9911796707
TMI Blog1963 (12) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... should be dismissed. The justification for this separate judgment, however, is because of our inability to agree with him in his construction of the relative scope of the two limbs of s. 29(2) of the Indian Limitation Act. The facts of the case have been set out in detail in the judgment of Subba Rao J. and it is therefore unnecessary to repeat them. There were three principal points that were urged before us on either side which require to be considered and all of them turn on the proper construction of s. 29(2) of the Indian Limitation Act which we shall for convenience set out here: 29(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This Court in State of U.P. v. Smt. Kaushaliya etc. (A. 1. R. 1964 S. C. 416) upheld this construction and approved ,the judgment of Chagla C.J. in the Canara Bank case. Apart from the decision of this Court, we consider the reasoning of Chagla C.J. to be unexceptionable and we agree with Subba Rao J. in holding that the requirement of a prescription by the special law of a period different from that prescribed by the First Schedule is satisfied in the present case. The next point was one that arose on the submission of counsel for the respondent and it was this. Assume that the construction of the words different from urged by the appellant were accepted, and this requirement would be satisfied only if the First Schedule made provision for an identical appeal as that under the special law, still it was submitted by the respondent that even this was satisfied in this case. For this purpose he relied on Art. 156 of the first schedule which runs: Description of appeal Period of limitation Time from which period begins to run 156.-Under the Code of Civil Procedure, 1908, to a High Court, except in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a legislative practice of conferring rights of appeal under the respective statutes without prescribing any period of limitation within which the appeal should be preferred, but directing the application, of the provisions of the Civil Procedure Code to such appeals, the intention obviously being that Art. 156 would furnish the period of limitation for such appeals. We consider that these decisions correctly interpret Art. 156 and, in any event, we are not prepared to disturb the decisions which have stood for so long and on the basis of the correctness of which Indian legislation has proceeded. Mr. Pathak drew our attention to some decisions in which a different construction was adopted of the word under a particular enactment occurring in other Articles of the Limitation Act and in particular some dealing with appeals in certain criminal matters. In them the word 'under' was understood as meaning by virtue of . He was, however, unable to bring to our notice any decision in which the construction adopted of Art. 156 which we have set out has been departed from. In the cases dealing with the words under the Criminal Procedure Code which he placed before us, the sit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch, they are not expressly excluded by such special or local law; and (b) the remaining provisions of this Act shall not apply. The question that has been debated before us is whether the condition postulated by the first limb, namely the special or local law prescribing a period of limitation for a suit appeal etc. different from the period prescribed therefor by the first schedule has to be satisfied in order to render the provisions of cl. (a) applicable. If the conjunction 'and' was used for the purpose of indicating that the two parts were cumulative, that is, if the two parts operated in respect of the same set of circumstances, then unless the opening words of sub-s. (2) were satisfied, there would be no basis for the application of cl. (a) to the period prescribed for a suit, appeal or application applicable by the special or local law. If on the other hand, the two parts of the sub-section could be read independently as if they made provision for two separate situations, the result would be that the words starting from for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law followed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o what follows it, the conditions or consideration set out earlier as otherwise even the first part would be incomplete. Let us now see whether the first part could function without the second. The first part reads where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the first schedule the provision of s. 3 shall apply as if that period was prescribed therefor in that schedule. The question is what this, standing by itself, would signify. If the conditions prescribed by the opening words were satisfied, s. 3 of the Limitation Act would be attracted Section 3 reads: Subject to the provisions contained in sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefor by the first schedule shall be dismissed, although limitation has not been set up as a defence.................... In other words, if the special or local law prescribed a period of limitation different from that prescribed by the first schedule by the application of the first part of subs. (2), the court is enabled to dismiss suits, appeals and app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e construction of the provisions of s. 29(2) of the Indian Limitation Act, 1908 (9 of 1908), in the context of its application to s. 116-A of the Representation of the People Act, 1951 (43 of 1951), hereinafter