TMI Blog1954 (11) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... her for a sum of ₹ 6,260/10/3. The plaintiffs added as interest a sum of ₹ 9,041/- calculated at the stipulated rate of 14 as, per cent per mensem up to the date of the suit to the principal sum of ₹ 20,365/12/- on the one Khata, and a further sum of ₹ 3,178/3/- calculated at the rate of 1 per cent per mensem on the other khata and in the result the plaintiffs filed a suit for ₹ 38,845/9/3 in the court of the District Judge, Balotra, on the 23rd January, 1952. The defendant respondent entirely repudiated the plaintiffs' claim and took a number of pleas in his defence; the most important of which was the plea that the suit was barred by limitation. The trial court thought fit to try the issue of limitation, in the first instance, as the question involved was of pure law, and both parties had accepted that they did not want to lead any evidence on the issue in question. The learned trial Judge came to the conclusion that the suit was barred by limitation and, he, therefore, dismissed the plaintiffs' suit. This appeal has been file from the above judgment and decree. 3. At the outset, I consider it desirable to set forth, briefly, the changes t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Ordinance, 1950, (No. VI of 1950) (hereinafter referred to as the Act of 1950) came into force on the 25th January, 1950. This Act applied to the whole of Rajasthan, and by it the Indian Act was made applicable, subject to a few modifications, with which we are not concerned, with effect from the date on which the Ordinance came into force. This also contained a saving provision namely sec. 9 which I propose to quote later. The Indian Limitation Act provides a period of three years for suits under Art. 64 and no change therein was made in the adaptation. Then came the Part B States (Laws) Act, 1951, (No. III of 1951) by which the Indian Limitation Act of 1908 (hereinafter referred to as the Act of 1951) became wholly applicable in this State. This Act came into force on 1st April, 1951, and was the Act in force when the present suit was instiuted. It also contains a saving provision, namely, sec. 30 with which I propose to deal at its proper place. It is against this legislative history that the question of limitation before us falls to be decided. 4. As already stated, it is sec. 4 of the Act of 1949 which we must primarily consider and interpret. Two rival interpretations ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by adding the words at the commencement of the Act after the expression would be barred occurring in the section, but the words to be so added should be at the time of its institution. It was argued with great force that if the meaning of the saving provision was not plain or certain, without the addition of some words therein, such words should be added which would work the least hardship, and that interpretation should be adopted by us which would be beneficial and advance the remedy or favour the right to sue rather than destroy or retard it. It was suggested that the expression would be barred was not tantamount to is barred , and that the manner in which the section was worded showed that the intention of the legislature was to allow grace to suits which were barred not merely at the commencement of the Act but which would in future be barred under the provisions thereof. It was also submitted that the expression used in the section was suit and not claim and that a claim became a suit only when it was instituted as such. It was further submitted that on this interpretation, it was clear that sec. 4 must be taken to have prescribed by itself, a certain period fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artistic manner in which the saving section happens to be worded. The usual wording is that adopted in the repealed sec. 30 of the Indian Limitation Act of 1908 or in the Acts of 1950 and 1951, and if that wording had been adopted by the farmers of the Marwar Act, the difficulty with which we have been confronted would not have arisen. Instead of that wording, what we find in sec. 4 is a provision in respect of a suit which would be barred under the provisions of this Act . The question is what does the expression would be barred mean. Barred at the commencement of the Act or, barred at the time of its institution? The section itself has not made this clear. I may point out in this connection that in my opinion this difficulty is not adequately solved by merely saving that would be means is , or not is ; but some time in future . Even assuming that would be may be taken as equivalent to is , the question still arises to which point of time the section refers when it says that a suit is barred, or in one word, barred when? The need to supply some words after the expression barred still remains. That is the question for answer. I am also inclined to the view that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 1949 came into force but between the time it became operative and the law was know to the people. It is a serious question to consider whether it was the intention of the legislature to have created such a state of affairs and deprived the citizens of their remedial rights absolutely for no fault of theirs. Shall we say on principle that an Act, be it procedural, should receive such an effect that it throws out of court hundreds of innocent suitors, and deprives them of their very right of suit, which is undoubtedly a vested right? And yet on the interpretation which is put forward on behalf of the respondent, this must be the inevitable result, although the very presence of the saving section in the amended Act throws a pointer to the contrary. It is this aspect of the matter which has caused me the greatest anxiety, and, for this the interpretation which has found favour with the trial court affords no answer. 