# MUKRIGOPALAN v. CHEPPILAT PUTHANPURA YIL ABOOBACKER

- **Citation:** [1995] Supp. 2 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1995-07-12
- **Bench:** Faizan Uddin, S.B. Majmudar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mukrigopalan-v-cheppilat-puthanpura-yil-aboobacker-13093
- **Pages:** 27

## Headnote

Kera/a Building (Lease and Rent Control) Act, 1965: Section 18-Appeal-District Judge with the power of Appellate Authority-Whether persona
designata-Whether delay in filing appeal can be condoned by it-Scope of.
Limitation Act, 1963-Section 29(2)-Application of-Computing the
period of limitation under special or local law-If conditions laid down
satisfied-Procedural scheme contemplated by sections 4 to 24.
Words & Phrases:
(i) "Persona Designata''-Meaning of.
(ii) ''.An Authority as a Court''-Meaning of.
The Respondent filed eviction petition before Rent Control Court,
Kannur, under section 11(2)(a) and 11(3) of the Kerala Building (Lease
& Rent Control) Act, 1965 on the grounds of default in payment of rent
and bonafide requirement and the Rent Control Court passed an order
for possession against the appellant. The time for filing appeal elapsed.
Appellate filed appeal under section 18 of the Act with the application for
condonation of delay. The appellate authority dismissed the appeal as
barred by time and obseM'ed 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.
The order of the appellate authority was confirmed by the High
A
B
c
D
E
F
Court in Civil Revision Petition. Hence this appeal.
G
Allowing the appeal and remanding the matter to the Court of the
r
Appellate Authority, this Court
HELD : 1. An authority can be styled to be persona if powers are
conferred on a named person or authority and such powers cannot be H
1
2
SUPREME COURT REPORTS [1995) SUPP. 2 S.C.R.
A
exercised by anyone else. The scheme of Kerala Rent Act contra indicates
appellate authority to be a persona designata. The appellate authority
constituted under Section 18(1) has to decide lis between 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 exB
c
D
E
tended. 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.
District Judge appointed as appellate authority under the provisions of
Kerala Rent Act, they constituted a class and cannot be considered to be
persona designata. [11-A-D, 12-A]
Central Talkies Ltd., Kanpur v. Dwarka Prasad, AIR (1961) SC 606,
relied on.
Thakur Jugal Kishore Sinha v. Sitamarhi Central Co-operative Bank
Ltd. & Anr., [1967] 3 SCR 163, relied on.
Plllthasaradlti Naidu v. Koteswara Rao, ILR (1924) 47 Mad 369, cited.
2. 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 trapping of a judicial tribunal, power to give a decision or a definitive
F
judgment; to decide disputes in a judicial manner and declare the rights of
parties in a definitive judgment; to decide the matter on a consideration of
the evidence adduced and in accordance with law. These are the essential
trappings to constitute an authority as a court. [12-G, 13-C]
G
Brajnandan Sinha v. Jyoti Narain, [1955] 2 SCR 955;Thakur Jugal
Ki,sltore Sinha v. Sitamarlti Central Coop. Bank Ltd., [1967] 3 SCR 163 and
Virindar Kumar Satyawadi v. The State of Punjab, [1955] 2 SCR 1013, relied
on.
3.1. The following two requirements have to be satisfied by the
H authority invoking the provisions containing sections 4 to 24 of the Limita-
MUKRIGOPALAN v. C.P.ABOOBACKER
3
tion Act:
(i) There must be a provision for period of limitation unde

## Text

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MUKRIGOPALAN
v.
CHEPPILAT PUTHANPURA YIL ABOOBACKER
JULY 12, 1995
[FAIZAN UDDIN AND S.B. MAJMUDAR, JJ.]
Kera/a Building (Lease and Rent Control) Act, 1965: Section 18-Appeal-District Judge with the power of Appellate Authority-Whether persona
designata-Whether delay in filing appeal can be condoned by it-Scope of.
Limitation Act, 1963-Section 29(2)-Application of-Computing the
period of limitation under special or local law-If conditions laid down
satisfied-Procedural scheme contemplated by sections 4 to 24.
