Madras High Court
Kasoar Udayar vs M.V.R. Oorani Private Trust, Through ... on 30 September, 1988
Equivalent citations: (1988)2MLJ355
ORDER Srinivasan, J.
1. This petition for condonation of delay of 33 days in filing the revision petition has been posted before me on an office note objection to the maintainability thereof.
2. The petitioner who suffered an order of eviction in R.C.O.P.No. 46 of 1984, District Munsif's Court, Devakottai, preferred an appeal R.C.A.3 of 1985 in the Court of Subordinate Judge, Devakottai. The appeal was dismissed on 27.6.1988. The petitioner filed an application for certified copies on 4.8.1988 and they were ready on 17.8.1988. The petitioner presented the C.R.P.on 12.9.1988 In this Court along with a petition to condone the delay of 33 days.
3. Under Section 25(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act (XVIII of 1960) as amended by Art XXIII of 1973, hereinafter referred to as the 'Act' an application to this Court for the exercise of its power of revision under Sub-section (1) of Section 25 shall be preferred within one month from the date on which the order of the appellate authority is communicated to the appellant. There is a proviso to Sub-section 2 of Section 25 of the Act which gives a discretion to this Court to allow further time not exceeding one month for the filing of revision application if the Court is satisfied that the applicant had sufficient means for not preferring the application within the time specified in the sub-sections.
4. In this view, there is no dispute that the order of the Appellate Authority was communicated to the petitioner on 27.6.1988 as the order was pronounced in open Court after due notice. Hence, the revision would have been preferred in the normal course on or before 27.7.1988 and this Court would have granted further time till 26.8.1988 if the applicant had sufficient cause. But, in Rajaratnam v. Rajammal 95 L.W. 76, a Division Bench of this Court has held that Section 12 of the Limitation Act will apply and the time requisite for obtaining certified copies of the order of the appellate authority shall be excluded in computing the period of limitation for filing revision petitions under Section 25 of the Act. By excluding the time taken by the Court for granting certified copies, viz., the period between 4.8.1988 and 17.8.88 (both days inclusive) the delay in filing the revision has been calculated to be 33 days by the petitioner. The maximum period which the Court could grant under the proviso to Section 25(2) is thirty days. This Court has repeatedly held that the Court has no power to condone delay beyond the period of thirty days. Recently, I had occasion to reiterate the position after tracing the entire case-law on the subject in C.R.P. Sr. Nos. 56119 and 56121 of 1986 and C.R.P. Sr. No. 56123 of 1986, 85587 and 85590 of 1987 by order dated 1.8.1988. In view of the settled position in law, the Registry has questioned the maintainability of the petition and posted the matter for orders.
5. Learned Counsel for the petitioner contended that on account of the strike by the entire staff of the Subordinate Courts between 22.6.1988 and 25.7.88, the Court must be deemed to have been closed and that period must be excluded from the computation of limitation. There is a factual error in the dates mentioned by learned Counsel as the strike was from 27.6.1988 to 21.7.1988. Apart from that, both parts of the contention are fallacious. The Courts cannot be deemed to have been closed during the strike period for the simple reason that the presiding judicial officers were attending Courts and they did not abstain from work. The judicial officers were receiving the papers presented and keeping them in Court though they could not pass orders thereon. In fact the order sought to be revised was passed during the strike period which itself shows that the Appellate Authority was attending Court. Under the Explanation to Section 4 of the Limitation Act, 1963, a Court shall be deemed to be closed on any day within the meaning of the section if during any part of its normal working hours it remains closed on that day. By no stretch of imagination, it can be said that the Court was closed between 27.6.1988 and 21.7.1988.
6. Secondly, the provision in the Limitation Act is found in Section 4. According to the section, if the Court is closed on the day when the prescribed period for any suit, appeal or application expires, the suit, appeal or application my be instituted, preferred of made on the day when the Court reopens. In the present case, the copy application is not presented on the day after the strike was over i.e. on 22.7.1988. The copy application was filed only on 4.8.1988. In other words, the copy application was not filed on the day when the Court reopened even if the Court is deemed to be closed during the strike period. Learned Counsel places reliance on the decision in Saminatha Ayyar v. Venkatasubha Ayyar L.L.R. 27 Mad. 21 where a Division Bench of this Court held that the period of Christmas vacation should be excluded from computation of the period of limitation. In that case the judgment was delivered on the afternoon of the last Court day before the commencement of the Christmas vacation when it was too late to supply for a copy of the judgment. Application for copy was made on the day upon which the Court reopened and the appeal was filed on a day which would have been in time if the period during which the Court was closed was allowed to be deducted. On those facts the Court held that the appellant was entitled to deduct the period during which the Court was closed as such period was in the circumstances of the case to be treated as part of the "time requisite or for obtaining a copy of the judgment" under Section 12 of the Limitation Act. That decision has no application here as in this case, the copy application was filed long after the withdrawal of the strike.