8. In fact, I am disposed to think that whether a saving provision exists or not, whether an amending Act of Limitation cuts down the period formerly available, and such Act comes into force at once, the true principle of limitation is and must be that the amending Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1874. On the 5th May, an amending Act No. II of 1874 came into force by which sec. 272 of the Code of Criminal Procedure was amended and it was laid down that no appeal shall be presented more than six months after the date of the judgment complained of. It is interesting to note that six months in this case ended on the 5th of May, the date on which the amending Act came into force. The learned Judges held that the appeal was time-barred on the ground that the Law of Limitation was a law of procedure, and governed all proceedings to which its terms were applicable from the moment of its enactment, except, so far as its operation was expressly excluded or postponed. I am inclined to think that this case decided on its special facts. The question of the liberty of the subject was involved and the learned Judges may have felt justified in imputing an intention to the Legislature favourable to such liberty. 10. In Chajmal Das v. Jagdamba Prasad(3), the plaintiff-respondent in a pending appeal died on the 17th September, 1885. The defendants appellants applied to the High Court to bring certain persons on the record, as the legal representatives of the deceased on the 24th July, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the statute may affect causes of action already accrued in the same manner as those accruing after its passage The essence of the matter is that when a new Statute of Limitation which shortens the period for institution of suits and comes into force the moment it becomes law is sought to be made retrospectively applicable to causes of action which have accrued earlier than the length of time prescribed, it ceases to be a statute of more procedure and serves to destroy pre-existing and enforceable rights. Under circumstances like these, the Court, when invited to hold that the new statute has retrospective operation, will struggle against the acceptance of such an interpretation, unless there is the clearest indication that the legislature intended to destroy existing rights without notice and thus to penalise innocent litigants. 12. In Gopeshwar v. Jiban Chandra (F.B) , the question arose whether the decision of the majority of the Judges in Manjuri Bibi's case was affected by the judgment of the Privy Council in the case of Lala Soniram v. Kanhaiya Lal , and it was held that it was not. I may point out that the question before their Lordships in Soniram's case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uly, 1938. A notice of 30 days had to be given to the authorities concerned before the suit could be filed but still a period of 64 days was left to the plaintiff to file the necessary suits. The learned Judge accordingly, howsoever reluctantly, dismissed the plaintiff's suit except for a period of six months preceding the suit. 16. I may now refer to a few English cases. In Cornill v. Hudson, the plaintiff was in prison in 1844 when his cause of action arose and remained therefor more than six years. By sec. 10 of the Mercantile Law Amendment Act, 1956 (19 and 20 Vict. c. 97) which came into force on the 29th July, 1856, the statute of limitation was amended and it was provided in effect that residence of the plaintiff beyond the seas or his imprisonment would not afford any ground for extension of limitation, and the period of limitation could not be computed from the determination of the imprisonment. The obvious result was that the plaintiff was altogether deprived of his remedy. Lord Campbell C.J held that the amended law prevented any action being commenced after the period had elapsed within which, if the prisoner had been at large, he must have sued, and that the pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay of September in the year of our Lord 1848. That seems to be an intimation by the Legislature that they mean to give a time, whether long or short, within which bygone matters of complaint may be brought before justices, and the limitation avoided. Six or seven weeks are given; if the interval had been as many months, the case would be the same. 18. Again, in Towler v. Chatterton , retrospective operation was given to 9C. 4C. 14 which was passed on the 9th May, 1828, but was to come into force on the 1st January, 1829, whereby it was provided that in an action for debt, an acknowledgment of promise to take a case out of the statute of limitation must be in writing and signed by the party who is sought to be charged. The plaintiff relied on an oral promise made by the defendant in February, 1828. The plaintiff was non-suited and the Act was given a retrospective operation principle that all hardship must be considered to have been obviated by the Legislature declaring that the Act should not take effect till the 1st January, and all persons who relied on such parol promises ware given seven months or more in which to bring their actions. 