing revision under Section 10, as per

provisions of Section 12 of the Limitation Act. Khanna, J.

speaking for this court held that for the purpose of

determining any period of limitation prescribed for any

application by any special or local law, the provisions

contained in Section 12(2), inter alia, shall apply in so

far as, and to the extent to which they are not expressly

excluded by such special or local law, and there is nothing

in the U.P. Sales Tax Act expressly excluding the

application of Section 12(2) of the Limitation Act.

Consequently, the said provision was held applicable to the

filing of revision applications under Section 10 of the U.P.

Sales Tax Act. It becomes therefore obvious that the

aforesaid decision clearly applied Section 29(2) to the

revision petitions filed before revision authorities under a

special law like U.P. Sales Tax Act and via Section 29(2)

applied Section 12(2) of the Limitation Act to such

revisional proceedings. Mr. Nariman contended that the said

decision was per incurium as the earlier decision of three

learned Judges in The Commissioner of Sales Tax Uttar

Pradesh, Lucknow Vs. Parson Tools and Plants, Kanpur (supra)

was not cited before them. As we have already held earlier

the said decision proceeded on the language of Section 10(3)

(B) of the U.P. Sales Tax Act for excluding the

applicability of Section 14(2) of the Limitation Act. It had

no relevance for deciding the question whether Section 12(2)

of the Limitation Act could be applied to such revisional

proceedings when there was no express exclusion of Section

12(2) by the special law, namely, the U.P. Sales Tax Act.

Consequently, it cannot be said that the decision rendered

by this court in Commissioner of Sales Tax, U.P. Vs. Madan

Lal Dan & Sons, Bareilly (supra) was per incurium. On the

other hand, it is a direct decision on the point, namely,

applicability of Section 29(2) of the Limitation Act for

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computing periods of limitation prescribed by local or

special law even though the authority before which such

proceeding may be filed under the local or special law may

not be full-fledged civil courts.

Our attention was also invited by counsel for the

appellant to a later decision of this court in the case of

The Sahkari Ganna Vikas Samiti Ltd., Vs. Mahabir Sugar Mills

(P) Ltd., (AIR 1982 SC 119). In that case a bench of two

learned Judges was concerned with the question whether

Divisional Commissioner acting under the U.P. Sugarcane

(Regulation of Supply and Purchase) Act, 1953 acted as a

revenue court or whether he was a persona designata. It was

held that the Divisional Commissioner had been constituted

as appellate authority under the Act. That showed that the

Divisional Commissioner was made an appellate court not as

persona designata but as a revenue court. That being so it

was obvious that Section 5 of the Act applied to appeals

before Divisional Commissioner and he could condone the

delay in filing appeals. It becomes obvious that this court

in the aforesaid decision was dealing with revenue court

constituted under U.P. Sugarcane (Regulation of Supply and

Purchase) Act which was a special law. It was in terms held

that Section 5 of the Limitation Act was applicable to

revisional proceedings before such Revenue Courts. It is of

course true as pointed out by Mr. Nariman that in the said

decision no other decision of this court was cited and

Section 29(2) was not expressly referred to but the ratio of

the decision is necessarily and implicitly based on the

applicability of Section 29(2) but for which Section 5 of

the Limitation Act would not have been made applicable to

such revision proceedings before revenue court functioning

under the special law. Before parting with the discussion on

this question we may also refer to one submission of Shri

Nariman. He submitted that Sections 4 to 24 of the

Limitation Act would apply to civil courts as duly

constituted under the Civil Procedure Code and if that is so

even if they are to be made applicable to suit, appeal or

application governed by periods of limitation prescribed by

any special or local law, they necessarily require such

suit, appeal or application to be filed under special or

local law before full-fledged civil courts as otherwise

Sections 4 to 24 by themselves would not apply to them. It

is difficult to agree. It has to be kept in view that

Section 29(2) gets attracted for computing the period of

limitation for any suit, appeal or application to be filed

before authorities under special or local law if the

conditions laid down in the said provision are satisfied and

once they get satisfied the provisions contained in Sections

4 to 24 shall apply to such proceedings meaning thereby the

procedural scheme contemplated by these Sections of the

Limitation Act would get telescoped into such provisions of

special or local law. It amounts to a legislative shorthand.

