1981 (8) TMI 247 - HC - Indian Laws

Summary

Issues Involved:
1. Applicability of Section 5 of the Indian Limitation Act, 1963 to writ appeals filed under Rule 2 of the Gauhati High Court Rules.
2. Whether the Gauhati High Court Rules constitute "special law" under Section 29(2) of the Limitation Act.
3. Whether the period of limitation prescribed by Rule 2 of the Gauhati High Court Rules is different from that prescribed by Article 117 of the Limitation Act.
4. Whether Rule 2 of the Gauhati High Court Rules forms a complete Code excluding the application of Sections 4 to 24 of the Limitation Act.
5. Whether the delay in filing the writ appeal should be condoned under Section 5 of the Limitation Act.

Issue-wise Detailed Analysis:

1. Applicability of Section 5 of the Indian Limitation Act, 1963 to writ appeals filed under Rule 2 of the Gauhati High Court Rules:
The court examined whether Section 5 of the Limitation Act, 1963 applies to writ appeals under Rule 2 of the Gauhati High Court Rules. The court concluded that the provisions of Section 5 are applicable to writ appeals under Rule 2. This conclusion was based on the interpretation that Rule 2 prescribes a special period of limitation for writ appeals, and the Limitation Act itself does not exclude the application of Section 5. The court referred to the Supreme Court's decision in Union of India v. Ram Kanwar, which held that rules framed under the Letters Patent are special laws and Section 5 of the Limitation Act applies to such appeals.

2. Whether the Gauhati High Court Rules constitute "special law" under Section 29(2) of the Limitation Act:
The court determined that the Gauhati High Court Rules are a "special law" within the meaning of Section 29(2) of the Limitation Act. The court noted that the rules were framed by the High Court under Article 225 of the Constitution and have the force of law. The court rejected the argument that the rules are akin to bye-laws and not legislative enactments. The court emphasized that the rules are statutory rules with the same binding force as an enactment of the legislature itself.

3. Whether the period of limitation prescribed by Rule 2 of the Gauhati High Court Rules is different from that prescribed by Article 117 of the Limitation Act:
The court held that the period of limitation prescribed by Rule 2 for writ appeals is different from that prescribed by Article 117 of the Limitation Act. The court reasoned that Article 117 does not apply to writ appeals, which were created for the first time by Rule 2. Therefore, the period of limitation for writ appeals prescribed by Rule 2 is different from that under Article 117, attracting the application of Section 29(2) of the Limitation Act.

4. Whether Rule 2 of the Gauhati High Court Rules forms a complete Code excluding the application of Sections 4 to 24 of the Limitation Act:
The court rejected the contention that Rule 2 forms a complete Code excluding the application of Sections 4 to 24 of the Limitation Act. The court referred to the Supreme Court's decision in Mangu Ram v. Municipal Corporation of Delhi, which held that mere provision of a period of limitation in peremptory language is not sufficient to displace the applicability of Section 5. The court concluded that Rule 2 does not expressly exclude the applicability of Sections 4 to 24 of the Limitation Act.

5. Whether the delay in filing the writ appeal should be condoned under Section 5 of the Limitation Act:
The court considered the facts and circumstances of the case to determine whether the delay in filing the writ appeal should be condoned. The court summarized the principles for extension of time under Section 5 of the Limitation Act, emphasizing that the party seeking relief must show sufficient cause for not preferring the appeal within the prescribed time. The court found that the delay was due to the misplacement of case records in the office of the Senior Government Advocate during a period of transition. The court held that the explanation for the delay was true and covered the entire period of delay. Therefore, the court concluded that the delay should be condoned and allowed the application under Section 5 of the Limitation Act.

Conclusion:
The court held that Section 5 of the Indian Limitation Act, 1963, applies to writ appeals filed under Rule 2 of the Gauhati High Court Rules. The Gauhati High Court Rules constitute a "special law" under Section 29(2) of the Limitation Act, and the period of limitation prescribed by Rule 2 is different from that prescribed by Article 117 of the Limitation Act. Rule 2 does not form a complete Code excluding the application of Sections 4 to 24 of the Limitation Act. The delay in filing the writ appeal was condoned under Section 5 of the Limitation Act.