@JUDGMENTTAG-ORDER
T. Mathivanan, J.@mdashChallenge is made in this memorandum of civil revision, which is filed under Article 227 of the Constitution of India, to the fair and decretal order, dated 2.9.2013 and made in an interlocutory application in I.A. No. 67 of 2013 in the rent control original petition in R.C.O.P. No. 110 of 2011 on the file of the learned Rent Controller (Principal District Munsif), Madurai Town. The revision petitioner herein is the tenant, whereas the respondent is the landlord.
2. The prime question involved in this revision petition is:-
2a. Whether the provisions of Section 5 of Limitation Act 1963 could be made applicable to the Rent Control proceedings under the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 (Tamilnadu Act 18 of 1960).
BACKGROUND FACTS IN BRIEF:-
3. The respondent/landlady had filed a petition in R.C.O.P. No. 110 of 2011 on the file of the learned Rent Controller, Madurai Town (Principal District Munsif) as against the revision petitioner under Section 10(2)(1) and 10(3)(a)(ii) and (iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter it may be referred to as the ''Act'' wherever the context so require).
4. The said petition was decreed ex parte on 20.12.2011 for want of appearance of the revision petitioner which resulted in a direction to vacate and hand over the vacant possession of the petition mentioned property to the respondent/landlady within two months from date of the said order.
5. In order to file an application to set aside the ex parte decree dated 20.12.2011, there was a delay of 430 days and therefore, the revision petitioner/tenant had taken out an application in I.A. No. 67 of 2013 under Section 5 of the Limitation Act 1963 to condone the delay of 436 days. This petition was dismissed on 02.09.2013 by the learned Rent Controller on the sole ground that the provisions of Section 5 of the Limitation Act, 1963, would not be made applicable to the rent control proceedings.
6. Challenging the legality of the said order, the revision petitioner/tenant has approached this Court with this revision after invoking the provisions under Article 227 of the Constitution of India.
7. In his affidavit, filed in support of the petition, the revision petitioner/tenant has stated that he had been running a fish farm under the name and style of "Dolphin Fish Farm" and as such often he used to go to several places for the purpose of selling fishes and also for conducting acquarium.
8. That on 22.03.2013 his neighbouring shop owner had informed him that a Court Ameen came and asked him to inform him to hand over the petition mentioned premises to the respondent/landlady. Immediately he had contacted his lawyer and then he was put to understand that on 11.02.2013 ex parte order was passed against him in the execution petition. According to the revision petitioner/tenant he was not served with notice either in the execution proceedings or in the rent control proceedings and therefore he was totally placed under dark about the filing of the rent control original petition as well as the execution petition.
9. On the other hand it is revealed from the counter statement filed by the respondent/landlady that the revision petitioner/tenant had filed a petition in RCOP. No. 44 of 2008 to permit him to deposit the arrears of rent and that petition was allowed on 14.09.2009 directing him to pay the rent directly to the respondent/landlady and in pursuant to the said order, the revision petitioner/tenant had paid the rent up to November 2010 at the rate of Rs. 1,200/- per mensum. However he was in arrears of rent from December 2010 to March 2013 (28 Months at the rate of 1,200/- per mensum) which comes to an arrears of Rs. 33,600/-. Under this circumstance the petition in RCOP. No. 110 of 2011 came to be filed by the respondent/landlady for the eviction of the tenant/revision petitioner under Section 10(2)(1) and 10(3)(a)(ii) and (iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.
10. As it is manifested from the counter statement of the respondent/landlady, notices were ordered to be sent to the revision petitioner/tenant on two occasions and the notice through private post was also ordered on 28.09.2011. The private notice was sent on 02.10.2011 and thereafter, the learned rent controller had passed an order saying that "Private Notice was returned as unclaimed." A memorandum to that effect was filed and the respondent was called absent. There was no representation for the respondent. In the interest of justice, substituted service was ordered through paper publication on or before 15.11.2011. Thereafter, the petition was adjourned to 24.11.2011. That on 24.11.2011 the paper publication was effected and the respondent was called absent. Since there was no representation, he was set ex parte. The evidence of the respondent/landlady was recorded on 09.12.2011. During her examination Exs.Pl to P4 were marked and therefore, an ex parte decree was passed on 20.12.2011 on the strength of the evidence of the respondent/landlady.
