IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE THIRTY FIRST DAY OF DECEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No. 2620 of 1997 BETWEEN: Penumatsa Narsimha Raju and others. ...PETITIONERS AND Andhra Jatiya Vidya Parishad, Machilipatnam and others. ...RESPONDENTS Counsel for the petitioners: Mr. Erranki Subba Rao Mr. Erranki Phani Kumar Counsel for the Respondents: -- The Court made the following: - ORDER: This revision is preferred by the petitioners against the dismissal of ATC.No.121 of 1990 by order dated 07.02.1994 on the file of the Principal District Munsif/Special Officer, Kakinada under the Andhra Pradesh (Andhra Area) Tenancy Act, 1956 (for short ‘the Act’). 2. The petitioners herein and the respondents 3 to 6 are said to be the legal heirs of Penumatsa Sitaramaraju S/o. Lakshmipathi Raju. The said Sitaramaraju had filed ATC.No.121 of 1990 under Section 8 of the Act seeking relief of remission of 200 bags of makta payable for the year 19901991 to the first respondent relating to the petition schedule lands i.e. an extent of Ac.14.04 guntas in Sy.No.13, Tallarevu Village, Kakinada Taluk, East Godavari District. During the pendency of the said ATC before the Principal District Munsif/ Special Officer, Kakinada, the said original petitioner died on 03.12.1991 leaving the petitioners and the respondents 3 to 6 as legal heirs. The petitioners, therefore, filed an application in I.A.No.1226 of 1993 together with I.A.(SR).No.8846 of 1992 under Section 5 of the Limitation Act and under Order 22 Rule 9 (ii) of the Code of Civil Procedure, respectively. The said applications were filed on 19.10.1992 requesting the Principal District Munsif/Special Officer to condone the delay of 171 days in filing application to bring on record the LR’s and to set aside abatement. The petitioners had stated in the affidavit that they did not know of the pendency of the ATC and as such, by oversight they could not file the petition to implead the legal representatives within time. They, therefore, sought condonation of delay by impleading themselves as legal representatives of the deceased original petitioner and also to amend the cause title in the petition accordingly and also seeking to condone the delay of 171 days in filing the petition to set aside abatement. 3. Initially notice was ordered on the said applications and later by order dated 07.02.1994 the learned Special Officer held that these petitions are not maintainable in view of the decision of the High Court C. RAMACHANDRA REDDY v. S. ASWARTHANARAYANA[1] and consequently dismissed the petitions and also dismissed the ATC as abated. Against the aforesaid order of the Special Officer dated 07.02.1994 dismissing ATC.No.121 of 1990 as abated, the present revision is filed. 4. Appearance is entered by the learned counsel on behalf of the first respondents and others respondents are recorded as served except sixth respondent, who is also one of the legal representatives and he is sailing along with the petitioners and respondents 2 to 5. 5. I have heard the revision petition initially on 07.08.2009 when I had passed the following order: “The only question that needs to be decided in this case is whether the provisions of order XXII Rule 9 of the Code of Civil Procedure and Section 5 of the Limitation Act apply to the proceedings under the Andhra Pradesh (Andhra Area) Tenancy Act, 1956 (for short ‘the Act’). The original petitioner (since died) had filed an application for remission under Section 16 of the Act before the competent authority. Pending said application he died and his legal representatives, who are petitioners herein, have sought to come on record. They moved an application on 19.10.1992 under order XXII Rule 9 CPC. Under the impugned order in this revision the said ATC itself has been dismissed as abated and no orders are passed on the said application. A copy of a decree is produced along with the papers and the learned counsel states that there is no other order passed by the Court below. Prima facie under Rule 18 of the Rules framed under the Act, the provisions of CPC as far as possible apply to the Tribunal under this Act and in the absence of any separate rules, contrary under this Act, Order XXII would continue to apply. Secondly under Section 29 sub-clause 2 of the limitation Act, in the absence of any express exclusion of provisions of the limitation Act to the present Act, Sections 4 to 24 (both inclusive) would also apply. In that view of the matter Section 5 of the Limitation Act would also be applicable. In either way, therefore, prima facie the application for bringing on record the LRs’ moved by the petitioners was entertainable and ought to have been entertained by the Tribunal below. However, the reasons for rejecting the ACT on the ground of abatement are not evident from the impugned order produced along with the revision. Learned counsel for the petitioners seeks time to verify and if available produce the copy of the order. List accordingly after two (2) weeks under the caption “for Judgment”.” Thereafter, I have heard the revision petition once again on 24.11.2009 and reserved for judgment. 