19. The last English case to which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le inference is that it wanted to provide a facility to the litigants who would otherwise have been affected by the hardship brought about by the new Act. Now, if we were to interpret this saving provision so as to hold that it applied only to suits which were barred at the commencement of the Act. then two consequences seem to me to follow. First, that the saving clause does no more than what would have followed under the general principle as discussed above. Secondly, on this interpretation the right words to be understood or supplied after the expression would be barred being at the commencement of the Act , the position under the saving section would in fact become worse because in that even all suits which are not barred at the commencement of the Act but must inevitably become barred for reasons entirely outside the control of the parties concerned will not get any grace under sec. 4 whatever and their vested rights of suit would be irrevocable lost. I am of opinion that it would not be right to impute such an intention to the Legislature, if an alternative reasonable interpretation is possible. Our attention was drawn on behalf of the defendant respondent to two decisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easonable inference that such was the intention of the Legislature. If this view is just and reasonable, as I think it is, then it would be right to say that the missing words after the expression would be barred are not at the commencement of the Act but at the time of its institution . When these words are supplied, the relevant portion of the section would read as follows:- Notwithstanding anything contained in this Act:- Any suit which would be barred at the time of its institution under the provisions of this Act may be instituted within three years next after the commencement of this Act or within the period of limitation previously in force, whichever period expires first. The acceptance of this view would certainly avoid the hardship and the injustice which seem to me to be patent in the other view. I may also in passing point out that the Legislature did not think fit to use the words at the commencement of this Act which occurred later in the section; but instead used the words under the provisions of this Act after barred . This is not, in my opinion, without significance. The object of the Legislature was to give a grate period to all suits which ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay and by the High Court of Bombay and the Chief Court in the Punjab in another way. The interpretation adopted by Bombay High Court was literal and had the effect of making all judgments existing at the time of the coming into operation of the Act in-executable at the end of three years from their date or from the commencement of the Act whichever expired first. The interpretation favoured by the Calcutta High Court was that sec. 21 was a proviso to sec. 20 and that execution might issue after the expiration of three years from the passing of the Act to enforce a judgment which was in force at the time the Act was passed provided some proceeding to enforce the judgment as required by sec. 20 had been taken within three years next preceding the application for execution. Their Lordships of Privy Council disagreed with the view of the Bombay High Court and held that the words nothing in the preceding section in sec. 21 meant that the prohibition laid down in sec. 20 should not apply to judgments in force at the passing of the Act and that notwithstanding any thing mentioned in the preceding section, execution might issue either within the time limited by law or within three years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lable under the former law whichever expires first. It is thus clear that this interpretation of sec. 4 would remove all hardship or injustice and would not adversely affect any vested rights of suit. The Delhi and London Bank v. Orchard to which I have referred above also establishes the principle that where the language of law relating to limitation is not precise and is of doubtful import, such law may be construed equitably, or reasonably, that is, such construction thereof may be adopted which favours the right to sue rather than which bars that right. Another case on this point to which reference may usefully be made is Mohd. Sadaat Ali v. Lahore Corpn. where it was held that where two interpretations are found to be equally possible, the court must impute a reasonable intention to the legislature and hold the suit not to be falling within a shorter period of Limitation. 24. It may be contended that if this interpretation is adopted, the time for bringing a suit would depend upon the sweet will or whim of the plaintiffs and this may introduce an uncertainty as regards limitation applicable to a suit. I am not impressed by this argument. Even under the ordinary law, it is o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference to time whatever during which the Act would remain in force but to the sections and the articles contained in the Act which govern the period of limitation in a particular suit or other proceeding. It seems to me therefore, that to read this expression as itself suggestive of a time limit for the purposes of the application of sec. 4 can have no warrant. Again I can, properly speaking, think of only two points of time in connection with sec. 4 namely (1) commencement of the Act and (2) institution of the suit or application, as the case may be. Learned counsel would have us adopt the view on his interpretation of the phrase under