Punjab-Haryana High Court
S. Manohar Singh vs S. Aridaman Singh Dhillon on 25 October, 2002
Equivalent citations: (2003)133PLR231
Author: Hemant Gupta
Bench: Hemant Gupta
JUDGMENT Hemant Gupta, J.
1. This is a tenants' revision petition against the order whereby the learned Rent Controller dismissed the application under Section 5 of the Limitation Act seeking condonation of delay in filing the application for leave to defend in a petition under Section 13-A of the East Punjab Urban Rent Restriction Act (hereinafter referred to as the Act) filed by the respondent-landlord.
2. The respondent-landlord filed an application under Section 13-A of the Act to seek ejectment of the tenant, inter-alia, on the ground that he is retiring Government servant on 31.7.1998 and therefore, the tenant is liable to be evicted. As per the record the tenant was served with the summons contemplated under the provisions of Section 18-A of the Act on 19.9.1998 accompanied by the copy of the petition. However, the tenant moved the application for leave to defend on 24.12.1998 and also an application under Section 5 of the Limitation Act for condonation of delay because on 19.9.1998 when the summons were received by him, he was to visit to foreign country. It was stated by him that he reached back Amritsar on 24.12.1998 and immediately thereafter he moved the application for leave to defend along with application under Section 5 of the Limitation Act.
3. The learned Rent Controller dismissed the application under Section 5 of the Limitation Act for condonation of delay as not maintainable relying upon the Division Bench judgment of this Court in Ashwani Kumar Gupta v. Shri Siri Pal Jain, (1998-3)120 P.L.R. 170. Since the application under Section 5 of the Limitation Act was dismissed, the application for leave to defend was not adjudicated upon on merits. The tenant has challenged said order of the Rent Controller by way of the present revision petition.
4. Learned Counsel or the petitioner has relied upon Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker, A.I.R. 1995 Supreme Court 2272 to contend that the provisions of Section 5 of the Limitation Act would be applicable as the East Punjab Urban Rent Restrictions Act which is a local law has not been specifically excluded from the applicability of the Limitation Act in terms of provisions of Section 29(2) of the Limitation Acl, 1963. The said provision contemplates that where any special or local law prescribes for a period of limitation different from the period prescribed by the Schedule, the provision of Section 3 shall apply as if such period were the period prescribed by the schedule and the provisions contained in Section 4 to 24 (inclusive) shall apply in so far as, and to the extent to which, they are to expressly excluded by such special or local law. The Hon'ble Supreme Court affirmed minority view of Full Bench in Jokkim Fer-nandez case A.I.R. 1974 Kerala 162 (supra), Learned counsel further pointed out that the said judgment of the Supreme Court was not brought to the notice of the Division Bench, therefore, the Division Bench does not lay down correct law. In fact, the said judgment is per incuriam.
5. I have heard the learned counsel for the parties and have gone through the case law cited at the Bar as well.
6. In Ashwani Kumar's case (supra) the Division Bench of this Court has held that Section 5 of the Limitation Act is not applicable to the proceedings under the Act. Reliance was placed upon majority view of Full Bench in Jokkim Fernadez v. Amina Kunhi Umma, A.I.R. 1974 Kerala 162 and also upon The Officer on Special Duty (Land Acquisition) and Anr. v. Shah Manilal Chandulal etc., JT 1996(2) S.C. 278 wherein the Supreme Court held that the Land Acquisition Collector is not a Court and, therefore, the provision of Section 29(2) cannot be applied in view of the specific limitation prescribed in proviso to Section 18(2) of the Land Acquisition Act. It may be noticed that in the said judgment of the Supreme Court, the said majority view of Kerala High Court was quoted with the approval. However, neither the Supreme Court judgment's in Mukri Gopalan's case (supra) nor the provisions of Section 29(2) of the Limitation Act were brought to the nohce of the Division Bench. Before proceeding further, it may be advantageous to reproduce the provisions of Section 29 of the Limitation Act:
29. Savings.- (1) Nothing in this Act shall affect section 25 of the Indian Contract Act, 1872.
(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 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 local law.
(3) Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law.
(4) Sections 25 and 26 and the definition "easement" in section 2 shall not apply to cases arising in the territories to which the Indian Easements Act, 1882, may, for the time being extend.
7. The said provisions of Section 29(2) of the Limitation Act has been interpreted in Mukri Gopalan's case (supra) to hold that the provisions of Section 4 to 24 of the Limitation applies to all special or local laws if the following two requirements are satisfied:-
(i) There must be a provisions 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 which special or local law should be different from the period prescribed by the schedule of the Limitation Act.
8. It has been held that if the aforesaid two requirements are satisfied, the consequences contemplated under Section 29(2) would automatically follow. Such 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 in so far as and to the extent to which they are not expressly excluded by such special or local law.