11. According to the respondent/landlady since the private notice was returned unclaimed service was sufficient which culminated in to the passing of the order setting the revision petitioner/tenant ex parte and hence there was no illegality or irregularity in service of notice to the revision petitioner/tenant in RCOP. No.110 of 2011.
12. It may be relevant to note here that the ex parte decree was passed on 20.12.2011 directing the revision petitioner/tenant to vacate and hand over the petition mentioned premises within two months time. On the strength of the ex parte decree, the respondent/landlady has also taken out an execution proceedings in E.P. No. 129 of 2011 to take delivery of the petition mentioned premises and the delivery was also ordered, however, the execution proceeding is still pending. Under this circumstance the above said application in I.A. No. 67 of 2013 came to be filed by the revision petitioner/tenant under Section 5 of Limitation Act to condone the delay of 430 days in filing the petition to set aside the ex parte decree.
13. As hereinbefore stated in the opening paragraphs, the question, as to whether the provisions of Section 5 of Limitation Act 1963 could be made applicable to the Rent Control Proceedings is arisen for the consideration of this court.
14. Heard Mr.S. Subbiah, learned counsel appearing for the revision petitioner/tenant and Mr. N. Murugesan, learned counsel appearing for the respondent/landlady.
15. Mr.S. Subbiah, learned counsel appearing for the revision petitioner has adverted to that the revision petitioner ought to have been given an opportunity to contest the case, and that the court below could not simply cripple the right of hearing of the revision petitioner/tenant. He has also maintained that the rent controller is acting as a court and therefore the provisions of Section 5 of Limitation Act are very well applicable to the Rent Control proceedings. He has also submitted that the absence of any specific provision excluding the application of Section 5 of The Limitation Act and in view of the provisions contained in Section 3 and 5 of the Act, it ought to have been held that the provisions of Section 5 of Limitation Act are attracted.
16. On the other hand Mr. N. Murugesan, learned counsel appearing for the respondent/landlady has contended that the rent controller is not a court, much less a civil court and thus the Indian Limitation Act would not be made applicable to the proceedings pending before the rent controller. He has further submitted that the "Controller" within the meaning of Act 18 of 1960 is not a court but only a statutory functionary competent to exercise the power given to him under the statute, and therefore, the provisions of the Indian Limitation Act are not applicable to the proceedings relating to the rent controller, though he is clothed with all the procedural powers of a civil court in executing the orders passed by him.
17. He has also argued that the Appellate Authority under the Tamil Nadu Buildings (lease and Rent Control) Act, 1960 has power to condone the delay in filing an appeal from an order of the rent controller. Thus according to Mr. N. Murugesan, learned counsel appearing for the respondent/landlady, the provisions of Section 5 of the Indian Limitation Act are not applicable to the proceedings pending before the Rent Controller but at the same time it is applicable before the Appellate Authority.
18. It may be more relevant to note here that in support of this view saying that the provisions of Section 5 of Indian Limitation Act 1963 are not made applicable to the Rent Control Proceedings. The following two decisions were cited before the Rent Controller.
2.
19. These two decisions were heavily banked by the learned Rent Controller and based on these decisions he had proceeded to dismiss the application in I.A. No. 67 of 2013 on 02.09.2013 saying that the application under Section 5 of Limitation Act to condone the delay in filing the petition for setting aside the ex parte decree cannot be maintained in rent control proceedings.
20. In A. Ghose Khan''s case, cited first supra, an execution petition was filed before the rent controller pursuant to an execution order. During the pendency of the said execution petition a memorandum was filed by the legal representatives of the deceased tenant saying that the tenant had died prior to the filing of the said execution petition and the landlord had thereafter filed an application to bring the LR''s on record. It was opposed by the LR''s on the ground that though the landlord was put on notice on the death of the tenant through a memorandum, he had not taken out the LR petition before the expiry of 30 days from the date of his acquiring knowledge of the death of the tenant and thereby he had contravened the Rule 25 of the Tamil Nadu Buildings (Lease and Rent Control) Rules, 1974. The rent controller had overruled the said contention and held that even though it was filed beyond the period prescribed under Rule 25, it could be filed within 90 days of the date of knowledge of the death of the person concerned under Article 120 of the Limitation Act, and directed the impleading of the LR''s of the tenant. Impugning the above said order a writ petition was filed under Article 226 of the Constitution of India.
