IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:05.01.2011 CORAM THE HONOURABLE Mr. JUSTICE T.S.SIVAGNANAM CRP (NPD) Nos.1430 to 1432 of 2002 1.S.M.Jaffar Mohideen 2.Zohara Banu 3.Sara Banu @ Tajbanu 4.Saida Banu 5.Mohammed Sabbhan ... Petitioners in CRPs Vs. 1.E.Fathima 2.E.Mohideen 3.E.Mohammed Rafee ... Respondents in CRPs Common Prayer: Civil Revision Petitions filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act against the orders dated 22.03.2002 passed in M.P.Nos.325, 326 & 324 of 2001 in RCA 463/97 on the file of VIII Judge Small Causes Court, Chennai. For Petitioners : Mr.C.T.Mohan For Respondents : Mr.M.Liagat Ali C O M M O N O R D E R These revisions arise out of a single proceeding before the Rent Controller and Appellate Authority, hence were heard together and are disposed of by this common order. 2. The matter arises under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, (hereinafter referred to as the Act). 3. The petitioners herein filed R.C.A.No.463 of 1997 against the dismissal of an eviction petition, which was initially filed against one Mr.K.Ibrahim. During the pendency of the appeal, the sole respondent died on 21.09.2000 leaving behind the respondents 2 to 4 herein as his legal representatives. The petitioners filed three miscellaneous petitions in M.P.Nos.324, 325 & 326 of 2001 to permit the petitioners to bring the legal representatives on record as respondents 2 to 4 in R.C.A.No.463 of 1997, to condone the delay of 52 days in filing the application for bringing the legal representatives on record and to set aside the abatement. In the common affidavit filed in support of these petitions, it was stated that the counsel appearing for the deceased respondent Mr.K.Ibrahim served a letter on the counsel appearing for the petitioners, dated 11.12.2000, stating that Mr.K.Ibrahim died on 21.09.2000 and also gave the details as regards his legal heirs. It is stated that the petitioner was suffering from viral fever and was taking treatment, he was not in a position to meet his counsel to give instructions to file the petitions and therefore, delay has occurred and prayed for condonation of delay. Prayer was also made for setting aside the abatement. These applications were resisted by a common counter affidavit inter alia contending that the R.C.A. was filed against the dismissal of the eviction petition made in R.C.O.P.No.3692 of 1987, dated 06.12.1996 and that intimation was given by their counsel by notice dated 11.12.2000 and the application for condonation of delay is not maintainable and the delay is more than 150 days and the application to set aside the abatement under Order 22, Rule 4(3) CPC is also filed beyond 30 days and the provisions of the Limitation Act are not applicable and therefore, the petitions are liable to be dismissed. The learned Appellate Authority by a common order dated 22.03.2002, dismissed all the applications holding that the delay has not been sufficiently explained. Aggrieved by the same, these revision petitions have been filed. 4. The learned counsel appearing for the petitioners would contend that the delay is only 52 days and the petition to bring the legal representatives on record was filed on 11.04.2001 and the learned Appellate Authority ought to have accepted the reason given by the petitioner and erroneously dismissed the applications. It is further contended by the learned counsel for the petitioner that Section 5 of Limitation Act is applicable to the proceedings and the learned Appellate Authority ought to have liberally construed the matter and condoned the delay. In support of his contentions, the learned counsel placed reliance on the decisions of the Hon'ble Supreme Court in Ram Nath Sao@ Ram Nath Sahu and Others vs. Gobardhan sao & Others, 2002 (1) CTC 769, Collector, Land Acquisition, Anantnag, and another vs. Mst. Katiji and others, 1987 Vol.66 Sales Tax Cases 228, Shantilal M.Bhayani vs. Shanti Bai, 1995 Supp(4) SCC 578 and the decisions of the Hon'ble Division Bench of this Court in Arya Vysia Samajam vs. Murugesa Mudaliar and 10 Others, 1990 TNLJ 82, Rethinasamy vs. Komalavalli and another, 1982 (2) MLJ 406 and the decision of the learned single Judge of this Court in Rathakrishnan vs. A.Chelladurai, 1997 (1) CTC 244. 