called the Act. The facts relevant to the question raised lie in a small compass and they are not disputed. The appellant was elected to the House of the People from the Mahasamund parliamentary constituency in the State ofMadhya Pradesh in the third general elections. The respondents were the other contesting candidates. Respondent 1 filed an election petition before the Election Commissioner of India under ss. 80 and 81 of the Act for setting aside the election of the appellant and it was duly referred to the Election Tribunal. The Election Tribunal, by its order dated January 5, 1963, dismissed the election petition. On February 11, 1963, the first respondent preferred an appeal against the said order of the Election Tribunal to the High Court of Madhya Pradesh at Jabalpur. Under sub-s. (3) of s. 116-A of the Act every appeal under Ch. IVA of the Act shall be preferred within a period of thirty days from the date of the order of the Tribunal under s. 98 or s. 99 thereo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diction. (3)Every appeal under this Chapter shall be preferred within a period of thirty days from the date of the order of the Tribunal under section 98 or section 99: Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within such period. The Indian Limitation Act, 1908 Section 29.-(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor 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, section 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. Section 12.-(2) In computing the period of limitation prescribed for an appeal, an app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under s. 98 or s. 99 of the Act? Article 156 of the First Schedule to the Limitation Act says that to an appeal under the Code of Civil Procedure, 1908, to a High Court, except in the cases provided for by article 151 and article 153, the period of limitation is 90 days from the date of the decree or order appealed from; and article 151 referred to in article 156 provides for an appeal against a decree or order of any of the High Courts of Judicature at Fort William, Madras, and Bombay, or of the High Court of Punjab in the exercise of its original jurisdiction. What does the expression under the Code of Civil Procedure in art. 156 of the First Schedule to the Limitation Act connote? Does it mean that a right of appeal shall be conferred under the Code of Civil Procedure, or does it mean that the procedure prescribed by the said Code shall apply to such an appeal? A comparison of the terms of art. 156 and art. 151 indicates that the emphasis is more upon the procedure applicable to an appeal than on 'the right of appeal conferred under an Act. The heading of the first column in the First Schedule to the Limitation Act is Description of appeal . The phraseology used in art. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y excluded by any special Act, an appeal lay to whatever court which under the enactment in force was the appropriate court. But this section was overborne by the Burma Courts Act to the extent it conferred a right of appeal from the Recorder's Court to the High Court subject to certain conditions, for s. 49 of the Burma Courts Act had taken away the right of appeal of value under a prescribed amount and conferred such a right, when the subject-matter of the appeal was between two prescribed amounts, from the decree of the Recorder's Court to the High Court. It is, therefore, not correct to say, as contended by the learned counsel, that a right of appeal was conferred under s. 540 of the Code of Civil Procedure, 1882. After the passing of the Burma Courts Act, a right of appeal was, conferred under s. 49 of that Act and not under s. 540 of the Code. It was contended before the Calcutta High Court, as it is now contended before us, that art. 156 of Schedule 11 of the Limitation Act did not apply to an appeal under the Burma Courts Act, on the ground that the said appeal was not an appeal under the Code of Civil Procedure. The learned Judges observed thus, at p. 224: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th respect to which, from its inception to its disposal, is governed by the Civil Procedure Code, may rightly be spoken of as an appeal under the Code. Then the learned Judges referred to art. 151 of the Limitation Act and concluded thus: That also tends to show that what is meant by the legislature is appeals, the hearing and disposal of which is governed by the rules of procedure laid down in the Civil Procedure Code. Though about 77 years have passed by since the decision of the Calcutta High Court and though the Limitation Act was amended a number of times, the Legislature did not think fit to express its dissent from this view by amendment or otherwise. No direct decision has been brought to our notice which has differed from, or even questioned the correctness of, this decision. In this context we may also refer to the decision of the Allahabad High Court in Dropadi v. Hira Lal (1912) I. L. R. 34 All. 496) where it is pointed out) that several Indian enactments, for instance, the Succession Act, the Probate and Administration Act, the Land Acquisition Act and the Provincial Insolvency Act, confer rights of appeal and direct the application of the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of a complaint against the petitioner under s. 476 of the Code of Criminal Procedure. That was rejected. The complainant preferred an appeal to the District Judge more than 30 days prescribed under art. 154 of the Limitation Act. The learned District