the provisions of this Act that the framers of the Act had a third point of time in mind, namely, between the commencement and repeal of the Act or during the period this Act was in force by which the application of sec. 4 was to be conditioned. I am not at all satisfied that is the true import of the section. The Act has not used the latter expression and I see no overriding reason to import it into the section. I think that this argument really an off-shoot of the view that sec. 4 allow grace in the case of suits barred at the commenceme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the plaintiffs could institute their present suit within the period allowed by the former law or two years next after the commencement of this Act, is that, up to the 24th January, 1952. The trial court of course came to the conclusions, on its interpretation of sec. 4 of the Act of 1949, that no grace period was allowed thereunder to suit which were not barred at the date of the commencement of the Act of 1949 with the result that it further held that the period allowed by the Act of 1950 could not in such cases be said to be shorter than the period allowed under the Act of 1949; it being three years under either Act, the saving clause did not apply at all. Be that as it may, the trial court was of the view that the period prescribed means not only the period prescribed by the first schedule of the Limitation Act but also includes the period prescribed by secs. 4 to 25 thereof. This view has not been contested before us. I also think that the period laid down in sec. 4 is also covered by the expression the period prescribed . It seems to me that if this special period had not been compendiously provided for under sec. 4, in the form of a saving section, such period would ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation Act in the present case would remain up to the 24th January, 1952, as provided under the Act of 1951, as it would expire earlier than the grace of two years allowed under the Act of 1951. I hold, therefore, that the present suit which was instituted on the 23rd January, 1952, is not barred by limitation. 28. Consequently, I would allow this appeal, set aside the judgment of the District Judge and send the case back to him for trial on the remaining issues in accordance with law. As to costs, I would direct that as the question involved in this appeal was full of complexities, the parties shall bear their own costs in this Court but costs hitherto and further costs in the trial court shall abide the event. Wanchoo, C.J:- I have read the judgment of my brother Modi, and would like to add a few words as Lalchand's case(6) was decided by me. 2. It is well-settled that the law of limitation is a procedural law and applies to all suits filed after it comes into force, whether the cause of action accrued before the law came into force or afterwards. The law is thus applied retrospectively as a general rule. It is because of this that the law-makers generally provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that the words at the commencement of the Act do not appear in sec. 4(a), and were read by me as implied in it. It has been however, strenuously contended that if certain words have to be implied in this section after the words would be barred , and those can be either at the commencement of the Act , or at the time of its institution , we should imply such words as would carry out the intention of the legislature in providing a saving clause, and as would avoid unnecessary hardship to the general public. There is no doubt that unless some words are implied to be present in sec. 4(a), it would not be possible to give a sensible interpretation to it for the words would be barred used in it must imply some point of time at which the suit or application for execution would be barred. The question is whether that point of time should be the commencement of the Act, or the institution of the suit. In Lalchand's case , I expressed the opinion that the implied words were at the commencement of the Act . But having read the judgment of my brother Modi, I have come to the concision on account of the difficulties and hardships pointed out by him that it would be more in conso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o make good that implication. I now think, in view of what I have said above, that those who passed the Marwar Amendment Act of 1949 intended what is contained in sec. 30 of the Limitation Act as it now exists, for Part B States and therefore it is right to hold that the words implied after the words would be barred are at the time of its institution . 5. I am not unconscious of the fact that there is a certain amount of anomaly in implying the words at the time of it institution. This anomaly will appear from an illustration. Suppose the cause of action of a suit arose on the 15th of December, 1947. According to the old Marwar Law, the period of limitation was 6 years up to 1953. According to the Amendment Act of 1949, this period was cut down to 3 years and if sec. 4(a) was not applicable, limitation would expire in December, 1950. Now if sec. 4(a) is applicable with the words at the time of its institution implied in it, the result is two possible periods of limitation depending upon when the suit is brought. It, for example, the suit is brought before Dec.,1950, sec. 4(a) would not apply as the suit would not be barred at the time of its institution, and the period of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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