P. N. Raghavan Nair vs K.S.E.B

K. John Mathew J.

The Electricity O. P. filed by the revision petitioner before the lower court was dismissed on the ground of limitation. His petition to condone the delay was dismissed on the ground that the court exercising jurisdiction u/s 16(3) of the Indian Telegraph Act has no jurisdiction to consider an application u/s 5 of the Limitation Act. The court also held that there were no sufficient grounds for condoning the delay. This Court in K.S.E.B. CheriyanVarghese (1989 (I) KLT 451) held that the order of the District Court u/s 16(3) of the Telegraph Act is revisable u/s 115 CPC for the reason that the order is that of a "Court"

In State of Kerala v. Syamala Thamburatti (1980 K. L. T. 3.4 F. B.) a Full Bench of this Court held that if there is no provision which excludes any of the provisions in Section 4 to 24 of the Limitation Act, those sections will be applicable to the extent to which those provisions have not been expressly excluded by a special or local law. This is also the gist of Section 29 (2) of the Limitation Act.

No authority was relied on for the contention that proceedings u/s 16(3) of the Telegraph Act is similar to a suit. According to the Section the proceeding is only an application. Accordingly I hold that the proceeding is not a "suit". Therefore the view of the lower court that Section 5 of the limitation Act is not applicable to a proceeding u/s 16(3) of the Telegraph Act, is not correct.

The lower court held that the ground raised for condoning the delay cannot be accepted in view of the fact that the petitioners'' former Advocate did not file any affidavit before that court. The petitioner has filed an affidavit to the effect that his former Advocate shifted his practice from Pathanamthitta to Ranni, and therefore he was unable to file the petition before the Pathanamthitta court in time. There is no affidavit controverting this averment. However the petitioner is liable to pay costs, in view of the laches on his part, I Suggested to the petitioner that 1% of the total claims may be fixed as the cost for condoning the delay. Now the petitioner has filed a statement dated 23rd October, 1989 limiting his claim to Rs.20,000/-.

Under the circumstances of this case, there will be an order that in case cost Rs.200/- is paid to the respondent within two months from this date, this date, this C. R. P. as well as LA. 898/87 filed before the lower court will stand allowed. In that case the lower court will take back O. P. No 115/87 to its file and dispose it of in accordance with law In case the cost is not paid as directed, the C. R.P. will stand dismissed