Madras High Court
Ismail Bibi And Ors. vs Five Gori Thaikka Wakf At Vridhachalam ... on 21 January, 1987
Equivalent citations: (1987)1MLJ440
ORDER Sathiadev, J.
1. This petition is preferred by invoking Article 227 of the Constitution of India. The legal representatives of Syed Ibrahim Rowther are the petitioners herein. The said Rowther preferred an appeal to Inam Estates Abolition Tribunal at Cuddalore in L.A.T. No. 83 of 1979 against, the order of the Assistant Settlement Officer, Cuddalore, dated 14.2.1970. During the pendency of the appeal, he died on 8.1.1981. Hence, his legal representatives have preferred an application to implead them as appellants in the said appeal and also filed an application to set aside the abatement of the appeal, and another application under Section 5 of the Limitation Act to condone the delay in filing the petition to implead the L.Rs. of Rowther, as they came to know about the pendency of the appeal only on 4.1.1983.
2. These applications were opposed by respondents by stating that Section 5 of the Limitation Act will not apply to the Tribunal and that the claims made in the affidavit on other aspects are not correct.
3. The Tribunal by order, dated 7.12.1983 dismissed the appeal as abated and also dismissed the petitions filed to set aside the abatement and to bring on record the L.Rs. of Rowther, without giving any reason whatsoever. Aggrieved against such an order, this petition is preferred.
4. Mr. R. Sundaravaradan, Learned Counsel for the petitioners, would first submit that the Tribunal being not a Court, the appeal could not abate as all the provisions of C.P.C., are not applicable to it, and the petitions filed to set aside the abatement and to condone the delay are redundant applications, and therefore the order as passed is illegal. Further, as it did not contain any reason, it suffers from the vice of arbitrariness. The proceedings are initiated under T.N. Act 30 of 1963, and no provision therein having been relied upon by respondents stating that all the provisions of C.P.C., would be applicable the aspect of abatement which is a concept conceived of under the Civil Procedure Code, could not have been applied by the Tribunal to the proceedings before it. Section 48(e) of T.N. Act 30 of 1963 rather leads to conclude that all the provisions of C.P.C. are not applicable in disposing of an appeal by the Tribunal. The procedure envisaged under Order 32, C.P.C. having been conceived of in respect of matters which arise before Courts, and the Tribunal being a creatwe under the statute, unless all the provisions of CP.C, are made applicable to the Tribunal and acquires the status of a Court, neither Order 22, C.P.C. could be relied upon nor Section 5. of the Limitation Act could be invoked.
5. In support of these contentions, he would straightway refer to the decision in Sakuru v. Tanafi A.I.R. 1985 S.C. 1279 : (1985) 3 S.C.C. 590, in which it was held that the provisions of Limitation Act, 1963 apply only to proceedings in 'Courts' and not to appeals or applications before bodies other than Courts such as quasi-judicial Tribunals or executive authorities which may be vested with certain specified powers conferred on Courts under C.P.C. or Crl.P.C. Unless the special statute contains an express provision conferring on the Appellate Authority the power to extend the prescribed period of limitation as envisaged under Section 5 of the Limitation Act, the relief as found in Section 5 would not be available.
6. Karuppan Chettiar v. State of Madras A.I.R. 1962 Mad. 508 t 75 L.W. 536 (D.B.), is then relied upon to show that even the Special Appellate Tribunal authorised to hear appeals and decisions of the Estate Abolition Tribunal under Act 30 of 1956, consisting of two Honourable Judges of High Court, is not a "High Court" in view of Section 7 of the Act and that it is not exercising normal appellate jurisdiction of the High Court. To show as to how restricted in Order 23, C.P.C, in its applicability he would rely upon Manickam v. Ramanathan (1948) 2 M.L.J. 521 : A.I.R. 1949 Mad. 435 : I.L.R. (1949) Mad. 566 : 61 L. W. 780, in which it was held that Order 22. C.P.C. would not apply to civil revision petitions, and therefore, there could be no abatement of such petitions. No time limit has been prescribed in this Act for bringing on record the legal representatives in the place of the deceased respondents in such petitions. Hence, he contended that the concept of abatement, Conceived of under the Code could be applied and invoked only by a Court and not in respect of matters as contemplated by the Act, and an appeal preferred under T.N. Act 30 of 1963 could not have abated; rather the concept of abatement is quite alien to the proceedings initiated under the Act.
7. In the light of the decision of the Division Bench of this Court, and there being no provision made in the Act to invoke Order 22, C.P.C., and' when it could have only a limited applicability to the extent contemplated under the Code and in the absence of specific provision having been made in the Act regarding its invocability, the Tribunal was in error in holding that the appeal had abated.
8. Once it is held that the appeal could never abate, the other applications filed to set aside the abatement land to excuse the delay under Section 5 of the Limitation Act were redundant applications. Respondents themselves have taken up the plea in the counter-affidavit that the said Section could have ho applicability. In view of the decision Sakuru v. Tanajit (1985) 3 S.C.C. 590 : A.I.R. 19.85 S.C. 1279, as the Tribunal is not a Court it was not maintainable. Further there was no need to file any application to condone the delay as no delay had occasioned.
9. As for the dismissal of the appeal is concerned, it being erroneous, as held above, the revision is allowed resulting in the Tribunal being directed to take up the appeal and dispose it of on merits. No costs.
10. C.R.P. Nos. 1209 and 1210 of 1986 : In C.R.P. No. 722 of 1986, an order directing the Tribunal having been passed to take up the appeal and dispose of it afresh on merits and on holding that there would be no need to file either an application to set aside the order of abatement or an application to excuse the delay as if it had occasioned, the orders which are challenged in these petitions become illegal, as they were not maintainable. Hence, these revision petitions are dismissed as having become infructuous in view of the direction given in C.R.P. No. 722 of 1986. No costs.