Words & Phrases:
(i) "Persona Designata''-Meaning of.
(ii) ''.An Authority as a Court''-Meaning of.
The Respondent filed eviction petition before Rent Control Court,
Kannur, under section 11(2)(a) and 11(3) of the Kerala Building (Lease
& Rent Control) Act, 1965 on the grounds of default in payment of rent
and bonafide requirement and the Rent Control Court passed an order
for possession against the appellant. The time for filing appeal elapsed.
Appellate filed appeal under section 18 of the Act with the application for
condonation of delay. The appellate authority dismissed the appeal as
barred by time and obseM'ed 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.
The order of the appellate authority was confirmed by the High
A
B
c
D
E
F
Court in Civil Revision Petition. Hence this appeal.
G
Allowing the appeal and remanding the matter to the Court of the
r
Appellate Authority, this Court
HELD : 1. An authority can be styled to be persona if powers are
conferred on a named person or authority and such powers cannot be H
1
2
SUPREME COURT REPORTS [1995) SUPP. 2 S.C.R.
A
exercised by anyone else. The scheme of Kerala Rent Act contra indicates
appellate authority to be a persona designata. The appellate authority
constituted under Section 18(1) has to decide lis between 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 exB
c
D
E
tended. 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.
District Judge appointed as appellate authority under the provisions of
Kerala Rent Act, they constituted a class and cannot be considered to be
persona designata. [11-A-D, 12-A]
Central Talkies Ltd., Kanpur v. Dwarka Prasad, AIR (1961) SC 606,
relied on.
Thakur Jugal Kishore Sinha v. Sitamarhi Central Co-operative Bank
Ltd. & Anr., [1967] 3 SCR 163, relied on.
Plllthasaradlti Naidu v. Koteswara Rao, ILR (1924) 47 Mad 369, cited.
2. 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 trapping of a judicial tribunal, power to give a decision or a definitive
F
judgment; to decide disputes in a judicial manner and declare the rights of
parties in a definitive judgment; to decide the matter on a consideration of
the evidence adduced and in accordance with law. These are the essential
trappings to constitute an authority as a court. [12-G, 13-C]
G
Brajnandan Sinha v. Jyoti Narain, [1955] 2 SCR 955;Thakur Jugal
Ki,sltore Sinha v. Sitamarlti Central Coop. Bank Ltd., [1967] 3 SCR 163 and
Virindar Kumar Satyawadi v. The State of Punjab, [1955] 2 SCR 1013, relied
on.
3.1. The following two requirements have to be satisfied by the
H authority invoking the provisions containing sections 4 to 24 of the Limita-
MUKRIGOPALAN v. C.P.ABOOBACKER
3
tion Act:
(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
A
or local law should be different from the period prescribed by the schedule B
to the Limitation Act. [14-A-B]
If the aforesaid two requirements are satisfied the consequences
contemplated by Section 29(2) would automatically follow. These consequences are as under: [14-C]
(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. [14-D]
c
(II) For determining any period of limitation prescribed by such D
special or local law for a suit, appeal or application all the provisions
containing Section 4 to 24 (inclusive) would apply in so far as and to the
extent to which they are not expressly excluded by such special or local law.
[14-D]
3.2. 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 E
period for it to be filed within time. Section 29(2) of Limitation Act would
apply 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. Section S would not have applied to appellate
authority constituted under section 18 as section S would not get attracted F
as per the then existing Section 29(2) of Indian Limitation Act, 1908 which
did not include section S as one of the provisions to be applied to such
special or local laws. (After repealing of Indian Limitation Act 1908 and its
replacements by the present Limitation Act 1963 a fundamental change was
made in Section 29(2). On a conjoint reading of Section 29(2) of Limitation G
Act, 1963 and section 18 of the Rent Act of 1965, provisions of section S
would automatically get attracted to those proceedings, as there is nothing
in the Rent Act of 1965 expressly excluding the applicability of section S of
the Limitation Act to appeals under section 18 of the Rent Act. 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 enter· H
4
SUPREME COURT REPORTS [1995] SUPP.2S.C.R.