Judge held that no question of limitation arose, for the District Judge suo motu could lodge a complaint in the criminal court when an offence in connection with the administration of civil justice came to his notice. On that reasoning he instituted a complaint. The High Court held that the appeal was filed before he District Judge under s. 476-B of the Code of Criminal Procedure and that under art. 154 of the Limitation Act it should have been filed within 30 days from the date of the order of the Subordinate court. It will be noticed that no argument was raised in that case that the appeal was governed by the Code of Civil Procedure and, therefore, the appropriate article of the Limitation Act was not art. 154, but art. 156 thereof, for the simple reason that whichever article applied the apPeal was clearly barred by limitation. It is not, therefore, permissible to read into the decision the entire argument now advanced before us. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the manner of its disposal. We find it impossible to exclude from the word procedure the filing and receiving of an appeal in the court. If that part was excluded, how could the appeal be received in the High Court? The answer given is that the Government might make rules under s. 169(1) of the Act. When s. 168(2) confers a statutory power on the High Court to follow the procedure prescribed by the Code of Civil Procedure, we ,cannot invoke the general power of the Central Government to make rules under s. 169(1) of the Act. If so, the procedure prescribed by 0. XLI of the Code of Civil Procedure, along with the other relevant provisions of the said Code, equally applies to an appeal filed under s. 116-A (2) of the Act. The result is that under s. 116-A(2) of the Act, the appeal, by fiction, is equated with an appeal filed under the ,Code of Civil Procedure in the matter of not only the exercise ,of the powers, jurisdiction and authority but also in the matter ,of procedure to be followed from the date of receipt of the :appeal to its final disposal. For the aforesaid reasons, I hold that the special law, namely, the Act, prescribes a period of limitation different from the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther the general provisions of the Limitation Act did not apply at all to the periods of limitation prescribed by special or local laws. Decisions holding that the general provisions of the Limitation Act did not apply to periods of limitations prescribed by other laws relied upon the expression affect or alter used in the section as it then stood. Section 29 of the Limitation Act was amended to remove the conflict with a view to make the general provisions applicable to the period of limitation prescribed by special or local laws. A comparison of the phraseology of the earlier sections shows that while s. 3 of the Limitation Act of 1859 used the words shorter period , s. 6 of the Act of 1871 used the expression differing , and s. 6 of the Acts of 1877 and 1908 removed both the expressions. The result was that s. 6 of the Act of 1871 saved all the special or local laws which prescribed a special period of limitation from the operation of the provisions of the Limitation Act. As the section then stood, it applied to all special or local laws prescribing a -,period of limitation whether the Limitation Act prescribed any period of limitation or not for suits or appeals similar to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocal law prescribes for it. If so, it may reasonably be said that, as the First Schedule of the Limitation Act prescribes no limitation for an appeal not covered by arts. 150 to 157 thereof, under the Limitation Act such a suit or appeal can be filed irrespective of any time limit. With this background let us revert to the construction of s. 29(2) of the Limitation Act. When the First Schedule of the Limitation Act prescribes no time limit for a particular appeal, but the special law prescribes a time limit to it, can it not be said that under the First Schedule of the Limitation Act an appeal can be filed at any time, but the special law by limiting it provides for a different period? While the former permits the filing of an appeal at any time, the latter limits it to the prescribed period. It is, therefore, different from that prescribed in the former. 'This problem was considered by a Division Bench of the Bombay High Court, consisting of Chagla C.J., and Gajendragadkar J., in Canara Bank Limited, Bombay v. The Warden Insurance Company, Ltd., Bombay (I. L. R. [1952] Bom. 1083). Therein, Chagla C.J., speaking for the Court, observed at p. 1086 thus: The period of limitat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Limitation Act is not very happily worded. It must be construed so as to avoid absurdity. The, expression 'a period of limitation different. from the period prescribed therefor by the first schedule' occurring in s. 29 (2) cannot be construed as meaning that schedule 1 must also positively prescribe the period of limitation.. Such a construction would not be in accordance with the intention of the Legislature and would lead to an absurdity. The learned Chief Justice proceeded to consider the anomalous position that would arise if a literal construction was given to the provisions of the first part of the section. This Court, in Kaushalya Rani v. Gopal Singh (A. I. R. 1964 S. C. 260), had to. consider this question incidentally in the context of the application of s. 29(2) of the Limitation Act to an application for special leave to appeal against