6. Learned counsel for the petitioners has primarily contended that the Special Officer has chosen to follow the decision of a learned single Judge of this Court in C. RAMACHANDRA REDDY’s case (1 supra), which holds that the provisions of the Act and in particular Section 5 thereof is not applicable with respect to the Special Officer under the Act. The Special Officer has followed the aforesaid decision and held that the ATC stands abated and consequently rejected the applications to set aside abatement and the application to bring on record the legal representatives. Learned counsel submits that the said view of the learned single Judge in the aforesaid decision is not sustainable in view of the decision of the Supreme Court in MUKRI GOPALAN v. CHEPPILAT PUTHANPURAYIL ABOOBACKER[2]. He, therefore, submits that in view of the aforesaid decision of the Supreme Court, the judgment of the learned single Judge followed by the Special Officer in this case is not sustainable. 7. The question, therefore, that falls for consideration is as to whether the said decision of this Court in C. RAMACHANDRA REDDY’s case (1 supra) is no longer good law in view of the decision of the Supreme Court in MUKRI GOPALAN’s case (2 supra). 8. After I had reserved this matter for judgment, I noticed that there is at least one Division Bench judgment in G. SRIRAMAMURTHY v. MAJJI NARASAIAH[3] under the same Act taking the same view as in C. RAMACHANDRA REDDY’s case (1 supra) and the said Division Bench judgment is followed by another learned single Judge in JAGATI THIMMA RAJU v. DRONAMRAJU SITABHAI[4]. I also found that another learned single Judge in MADEPALLI VENKATA DURGA PRASAD RAO v. SRI RAMESWARA SWAMY VARI TEMPLE[5] has already held that the said judgment of the Division Bench in G. SRIRAMAMURTHY’s case (3 supra) is no longer good law in view of judgment of the Supreme Court in MUKRI GOPALAN’s case (2 supra). In addition thereto, another learned single Judge in TUNGALA VENKATESWARLU v. DISTRICT JUDGE, GUNTUR[6] has also considered the self-same question and held that all earlier decisions are not applicable in view of the fact that the Act is amended by the Amendment Act of 1976. In addition to the above, another learned single Judge in RAVI VENKATRAVAMMA v. SRI VENUGOPALA SWAMY TEMPLE[7] held that in view of Section 29 of the Limitation Act, the limitation prescribed under the Limitation Act would be applicable for proceedings under the present Act. 9. It is evident from the analysis of the decisions referred to above that the decisions of the learned single Judge in MADEPALLI VENKATA DURGA PRASAD RAO’s case (5 supra) following the decision of the Supreme Court in MUKRI GOPALAN’s case (2 supra) was not noticed by the learned single Judge, who decided C. RAMACHANDRA REDDY’s case (1 supra) and following the said decision the impugned order in the revision was passed. 10. To appreciate the point involved and the various decisions referred to above, it would be useful to extract Section 16 of the Act and the definition of the Special Officer under Section 2(j) of the Act and Rules 8 and 18 of the Andhra Pradesh (Andhra Area) Tenancy Rules. “16. Adjudication of disputes and appeal (Subs. by Section 13 of Act No.39 of 1974) : - (1) Any dispute arising under this Act, between a landlord and a cultivating tenant in relation to a matter not otherwise decided by the Special Officer under the provisions of this Act, shall, on application by the landlord or the cultivating tenant, as the case may be, be decided by the Special Officer after making an enquiry in the manner specified. [Proviso Omitted] (2) Against any order passed by the Special Officer under this Act an appeal shall lie to the District Judge having jurisdiction, within thirty days of the passing of the order; and the decision of the District Judge on such appeal shall be final.” “2(j). “Special Officer” means any judicial officer not below the rank of a District Munsif appointed by the Government in consultation with the High Court, to perform the functions of a Special Officer under the Act.” “Rule 8. Appeal : - (1) Every appeal under sub-section (2) of Section 19 shall be in writing and shall set forth concisely the grounds thereof and shall be presented in person or by agent to be sent by registered post to the District Judge or in his absence to the Head Ministerial Officer of his Office. (2) Every such appeal shall bear a Court fee label of Rs.3/- and shall, in addition bear also a Court fee label or labels of the value calculated in accordance with the scale prescribed in the Schedule towards the process fee service for notice on the respondent or respondents and shall accompanied by an authenticated copy of the order of the Special Officer appealed against. (3) Every such appeal shall also be accompanied by a spare copy or sufficient number of spare copies thereof for service on the respondent or respondents mentioned therein. (4) In computing the period of thirty days specified in sub-section (2) of Section 16 the time taken for obtaining a copy of the order of the Special Officer shall be excluded.” “Rule 18. Nature of Proceedings : - (1) All proceedings before the Special Officer or the District Judge under the Act shall be summary and shall be governed, as far as may be by the provisions of the Code of Civil Procedrue, 1908. (2) Any party