CRP/2620/1997 of PENUMATSA NARSIMHA RAJU AND 3 OTHERS Vs ANDHRA JATIYA VIDYA PARISHAD KRISHNA on 31 December 2009

ORDER:

This revision is preferred by the petitioners against the dismissal ofATC.No.121 of 1990 by order dated 07.02.1994 on the file of the PrincipalDistrict Munsif/Special Officer, Kakinada under the Andhra Pradesh (AndhraArea) Tenancy Act, 1956 (for short ‘the Act’).

2. The petitioners herein and the respondents 3 to 6 are said to be thelegal heirs of Penumatsa Sitaramaraju S/o. Lakshmipathi Raju. The saidSitaramaraju had filed ATC.No.121 of 1990 under Section 8 of the Actseeking relief of remission of 200 bags of makta payable for the year19901991 to the first respondent relating to the petition schedule lands i.e. anextent of Ac.14.04 guntas in Sy.No.13, Tallarevu Village, Kakinada Taluk,East Godavari District. During the pendency of the said ATC before thePrincipal District Munsif/ Special Officer, Kakinada, the said original petitionerdied on 03.12.1991 leaving the petitioners and the respondents 3 to 6 as legalheirs. The petitioners, therefore, filed an application in I.A.No.1226 of 1993together with I.A.(SR).No.8846 of 1992 under Section 5 of the Limitation Actand under Order 22 Rule 9 (ii) of the Code of Civil Procedure, respectively. The said applications were filed on 19.10.1992 requesting the PrincipalDistrict Munsif/Special Officer to condone the delay of 171 days in filingapplication to bring on record the LR’s and to set aside abatement. Thepetitioners had stated in the affidavit that they did not know of the pendencyof the ATC and as such, by oversight they could not file the petition toimplead the legal representatives within time. They, therefore, soughtcondonation of delay by impleading themselves as legal representatives ofthe deceased original petitioner and also to amend the cause title in thepetition accordingly and also seeking to condone the delay of 171 days infiling the petition to set aside abatement.

3. Initially notice was ordered on the said applications and later by orderdated 07.02.1994 the learned Special Officer held that these petitions are notmaintainable in view of the decision of the High Court C. RAMACHANDRA

REDDY v. S. ASWARTHANARAYANA[[1]]and consequently dismissed thepetitions and also dismissed the ATC as abated. Against the aforesaid orderof 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 firstrespondents and others respondents are recorded as served except sixthrespondent, who is also one of the legal representatives and he is sailingalong with the petitioners and respondents 2 to 5.

5. I have heard the revision petition initially on 07.08.2009 when I hadpassed the following order:

“Theonly question that needs to be decided in this case iswhether the provisions of order XXII Rule 9 of the Code of CivilProcedure and Section 5 of the Limitation Act apply to theproceedings under the Andhra Pradesh (Andhra Area) Tenancy Act,1956 (for short ‘the Act’). The original petitioner (since died) had filedan application for remission under Section 16 of the Act before thecompetent authority. Pending said application he died and his legalrepresentatives, who are petitioners herein, have sought to come onrecord. They moved an application on 19.10.1992 under order XXIIRule 9 CPC. Under the impugned order in this revision the said ATCitself has been dismissed as abated and no orders are passed on thesaid application. A copy of a decree is produced along with thepapers and the learned counsel states that there is no other orderpassed by the Court below.

Primafacie under Rule 18 of the Rules framed under the Act,the provisions of CPC as far as possible apply to the Tribunal underthis Act and in the absence of any separate rules, contrary under thisAct, Order XXII would continue to apply. Secondly under Section 29sub-clause 2 of the limitation Act, in the absence of any expressexclusion of provisions of the limitation Act to the present Act,Sections 4 to 24 (both inclusive) would also apply. In that view of thematter Section 5 of the Limitation Act would also be applicable. Ineither way, therefore, prima facie the application for bringing onrecord the LRs’ moved by the petitioners was entertainable and oughtto have been entertained by the Tribunal below. However, thereasons for rejecting the ACT on the ground of abatement are notevident from the impugned order produced along with the revision.

Learned counsel for the petitioners seeks time to verify and ifavailable produce the copy of the order.

List accordingly after two (2) weeks under the caption “forJudgment”.”

Thereafter, I have heard the revision petition once again on 24.11.2009and reserved for judgment.

