Applicability of the provisions of Section 5 of Limitation Act.

ORDER :- This matter has come before the Bench on a reference by Ratnam J. on account of conflicting views expressed in the judgments of single Judges, namely, by Balasubrahmanyam J, in Venkalmorban v. Dakshinamurthy, C.R.P. 1667 of 1978*: by N.S. Ramaswami J. in J. Eswaran v. Palaniammal, 1974 TNLJ 380 and by Gokulakrishnan J. (as he then was) in S. Ganapathi v. Kumaraswami. (1975) 2 Mad LJ 171: (AIR 1975 Mad 383) on the important question whether S.5 of the Limitation Act, 1963 applies to appeals preferred under S.23 (1) (b) of the Tamil Nadu Buildings (Lease and Rent control) Act, 18 of 1960, as amended by Act 23 of 1973.

* Reported in (1981) 1 Mad LJ 275.

2. The first respondent herein obtained an order of eviction against the petitioner and his wife, who is the second respondent herein in RCOP 18 of 1979 on the file of the Rent Controller (District Munsif, Sirkali). The eviction order was passed on 11-4-1980. The petitioner filed an appeal against the said order before the appellate authority (Sub Court, Mayuram) on 18-6-1980 after a delay of 28 days. The petitioner filed I.A. 458 of 1980 under Section 5 of the Limitation Act, for condoning the delay of 28 days. The first respondent raised an objection inter alia, that Section 5 of the Limitation Act is not applicable to appeals filed under S.23 (1) (b) of the Act 18 of 1960.

3. The appellate authority took up the question whether Section 5 of the Limitation Act would apply to an appeal filed under the Rent Control Act for consideration in the first instance. Relying upon the decisions in Ganapathy v. Kumaraswamy. (1975) 2 Mad LJ 171 : (AIR 1975 Mad 383), and Easwaran V. Palaniammal, 1974 TNLJ 380, the appellate authority gave the finding that Section 5 of the Limitation Act will not have any application in respect of applications filed under the Tamil Nadu Act 18 of 1960. Therefore, he did not go into the merits of the grounds stated for condoning the delay of 28 days.

4. Against the order of the appellate authority, this revision petition has been filed. The revision petition initially came before Ratnam J. Before Ratnam J. a recent decision dated 30-1-1980 of Balasubrahmanyam J. in C.R.P. 1667 of 1978 holding that Section 5 of the Limitation Act would be applicable to appeals filed under S.23 (1) (b) of the said Act, was relied on by the petitioner. The decisions in 1974 TNLJ 380 and (1975) 2 Mad LJ 171 : (AIR 1975 Mad 383) taking a different view were however relied of by the other side. In view of the conflicting views expressed in these decisions the case has been referred to this Bench.

5. In 1974 TNLJ 380, N.S. Ramaswami J. had taken the view that the Rent Controller and the appellate authority acting under the Act 18 of 1960 are not Courts, but only persona designata. In (1975) 2 Mad LJ 171 : (AIR 1975 Mad 383) Gokulakrishnan, J. (as he then was) has also held that the authorities constituted under the Act are persona designata and hence, the provisions of the Limitation Act cannot be invoked before these authorities.

6. Section 5 of the Limitation Act 36 of 1963 reads as follows -

"Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period." (underlining by us)

7. The only point that poses for consideration is whether the appellate authority constituted under Section 23 (1) (b) of the Tamil Nadu Act 18 of 1960 as amended by Act 23 of 1973, is a Court as described in S.5 of the Limitation Act. No doubt, for arriving at a decision on the aforesaid point, the question whether the authorities constituted under Act 18 of 1960 are persona designata may have to be considered incidentally but not necessarily so. The word Court has not been defined in the Limitation Act 36 of 1963 or in the old Li