shall, in any proceedings before the Special Officer or the District Judges, be entitled to be represented by his agent or legal practitioner; Provided that the Special Officer or the District Judge, as the case may be, may, at any stage of the proceeding require the party to appear in person.” A conjoint reading of the aforesaid provisions would show that for the revenue authorities earlier designated as Special Officer, after 1976 amendment District Munsif was substituted as Special Officer and appeal against order of such Special Officer is provided under Section 16(2) of the Act to the District Judge within 30 days of passing of the order. Under the Rules aforesaid the time taken for obtaining certified copy of the order of the Special Officer is excludable, which is similar to Section 12 of the Limitation Act. 11. In MUKRI GOPALAN’s case (2 supra) the Supreme Court while considering the powers of the appellate authority under the Kerala Buildings (Lease and Rent Control) Act, has considered the nature of such appellate authority and while considering the question as to whether such appellate authority is persona designata or as a named appellate authority has followed the test word in Central Talkies Ltd. Kanpur v. Dwarka prasad, [AIR 1961 SC 606] and it would be apt to extract the said test. "...........A persona designata is a "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 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 Madras 561 (FB), persona designata are "persons selected to act in their private capacity and not in their capacity as Judges". The same consideration applies 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". Applying the aforesaid test the Supreme Court considered the constitution of the appellate authority and came to hold that since the District Judge is constituted as an appellate authority and the same is constituted as a class and cannot be considered persona designata. The same test, undoubtedly, is applicable while construing the original and appellate authority under the Act as provided under Section 16 extracted above. By the same analogy as held by the Supreme Court, designation of District Munsif as Special Officer and appellate authority respectively under the Act, therefore, it cannot be said that original and appellate authority are persona designata and on the contrary, they are constituted as a class. 12. This Court in TUNGALA VENKATESWARLU’s case (6 supra) at para 2 held as under: “…It is seen that under the Amendment Act, 1976, the powers of the Tribunals have been taken away and have been invested in the District Munsif as Special Officer and the District Judge as appellate authority. It is now well-settled legal position that once jurisdiction in spite of special enactments as conferred on regularly established Courts without any special procedure as to how the application or the appeal are to be disposed of, the established procedure prescribed under the relevant procedural code should be followed. In this case, CPC would stand attracted. Therefore, the procedure provided under CPC would be applicable for disposal of the application filed under Sections 13 of the Act and the appeal filed under Section 16 of the Act by the Special Officer and the District Judge respectively…” 13. I n C. RAMACHANDRA REDDY’s case (1 supra) the aforesaid decision reported in short notice 1989 2 ALT NRC 27 was noticed and perhaps for want of noticing the detailed reasons, the said decision is not followed. 14. It is also to be noticed that the earlier Division Bench judgment of this Court in G. SRIRAMAMURTHY’s case (3 supra) had not noticed the decision of the Supreme Court in MUKRI GOPALAN’s case (2 supra) and the said case came to be decided by holding that the Special Officer and the District Judge under this Act are persona designata and not Courts. Evidently, the aforesaid decision of the Division Bench is directly opposed to the decision of the Supreme Court in MUKRI GOPALAN’s case (2 supra). A learned single Judge of this Court in MADEPALLI VENKATA DURGA PRASAD RAO’S case (5 supra) rightly followed the decision of the Supreme Court in MUKRI GOPALAN’s case (2 supra) and held as follows: “12. Thus, it is clear from a reading of the provisions of the Act that there is no express exclusion anywhere in the Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before the appellate authority under Section 16 of the Act. Consequently all legal requirements for the applicability of Section 5 of the Limitation Act can be stated to have been satisfied. 