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Janardan Eknath Vs. Ganesh Sadashiv - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 549 of 1941
Judge
Reported inAIR1945Bom200; (1945)47BOMLR27
AppellantJanardan Eknath
RespondentGanesh Sadashiv
DispositionAppeal dismissed
Excerpt:
.....relief act (xvii of 1879), section 72 - period of limitation-acknowledgment-exclusion of time-indian limitation act (ix of 1908), sections 19 and 29(2). ;in a suit governed by section 72 of the dekkhan agriculturists' relief act, 1879, the plaintiff is not entitled for the purpose of limitation to the benefit of section 19 of the indian limitation act, 1908, having regard to section 29(2) of the latter act.;keshav krishna v. bhagwan sambhu (1941) 44 bom. l.r. 138, approved. ;kishorelal stores v. jagannath bayaji (1943) 45 bom. l.r. 1064, overruled. - - he frankly conceded that if on a proper construction of section 72 of the dekkhan agriculturists' relief act the court came to the conclusion that it prescribed a different period of limitation, his contentions must fail. ' it seems..........the following question for the decision of a full bench:having regard to section 29(2) of the indian limitation act, is the plaintiff in a suit governed by section 72 of the dekkhan agriculturists' relief act for the purpose of limitation entitled to the benefit of section 19 of the indian limitation act?2. the short facts leading to this appeal are as follows. on march 6, 1929, the original three defendants passed a promissory note for rs. 1,200 in favour of the plaintiff. on august 11, 1932, defendant no. 1 wrote a letter to the plaintiff which was contended to be an acknowledgment of the liability under the promissory note. relying on that letter, the plaintiff filed the suit on june 2, 1938, against all the three defendants. the common defence of all the defendants was that the.....
Judgment:

Kania, Kt., Acting C.J.

1. On the hearing of Second Appeal No. 549 of 1941 Mr. Justice Lokur and Mr. Justice Rajadhyaksha having found a conflict of authorities about the interpretation of Section 29(2) of the Indian Limitation Act, 1908, read with Section 72 of the Dekkhan Agriculturists' Relief Act, 1879, referred the following question for the decision of a full bench:

Having regard to Section 29(2) of the Indian Limitation Act, is the plaintiff in a suit governed by Section 72 of the Dekkhan Agriculturists' Relief Act for the purpose of limitation entitled to the benefit of Section 19 of the Indian Limitation Act?

2. The short facts leading to this appeal are as follows. On March 6, 1929, the original three defendants passed a promissory note for Rs. 1,200 in favour of the plaintiff. On August 11, 1932, defendant No. 1 wrote a letter to the plaintiff which was contended to be an acknowledgment of the liability under the promissory note. Relying on that letter, the plaintiff filed the suit on June 2, 1938, against all the three defendants. The common defence of all the defendants was that the letter in question did not amount to an acknowledgment. Defendants Nos. 2 and 3 further contended that they were not bound by the letter, because they had separated from defendant No. 1. There was also a dispute about the consideration. At the hearing the trial Court found against the plaintiff on the question of separation of defendants Nos. 2 and 3. It also found that the letter in question did not amount to an acknowledgment and therefore dismissed the suit. The plaintiff appealed. He did not contest the finding of the trial Court in respect of defendants Nos. 2 and 3, but contended that the letter amounted to an acknowledgment within the meaning of Section 19 of the Indian Limitation Act and defendant No. 1 was therefore liable on the promissory note. The first Appeal Court rejected that contention and dismissed the appeal. The plaintiff filed a second appeal. In the interval two decisions of this Court were pronounced. The first was by Mr. Justice Divatia, sitting as a single Judge, in Keshav Krishna v. Bhagwan Sambhu (1941) 44 Bom. L.R. 138. That was in respect of the application of Section 20 of the Indian Limitation Act in the case of a suit covered by Section 3, Clause (w), of the Dekkhan Agriculturists' Relief Act. The learned Judge held that the amended provisions of Section 29(2) of the Indian Limitation Act prevented the plaintiff from relying on Section 20 of the Act. Some time later Mr. Justice N.J. Wadia and Mr. Justice Sen in Kishorelal Stores v. Jagannath Bayaji : AIR1944Bom89 took a contrary view and differed from the view of Mr. Justice Divatia. The referring judgment mentions both these cases which have given rise to this reference.

3. It was argued before us by Mr. Gajendragadkar that Section 72 of the Dekkhan Agriculturists' Relief Act did not prescribe a period of limitation, because if a local Act prescribed a period, it must mention a starting point. He further contended that the words used in Section 72, particularly the word 'substituted', showed that the Legislature amended the schedule of the Indian Limitation Act but did not prescribe a different period by Section 72. From those arguments it was contended that Section 72 of the Dekkhan Agriculturists' Relief Act was not a special or local law which prescribed a period of limitation different from the period prescribed by the Indian Limitation Act and, therefore, Section 29(2) of the Indian Limitation Act did not apply. He frankly conceded that if on a proper construction of Section 72 of the Dekkhan Agriculturists' Relief Act the Court came to the conclusion that it prescribed a different period of limitation, his contentions must fail. It is, therefore, necessary to consider those two arguments as advanced.