6. Learned counsel for the petitioners has primarily contended that theSpecial Officer has chosen to follow the decision of a learned single Judge ofthis Court in C. RAMACHANDRA REDDY’s case (1 supra), which holdsthat the provisions of the Act and in particular Section 5 thereof is notapplicable with respect to the Special Officer under the Act. The SpecialOfficer has followed the aforesaid decision and held that the ATC standsabated and consequently rejected the applications to set aside abatementand the application to bring on record the legal representatives. Learnedcounsel submits that the said view of the learned single Judge in theaforesaid decision is not sustainable in view of the decision of the SupremeCourt inMUKRI GOPALAN v.CHEPPILAT PUTHANPURAYILABOOBACKER[[2]].He, therefore, submits that in view of the aforesaiddecision of the Supreme Court, the judgment of the learned single Judgefollowed by the Special Officer in this case is not sustainable.

7. The question, therefore, that falls for consideration is as to whether thesaid 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 MUKRIGOPALAN’s case (2 supra).

8. After I had reserved this matter for judgment, I noticed that there is atleast 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 anotherlearned single Judge in JAGATI THIMMA RAJU

v.DRONAMRAJU SITABHAI[[4]].I also found that another learned singleJudge in MADEPALLI VENKATA DURGA PRASAD RAO v. SRIRAMESWARA SWAMY VARI TEMPLE[[5]]has already held that the saidjudgment of the Division Bench in G. SRIRAMAMURTHY’s case (3 supra) is no longer good law in view of judgment of the Supreme Court inMUKRI GOPALAN’s case (2 supra). In addition thereto, another learnedsingle Judge in TUNGALA VENKATESWARLU v. DISTRICT JUDGE,GUNTUR[[6]]has also considered the self-same question and held that allearlier decisions are not applicable in view of the fact that the Act is amendedby the Amendment Act of 1976.

In addition to the above, another learned single Judge inRAVIVENKATRAVAMMA v.SRI VENUGOPALA SWAMY TEMPLE[[7]]heldthat in view of Section 29 of the Limitation Act, the limitation prescribed underthe Limitation Act would be applicable for proceedings under the present Act.

9. It is evident from the analysis of the decisions referred to above thatthe decisions of the learned single Judge in MADEPALLI VENKATADURGA PRASAD RAO’s case (5 supra) following the decision of theSupreme Court in MUKRI GOPALAN’s case (2 supra) was not noticed bythe learned single Judge, who decided

C. RAMACHANDRA REDDY’s case (1 supra) and following the saiddecision the impugned order in the revision was passed.

10. To appreciate the point involved and the various decisions referred toabove, it would be useful to extract Section 16 of the Act and the definition ofthe 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 ofAct No.39 of 1974) : - (1) Any dispute arising under this Act, betweena landlord and a cultivating tenant in relation to a matter not otherwisedecided by the Special Officer under the provisions of this Act, shall,on application by the landlord or the cultivating tenant, as the casemay be, be decided by the Special Officer after making an enquiry in themanner specified.

[Proviso Omitted]

(2) Against any order passed by the Special Officer under this Act anappeal shall lie to the District Judge having jurisdiction, within thirtydays of the passing of the order; and the decision of the DistrictJudge on such appeal shall be final.”

“2(j). “Special Officer” means any judicial officer not below the rankof a District Munsif appointed by the Government in consultation withthe High Court, to perform the functions of a Special Officer under theAct.”

“Rule 8. Appeal : - (1) Every appeal under sub-section (2) of Section19 shall be in writing and shall set forth concisely the grounds thereofand shall be presented in person or by agent to be sent by registeredpost to the District Judge or in his absence to the Head MinisterialOfficer 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 calculatedin accordance with the scale prescribed in the Schedule towards theprocess fee service for notice on the respondent or respondents andshall accompanied by an authenticated copy of the order of theSpecial Officer appealed against.

(3) Every such appeal shall also be accompanied by a spare copy orsufficient number of spare copies thereof for service on therespondent 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 theSpecial Officer shall be excluded.”

“Rule 18. Nature of Proceedings : - (1) All proceedings before theSpecial Officer or the District Judge under the Act shall be summaryand shall be governed, as far as may be by the provisions of theCode of Civil Procedrue, 1908.