9. The Supreme Court also pointed out the distinction between Section 29(2) of the Indian Limitation Act, 1908 and that of 29(2) of the Indian Limitation Act. 1963. It was thus held:-
"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. By this change it is not necessary to expressly state in a special law that the provision 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 provisions 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. It becomes, therefore, apparent that on a conjoint reading of Section 29(2) of Limitation Act of 1963 and Section 18 of the Rent Act of 1965, provisions of Section 5 would automatically get attracted to these proceedings, as there is nothing in the Rent Act of 1965 expressly excluding the applicability of Section 5 of the Limitation Act to appeals under section, 18 of the Rent Act."
10. It may be noticed that under the Act, there is no clause which expressly exclude the applicability of the Limitation Act to any of the proceedings under the said Act. Therefore, keeping in view the interpretation of Section 29(2), the provisions of Section 4 to 24 including that of Section 5 would be applicable to the proceedings under "the Act" including that to application for leave to defend. It may further be noticed that the Hon'ble Supreme Court in Mukri Gopalan's case has approved the minority view in Jokkim Fernandez case (supra) whereas the Division Bench in Ashwani Kumar Gupta's case has approved the majority view of the said Full Bench of the Kerala High Court. The principle laid down by Hon'ble Supreme Court in Mukri Gopalan's case (supra) has come up for decision in other cases as well before the Hon'ble Supreme Court.
11. In State of W.B. and Ors. v. Kartick Chandra Das, (1996)5 Supreme Court Cases 342, the Hon'ble Supreme Court has held as under:-
"In consequence, by operation of Section 29(2) read with Section 3 of the Limitation Act, limitation stands prescribed as a special law under Section 19 of the Contempt of Courts Act and limitation in filing Letters Patent appeal stands attracted. In consequence, Section 4 to 24 of the Limitation Act stands attracted to Letters Patent appeal in so far as and to the extent to which they are not expressly excluded either by special or local law. Since the rules made on the appellate side, either for entertaining he appeals under clause 15 of the Letters Patent or appeals arising under the Contempt of Courts, had not expressly excluded, Section 5 of the Limitation Act becomes applicable. We hold that Section 5 of the Limitation Act does apply to the appeals filed against the order of the learned Single Judge for the enforcement by way of a contempt. The High Court, therefore, was not right in holding that Section 5 of the Limitation Act does not apply. The delay stands condoned. Since the High Court had not dealt with the matter on merits, we decline to express any opinion on merits. The case stands remitted to the Division Bench for decision on merits.
12. Subsequently, in Union of India v. Popular Construction Company, (2001)8 Supreme Court Cases 47 the Supreme Court applied the same principle while interpreting the provisions of Arbitration and Conciliation Act, 1996 wherein they have said that the provisions for the Limitation Act would be applicable to the Arbitration and Conciliation Act but since the language of Section 34 of the Arbitration and Conciliation Act amount to express exclusion within the meaning of Section 29(2) of the Act and would, therefore, bar the applicability of Section 5 of the Limitation Act.
13. Keeping in view the binding precedents of Hon'ble Supreme Court in Mukri Gopalan's case and subsequently in Kartick Chandra, I hold that the provisions of Section 5 of the Limitation Act would be applicable to the proceedings under "the Act" including that of application for leave to defend. Since the provisions of Section 29(2) and Mukri Gopalan's case were not brought to the notice of the Court, the judgment given by the Division Bench is law per incuriam. Rule of per incuriam can be applied where a Court omits to consider the binding precedent of the same Court or superior court rendered on the same issue or where the Court omits to consider any statute while deciding that issue. Reference may be made to Mamleshwar v. Kanahaiya Lal, A.I.R. 1975 S.C. 907 wherein it has been held as under:-
"Certainty of the law, consistency of rulings and comunity of courts-all flowering from the same principle-converge to the conclusion that a decision once rendered must later bind like cases. We do not intend to detract from the rule that, in exceptional instances, where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents. It should be a glaring case, an obtrusive omission. No such situation presents itself here and we do not embark on the principle of judgment per incuriam."
14. In Government of Andhra Pradesh and Anr. v. B. Satyanarayana Rao, A.I.R. 2000 Supreme Court 1729, it has been thus held:-
"Rule of per incurium can be applied where a Court omits to consider a binding precedent of the same Court or the superior Court rendered on the same issue or where a Court omits to consider any statute while deciding that issue. However, where in case referred which was decision by two Judges the controversy was exactly the same as it is in instant case and Supreme Court after considering relevant provisions of Rules came to a conclusion, which is a binding precedent. Rule of per incurium cannot be invoked in the instant case."
15. Consequently, I allow the present revision petition, set aside the order passed by the Rent Controller holding that the application under Section 5 of the Limitation Act is maintainable in proceeding under the East Punjab Rent Restriction Act including to the application for leave to defend. Since the learned Rent Controller dismissed the application as not maintainable and has not decided the application under Section 5 of the Limitation Act on merits, I direct that the learned Rent Controller should decide such applications expeditiously.
16. Parties are directed to appear before the Rent Controller on 18.11.2002.