A
tainable under such laws and for computing period oflimitation 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 of section 29(2) of
B
c
D
E
the Limitation Act applies for 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 many not be fGll-fledged civil
courts. 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. [15-B-C, 16-H, 17-A, C, F, 18-E-F, 25-H, 26-A-B]
33. Limitation Act governs the 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. [20-E-F]
Vidyacharan Shukla v. Khubchand Baghel & Ors., AIR (1964) s.c:
1099, relied on
Jokkim Femadez v. Amina Kunni Umma, AIR (1974) Kerala 162
(Minority approved, ·majority overruled) and Town Municipal Council,
F
Athani v. Presiding Officer, Labour Court, Hubli & Ors., [1970) 1 SCR 51,
distinguished.
Sha Mulchand & Co. Ltd. v. Jawahar Mills Ltd., [1953] SCR 351, cited.
G
Bombay Gas Co. v. Gopal Bhiva, [1964] 3 SCR 709, 722-723, cited.
Nityananda M. Joshi & Ors. v. Life Insurance Corporation of India &
Ors., [1971) 1 SCR 396, distinguished.
Kerala State Electricity Board, Trivandmm v. T.P.KK Amsom and
H Besom, Kera/a, [1977) 1 SCR 996, distinguished.
y
MUKRI.GOPALAN v. C.P.ABOOBACKER[MAJMUDAR,J.]
5
17ie Commissioner of Sales Tax, Uttar Pradesh, Lucknow v. Parson A
Tools and Plants, Kanpur, (1975) 3 SCR 743, distinguished.
Commissioner of Sales Tax, U.P. v. Madan Lal Dan & Sons, Bareilly,
[1977) 1 S.C.R. 683, relied on.
Rethinasamy v.Komalavalli &Anr., AIR (1983) Madras 45, approved. B
G. Bulliswamy v. C. Annapumamma, AIR (1976) AP 270, approved.
Vidya Devi, widow of Ramji Das v. Finn Madan Lal Prem Kumar, AIR
(1971) P&H 150, approved.
Sahkari Ganna Vikas Samiti Ltd. v. Mahabir Sugar Mills (P) Ltd.,
[1981) 4 sec 158, relied on.
c
4.1. Appellate Authority constituted under Section 18 of the Kerala
Rent Act, 1965 functions as a court and the period of limitation prescribed
tlierein under section 18 governing appeals by aggrieved parties will be D
computed keeping in view the provisions of Sections 4 to 24 of the Limita·
tion Act, 1963 such proceedings will attract Section 29(2) of the Limitation
Act and consequently Section S of the Limitation Act would also be
applicable to such proceedings. [27-B-CJ
4.2. 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. (27-C]
E
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1305 of F
1995.
From the Judgment and Order dated 22.7.94 of the Kerala High
Court in C.R.P.No. 2633 of 1994-G.
G.V. Iyer, G. Prakash and B.V. Deepak for the Appellant.
R.F. Nariman and E.M.S. Anam for the Respondent.
The Judgment of the Court was delivered by
G
MAJMUDAR, J. In this appeal by special leave a short but an H
6
SUPREME COURT REPORTS [1995) SUPP. 2 S.C.R.
A 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
B
c
Femandez v. Amina Kunni 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 fox: condonation of delay was treated to
be not maintainable before the appellate authority.
A few relevant facts leadings to these proceedings may now be
looked at. The appellant is a tenant occupying the suit premises belonging
to respondent-landlord. The respondent filed Rent Control Petition No.
D 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
E, 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 forF
malities 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
G 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, Thalas-
'f
sery 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
H appellant. The appellate authority by its order dated 11th January, 1994
.., y
:
r
MUKRIGOPALAN v. C.P.ABOOBACKER[MATMUDAR,J.]
7
dismissed the appeal as barred by time. The appellate authority took the A
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 Femandez v. Amina
Kun/ti Umma (supra) to the effect that Section 29(2) of the Limitation Act
cannot apply to the proceeding before the appellate authority under SecB
tion 18 of the Rent Act was not correct and that the appellate authority C
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.
D
Before we deal with the majority decision of the Kerala High Court
in Jokkim Femandez v. 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 E
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 determination of fair rent on application of the
tenant or landlord to the Rent Control Court. Section 11 deals with the F
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 G
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 H
8
SUPREME COURT REPORTS (1995] SUPP. 2 S.C.R.