(2) Any party shall, in any proceedings before the Special Officer orthe District Judges, be entitled to be represented by his agent or legalpractitioner; Provided that the Special Officer or the District Judge, as the casemay be, may, at any stage of the proceeding require the party toappear in person.”

A conjoint reading of the aforesaid provisions would show that for therevenue authorities earlier designated as Special Officer, after 1976amendment District Munsif was substituted as Special Officer and appealagainst order of such Special Officer is provided under Section 16(2) of theAct to the District Judge within 30 days of passing of the order. Under theRules aforesaid the time taken for obtaining certified copy of the order of theSpecial Officer is excludable, which is similar to Section 12 of the LimitationAct.

11. In MUKRI GOPALAN’s case (2 supra) the Supreme Court whileconsidering the powers of the appellate authority under theKerala Buildings(Lease and Rent Control) Act, has considered the nature of such appellateauthority and while considering the question as to whether such appellateauthority is persona designata or as a named appellate authority hasfollowed the test word in Central Talkies Ltd. Kanpur v. Dwarka prasad, [AIR1961 SC 606] and it would be apt to extract the said test.

"...........A persona designata is a "a person who is pointed out ordescribed as an individual, as opposed to a person ascertained as amember of a class, or as filling a particular character". (See Osborn'sConcise Law Dictionary, 4th Edn., p.253). In the words of Schwabe,

C.J. in Parthasaradhi Naidu v. Koteswara Rao, ILR 47 Mad 369 : AIR1924 Madras 561 (FB), persona designata are "persons selected toact in their private capacity and not in their capacity as Judges". Thesame consideration applies also to a well known officer like theDistrict Magistrate named by virtue of his office, and whose powersthe Additional District Magistrate can also exercise and who cancreate other officers equal to himself for the purposes of the EvictionAct. The decision of Sapru, J. in the Allahabad case, with respect,was erroneous".

Applying the aforesaid test the Supreme Court considered theconstitution of the appellate authority and came to hold that since the DistrictJudge is constituted as an appellate authority and the same is constituted asa class and cannot be considered persona designata. The same test,undoubtedly, is applicable while construing the original and appellateauthority under the Act as provided under Section 16 extracted above. Bythe same analogy as held by the Supreme Court, designation of DistrictMunsif as Special Officer and appellate authority respectively under the Act,therefore, it cannot be said that original and appellate authority are personadesignata and on the contrary, they are constituted as a class.

12. This Court in TUNGALA VENKATESWARLU’s case (6 supra) atpara 2 held as under:

“…It is seen that under the Amendment Act, 1976, the powers of theTribunals have been taken away and have been invested in theDistrict Munsif as Special Officer and the District Judge as appellateauthority. It is now well-settled legal position that once jurisdiction inspite of special enactments as conferred on regularly establishedCourts without any special procedure as to how the application or theappeal are to be disposed of, the established procedure prescribedunder the relevant procedural code should be followed. In this case,CPC would stand attracted. Therefore, the procedure provided underCPC would be applicable for disposal of the application filed underSections 13 of the Act and the appeal filed under Section 16 of theAct by the Special Officer and the District Judge respectively…”

13. I n C. RAMACHANDRA REDDY’s case (1 supra) the aforesaiddecision reported in short notice 1989 2 ALT NRC 27 was noticed andperhaps for want of noticing the detailed reasons, the said decision is notfollowed.

14. It is also to be noticed that the earlier Division Bench judgment of thisCourt in G. SRIRAMAMURTHY’s case (3 supra) had not noticed thedecision of the Supreme Court in MUKRI GOPALAN’s case (2 supra) andthe said case came to be decided by holding that the Special Officer and theDistrict Judge under this Act are persona designata and not Courts.Evidently, the aforesaid decision of the Division Bench is directly opposed tothe decision of the Supreme Court in MUKRI GOPALAN’s case (2 supra).A learned single Judge of this Court in MADEPALLI VENKATA DURGAPRASAD RAO’S case (5 supra) rightly followed the decision of the Supreme Court in MUKRIGOPALAN’s case (2 supra) and held as follows:

“12. Thus, it is clear from a reading of the provisions of the Act thatthere is no express exclusion anywhere in the Act taking out theapplicability of Section 5 of the Limitation Act to appeals filed beforethe appellate authority under Section 16 of the Act. Consequently alllegal requirements for the applicability of Section 5 of the LimitationAct 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), itis to be held that the appellate authority as constituted under Section16 of the Act cannot be considered to be a persona designata. It is tobe further held that all the provisions of Sections 4 to 24 of theLimitation 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 decisionswere cited before the learned single Judge in