21. The learned single Judge of this Court Ratnavel Pandian, J. as he then was, while disposing the above said writ petition has held that;
"The Rent Controller while acting under Section 18 of the Act in executing the orders passed under the Act exercised his jurisdiction only as persona designata and not as a court. The Controller within the meaning of the Act is not a court, but only a statutory functionary competent to exercise the power given to him under the statute and, therefore, the provisions of the Indian Limitation Act are not applicable to proceedings pending before him, though he is clothed with all procedural powers of a civil court in executing the orders passed by him."
22. The learned Judge has also held that;
"The rent controller ought to have seen that the fiction created by Section 18 of the Act can be extended only for the limited purpose of exercising the powers vested in a civil court, while executing the orders of eviction, such as those provided under Order 21 of the Code, but cannot be extended to matters such as those contained in Order 22 and other provisions of the Code relating to the execution of a decree."
23. Thus it is clear that the learned single Judge of this court wanted to elucidate the point that the legal fictions are created only for some definite purpose and that the said limitations created by the statute cannot be extended beyond the purposes for which they were created.
24. In Om Prakash''s case cited second supra an issue arose for the consideration before the division bench of the Apex Court was, as to whether the rent controller was right in rejecting the application on the ground that he had no jurisdiction to condone the delay in filing an application to grant leave to defend under the provision of East Punjab Urban Rent Restriction Act, 1949. In this case an application for leave to contest had to be made by the tenant within 15 days from the date of service of the summons which is prescribed under the East Punjab Urban Rent Restriction Act, 1949.
25. While speaking on behalf of the Division Bench Hon''ble Mr. Justice Altamas Kabir has held that:
"There is no specific provision to vest the Rent Controller with authority to extend the time for making of such affidavit and the application. The Rent Controller being a creature of statute can only act in terms of the powers vested in him by statute and cannot, therefore, entertain an application under Section 5 of the Limitation Act for condonation of delay since the statute does not vest him with such power."
26. While distinguishing the case viz., Om Prakash''s case from
"In the facts of the said case (Mukri Case), it was the District Judges who were discharging the functions of the Appellate Authority and being a Court, it was held that the District Judge, functioning as the Appellate Authority, was a Court and not persona designata and was, therefore, entitled to resort to Section 5 of the Limitation Act. That is not so in the instant case (Om Prakash case), where the Rent Controller appointed by the State Government is a member of the Punjab Civil Services and, therefore, a persona designata who would not be entitled to apply the provisions of Section 5 of the Limitation Act, 1963, as in the other case.
27.
28. From the above context an important question as arises as to whether the rent controller is a court or persona designata?
29. With reference to this issue, divergent views are taken by the High Courts and the Apex Court as well. Some Judges spell out that the Rent Controller is not a "court" but it is a "persona designata" and therefore, the provisions of Section 5 of the Limitation Act as well as the provisions of the Code of Civil Procedure are not applicable to the rent control proceedings.
WHAT IS PERSONA DESIGNATA?
30. As defined in Black''s Law Dictionary, Ninth Edition, at page 1258 the phraseology "Persona Designata" has been defined as under:-
31. It is derived from Latin and defined as "a person considered as an individual (esp. in a legal action) rather than as a member of a class."
32. In
33. Mr. Nariman, while advancing his argument on behalf of the respondent before the Division Bench of the Supreme Court headed by Hon''ble Mr. Justice S.B. Majmudar, had fairly stated that he did not support the reasoning given by the appellate authority, viz., District Judge, Thallassery and in this connection His Lordship has observed that it is clear that Mr. Nariman did not agree with the reasoning given by the appellate authority that he is a persona designata.
34. While speaking on behalf of the Division Bench the Hon''ble Mr. Justice S.B. Majmudar has observed that "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".
35. His Lordship has also made reference to the decision in
"......A persona designata is "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 Osborn''s Concise Law Dictionary, 4th Edn., p.253). In the words of Schwabe, C.J. in
36. Following the above observations, His Lordship Majmudar, J., has observed as under:-
"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 held that 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
37. Reference has also been made to
"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 pronouncement."
38. Reliance was also placed on an another decision of the Apex Court in
"it may be stated broadly that what distinguishes a court from a quasi-judicial 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."
39. Based on the above observation, Majmudar, J., has further held that "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."
40. After having referred to the provisions of Section 29(2) of the Limitation Act, 1963 His Lordship has observed that
"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.
(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.
41. 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.
42. With reference to Section 29(2) of the Indian Limitation Act, 1908, Majmudar, J., has observed that "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."