A 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
B 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 centers round the powers of the
appellate authority under Section 18 it will be useful to extract the said
C Section in extensio at this stage.
D
E
F
G
H
"18. Appeal. - (l)(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 ;:ippeal being preferred, the appellate authodty 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 landlord in possession of the building.
~"'
MU:KRI GOP ALAN v. C.P. ABOOBACKER [MAJMUDAR,J.)
9
( 4) The appellate authority shall have all the powers of the Rent A
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 the called in question in any court of law, B
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 cost of
and incident to all proceedings before the Rent Control Court or the c
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 D
under this Act by such authority for the purpose of satisfying itself as to
the legality, regulatory 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 E
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 F
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 requirG
ing the deposits of their expenses; compelling the production of
y
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 H
10
SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.
A sub-section (2) of Section 23 the Accommodation Controller, the Rent
Control Court pr 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
B
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, 1965C
NOTN. ·UNDER S.18(1) CONFERRING ON DISTRICT
JUDGES POWERS OF APPELLATE AUTHORITIES.
D
E
F
(Published in Kerala Gazette No. 38 dated 26th September, 1989:
SR0:1631/89)
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,
Tahllassery has taken the view that since he is a persona designata he
G 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
H a persona designata. In our view the said fair stand taken by learned
... y
,,.
MUKRIGOPALAN v. C.P.ABOOBACKER[MAJMUDAR,J.]
11
counsel for respondent is fully justified. It is now well settled that an A
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
B
c
a named person being the appellate authority as assumed in the present D
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 v. 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 E
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 F
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 Parthasaradhi Naidu v. 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 G
capacity as Judges." The same consideration allies 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."
H
12
SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.
A
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 Femandez v. Amina Kunhi Umma
B
(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
C
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
D
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
E
may refer to one of them, in the cas.e of Thakur. iugal Ki.shore Sinha v.
Sitamarhi Central Coop. Bank Ltd., [1967] 3 SCR 163. In that case this court
was concerned with .the question whether the Assistant Registrar of Cooperative Societies functioning under Section 48 of the Bihar and Orissa
Cooperative Societies Act, 1935 was a court subordinate to the High Court
F . 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 other on the observations found in the
case of Brajnandan Sinha v. Jyoti Narain, [1955] 2 SCR 955 wherein it was
observed as under:-
G
H
"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 pronouncement."
'
MUKRIGOPALAN v. C.P.ABOOBAC:KER(MATMUDAR,J.]
13
Reliance was also placed on another decision of this court in the case of A
Virindar Kumar Satyawadi v. 77ie 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
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
hp.ports 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 quasijudicial tribunal, what has to be decided is whether having regard
to the provisions of the Act it possesses all the attributes of a court."
B
c
When the aforesaid well settled tests for deciding whether an authority is D
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 E
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
F
and for the purpose of determining any period of limitation G
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 H
14
SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.
A
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.
B
c
D
E
(i) There must be 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.
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
F
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
G 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
H in the schedule to the Act, the second condition for attracting Section 29(2)
.•
..
MUKRIGOPALAN v. C.P.ABOOBACKER(MATMUDAR,J.]
15
would get satisfied. As laid down by a majority decision of the Constitution A
Bench of this court in the case of Vidyacharan Shukla v. Khubchand Baghel
.:.'- Ors., AIR (1964) S.C. 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 B
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 C
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) D
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 E
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 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 v. Amina F
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.
G
P
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 :-
H
A
B
c
16
SUPREME COURT REPORTS (1995] SUPP. 2 S.C.R.
"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 li.mitation 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
D stated to apply only if they were not expressly excluded by the special law.
E
F
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
G 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 have applied to appellate
H authorities constituted under Section 18 as Section 5 would not get at-
MUKRIGOPALAN v. C.P.AilOOBACKER[MAJMUDAR,J.]
17
tracted as per the then existing Section 29(2) of Indian Limitation Act, 1908 A
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;
B
After repealing of Indian Limitation Act, 1908 and its replacement C
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 Section 4 to 24 both inclusive would get attracted which obviously D
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 E
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.