5. Per contra, the learned counsel for the respondents would submit that the petition for bringing the legal representatives on record has to be made under Rule 25 of the Tamil Nadu Buildings (Lease and Rent Control) Rules 1974, (hereinafter referred to as the Rules) and such application shall be made within one month from the date of death of the person concerned or the date of having knowledge of the death of the person concerned and Section 5 of the Limitation Act has no application to Rule 25 and the period of six month stipulated therein is mandatory and there is no provision to condone the delay. Further, the learned counsel would submit that the Rent Control Act and Rules are special enactments and the provision of Section 5 of the Limitation Act stand excluded and this could be seen from a reading of Section 25(2) of the Act and therefore, the applications are not maintainable. In support of his contentions, the learned counsel placed reliance on the decision of the Hon'ble Supreme Court in The Commissioner of Sales Tax, U.P., vs. M/s. Parson Tools and Plants, Kanpur, AIR 1975 SCC 1039 and the decisions of this Court in M/s.M.M.Handalappa, A.G.Balasubramania Mudaliar and company vs. M/s.H.G.Krishna Reddy and Company, 1984 1 MLJ 85 and T.V.Rathnam (deceased) and others vs. P.Janakiraman, 98 LW 515. 6. Heard the learned counsel appearing for the parties and perused the materials available on record. 7. The question which arises for consideration in these revisions are as to whether the provision of the Section 5 of the Limitation Act are applicable to an application filed under Rule 25 of the Rules. Rule 25 of the Rules deals with time limit for bringing the legal representatives on record in a Rent control proceedings. The Rules states that every application for making the legal representatives or representatives of a deceased person, party to a proceeding under the Act shall be preferred within one month from the date of the death of the person concerned, or the date of having knowledge of the death of the person concerned. By placing heavy reliance on the expression shall used in Rule 25, the learned counsel for the respondent would submit that the provisions of Section 5 of the Limitation Act have been excluded and therefore, an application to condone the delay in bringing the legal representatives on record is not maintainable. Yet another contention was raised by the learned counsel for the respondents by referring to Section 25(2) of the Act and it is submitted that every revision filed before this Court under Section 25 of the Act shall be preferred within one month from the date on which, the order is communicated and the proviso to Sub-Section 2 of Section 25 of the Act provides that the High Court may in its discretion, allow further time not exceeding one month for the filing of such application, if it is satisfied that the applicant has sufficient cause for not preferring the application within the time specified in sub-Section 2 of Section 25 of the Act. Placing reliance on the said provision, the learned counsel submitted that Section 5 of the Limitation Act cannot be made applicable. 8. This very issue as to whether Section 5 of the Limitation Act could be made applicable to a petition under Rule 25 came up for consideration before a Hon'ble Division Bench of this Court in Arya Vysia Samajam vs. Murugesa Mudaliar and 10 Others, 1990 TNLJ 82. The decision of the Hon'ble Division Bench was rendered on a reference made by a learned single Judge of this Court on account of conflicting views expressed by the learned Single Judges of this Court. The question which came up for consideration before the Hon'ble Division Bench was whether Section 5 of the Limitation Act, 1963 applies to the proceedings to bring the legal representatives on record before this Court under Rule 25 of the Rules. The Hon'ble Division Bench after taking note all these decisions on point held as follows :- ...For the foregoing discussion, we are of the view that since there is no specific exclusion of Section 5 of the Limitation Act, just as there is an exclusion in Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act and in view of the new provision, namely, Section 29(2) of the Limitation Act which governs special period under special and local laws, of which the Tamil Nadu Buildings (Lease and Rent Control) Act is one, Section 5 of the Limitation Act is certainly applicable for impleading legal representatives under Rule 25 to the proceedings in revision under Section 25 of the Act before this Court. We answer the reference accordingly. The office is directed to post the revision before the Learned Single Judge who is dealing with Civil Revision Petition for deciding the applications under Rule 25 on merits.  