Madras High Court
Raju vs Mohamadabi on 9 July, 1993
Equivalent citations: (1993)2MLJ290
ORDER K.A. Swami, C.J.
1. This civil revision petition is preferred against the order dated 24.7.1986 passed in M.A. No. 54 of 1984 by the learned Appellate Authority under the Pondicherry Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the Act), reversing the order dated 17.8.1984 passed by the Rent Controller in I.A. No. 10 of 1984 in H.R.C.O.P. No. 90 of 1982. The point for consideration is as to whether the provisions of Section 5 of the Limitation Act are applicable to the proceeding filed for setting aside the ex parte order of eviction passed by the Rent Controller. The Rent Controller passed an ex parte order of eviction on 11.10.1983. An application to set aside the ex pane order of eviction was filed under Rule 18(3) of the Pondicherry Buildings (Lease and Rent Control) Rules (hereinafter referred to as the Rules). There was a delay in filing the said application. Therefore, an application to condone the delay in filing was also filed. The Rent Controller applied Section 5 of the Limitation Act. Condoned the delay and also held that there was sufficient cause for the absence of the respondent. Accordingly, he set aside the ex pane order of eviction.
2. Aggrieved by the order of the Rent Controller, the landlord went up in Miscellaneous Appeal No. 54 of 1984 before the appellate authority. It may be pointed out here that no appeal or revision was preferred against the order condoning the delay in filing the application for setting aside the ex parte order of eviction. The appellate authority has held that the provisions of Section 5 of the Limitation Act are not attracted to the proceedings under Rule 18 of the Rules, as the Rent Controller is not a court, but a persona designata. Hence, the order passed by the Rent Controller condoning the delay in entertaining an application for setting aside the ex parte decree filed beyond the period of limitation is non est. As such, he set aside the order of Rent Controller and confirmed the ex pane order of eviction passed by the Rent Controller on 11.10.1983.
3. The contention of the learned Counsel for the petitioner is that Rent Controller is court and not a persona designata and the provisions of Section 5 of the Limitation Act are not excluded. It is contended that the appellate authority is not right in holding that the appellate authority is not right in holding that the provisions of Section 5 of the Limitation Act are not applicable to the proceeding under Rule 18 of the Rules.
4. On the contrary, it is contended by the learned Counsel for the landlord that Rent Controller is a persona designata he is not a court. Further, Rule 18 of the Rules specifically provides the period during which an application has to be filed for setting aside the ex pane order of eviction. When the rule specifically provides a time limit for filing an application and does not provide for condoning the delay if an application is filed beyond the prescribed period and at the same time, the provisions of Section 5 of the Limitation Act are not expressly extended to such proceeding, it follows that Section 5 of the Limitation Act is not attracted to the proceeding governed by Rule 18 of the Rules.
5. Therefore, the first question that has to be determined is as to whether the Rent Controller exercising the power under the Act, functions as a court or not. The powers conferred upon the Rent Controller as contained in Sections 5,6,14,15 and 17 would go to show that the Rent Controller exercise the powers of a court. He adjudicates the rights of the landlord and the tenant in respect of the premises governed by the Act. The proceedings before him are of civil nature involving civil rights. The decision of the Rent Controller is appealable to the appellate authority, which is a judicial authority. The order passed by the Rent Controller is executable, as if it were a decree. Therefore, it is clear that the Rent Controller cannot be considered to be a persona designata. Persona designata is one whose appointment is made not with the common designation of the post, but with reference to a person who is appointed as such. As pointed out by the Supreme Court, 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: Central Talkies Limited v. Dwarka Prasad . Again, Jugal Kishore v. Sitamarhi Central Co-operative Bank , it has been held that the Registrar who exercises the powers under Section 48 read with Section 6(2) of Bihar and Orissa Co-operative Societies Act, is a court and not a persona designata. In order to determine whether he is a court or a persona designata, it has been pointed out by the Supreme Court in that case that the Registrar is not a persona designata, because the duties he discharges under the said Act, fall within the purview of the ordinary civil and revenue courts of the land. The Registrar has not merely the trappings of a court but in many respects, he is given the same power as one given to ordinary civil courts of the land by the Code of Civil Procedure including the power to summon and examine witnesses on oath, the power to order inspection of documents, to hear the parties after framing issues to review his own order and even exercise the inherent jurisdiction of courts mentioned in Section 151 of the Code of Civil Procedure. Under the Act in question, the Rent Controller adjudicates the civil rights of the parties, examines the parties, records the evidence of the witnesses that are produced and he is also empowered to summon the witnesses to give evidence. Therefore, he has got all the trappings of a civil court. In G.D.M. Rao v. Ranga Panaiah and Brothers , it has been held that Rent Controller acting under acting under the Rent Control Act is a court and the provisions of Section 5 of the Limitation Act are applicable to the proceedings before the Rent Controller under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules, 1961. It has been further held that an application under Section 5 of the Limitation Act to condone delay in filing an application to set aside an ex parte order of eviction of the Rent Controller is maintainable. In addition to this, learned Counsel has placed reliance on a decision of this Court in P. Rajappa v. Fareeda Beevi (1991)2 L. W. 193. It may be pointed out that in this case, the applicability of Section 5 of the Limitation Act to an application filed under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 for setting aside an ex parte order of eviction was considered and it was held that the provisions of Section 5 of the Limitation Act were attracted, following an earlier decision of this Court in E.K. Venkaimarban v. Dakshinamurthy, 94 L.W. 243. Thus, the powers exercisable by the Rent Controller under the Act and the rights adjudicated by him of the parties, undoubtedly, land 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 an ex parte order of eviction passed by the Rent Controller. Consequently, it follows that the learned District Judge is not right in holding that the Rent Controller is not justified in applying the provisions of Section 5 of the Limitation Act. The learned Appellate Authority has not considered the appeal on merits.
6. The contention that the order condoning the delay has not been separately challenged, therefore, it is not open to the petitioner to challenge the order of eviction without challenging the order condoning the delay, cannot gain ground. It is relevant to notice that the application for setting aside the order of eviction has been allowed on allowing the application filed for condoning the delay. Therefore, it is not necessary to challenge the order condoning the delay by way of separate appeal as it can be challenged, while challenging the order setting aside the ex parte order of eviction. Therefore, this contention is rejected.
7. For the reasons stated above, the revision petition is allowed. The order dated 24.7.1986 passed by the learned Appellate Authority under the Rent Control Act is set aside. The appeal is remitted to the appellate authority for considering the same on merits and in accordance with law in the light of the observations made in this order. The parties are directed to appear before the appellate authority on the 24th August, 1993. The appellate authority is directed to decide the appeal within three months from 24th August, 1993, no order as to costs.