43. Majmudar, J., has concluded the above judgment, viz, Mukri Gopalan vs. Cheppilat Puthanpurayil Aboobbacker, cited supra, as under:-
"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".
44. Section 2(3) of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960 defines the term "Controller". As per Section 2(3), the term "Controller" means any person appointed by the Government, by notification, to exercise the powers of a Controller under this Act for such area as may be specified in the notification.
45. Section 23 of the said Act deals with "Appeal". Section 23(1)(a) contemplates that the Government may, by general or special order notified in the (Tamil Nadu Government Gazette), confer on such officers and authorities as they think fit, the powers of Appellate Authorities for the purpose of this Act, in such areas and in such classes of cases as may be specified in the order.
46. As contemplated under Section 2(3) of the Act the term "controller" is a person appointed to perform the functions of a Controller and that the term Controller refers to the "Rent Controller". Under the Act, the Government can appoint any person to perform the functions of Controller.
47. As herein before observed in the opening paragraphs, divergent views were taken by the courts while interpreting the term "Controller".
48. In
49. In
50. In Raju vs. Senior Officer (1993 TNLJ 169 at 172 : 1993 (2) LW 1711), it has been held that the powers exercisable by the Rent Controller under the Act and the rights adjudicated by him, of the parties, undoubtedly lead to a conclusion that the Rent Controller is a Court. If that be so, in the absence of any specific provision excluding the application of Section 5 of the Limitation Act and in view of the provisions contained in Sections 3 and 5 of the Limitation Act, it shall have to be held that the provisions of Sections 5 of the Limitation Act are attracted to an application filed under the Act for setting aside an ex parte order of eviction passed by the Rent Controller. It is clear that the Rent Controller cannot be considered to be persona designata.
51. In an another decision in
52. In
53. Mr. S. Subbiah, learned counsel for the revision petitioner, in order to substantiate his contention, has placed reliance upon the decision in Arya Vysia Samajam represented by
54. In
55. Challenging the above said order, the tenant had preferred a revision before this Court in C.R.P. No. 2561 of 1980. While disposing the revision petition Venkataswami, J., has observed as under:-
"So far as application of Section 5 of the Limitation Act to the proceedings before the Rent Controller is concerned, it is too late to contend that it will not apply in view of the above said judgments of this Court and, therefore, there is no difficulty in holding that the learned Rent Controller was not right in holding that Section 5 of the Limitation Act will not apply."
56. Mr. S. Subbiah, has also placed reliance upon the decision of this Court in
57. To add more dimension to the above discussion, it would be better to make reference to sub-section 2 to Section 29 of the Limitation Act, 1963. It indicates as under:-
"Where any special or local law prescribes for any suit, appeal, or application, the 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 in so far as, and to the extent to which, they are not expressly excluded by such special or local law."
58. On coming to the instant case on hand, the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960, is admittedly a special law.
59. Nowhere in the Act, any time limit is prescribed to set aside the ex parte order of eviction. However, Rule 12 of Tamil Nadu Buildings (Lease & Rent Control) Rules, 1974, envisages the procedure for the disposal of applications.
60. Sub-rule 3 to Rule 12 enacts that in any case in which an order is passed ex parte against a tenant or a landlord, or any order of dismissal for default is passed by the Controller, then the party affected may, within thirty days from the date of the order, or if he satisfies the controller that he knew of the order only on a subsequent date, within thirty days from the date of such knowledge apply to the controller by whom the ex parte order or the order of dismissal was passed, for an order to set it aside; and if he satisfies the Controller that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the application was called on for hearing or that such default was occasioned due to circumstances beyond his control, the Controller shall make an order setting aside the ex parte order or the order of dismissal passed, as the case may be, upon such terms as to costs as the Controller thinks fit and shall appoint a day for proceeding with the application.
61. As per sub-rule 3 of Rule 12 of the Tamil Nadu (Lease & Rent Control) Rules, 1974 for making an application to set aside the ex parte order, a period of 30 days has been prescribed as limitation within which that application has to be made.
62. Sub rule 3 of Rule 12 contains two portions. The first portion contemplates that either the tenant or the landlord, who suffers by an order of ex parte (ex parte order of eviction or an order of dismissal for default), he may make an application to set aside the order of ex parte within 30 days from the date of the order.
63. The second portion contemplates that he may also make an application within 30 days from the date of knowledge, provided he satisfies the controller that he knew the order only on the subsequent date.