9. A Hon'ble Devision Bench of this Court in a earlier decision in Rethinasamy vs. Komalavalli and another, 1982 (2) MLJ 406, was considering the question, whether the Appellate Authority constituted under Section 23(1)(b) of the Act is a Court as described in Section 5 of the Limitation Act and whether the provisions of Section 5 would be applicable. Answering the said question, the Hon'ble Devision Bench held as follows:- 21.So far as the appellate authority is concerned, section 23(1)(b) of the Act (XVIII of 1960) prescribes a period of 15 days for filing an appeal against an order passed by the Rent Controller and, in computing 15 days period, the time taken to obtain certified copy of the order appealed against shall be excluded. Thus, there is a special period of limitation prescribed in the Rent Control Act, for filing an appeal before the appellate authority. There is no specific exclusion of the application of section 5 of the Limitation Act anywhere in Act (XVIII of 1960). Of course, in the proviso to Section 25(2) of the said Act, if the revision application is filed beyond one month from the date on which an order of the appellate authority was passed, the High Court may in its discretion allow further time not exceeding one month for the filing of any such application. Therefore, section 5 of the Limitation Act cannot be invoked to a revision petition filed in the High Court under Section 25 of the Act (XVIII of 1960), because the said application of section 5 is impliedly excluded by prescribing a special period of extension of time for limitation. 26. In interpreting the word "Court" in Section 5 of the Indian Limitation Act, N.S. Ramaswamy, J., in Easwaran's case (1974) T.N.L.J. 380, has held that the appellate authority under the Rent Control Act is not a Court, since the appellate authority is a persona designata and hence he cannot be regarded as a Court for the purpose of invoking Section 5 of the Indian Limitation Act. In Ganapathy v. Kumaraswamy , Gokulakrishnan, J., as he then was, has held, that the authorities constituted under the Act are persona designata and the provisions of the Limitation Act applicable to proceedings before Courts cannot be invoked before such authorities. But the view expressed by Balasubrahmanyan, J., is that as settled by the Supreme Court in Central Talkies Ltd. v. Dwaraka Prasad , 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 the class or as filling a particular character, and hence the appellate authority constituted under the Rent Control Act is a Court. Under the Gazette Notification II (i) 3006 (f), dated 30th June, 1973, all the Sub-Judges in the Districts as members of a class have been constituted as the appellate authorities, whereas in the city limits all the Judges of the Court of Small Causes, except the VI, VII and VIII Judges, are constituted as the appellate authorities. Balasubrahmanyan, J., has, applying the ratio in the decision in Dwaraka Prasad's case (1961) 2 S.C.J. 41 : A.I.R. 1961 S.C. 606, expressed the view that the appellate authorities constituted as above are Courts. The learned Judge has distinguished the other earlier judicial decisions of this Court on the ground that the learned Judges have not taken the trouble to explain what they meant by a persona designata in so far as the appellate authority constituted under the Rent Control Act is concerned. In our view, the question whether the appellate authorities are persona designata or not is not a criterion for invoking the application of Section 5 of the Indian Limitation Act. since the main question to be considered is whether the appellate authority is a Court as described in Section 5 of the Indian Limitation Act. 42. In the result, we hold that for the purpose of Sections 3, 5 and 29(2) of the Indian Limitation Act, the appellate authority is a Court and that Section 5 of the Limitation Act is applicable to an appeal preferred by the petitioner herein before the appellate authority, constituted under Section 23(1)(b) of the Madras Buildings (Lease and Rent Control) Act (XVIII of 1960). 