Consequently, even this contention of Shri Nariman cannot be

countenanced.

Before parting with the discussion we may also note

that a division bench of Madras High Court in the case of

Rethinasamy Vs. Komalavalli and Anr. (AIR 1983 Madras 45)

took the view that the Tamil Nadu Buildings (Lease and Rent

Control) Act was a special and local enactment and as

Sections 4 to 24 of the 1963 Act were not excluded in their

application to the appeals filed under Section 23 of the

Rent Control Act, Section 29(2) enabled the application of

Sections 4 to 24 to Rent Control Courts. Consequently,

Section 5 of the Limitation Act is applicable to an appeal

preferred before the appellate authority, constituted under

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Section 23(1)(b) of the Rent Control Act. We entirely agree

with the aforesaid view. In the said decision the majority

view of the Full Bench of Kerala High Court in Jokkim

Fernandez Vs. Amina Kunhi Umma (supra) was dissented from

and the minority view as found therein was accepted. The

said decision of the Madras High Court lays down the correct

law and has rightly dissented from the majority view of the

full bench of the Kerala High Court and has rightly accepted

the minority view as discussed by us earlier. Our attention

was also invited by learned counsel for the appellant to the

decision of a learned single Judge of the Andhra Pradesh

High Court in the case of G. Bulliswamy Vs. Smt. C.

Annapurnamma (AIR 1976 Andhra Pradesh 270). In that decision

the learned Judge held relying on Section 3 as found in

Evidence Act, 1872 that Rent Controller acting under the

A.P. Buildings (Lease, Rent & Eviction) Control Act who is

authorised to record evidence of the parties before him by

virtue of Rule 8(2) of the Rules framed under the Act, is a

court within the meaning of Section 3 and therefore revision

application against order of Rent Controller was

maintainable under Section 18 before the High Court. In the

case of Smt. Vidya Devi, widow of Ramji Dass Vs. Firm Madan

Lal Prem Kumar (AIR 1971 Punjab & Haryana 150) a full bench

of the Punjab & Haryana High Court was concerned with the

question whether Rent Controller and appellate authority

under Punjab Rent Restriction Act are courts or civil courts

for purposes of Sections 195(1)(b), 476 and 479-A of

Criminial Procedure Code. Tuli, J speaking for the full

bench held that they were such courts and could issue show

cause notice why complaint under Section 193 should not be

filed against persons committing perjury before Rent

Controller and to file complaint under Section 195(1)(b) of

Criminal Procedure Code if it is found expedient in the

interest of justice.

As a result of the aforesaid discussion it must be held

that appellate authority constituted under Section 18 of the

Kerala Rent Act, 1965 functions as a court and the period of

limitation prescribed therein under Section 18 governing

appeals by aggrieved parties will be computed keeping in

view the provisions of Sections 4 to 24 of the Limitation

Act, 1963 such proceedings will attract Section 29(2) of the

Limitation Act and consequently Section 5 of the Limitation

Act would also be applicable to such proceedings. Appellate

authority will have ample jurisdiction to consider the

question whether delay in filing such appeals could be

condoned on sufficient cause being made out by the concerned

applicant for the delay in filing such appeals. The decision

rendered by the High Court in the present case as well as by

the appellate authority taking contrary view are quashed and

set aside. The proceedings are remanded to the court of the

appellate authority, that is, District Judge, Thalassery.

Rent Control Appeal No.9/94 filed before the said authority

by the appellant is restored to its file with a direction

that the appellate authority shall consider I.A.56/94 filed

by the applicant for condonation of delay on its own merits

and then proceed further in accordance with law. Appeal is

allowed accordingly. In the facts and circumstances of the

case there will be no order as to costs.