64. If the applicant satisfies the controller that summons was not duly served or that he was prevented by any sufficient cause from appearing when the application was called on for hearing or such default was occasioned due to the circumstances beyond his control, the controller shall make an order setting aside the ex parte order or the order of dismissal passed as the case may be, upon such terms, as the controller thinks fit.
65. In case, if such an application is made after the expiry of 30 days from the date of the order, no provisions are available in the Rules as to how the delay could be condoned.
66. Under these circumstances, it shall have to be presumed, as decided in
67. The observation made in
68. In Mukri Gopalan''s case, cited supra, according to the Hon''ble Mr. Justice S.B. Majmudar, since the 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. This observation makes no difference with that of the term "Rent Controller."
69. Rule 12(3) is a self contained provision with regard to the filing of an application for setting aside the ex parte order both with regard to the forum in which the applications should be filed and also the time within which such application should be filed.
70. As discussed hereinbefore, Rule 12 does not contemplate two independent applications being filed. One for excusing the delay and another for setting aside the ex parte order (T.P. Venkatachary vs. M.N. Parthasarathy (1993 LW 425)
71. At this stage, it is significant to make reference to the following provisions of the Act.
72. Section 18 of the Act deals with "Execution of Orders".
"Sub-section (1) of Section 18 enacts that "every order made under Sections 10, 14, 15, 16 and 17 and every order passed on appeal under Section 23 or on revision under Section 25 shall be executed by the Controller, as if such order is an order of a Civil Court and for this purpose, the Controller shall have all the powers of a Civil Court."
73. Section 18-A deals with the "Power of Controller to appoint Commissioner":-
74. As per this Section, the Controller shall have powers to appoint a Commissioner in any proceeding pending before him and for this purpose, he shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908 (Central Act V of 1908).
75. Section 27 deals with "Proceedings by or against legal representatives".
75a. As per sub-section (1), any application made, appeal preferred, or proceeding taken, under this Act by or against any person, may, in the event of his death, be continued by or against his legal representatives.
75b. Sub-section (2) says that "where any application, appeal or other proceeding could have been made, preferred or taken, under this Act or by against any person, such application, appeal or other proceeding may, in the event of his death, be made preferred or taken by or against his legal representatives.
76. As per the provisions of Section 28, which deals with "Summons to witnesses", subject to such condition and limitation as may be prescribed, the Controller may, in his discretion, issue summons to witnesses requiring them to attend in person to give evidence or to produce documents in their custody in connection with any proceedings before him.
77. From the provisions of the above Sections, it is thus made clear that for deciding the issue as to whether the Controller is a court or not, if the tests afore stated are applied to the powers and functions of the Controller constituted under sub-section 3 of Section 2 of the Act, it becomes, obvious that the afore stated essential trappings to constitute the Controller as Court are found to be present in this case. Therefore, the provisions of Section 5 of the Limitation Act very well apply to the Rent Control Proceedings in respect of the application to set aside the order of eviction.
78. Besides the powers exercisable by the Rent Controller under the Act and the rights adjudicated by him, of the rights, undoubtedly lead to a conclusion that the Rent Controller is a court. If that be so, in the absence of any specific provision excluding the application of Section 5 of the Limitation Act and in view of the provisions contained in Sections 3 and 5 of the Limitation Act, it shall have to be held that the provisions of Section 5 of the Limitation Act are attracted to an application filed under the Act for setting aside the order of eviction passed by the Rent Controller.
79. In the light of the discussion made above, the decision in
80. Similarly, as discussed in the foregoing paragraphs, the decision in
81. Similarly, the findings of the Rent Controller that the provisions of Section 5 of the Indian Limitation Act, are not applicable to the proceedings pending before the Rent Controller, but at the same time, it is applicable to the proceedings pending before the appellate authority are also not justifiable, because the proceedings pending before the Rent Controller as well as before the appellate authority cannot be distinguished. If it is so, it may form an anomaly.
82. Keeping in view of the above facts, this Court finds that the provisions of Section 5 of the Indian Limitation Act are very well applicable to the proceedings pending before the Rent Controller and with this observation, this Court is of firm view that the revision petition is liable to be allowed and the impugned order is deserved to be set aside. Accordingly, the revision petition is allowed and the impugned order, dated 2.9.2013 and made in I.A. No. 67 of 2013 in R.C.O.P. No. 110 of 2011 is set aside and consequently, the application in I.A. No. 67 of 2013 is allowed. However, there will be no order as to costs. Connected M.Ps. are closed.