7. With great fairness which is rare nowadays, learned Counsel himself drew my attention to a later Bench Judgment in Subramanyan v. Narasimhan I.L.R. 43 Mad. 640. In that case, the judgment of the Court below was delivered on the first day of the Christmas vacation and the copy application was filed some days after the reopening of the Court. The Bench held that in computing the time for appeal, the appellant was not entitled to deduct the period of the Christmas vacation as time requisite for obtaining copies' within Section 12 of the Limitation Act. The/Bench distinguished the earlier decision in Saminatha Ayyar's case I.L.R. 27 Mad. 21 on the ground that the copies were applied for in the earlier case on the reopening day. Then the Bench stated the rule thus: "what we have to see in all these cases is what was the time requisite for obtaining copies within the meaning of the section, and by 'requisites'. I understand reasonable requisite. It was observed by Wilson and Beverley, JJ, in Ganga Dass Day v. Ramjay Day 1866 I.L.R. 12 Cal. 30 that no hard and fast rule can be laid down to meet all cases that occur under this provision, but I think it may be said that generally, if not invariably as held in Bechi v. Alisen Ollah Khan 1890 I.L.R. 12 All. 461 (F.B.), the time requisite for obtaining copies cannot includes any period antecedent to the applicant's asking for the copies in the usual way.
8. Learned Counsel argued that it was impossible for the petitioner to present an application for certified copies during the strike period and that period should be excluded from computation of the basis of the ruling in Basanta v. Lakshman Nomi A.I.R. 1968 Assam 57. In that case, the limitation for instituting a suit expired on 20th May, 1961. From the 19th to 29th May, the Civil Court was picketed and no judge or officer was able to enter Court premises. The plaint was presented on 30th May, 1961 when the Court started functioning. The Bench held that during the period between 19th and 29th the Court should be deemed to be closed within the meaning of Section 4, Limitation Act. On the facts, the Court found that no officer, neither the presiding officer of the Court, nor the ministerial staff could enter the Court premises during the period and the Court was closed for all practical purposes. In that situation, the Bench observed that the legal maxim 'lemon cogit ad impossiblia' which means the law does not compel the impossible would apply. The facts of that case have no resemblance to the facts of the present case. He, the presiding Officers, were attending Court and receiving the papers presented. The ruling of the Assam Bench does not apply to this case.
9. It is next contended that copy applications should be presented only to the Superintendent of Copyists or the Chief Ministerial Officer and not to the Judge, Reference is made to Rule 127 if the Civil Rules of Practice. Rule 127(1) reads thus:
(1) Application for certified copy:- When a person is entitled to obtain a copy of a proceeding or document filed in, or in the custody of the Court, he may present an application therefor to the superintendent of copyists or, where there is no such officer, to the chief ministerial officer in person or by his pleader or the latter's authorised gumastha between the hours of 11.30 a.m. and 3 p.m. If the proceeding or document has been sent to another Court, the application, may at the option of the applicant, be forwarded to the said Court for compliance, or be returned to him, for presentation to the said Court.
According to the note under Rule 128, the application shall be in Form No. 51. According to the note under Rule 128, the application shall be addressed to the judge of the Court concerned. The form prescribed also shows that the application is addressed to the Judge. It is only for administrative convenience, the presentation of the application is to be made to the Superintendent of copyists or the Chief Ministerial Officer. The rule does not mean that a copy application should never be presented to the Judge concerned.
10. Further, Rule 24 of the Tamil Nadu Buildings (Lease and Rent Control) Rules provide that the copies should be certified by the Controller or the Appellate Authority as the case may be. The rule is in the following terms:
24. Procedure for furnishing certified copies: (1) Any person affected or any order passed by the controller or the appellate authority under Section 23 of the Act shall be entitled to be furnished with a copy thereof and any other connoted document duly certified by the Controller or the Appellate Authority as the case may be, on application.
(2) The procedure laid down in the Civil Rules of Practice and Circular Orders in regard to making of application for, and grant of, certified copies shall as far as may be, apply to the applications and grant of copies under Sub-rule (1).
11. As the Appellate Authority is the person empowered to certify the copy, the application therefor could well have been presented to him in the absence of the ministerial affairs. The contention that it was impossible for the petitioner to present an application for copies during the strike period is not sustainable. Hence that period cannot be excluded from computation of time.
12. In the result, the petition is not maintainable and it is hereby rejected.