Section 5 of the Limitation Act applies to rent control proceedings, and the petitioner should be given an opportunity to contest the case when summons are served by affixture.

This Civil Revision Petition is filed challenging the order of the learned Rent Controller, Mayiladuthurai in I.A. No. 19 of 1989 in R.C.O.P. No. 5 of 1988, dated 11.7.1990.

2. The tenant is the petitioner herein. The respondent/landlord got an order of eviction on 5.4.1988. It is seen from the order of the learned Rent Controller that summons were served by affixture. The petitioner moved the Court below for setting aside the exparte order with a delay of 79 days, and a petition for condoning the delay of 79 days was also filed. The learned Rent Controller, while disposing of the petition, held that S. 5 of the Limitation Act will not apply to proceedings under the Rent Control Act and, therefore, the petition for condoning the delay will not lie. Apart rom that, the learned Rent Controller also found that the reasons given by the petitioner in the affidavit filed in support of the petition for excusing the delay were inconsistent and, therefore, found on merits that there was no case for condoning the delay. It is against the said Order, that the present Civil Revision Petition is filed.

3. Mr. A. Muthu Kumar, learned counsel for the petitioner, submits that the view taken by the learned Rent Controller that S. 5 of the Limitation Act will not apply to the rent control proceedings is contrary to the decisions of this Court E. K. Venkai Marban v. Dakshinamurthy 1 , Rethinasamy v. Komalavalli 2 , Arya Vysia Samajam, rep. by President S.K. Dhandapanihettiar v. Murugesa Mudaliar and 10 others 3 and S.K. Dhandapani Chetty v. Baby Animal and others 4 The learned counsel further submitted that the learned Rent Controller having found that the petition is not maintainable, has given some reasons on merits without fully applying his mind to the facts and in such circumstances, the observation of Balasubrahmanyan, J. in 94 Law Weekly page 243 (supra), will squarely apply. The learned Judge in that case has observed as follows:—

“The Appellate Authority in its order did not stop short with saying that the application did not lie. The order contained a further remark that there was no sufficient cause. I regard this as an off-the-cuff finding, which the Appellate Authority had permitted itself to make only because it felt quite sure all the while that the application itself had to be discussed as incompetent. I think this is not a proper way of disposal. If a judicial Authority does not wish to limit its decision to a preliminar y question as to jurisdiction or as to the competence of a proceeding before it, but prefers to enter a finding on the merits as well, it is its duty to do so by going the wholehog with the issues on merits. It cannot render less than what it should do by way of a finding on the merits, merely because it is already committed to the view that the proceedings do not lie anyway. In this sense, the finding of the Appellate Authority in this case that the appellant had not made out sufficient cause is not a proper finding and no effect should be given to it.”

So far as application of S. 5 of the Limitation Act to the proceedings before the Rent Controller is concerned, it is too late to contend that it will not apply in view of the above said judgments of this Court and, therefore, there is no difficulty in holding that the learned Rent Controller was not right in holding that S. 5 of the Limitation Act will not apply. On merits, the observation of Balasubramanyan, J. applies to the facts of this case as I find from the order of the learned Rent Controller that he has not satisfactorily disposed of the matter on merits. Even otherwise, when summons were served by affixture, the petitioner should be given an opportunity to contest the case. Accordingly, the Civil Revision Petition is allowed. No costs.