13. This Court is bound by the law declared by the Supreme Court. In the light of the decision rendered in Mukri Gopalan case (supra), it is to be held that the appellate authority as constituted under Section 16 of the Act cannot be considered to be a persona designata. It is to be further held that all the provisions of Sections 4 to 24 of the Limitation Act would apply and Section 5 being one of them is, therefore, get attracted.” The same view is taken by another learned single Judge in RAVI VENKATRAVAMMA’s (7 supra). But, however, none of these decisions were cited before the learned single Judge in C. RAMACHANDRA REDDY’s case (1 supra); that leads us to consider the decision of the learned single Judge in JAGATI THIMMA RAJU’s case (4 supra), who considered the Division Bench judgment in G. SRIRAMAMURTHY’s case (3 supra) as well as the judgment of the Supreme Court MUKRI GOPALAN’s case (2 supra), who recorded the conclusion in para 10 as follows: “10. I am not prepared to accept that the principles laid by this Court in the decision referred to in Sriramamurthy v. M. Narasiah case (supra) are not applicable to the present case in view of the decision of the Apex Court in Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker case (supra). Both the decisions dealt the issue contextually under different statutes of which one i.e., Rent Control Act is a self contained one unlike other. Be that as it may, if it is to be held that the provisions of the Limitation Act have no application to the proceedings arise out of Tenancy Act, then the provision contemplating period of limitation for filing application to bring the legal representatives cannot be made applicable. Thus, where there is no period of limitation for filing such applications under the Tenancy Act, the applications shall have to be filed within a reasonable time. The reasonableness differ from case to case, depending on facts and circumstances. In this case, the petitioner came forward with reasons for condonation of the delay in filing the application to set aside the abatement order. On the merits of the case, it cannot be said that the cause of action does not survive, nor can it be said that it comes to an end with persons' death. Whenever cause survives, necessarily the proceedings have to be pursued by or against the legal representatives. Therefore, necessarily the steps have to be taken to add them as parties. Further, where there is no prescribed period for filing such applications, there will not be any abatement. Thus, faced with no delay or abatement, it is stated by the petitioner that since the legal representatives of the deceased landlord are residing in different places the delay has occurred in securing their particulars. Having regard to the same and there being no serious challenge to the reason, as shown in the affidavit, the Court below ought to have accepted the said reason as a reasonable one.” Evidently, the decision of the learned single Judge in MEDUPALLI VENKATA DURGA PRASAD’S case (5 supra) was not brought to his Lordship’s notice. 15. Apart from the view of the Supreme Court in MUKRI GOPALAN’s case (2 supra) in yet another decision in PRAKASH H. JAIN v. MS. MARIE FERNANDES[8], after noticing the ratio in MUKRI GOPALAN’s case (2 supra) as well as SAKURU v. TANAJI[9] arising under the Andhra Pradesh (Telangana Area Agricultural Lands) Act, 1950, the Supreme Court recorded the following test in Para 10 as under: “10. We have carefully considered the submissions of the learned counsel appearing on either side. Questions of the nature raised before us have to be considered not only on the nature and character of the Authority, whether it is Court or not but also on the nature of powers conferred on such Authority or Court, the scheme underlying the provisions of the Act concerned and the nature of powers, the extent thereof or the limitations, if any, contained therein with particular reference to the intention of the legislature as well, found expressed therein...” 16. Keeping in mind, the various pronouncements as above, as has been rightly noticed by this Court in TUNGALA VENKATESWARLU’s case (6 supra) a regular District Munsif and District Judge are constituted as original and appellate authorities under the Act and they are so constituted as a class and it cannot be said that they are persona designata. Consequently, when once they function as District Munsif and District Judge respectively while administering the present Act, in view of Rule 18 quoted above, all proceedings before the Special Officer or the District Judge under the Act are governed by CPC. The provisions of CPC are, therefore, applicable to the extent there is no contrary provision either under the Act or the Rules. The scheme of the Act also shows that there is no express or implied exclusion of the applicability of the Limitation Act. Under Section 29(2)of the Limitation Act, therefore, Sections 4 to 24 of the Limitation Act (both inclusive) would per force apply to the proceedings under this Act. Thus, in view of the two decisions of the Supreme Court in MUKRI GOPALAN’s case (2 supra) and PRAKASH H. JAIN’s case (8 supra) and the decision of this Court by a learned single Judge (as His Lordship then was) in MADEPALLI VENKATA DURGA PRASAD RAO’S case (5 supra), I am of the opinion that the impugned order in the present case, dismissing ATC.No.121 of 1990 filed by the original petitioner as abated and consequential rejection of I.A.No.1226 of 1993 and accompanied applications is not sustainable and it is liable to be set aside and is accordingly set aside. The revision petition, therefore, deserves to be allowed and is accordingly allowed. However, there shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J December 31, 2009 DSK [1] 1993 (1) ALT 585 [2] AIR 1995 SC 2272 [3] 1995 (3) ALT 615 [4] 2004 (3) ALT 634 [5] 1999 (1) ALD 703 [6] 1990 (1) ALT 33 [7] 2006 (5) ALT 829 [8] AIR 2003 SC 4591 [9] (1985) 3 SCC 590