C. RAMACHANDRA REDDY’s case (1 supra); that leads us to considerthe 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 theSupreme Court MUKRI GOPALAN’s case (2 supra), who recorded theconclusion in para 10 as follows:

“10. I am not prepared to accept that the principles laid by this Courtin the decision referred to in Sriramamurthy v. M. Narasiah case(supra) are not applicable to the present case in view of the decisionof the Apex Court in Mukri Gopalan v. Cheppilat PuthanpurayilAboobacker case (supra). Both the decisions dealt the issuecontextually under different statutes of which one i.e., Rent ControlAct is a self contained one unlike other. Be that as it may, if it is tobe held that the provisions of the Limitation Act have no applicationto the proceedings arise out of Tenancy Act, then the provisioncontemplating period of limitation for filing application to bring thelegal representatives cannot be made applicable. Thus, where thereis no period of limitation for filing such applications under theTenancy Act, the applications shall have to be filed within areasonable time. The reasonableness differ from case to case,depending on facts and circumstances. In this case, the petitionercame forward with reasons for condonation of the delay in filing theapplication to set aside the abatement order. On the merits of thecase, it cannot be said that the cause of action does not survive, norcan it be said that it comes to an end with persons' death. Whenevercause survives, necessarily the proceedings have to be pursued byor against the legal representatives. Therefore, necessarily the stepshave to be taken to add them as parties. Further, where there is noprescribed period for filing such applications, there will not be anyabatement. Thus, faced with no delay or abatement, it is stated bythe petitioner that since the legal representatives of the deceasedlandlord are residing in different places the delay has occurred insecuring their particulars. Having regard to the same and there being no serious challenge to the reason, as shown in the affidavit, theCourt below ought to have accepted the said reason as a reasonableone.”

Evidently, the decision of the learned single Judge in MEDUPALLIVENKATA DURGA PRASAD’S case (5 supra) was not brought to hisLordship’s notice.

15. Apart from the view of the Supreme Court in MUKRI GOPALAN’scase (2 supra) in yet another decision in PRAKASH H. JAIN v.MS. MARIEFERNANDES[[8]], after noticing the ratio in MUKRI GOPALAN’s case (2supra) as well as SAKURU v.TANAJI[[9]]arising under the Andhra Pradesh(Telangana Area Agricultural Lands) Act, 1950, the Supreme Court recordedthe following test in Para 10 as under:

“10. We have carefully considered the submissions of the learnedcounsel appearing on either side. Questions of the nature raisedbefore us have to be considered not only on the nature and characterof the Authority, whether it is Court or not but also on the nature ofpowers conferred on such Authority or Court, the scheme underlyingthe provisions of the Act concerned and the nature of powers, theextent thereof or the limitations, if any, contained therein withparticular reference to the intention of the legislature as well, foundexpressed therein...”

16. Keeping in mind, the various pronouncements as above, as hasbeen rightly noticed by this Court in TUNGALA VENKATESWARLU’s case(6 supra) a regular District Munsif and District Judge are constituted asoriginal and appellate authorities under the Act and they are so constituted asa class and it cannot be said that they are persona designata. Consequently, when once they function as District Munsif and District Judgerespectively while administering the present Act, in view of Rule 18 quotedabove, 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 orthe Rules.

The scheme of the Act also shows that there is no express or impliedexclusion of the applicability of the Limitation Act. Under Section 29(2)of theLimitation Act, therefore, Sections 4 to 24 of the Limitation Act (bothinclusive) would per force apply to the proceedings under this Act. Thus, inview of the two decisions of the Supreme Court in MUKRI GOPALAN’scase (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 PRASADRAO’S case (5 supra), I am of the opinion that the impugned order in thepresent case, dismissing ATC.No.121 of 1990 filed by the original petitioneras abated and consequential rejection of I.A.No.1226 of 1993 andaccompanied applications is not sustainable and it is liable to be set asideand is accordingly set aside.

The revision petition, therefore, deserves to be allowed and isaccordingly allowed. However, there shall be no order as to costs.

December 31, 2009DSK

_____________________VILAS V. AFZULPURKAR, J

[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