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TMI Blog1981 (8) TMI 247X X X X Extracts X X X X X X X X Extracts X X X X ..... od of limitation as 30 days which is the same as prescribed in Article 117 of the Act for appeals to the High Court from the same Court Therefore. Rule 2 does not prescribe a period of limitation different from the period prescribed by the Schedule of the Act . As such, Section 29(2) forbids application of Sections 4 to 24 of the Act -- these are applicable only when a special law prescribes a period of limitation different from the period prescribed by the Schedule ; (IV) As the Rules form a complete Code the provisions of Section 5 of the Act'' are not applicable in writ appeal under Rule 2 of the Rules ; and. (V) Rule 2, by necessary implication excludes the application of Sections 4 to 24 of the Act in writ appeals. To bear up the first two contentions the learned counsel has relied on Mukund Mahto v. Niranjan Chakravarty and Bangalore ' Municipal Corporation v. T. S. Setty. AIR 1955 Karn 110. In support of the third and fourth contentions reliance was placed on Kaushalya Rani v. Gopal Singh. Hukumdev Narain v. Lalit Narain, and. Hari Shanker Tripathi v. Shiv Harsh were placed to buttress the last contention. 2. We have heard the learned coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law consists of certain other bodies of legal rules which are so special and exceptional in their natural sources or application that it is convenient to treat them as standing outside the general and ordinary law, as derogating from or supplementing them in special cases, but not forming a constituent part of it. The chief forms of special law standing outside the general law of the land are local laws and other laws mentioned by Salmond's Jurisprudence page 88 filth Edn.). Special law means a law which is not applicable generally but which applies to a particular or specified subject or class of subjects. 5. Mr. Das has strenuously contended that the High Court Rules is not a law as it has been made by the judiciary and not by a legislative body. The learned counsel submits that the rules are akin to bye-laws. The Assam High Court was established for the erstwhile province of Assam by the Assam High Court Order 1948 in exercise of the power Under Section 229 (1), Government of India Act, 1935, as adopted by the India Provisional Constitution (Amendment) Order, 1948, by the Governor General. Clause 6 of the Order provides that subject to the order the law in forc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Rules and the High Court itself is not above the Rules . It is a special law enacted for application in special cases in special circumstances and not the general rules of law applicable generally to all cases with which the general law deals . We find no difficulty in arriving at the conclusion that the set of Rules, at present styled as The Gauhati High Court Rules , for short the Rules, is a special law. However, let us examine the decisions relied on by the learned counsel. He has relied on Mukund Mahto (supra) and Bangalore Municipal Corporation AIR 1955 Karn 110 (supra), Bangalore Municipal Corporation is not a case in point. Therein, the moot question was whether Rule 147 of the Municipal Account Manual was a law. It was held the rules were neither framed under the Mysore Municipality Act nor could they be termed as bye-laws duly passed by the Municipal Councillors. The learned single Judge held that the Manual was made by the Government in a conference for use of the various Councillors in the State. It follows, therefore, that the manual was neither a creature of statute nor a bye-law framed under the authority of any law. In the instant case, the rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdships held that Rule 4 was framed by the High Court in exercise of the legislative power conferred upon it under Clause 27, Letters Patent. It has been held that Rule 4 is a law made in respect of special cases covered by it and is a special law within a meaning of Section 29(2) of the Limitation Act. The Supreme Court held that Clause 27 authorised the High Court to make Rules prescribing the period of limitation for a Letters Patent appeal against an order of a single Judge and by virtue of Clause 37, the said rule is subject to the provisions of the Limitation Act, but Limitation Act itself saves the operation of the said Rule. It has been ruled that Rule 4 applies to those appeals referred therein, whereas Article 151 of the Lim. Act, 1908 (now Article 117 of the Act with some modification) would govern appeals not covered by Rule 4. In view of the law laid down by the Supreme Court in Ram Kanwar (supra), we are constrained to reject the first two contentions of the learned counsel for the opposite parties. 