PUSHPADANT Vs. SHAKHARAM
LAWS(MPH)-1955-4-3
HIGH COURT OF MADHYA PRADESH
Decided on April 26,1955

Pushpadant Appellant
VERSUS
Shakharam Respondents

JUDGEMENT

S.S. Shinde, J. - (1.) THIS is a petition under Article 227 of the Constitution. The non -applicant applied for the determination of the fair rent under Section 7, Sthan Niyantran Vidhan Samvat 2006. The Controller fixed the rent at Rs. 13 -8 -0 per month. Against that decision an appeal was filed before the District Judge, Mandleshwar. The District Judge allowed the appeal and fixed the fair rent at Rs. 7 -8 -0 per month. Against this order this petition has been filed.
(2.) THE learned Counsel for the Petitioner has raised two contentions. His first contention is that under Section 9(2)(a) of the Sthan Niyantran Vidhan after the institution of the suit it was incumbent on the Controller to pass an order that the tenant should deposit rent at the rate agreed upon between, the parties until the decision of the suit. As such an order was not agreed upon between the parties until the decision of the suit. As such an order was not passed, the decision of the Controller is 'ultra vires'. The second contention is that under Section 9(3) of the Sthan Niyantran Vidhan the appeal should have been filed within 30 days of the decision. As the appeal has not been filed within the prescribed period, the appeal was time barred. It is now well settled that powers under Article 227 of the Constitution are to be exercised most sparingly and only in appropriate cases in order to keep the subordinate Courts within the bounds of their authority and not for correcting mere errors (vide - 'Waryam Singh v. Amarnath' : AIR 1954 SC 215 (Pr. 14) (A). We have, therefore, to see whether the Courts below have transgressed the bounds of their Jurisdiction in this case. The first contention relates to the non -compliance of an order contemplated by Sub -section (2)(a) of Section 9, Sthan Niyantran Vidhan. This Sub -section reads as follows: ,slk ckn izLrqr gksus ij HkkM+k fu;U=.k vf/kdkjh HkkM+k ifgys ls Bgjk gqvk gksus dh n'kk esa ;g vkKk nsxk fd ckn dk fu.kZ; gksus rd HkkMsnkj ckn izLrqr djus ds fnukad ls ns; HkkM+k fdjk, ukes ds fuoZU/kksa ds vuqlkj mlds dk;kZy; esa tek djrk jgs A Clause (c) of Sub -Section 2(a) reads as follows: HkkM+snkj dh vksj ls HkkM+k tek djus esa =qVh gksus dh n'kk esa ;fn og oknh gS rks mldk okn fujLr dj fn;k tkosxk vkSj ;fn og izfroknh gS rks mlds izfrokn dk LoRo fujLr dj fn;k tkosxk A Sub -Section 2(a) enjoins that after the institution of the suit the Controller shall give an order to the tenant to deposit rent in his office for the period dating from the institution of the suit till the decision of the suit. This provision, no doubt, appears to be mandatory. But it does not affect the jurisdiction of the Controller to try a suit. It is merely an error of law. Consequently even if the Controller fails to pass an order it does not affect his jurisdiction to try the suit. The jurisdiction of the Controller does not depend upon passing of such an order. Sub -Section 2(c) also imposes a penalty upon the tenant in case of failure. This Sub -section also does not impose any restrictions on the jurisdiction of the Court. In these circumstances there is no occasion to invoke powers under Article 227 of the Constitution. The second contention relates to the period of limitation. The argument of the learned Consel briefly is that the period of limitation for filing an appeal having been categorically fixed as 30 days, the period required for obtaining the copies of the order cannot be excluded in computing the period of limitation. This argument loses sight of the provisions of Section 29, Limitation Act, Section 29(2), Limitation Act, runs as follows: Where any special or local law prescribes for any suit, appeal or application a period of limitation diffrent from the period prescribed therefore by the first schedule, the provisions of Section 3 shall apply, as if such period were prescribed therefore in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law. (a) the provisions contained in Section 4, Sections 9 to 18 and Section 22 shall apply only in so far as and to the extent to which, they are not expressly excluded by such special or local law; and (b) the remaining provisions of this act shall not apply. That the Sthan Niyantran Vidhan is a special law cannot be disputed. The preamble of the Act itself makes this quite clear. The Sthan Niyantran Vidhan does not expressly exclude the provisions contained in Section 4, Sections 9 to 18 and Section 22. Consequently these sections are applicable to Sthan Niyantran Vidhan. Section 12(2), Limitation Act, clearly enjoins that in computing the period of limitation prescribed for an appeal the time requisite for obtaining the copy of the decree, sentence or order appealed from shall be excluded. In the grounds of appeal that was filed before the District Judge it is clearly mentioned that if the period requisite for obtaining copies is excluded, the appeal is within time. It appears that 4 days were required to obtain the certified copy of the Controller's order. In computing the period of limitation if this period is excluded, the appeal filed before the District Judge is within time. Consequently this contention has no force.
(3.) ACCORDINGLY the petition is dismissed with costs. Dixit, J.;


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