an order of acquittal under sub-s. (3) of s. 417 of the Code of Criminal Procedure. This Court held that s. 5 of the Limitation Act would not apply to an application for special leave to appeal under sub-s. (3) of s. 417 of the Code of Criminal Procedure. The Limitation Act does not provide any period of limitation for an appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l consider presently, I do not see any anomaly in ss. 4 to 25 of the Limitation Act applying to the first part of the section and only some of them applying to the second part thereof. Those proceedings to which the first part applies, by fiction the period prescribed in the special or local law is treated as prescribed in the First Schedule itself. There cannot possibly be any reason why s. 3 of the Limitation Act in toto shall not apply to them. But the same cannot be said in the case of the proceedings of a different type not provided for in the First:Schedule. So, the Legislature specified the sections applicable tothem and excluded the general sections which relate tolegal disabilities, acknowledgements, part-payments and others specified therein. The Legislature may_ have -thought that such articles are not generally appropriate to proceedings under special or local laws for reliefs not provided for in the First Schedule. Now, coming to the construction of the section, the relevant rule of construction is well settled. A construction which will leave without effect any part of the language of a statute will normally be rejected ; or to put it in a positive form, the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod of limitation for such an appeal. but also the circumstances under which the delay can be excused, indicating thereby that the general provisions of the Limitation Act are excluded. There are two answers to this argument. Firstly, s. 29(2)(a) of the Limitation Act speaks of express exclusion but there is no express exclusion in sub-s. (3) of s. 116-A of the Act; secondly, the proviso from which an implied exclusion is sought to be drawn does not lead to any such necessary implication. The proviso has become necessary, because, if the proviso was not enacted. s. 29(2)(b) of the Limitation Act would have excluded the operation of s. 5 of the Limitation Act, with the result that even if a sufficient cause for the delay existed, the High Court would have been helpless to excuse the delay. 1, therefore, hold that the proviso to sub-s. (3) of s. 116-A of the Act only restores the power denied to the court under s. 29(2)(b) of the Limitation Act. Lastly, it is contended that s. 12(2) of the Limitation Act, on its express terms, would not apply to an appeal to the High Court against an order of the Election Tribunal under s. 98 of the Act. Elaborating the argument it is said that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case may be. With this background let me look at the provisions of s.116A of the Act. Under sub-s. (1) thereof, an appeal shall lie from every order made by a Tribunal under s. 98 or s. 99 to the High Court of the State in which the Tribunal is situated. Under s. 98 of the Act, At the conclusion of the trial of an election petition the Tribunal shall make an order (a) dismissing the election petition; or (b) declaring the election of all or any of the returned candidates to be void; or (c)declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected. Part VI of the Act provides for disputes regarding elections-, Ch. III thereof prescribes the procedure for the trial of election petitions, and s. 90 therein says: (1)Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the Tribunal, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits. There is no-provision in the Act defining how the decision sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omission to prescribe a period of limitation cannot be equated with the prescribing ,of any positive period of limitation within which the appeal should be filed, and that the second part of s. 29(2) of the Act is independent of the first part and can apply to cases to which the first part does not apply. I am also of ,opinion that art. 156 of the First Schedule applies to appeals which are instituted in view of the right of appeal conferred by any special or local law and not in pursuance of the provisions of s. 96 C.P.C. I do not elaborate my views as I agree with what my learned brother Mudholkar J., has said in construing the first part of s. 29 (2) of the Limitation Act and art. 156 of the First Schedule and agree with my learned brother Ayyangar J., with respect to his construction of the second part of s. 29(2). The proviso to s. 116(a) of the Representation of the People Act gives discretion to the High Court to entertain an appeal presented after the expiry of 30 days from the date of the order of the Tribunal in case it is satisfied that there is sufficient cause for the late presentation of the memorandum of appeal. The respondent has applied in this Court for the condo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for an appeal in the First Schedule of the Limitation Act and that, therefore, cl. (a) thereof would attract s. 12(2) of the Limitation Act. Finally it was argued that even if the appeal cannot be regarded as one falling within the first limb of s. 29(2) sub-s. (2) of s. 12 would still apply because the second limb of sub-s. (2) of s. 29 is wide enough in its ambit to include a suit, appeal or application for which no period of limitation is prescribed in the first schedule but a period of limitation