9911796707
TMI Blog1963 (12) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 by such special or local law; and (b) the remaining provisions of this Act shall not apply." The learned Judges of the High Court have proceeded on the basis that s. 29(2)(a) applies to the case of appeals preferred under s. 116 A of the Representation of the People Act, 1951 and on that footing have held that the appeal presented to them by the respondent was within time if computed after making the deductions permitted by s. 12 of the Limitation Act. It is the correctness of this view that is challenged before.....us. Proceeding now to deal with the question whether the terms of s. 29(2) are apt to take in appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " 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 the cases." provided for by article 51 and article 153 Ninety days The date of decree or order appealed from The argument was that though the right of appeal in the case before us was conferred by s. 116A of the Representation of the People Act and it was by virtue thereof that the appeal was filed by the respondent to the High Court, it was still an appeal "under the Code of Civil Procedure, 1908, to a High Court." For this submission learned Counsel relied principally on two decisions--one of the Calcutta and the other of the Madras High Court, and they undoubtedly support him. In Aga Mohd. Hamdani v. Cohen and Ors.( 1. L. R. 13 Cal. 221) -as well as in Ramasami Pillai v. Deputy Collecto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 situation would obviously be different, since the indication afforded by the mention of Art. 151 in Art. 156 does not figure in the Articles dealt with. Therefore that would be a circumstance pointing to a different result. If the construction adopted of Art. 156 in the Calcutta and Madras decisions to which we have referred were upheld, there could be no controversy that an appeal under s. 116A of the Representation of the People Act would be "under the Code of Civil Procedure", for s. 116A(2) enacts, to read the material portion: "116A. (2) The High Court shall, subject to the provisions of this Act, have the same powers, jurisdiction and authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds 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 by clauses (a) & (b) would be an independent provision unrelated to the first part and therefore could operate unhampered by the condition set out in the first part. In other words, if the latter construction were adopted for every suit, appeal or application for which a period of limitation was prescribed by a special or local law, the provisions in ss. 4, 9 to 18 & 22 would apply unless excluded. Mr, Pathak urged that the conjunction 'and' could in the context be construed only as rendering the second limb a part and parcel of the first, so that unless the conditions laid down by the opening words of the sub-section were satisfied, the provisions of the Limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 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 applications filed beyond time. If this is the only effect it would be seen that the provision is inane and redundant, because even without it, by the very prescription of a period of limitation the jurisdiction of the court to entertain the suit, appeal etc. would be dependent on the same being filed in time. It is possible, however, to construe the reference to s. 3 in s. 29(2) to mean that the power to dismiss the suit, appeal etc. if filed beyond the time prescribed, is subject to the modes of computation etc. of the time prescribed by applying the provisions of ss. 4 to 25 which are referred to in the opening words of s. 3. On this construction where a case satisfies the ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 thereof. Admittedly, the appeal was filed more than 30 days from the said order. If the time requisite for obtaining a copy of the order of the Tribunal was excluded, the appeal was filed within 30 days; but if in law it could not be excluded, the appeal would certainly be out of time. The appellant contended before the High Court that respondent I was not entitled in law to exclude the time so taken by him in obtaining a copy of the order of the Tribunal, but that plea was rejected by the High Court. On merits, the High Court held that the appellant had committed two acts of corrupt practice as defined by s. 123(4) of the Act and on that finding it declared the election of the appellant void. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was pronounced, and time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded. (3)Where a decree is appealed from or sought to be reviewed, the time requisite for obtaining a copy of the judgment on which it is founded shall also be excluded. Section 116-A of the Act confers a right of appeal against an order of the Tribunal under s. 98 or s. 99 thereof; subs.(3) thereof prescribes a period of limitation of 30 days for preferring such an appeal. Section 29 of (the Limitation Act attracts, by fiction, the provisions of s. 3 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 156 describes the nature of the appeal in respect of which a particular period of limitation is prescribed. It does not refer to a right conferred under the Code of Civil Procedure, but only describes the appeal with reference to the procedure applicable thereto. Though the word "under" may support the contrary view, the reference to -art. 151 therein detracts from it. Article 151 is an exception to art. 156, indicating thereby that, but for the exception art. 156 will apply to an appeal covered by art. 151: that is to say, an appeal under art. 151 is deemed to be an appeal under the Code of Civil Procedure. Though a right of appeal is conferred under the Letters Patent, it is deemed to be an appeal under the Cod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: "Now, what is meant by an appeal under the Civil Procedure Code? 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 L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 provisions of the Code of Civil Procedure to such appeals, but prescribed no period within which such appeals might be filed, the idea being that art. 156 of the Limitation Act would furnish the period of limitation for the filing of such appeals. Mr, Pathak, learned counsel for the appellant, brought to our notice a number of decisions which considered the forum to which an appeal shall lie against an order under s. 476 of the Code of Criminal Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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. The present question was neither raised nor argued in that case. It may, therefore, be safely held that for over 75 years the decision of the Calcutta High Court on the construction of art. 156 of the Limitation Act stood the ground. Though it must be conceded that the point is not free from difficulty, we are not prepared to depart from the construction put upon the article as early as 1886 and which was not dissented from all these yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voke 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 period prescribed therefor by the First Schedule to the Limitation Act within the meaning of art. 29 (2) of the Limitation Act. If so, s. 12 of the Limitation Act is attracted, and the 1st respondent was entitled to exclude the time taken by him for obtaining the copy of -the order. Even assuming that art. 156 of Schedule 1 to the Limitation Act did not prescribe a period of limitation for the kind of appeal under consideration, the question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion "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 those governed by special or local laws, or where the period of limitation so prescribed by special or local laws was shorter or longer than that prescribed in the Limitation Act. Can it be said that by the Amending Act of 1922, a conscious departure was made by the Legislature to impose a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ackground 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 limitation may be different under two different circumstances. It may be different if it modifies or alters a period of limitation fixed by the first Schedule to the Limitation Act. It may also be different in the sense that it departs from the period of limitation fixed for various appeals under the Li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strued 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 application for special leave to appeal from an order of acquittal under the said section. If that be so, on the argument of learned counsel for the appellant, s. 29 of the Limitation Act could not be invoked. But this Court held that s. 29(2) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs 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 shall ordinarily give meaning to every word used in the section. Does the conjunction "and" make the following clause a limitation on the preceding one? No rule of grammatical construction has been br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 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 order to exclude the time for obtaining a copy of the order appealed against, the original shall be a decree or order within the meaning of s. 12( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Schedule to the Limitation Act, as 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or it from that prescribed 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 lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciding this matter the 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: &nbs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edule is divided into three divisions. Article 156 is one of the eight article& contained in the second division which deals with appeals. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ramasami Pillai's .case (1919) I. L. R. 43 Mad. 51) by the Madras High Court. In so far as the principle of stare decisis is concerned 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 ren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in Canara Bank Ltd. v. The Warden Insurance Co., Ltd., Bombay (I. L. R. 1952 Bom. 1083), which was followed by the High Court 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
