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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 ..... ated the right of writ appeal against the decision of a single Judge but it has also prescribed the period 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 R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... general, special or personal is a classification based on the extent of their operation. A general law applies to the whole community. Salmond on Jurisprudence says that the general law consists of general or ordinary law of the land and "the special 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 Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect if the appropriate legislature makes any law on the subject. It follows, therefore, that the present set of Rules is framed by the High Court in exercise of its legislative power conferred on it by Article 225 of the Constitution. The legal rights and legal obligations of the litigants are governed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view expressed in Abdul Ganny (supra) and Mukund Mahto (supra). Controversy over the issue has been resolved by the Supreme Court in Union of India v. Ram Kanwar where Rule 4 of (Punjab) High Court Rules framed under the Letters patent, came up for interpretation. The question was whether Rule 4 was a special law. On close scrutiny of the Letters Patent, their Lordships 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be applicable in Writ Appeals as well. A similar question came up in Union of India v. Ram Kanwar (supra) as to the effect of Rule 4 of "the Rules" framed under Clause 27 of the Letters Patent and the Supreme Court held that Rule 4 applied to those Rules referred therein and Article 115 of the old Act (now Article 117) governed appeals not covered by Rule 4. Their Lordships held that the provisions of Section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave no application in cases governed by the Limitation Act, 1963. There is an important departure in the Act in so far as the provision contained in Section 29(2) is concerned. Clause (b) of Sub-section (2) of Section 29 of the Old Act provided that for the purpose of determining any period of limitation prescribed for any suit, appeal etc. by any special or local law the provisions of other than those contained in Sections 4, 9 to 18 and 22 would not apply. Shortly put the applicability of Section 5 was in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntation of the People Act, 1951, for short "the R. P. Act" is a complete and self-contained Code which does not admit of the introduction of the principles or the provision of law contained in "the Act" Even when the special law does not exclude the provisions of Sections 4 to 24 of "the Act" by an express reference, it would nonetheless be open to the court to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and the scheme of the special law exclude the provisions of Sections 4 to 24. The provisions of Section 3 of "the Act" 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29(2) are attracted in writ appeal filed under Rule 2 of the Rules and the court has jurisdiction to entertain an application Under Section 5, Limitation Act in Writ Appeal under Rule 2 of the Rules." 11. Now, let us consider whether the claim for extension of time made Under Section 5 of "the Act" should not be allowed! on the facts and circumstances of the case. The principles for extension of time Under Section 5 of "the Act" may be summed up as follows :-- (a) The party seeking relief has to satisfy the court that he had sufficient cause for not preferring the appeal etc. within the prescribed time; (b) the explanation has to cover the entire period of delay (c) A litigant should not be easily permitted to take away a right 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated that the records were placed along with many other case records on the table of the Senior Government Advocate. It has been stated that during the period of switch and shift, the case records kept on the table of the Senior Government Advocate, were mislaid and lost track of. In spite of the best efforts they could not be tracked down or uncovered. After a thorough rummage the records were located on 23-6-1981 amongst heap of disposed case records. On discovery, the judgment was typed memo was dictated and the appeal was made ready on 24-6-1981 (afternoon) and the writ appeal was presented on 25-6-1981. As directed by a Bench of this Court, the learned Senior Government Advocate, the present incumbent, has sworn an affidavit in support of the averments made in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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