has been prescribed by a special or local law. My learned brother has held in his: judgment that an appeal provided for by s. 116A of the Representation of the People Act would be an appeal underthe Code of Civil Procedure and thus fall under the first column of art. 156 of the First Schedule of the Limitation Act. He has also held that the words where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first schedule occurring in the first limb of sub-s. (2) of s. 29 would include a suit or an appeal' even though it is not of a type for which a period of limitation is prescribed in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court proceeded to consider what was-meant by an appeal under the Code of Civil Procedure. While dealing with the matter the High Court observed: A particular appeal was given by the Burma Courts. Act and the Burma Courts Act is still the only Act which prescribes to what Court this appeal shall lie. If it had not been given by the Burma Courts Act then s. 540 of the Civil Procedure Code would have been sufficient to give it. provided that some Court was by some enactment provided as the proper Court to hear the appeal. The procedure in appeals in every respect is governed by the Code of Civil Procedure. The Limitation Act, Sch. 1, Art.. 156 when it speaks of the Civil Procedure Code is, on the face of it, speaking of a Code which relates to procedure, and does not ordinarily deal with substantive rights: and the natural meaning of an appeal under the Civil Procedure Code appears to us to be an appeal governed by the Code of Civil Procedure so far as procedure, is concerned. Referring to this, my learned brother has observed: It is manifest from this passage that the learned judges did not repel the contention on the ground that the right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls. The first division of that schedule deals with suits. There, provision is made for a variety of suits including some under special laws. but it was realised that it could not be exhaustive. Therefore, art. 120 was provided therein, which deals with Suits for which no period of limitation is provided elsewhere in this schedule. The third division of the First Schedule deals with applications of different kinds. Article 181 makes provision for applications for which no period of limitation is prescribed elsewhere in the Schedule. In the second division, however, which deals with appeals, there is no provision analogous to art. 120 and art. 181. Four of the eight articles deal with appeals under the Code of Criminal Procedure and four with appeals other than those under the Code of Criminal Procedure. As already stated, only one of these articles deals with normal civil appeals to the High Court, namely, art. 156. It is not couched in language similar to that used in art. 120 and art. 181. Would we then be justified in reading the first column of art. 156 to mean the same thing as is said in the first column of arts. 120 or 181? The Legislature knew that appeals have been provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cerned it is nothing more 'than,. as observed by Dowrick in Justice According to the English ,Common Lawyers (1961 ed. p. 195), a precipitate of the notion of legal justice. In other words it is the principle that judicial decisions have a binding character. But in India the position is not quite the same. Here the decision of a High Court is not even always binding upon it in the sense that it can be reconsidered by a Full Bench. No doubt its decision may bind all courts subordinate to it as also all Judges sitting singly or in division benches of the High Court. It is also true that a decision of a Division Bench of a High Court is binding on every other Division Bench of that High Court but there again there have been cases where one Full Bench has reconsidered the decision of an earlier Full Bench. In any case the decision of a High Court has no more than persuasive character in so far as this 'Court is concerned. In that view the decision of the Calcutta High Court, even though it may not have been dissented from since the time it was rendered, cannot, in the proper sense of the term be regarded as stare decision. What could be stare decision in this Court would be its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Madhya Pradesh in Beharilal Chaurasiya v. Regional Transport Authority A.I.R. 1961 M. P. 75. In that case the Bombay High Court has held that art. 156 is attracted on the ground that the period provided by the special law is different from that contained in the First Schedule. With great respect to the learned Judges, I find it difficult to strain the language used in the first limb of s. 29 (2) in this manner. The legislature has in clear terms spoken of cases in which a special or local law has prescribed for a suit, appeal or an application a period of limitation different from that prescribed by the First Schedule. Now, the governing words are suit, appeal or application . Therefore, what has to be seen is whether a suit, appeal or application under a particular local or special law is of a kind similar to one for which a period of limitation is prescribed in the First Schedule. The first limb of sub-s. (2) of s. 29 is concerned only with proceedings of this kind, that is, proceedings under special or local law for which a period of limitation is provided in the First Schedule. If for such a proceeding the period to be found in the First Schedule is different from that p ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