10. The Hon'ble Supreme Court in Shantilal M.Bhayani vs. Shanti Bai, 1995 Supp(4) SCC 578, also considered the question as to whether the provision of Section 5 of the Limitation Act, 1963, can be made applicable, to file an appeal before the Appellate Authority. Answering the question, the Hon'ble Supreme Court held as follows:- 2.Admittedly, there is no specific exclusion of the provisions of Section 5 of the Limitation Act under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Section 29(2) of the Limitation Act clearly provides that 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 insofar as, and to the extent to which, they are not expressly excluded by such special or local law. 11. A learned Single Judge of this Court in Rathakrishnan vs. A.Chelladurai, 1997 (1) CTC 244, followed by the Hon'ble Division Bench of this court in Arya Vysia Samajam vs. Murugesa Mudaliar and 10 Others, 1990 TNLJ 82 and held that the provision of Section 5 of the Limitation Act are applicable to a petition Rule 25 of the Rules. The case of the respondent is that the provision of Section 5 of the Limitation Act has been specifically excluded and has no application to the provision of the Rent Control Act in support of the said decision, the learned counsel placed reliance on the decision of the Hon'ble Supreme Court in The Commissioner of Sales Tax, U.P., vs. M/s. Parson Tools and Plants, Kanpur, AIR 1975 SCC 1039. The said case before the Hon'ble Supreme Court arose out of a proceedings under U.P. Sales Tax Act. The Hon'ble Supreme Court while considering the said statue held that the provisions of the Limitation Act cannot be imported into the U.P. Sales Tax Act even by analogy, since, the U.P. Sales Tax Act is a special statute prescribed certain period of limitation for filing certain applications and beyond the maximum time-limit specified in the statute the provisions of the Limitation act are excluded. This decision of the Hon'ble Supreme Court in The Commissioner of Sales Tax, U.P., referred supra, was followed by this Court in M.M.Handalappa, A.G.Balasubramania Mudaliar and company vs. M/s.H.G.Krishna Reddy and Company, 1984 1 MLJ 85. In the case of M.M.Handalappa, referred supra, a petition was filed for condonation of delay of 128 days in filing of the revision petition before this Court against an order of Appellate Authority. This Court after examining Section 25(2) took note of the fact that the proviso to Sub-Section 2 of Section 25 specified an outer time-limit and therefore such express exclusion is in-built in proviso to Section 25(2) and Section 5 of the Limitation Act would not be applicable. However, the facts and circumstances of the present case are entirely different. Admittedly, the proceedings kept pending before the Appellate Authority under the Act. 12. As noticed above, the Hon'ble Division Bench of this Court in the case of Rethinasamy vs. Komalavalli and another, 1982 (2) MLJ 406, has held that the provision of Section 5 of the Limitation Act is applicable to a proceeding before the Appellate Authority constituted under Section 23(1)(b) of the Act and Section 5 of the Limitation Act could be applicable. Therefore, the decision in the case of M.M.Handalappa, referred supra, would not have any application to the facts of the case. The learned counsel for the respondents placed reliance on the decision of this Court in T.V.Rathnam (deceased) and others vs. P.Janakiraman, 98 LW 515, contended that this Court has held that Rule 25 of the Rules specifically excludes Section 5 of the Limitation Act and the period of 30 days prescribed in Rule 25 is mandatory in nature, in view of the decision rendered by this Court in T.V.Rathnam (deceased) and others, referred supra, has been rendered without noticing the Division Bench Judgment rendered by the Hon'ble Division Bench of this Court in the case of Arya Vysia Samajam vs. Murugesa Mudaliar and 10 Others, 1990 TNLJ 82. 13. It is to be noted that the decision rendered in T.V.Rathnam (deceased) and others, referred supra, was also one of the conflicting decision, which was taken note and a reference was made by the Division Bench in the case of Arya Vysia Samajam, referred supra. In fact the Hon'ble Division Bench has considered the case of T.V.Rathnam (deceased) and others, and held as follows:- ...The other reasoning given by the learned Judge (Maheswaran,J.) is that Rule 25 is mandatory and there is no provision in the H.R.C. Act to condone the delay and therefore the petitions to implead the legal representatives and to condone the delay are rejected. It is to be noted that the learned Judge has not considered the applicability of Sections 5 and 29(2) of the Limitation Act. The learned Judge only observed that there is no provision in H.R.C. Act to condone the delay, that as per Rule 25, only 30 days time is provided and that therefore the petitioners are barred by limitation. As already observed by the Division Bench of this Court in 95 L.W. 552 in Section 29(2) of the new Act, there is no restriction as found in the old Act S.29(2)(b). Thus Sections 4 to 24 are made applicable to the period of limitation prescribed for any suit, appeal or application by any special or local