6. Article 225 of the Constitution confers the same powers and jurisdiction to the existing High Courts as they possessed immediately before the commencement of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 of the Limitation Act, 1963 applied in an appeal under Rule 4. As such, we are constrained to hold that the provisions of Section 5 of the Lim, Act, 1963 are applicable in writ appeals prescribed under Rule 2 of the Rules. We feel that when Article 225 of the Constitution itself lays down that the rules framed by the High Court shall be subject to the Acts of the Legislature, the provisions of the Limitation Act, 1963 are squarely applicable in writ appeals under Rule 2. Be that as it may, we find that Rule 2 prescribes a period of Limitation different from Article 117 of the Act . The period of limitation may be different under different circumstances, say if the special or local law modifies or alters a period of limitation prescribed by the Schedule or if it differs from the period of limitation fixed for various appeals under the Limitation Act. If the Schedule to the Act omits to lay down any period of limitation for a particular appeal and the special law provides a period of limitation then to that extent the special law is different from the Limitation Act. In our opinion, Article 117 does not prescribe any period of limitation for a writ appeal. Writ appeal was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear and specific terms excluded by Clause (b) of Section 29(2) of the 'old Act'. Whereas Section 29(2) of the Act enacts that the provisions of Sections 4 to 24, which include Section 5, shall apply in so far as and to the extent to which they are not expressly excluded by special or local law. Since under the Act, Section 5 is specifically made applicable by Section 29(2), it can be availed of for the purpose of extending the period of limitation prescribed by a special or local law if sufficient cause for not presenting the application can be shown by the applicant, it is only if the special or local law expressly excludes the applicability of Section 5, that it would stand displaced. This is the law as explained by the Supreme Court in Mangu Ram v. Municipal Corporation of Delhi. In the instant case Rule 2 has not expressly excluded the applicability of Section 5, so the said Section shall apply with equal vim and vigour in writ appeals as well. In the result, the third contention of the opposite parties fails. 9. Now let us turn to the contentions IV V. It has been contended on the authority of the decision in Hukumdev Narain (supra) and Hari Shanker (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that suit instituted after the prescribed period shall be dismissed are provided in Section 86 of the R. P. Act , which gives a peremptory command that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81, 82 or 117, If non-compliance with the provisions of Sections 82 and 117 which are mandatory, merits dismissal of an election petition under Section 86(1), the presentation of an election petition within the period prescribed in Section 81 would be equally mandatory and non-compliance must visit with the penalty of dismissal. This is the scheme of the R. P. Act. Further, proviso to the repealed Section 85 of the R.P. Act had conferred, on persons challenging an election, the benefits similar to the provisions of Section 5 of the Limitation Act. The proviso was repealed and the benefits conferred were withdrawn. Though Parliament has made amendments to the R. P. Act, it did not reintroduce any provision like the proviso to the repealed Section 85 of the R. P. Act. The intention of Parliament is clear that it did not desire delays to occur in the disposal of election petitions or their trial. For these reasons the Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which has accrued to his adversary by lapse of time; (d) the proof of sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. After sufficient cause is shown then the court has to enquire, whether in its discretion it should condone the delay: (e) The discretion conferred on the court is a judicial discretion and must be exercised to advance substantial justice: (f) No liberal view should be taken merely because the defaulting party is Govt.; (g) Even sheer indifference of the Advocate cannot stand in the way of condoning the delay when there is no laches on the part of the litigant, (h) When there is remiss on the part of the Advocate, the missions come up for consideration whether the mistake was bona fide or was merely a device to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an underhand way. 12. The Civil Rule was disposed on 10-4-1981. Admittedly the appeal was presented on 25-6-1981, beyond the period of 30 days prescribed under Rule 2 of the Rules. The statement of facts narrated in the application Under Section 5 of the Act may be summed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the application Under Section 5 of the Act. He has sworn the affidavit and confirmed the statements as correct. As such, we find that there was a delay of 9 days for making application for copies and about 2 days in taking copy of the judgment from the office. In all, eleven days were spent in between the date of judgment and taking of the certified copy. It has been asserted in clear terms that the records were placed on the table of the Senior Government Advocate on 7-5-1981 and they were mislaid and remained untraced till 23-6-81, There is no delay in preparation of the memo of appeal and presentation thereof. As such if we hold that in fact the case records were mislaid in the office of the Senior Government Advocate and were tracked down only on 23-6-1981. As stated by the petitioners, there is a good case for extension of time Under Section 5 of the Act. It is apparent that since 30-4-1981 till the present incumbent took over the charge of the office as Senior Government Advocate on 15-6-1981, there were many switches and shifts. The term of one Senior Government Advocate expired and the other resigned. It is stated that during this period the records were found missin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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