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TMI Blog2004 (2) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... . AND KAPADIA S.H. JJ. P.P. Malhotra, Senior Advocate (S.A. Matoo, S. Wasim A. Qadri, S.N. Terdol and Arvind Kumar Sharma, Advocates, with him) for the appellants. Harish N. Salve and Kailash Vasudev, Senior Advocate (Prateek Kumar, Ms, Gayatri Goswami and Mr V.D. Khanna, Advocates, with them) for the respondents. -------------------------------------------------- The judgment of the Court was delivered by S.B. SINHA, J. -Doubting the correctness of a two-Judge Bench decision of this Court in P.K. Kutty Anuja Raja v. State of Kerala [1996] JT 2 SC 167; (1996) 2 SCC 496, a division Bench of this Court has referred the matter to a three-Judge Bench. 2.. The factual matrix required to be taken note of is as under: The respondents herein were transporting their goods through the branch line to the appellants from Alnavar to Dandeli wherefor the common rate fixed in respect of all commodities on the basis of weight was being levied as freight. However, a revision was made in the rate of freight with effect from February 1, 1964. 3.. Aggrieved thereby and dissatisfied therewith, the respondents herein filed a complaint petition before the Railway Rates T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be filed within a period of three years from the said date, as despite the fact that the special leave petition was preferred thereagainst, no stay had been granted by this Court and, thus, the period, during which the matter was pending before this Court, would not be excluded in computing the period of limitation. Having regard to the plea raised by the plaintiff-respondent in the aforementioned suits as regards the applicability of sections 14 and 15 of the Limitation Act, 1963, the trial court held that the suits had been filed within the stipulated period. The High Court in appeal also affirmed the said view. 9.. Mr. P.P. Malhotra, learned Senior Counsel appearing on behalf of the appellant, at the outset drew our attention to the fact that the Union of India has already complied with the direction of the Tribunal by refunding the excess freight charged from the respondent for the period April 18, 1966, to September 25, 1966. Learned counsel, however, would contend that the suit for refund of excess amount of the freight for the disputed periods (a) June 24, 1963, to February 1, 1964, and (b) February 1, 1964, to April 18, 1966, were barred by limitation in terms of art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. 13.. It may be true that by reason of section 46A of the Indian Railways Act the judgment of the Tribunal was final but by reason thereof the jurisdiction of this Court to exercise its power under article 136 of the Constitution of India was not and could not have been excluded. 14.. Article 136 of the Constitution of India confers a special power upon this Court in terms whereof an appeal shall lie against any order passed by a court or Tribunal. Once special leave is granted and the appeal is admitted the correctness or otherwise of the judgment of the Tribunal becomes wide open. In such an appeal, the court is entitled to go into both questions of fact as well as law. In such an event the correctness of the judgment is in jeopardy. 15. Even in relation to a civil dispute, an appeal is considered to be a continuation of the suit and a decree becomes executable only when the same is finally disposed of by the court of appeal. 16. The starting point of limitation for filing a suit for the pur- pose of recovery of the excess amount of freight illegally realised would, thus, begin from the date of the order passed by this Court. It is also not in dispute that the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the effect that the amount of freight charged by the appellant was unreasonable. It will bear repetition to state that the plaintiff filed a suit for refund and a cause of action therefor arose only when its right was finally determined by this Court and not prior thereto. This Court not only granted special leave but also considered the decision of the Tribunal on merit. 23.. In Kunhayammed [2000] 119 STC 505; [2000] 245 ITR 360, 368; (2000) 6 SCC 359, this Court held (page 370): "12. The logic underlying the doctrine of merger is that there cannot be more than one decree or operative order governing the same subject-matter at a given point of time. When a decree or order passed by an inferior court, Tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lis before it either way-whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, Tribunal or authority which is the final, binding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge 1158): "The initial difficulty in the way of the appellant, however, is that departmental enquiries even though they culminate in decisions on appeals or revision cannot be equated with proceedings before the regular courts of law." 26.. However, the said view was later on not accepted to be correct. 27.. Despite the rigours of section 3 of the Limitation Act, 1963, the provisions thereof are required to be construed in a broad based and liberal manner. We need not refer to the decisions of this Court in the matter of condoning delay in filing appeal or application in exercise of its power under section 5 of the Limitation Act. 28.. In State of Uttar Pradesh v. Mohammad Nooh AIR 1958 SC 86; [1958] SCR 595, Vivian Bose J., held that justice should be done in a common sense point of view stating (page 95): "I see no reason why any narrow or ultra technical restriction should be placed on them. Justice should, in my opinion, be administered in our courts in a common sense liberal way and be broad based on human values rather than on narrow and restricted considerations hedged round with hair-splitting technicalities..." 29.. However, in that case also a distinction wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stioned by presentation of an appeal nor is its operation interrupted, where the decree on appeal is one of dismissal, the running of the period of limitation did not stop. 35.. In Maqbul Ahmad case AIR 1935 PC 85, the question which arose for consideration was as to whether subsequent to the passing of a preliminary decree in the mortgage suit, an application to obtain execution under the preliminary decree can be dismissed. In that case a preliminary mortgage decree was obtained on May 7, 1917, which was amended in some respects on May 22, 1917. Some of the mortgagors who were interested in different villages comprised in the mortgage, appealed to the High Court against the preliminary decree. Two such appeals were filed. One appeal succeeded while the other failed. The decrees of the High Court disposing of those appeals were made on June 7, 1920, whereafter the decree-holder proceeded to seek execution under the preliminary decree. In the aforementioned situation, it was held (page 87): "It is impossible to say, apart from any other objection, that the application to obtain execution under the preliminary decree was an application for the same relief as the application to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court in the previous proceedings were stayed by this Court." 40.. In Mohinder Singh Jagdev (1996) 6 SCC 229 also this Court held (page 232): "7. The crucial question is whether the suit is barred by limitation. Section 3 of the Limitation Act, 1963 (for short, "the Act"), postulates that the limitation can be pleaded. If any proceedings have been laid after the expiry of the period of limitation, the court is bound to take note thereof and grant appropriate relief and has to dismiss the suit, if it is barred by limitation. In this case, the relief in the plaint, as stated earlier, is one of declaration. The declaration is clearly governed by article 58 of the Schedule to the Act which envisages that to obtain 'any other' declaration the limitation of three years begins to run from the period when the right to sue 'first accrues'. The right to sue had first accrued to the respondent on September 10, 1957, when the respondent's services came to be terminated. Once limitation starts running, until its running of limitation has been stopped by an order of the competent civil court or any other competent authority, it cannot stop. On expiry of three years from the date of dism ..... X X X X Extracts X X X X X X X X Extracts X X X X
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