law, whereas under the old Sec.29(2) only Sections 4,9 to 18 and 22 are made applicable to the Special or local law. The Bench categorically held that Section 29(2) of the Limitation Act enables the application of Sections 4 to 24 of the Limitation Act to the Rent Control Act. Since there is no provision to condone the delay in the Special Act, namely, Rent Control Act, certainly Section 5 of the Limitation Act is applicable. The learned single Judge, Maheswaran, J., has not considered the scope of the provisions of the Limitation Act, particularly, Sections 5 and 29 as well as the case-laws on the subject, while observing that Rule 25 is mandatory and there is no provision in the H.R.C. Act to condone the delay. Since the learned Single Judge has not considered the question of applicability of Section 5 of the Limitation Act, the reasoning of the learned single Judge that since there is no provision in the Act, the application is barred by limitation is, in our view, not sound reasoning. As observed already, Section 5 of the new Act, in view of Section 29(2), is applicable to local laws, and in view of the fact that there is no specific exclusion of the provision of Limitation Act and no specific period is prescribed under the Act to condone the delay. Certainly Section 5 of the Limitation Act is applicable. Th mere fact that there is no provision in the special Act to condone the delay is not a ground to hold that Section 5 is not applicable. 14. After giving the above finding, the Hon'ble Division Bench held that Section 5 of the Limitation Act is applicable to a proceeding under Rule 25. Therefore, the contention raised by the learned counsel for the respondents by placing reliance on the decision in T.V.Rathnam (deceased) and others, referred supra, cannot be countenanced. 15. This Court in Sakthivel vs. R.S.Govindan and another, (1988) 2 LW 52, considered the applicability of Order 22, Rule 4 CPC to a proceeding under the Rent Control Act and this Court held that neither under the provisions of the Act nor the Rules, Order 22, Rule 4 CPC has been made applicable to proceedings under the Act. Presumably in view of its non-applicability, Rule 25 had been framed to the effect that the application should be filed within 30 days. As noticed above, though the period of 30 days has been prescribed in Rule 25, the Hon'ble Division Bench in the case of Arya Vysia Samajam, referred supra, has held that Section 5 of the Limitation Act would be applicable to such proceedings. 16. In view of the above, this Court has no hesitation to hold that the provision of Order 22, Rule 4 CPC is not applicable to the facts of the present case and only Section 5 of the Limitation Act can be made applicable. 17. The next question, which has to be considered as to whether delay in filing the such application could be condoned or not. In the affidavit filed in support of the application for condonation of delay, it has been stated that the petitioner was suffering from viral fever. The learned counsel for the respondents would submit that both the petitioner and respondents are living the same area and though the petitioner was aware of the demise of the sole respondent, who died on 21.09.2000, he has come forward with an application for condonation of delay, only in April 2001 and therefore submitted that there is inordinate delay on the part of the petitioners and the same should not be condoned. In the petition filed before the Appellate Authority, it was stated that the application has been filed with the delay of 52 days. However, the learned counsel for the petitioner very fairly admitted that the computation of delay is wrong and according to him it is 91 days. However, the Court below held that the delay is 150 days. It is seen from the dates and events, that the sole respondent died on 21.09.2000 and an intimation was given by the counsel on 11.12.2000. Thus, it is to be taken that the petitioner had knowledged about the demise of the sole respondent on 11.12.2000 and if that be so, the last date for filing such application was on 10.01.2001 and the applications were filed on 11.04.2001. Thus, the delay is only 91 days, however, the Court below came to a conclusion that it is 150 days. Even assuming the delay is 150 days, this Court is of the view, the delay is not enormous. Having held that the provisions of the Limitation Act are applicable, it has to be seen as to whether the delay deserves to be condoned. The Hon'ble Supreme Court in Collector, Land Acquisition, Anantnag, and another vs. Mst. Katiji and others, 1987 Vol.66 Sales