4. In order to appreciate the true effect of Section 29(2) of the Indian Limitation Act, it is necessary to first turn to the first schedule of the Limitation Act. It is divided into three columns: the first is headed 'Description of suit,' the second 'Period of limitation,' and the third 'Time from which period begins to run.' The expression 'period of limitation' is thus used in that Schedule to mean what is prescribed under the second column. Incidentally, in my opinion, it negatives the contention that a period of limitation must prescribe the starting point because, if that was correct, there was no necessity for the Legislature to make the third column 'Time from which period begins to run.' It seems to me, therefore, that by the use of the words 'period, of limitation' in Section 29(2) of the Indian Limitation Act the Legislature clearly meant a period stated in another special or local law which could be put in place of the period shown under the second column of the first schedule.

5. The second argument, in my opinion, is also unsound. While under Section 72 of the Dekkhan Agriculturists' Relief Act the Legislature could have prescribed a schedule like the one found in the Indian Limitation Act, there appears no objection to achieving the same result in a different way by using appropriate words. It should be noticed that under Section 72 of the Dekkhan Agriculturists' Relief Act it is not one kind of suit for which one period of limitation is prescribed under all circumstances. It deals with several kinds of suits covered by Section 3, Clause (w), of the Dekkhan Agriculturists' Relief Act. It provides two different periods of limitation under two different circumstances. In my opinion, therefore, the word 'substituted' as used in Section 72 is equivalent to prescribing the periods mentioned in Clauses (a) and (b) of Section 72 in place of those prescribed by the Limitation Act. That appears to be the natural and proper leading of the words used in Section 72 of the Dekkhan Agriculturists' Relief Act. I am unable to read the word 'substituted' as amounting to an amendment of the schedule to the Indian Limitation Act, as contended by the plaintiff. On the construction of the section itself, I think it prescribes a period of limitation, for the suits mentioned therein, different from the period prescribed in sch. I, col. 2, and therefore Section 29(2) of the Limitation Act applies. That sub-section deliberately omits the applicability of Sections 19 and 20 of the Limitation Act to such suits and, therefore, the plaintiff's contention must fail.

6. We were asked to look to the general policy of the Act. It was argued that the object of the Dekkhan Agriculturists' Relief Act was to help the debtor and the omission to give the benefit of Sections 19 and 20 would impose a hardship. I am not sure whether this is the correct view. In any event, when the words of the section are clear, I do not think it is proper to discuss what was passing in the mind of the Legislature in framing the section as they had done or to construe it in view of what was supposed to be their intention.

7. In my opinion Kishorelal Stores v. Jagannath Bayaji was wrongly decided. The answer to the question referred to us is in the negative.

Chagla, J.

8. I agree.

9. Two questions arise for our determination on the construction of Section 29, Sub-clause (2), of the Indian Limitation Act : first, whether the Dekkhan Agriculturists' Relief Act is a special or local law? and second, if it is a special or local law, whether it prescribes for the suit with which we are concerned a period of limitation different from the period prescribed therefor by the first schedule? Now it is not disputed that the Dekkhan Agriculturists' Relief Act is a special or local law within the meaning of Sub-clause (2) of Section 29 of the Indian Limitation Act. So the only question that remains to be decided is : Does Section 72 of the Dekkhan Agriculturists' Relief Act prescribe for the suit a period of limitation different from the period prescribed therefor by the first schedule of the Limitation Act

10. Mr. Gajendragadkar has contended that the language used in Section 72 of the Dekkhan Agriculturists' Relief Act is that the periods mentioned in that section shall be deemed to be substituted for those prescribed in the first schedule to the Limitation Act. Mr. Gajendragadkar has emphasized the expression 'to be substituted' and he has argued that what Section 29(2) of the Indian Limitation Act requires is that the special or local Act should provide a self-contained code relating to the law of limitation and should not merely deal with the period of limitation mentioned in the second column of the first schedule. Now that would be importing words into Section 29(2) of the Indian Limitation Act which it does not contain. It is quite clear that all that Section 29(2) requires is that the special or local law should prescribe for a suit a period of limitation different from the period prescribed therefor by the first schedule and it cannot possibly be contended that when under Section 72 of the Dekkhan Agriculturists' Relief Act a different period is prescribed, the provisions of Section 29(2) of the Indian Limitation Act are not complied with.

11. Mr. Gajendragadkar has also asked us to consider the policy of the Legislature. I agree with the learned Chief Justice that it is unsafe to consider the policy of the Legislature when the language of the section we are construing is clear and unambiguous. But even if we are to consider the policy of the Legislature, the position is that prior to 1922 when Section 29 of the Indian Limitation Act was amended there was some conflict of judicial opinion as to whether the old Section 29 of the Limitation Act permitted Sections 19, 20 and 21 to be applied when a special Act prescribed different periods of limitation, but the consensus of opinion was that on a true reading of the old Section 29 of the Indian Limitation Act Sections 19, 20 and 21 of the Indian Limitation Act applied notwithstanding the fact that the special or local law prescribed a different period of limitation. With those facts present to the mind of the Legislature the Legislature deliberately departed from the law as it was then understood to be by enacting Section 29, Sub-clause (2), of the Indian Limitation Act, and it specifically provided that Sections 19, 20 and 21 shall not apply when the special or local law prescribed a different period of limitation. We are not concerned with the reasons which led the Legislature to change its policy, but there can be no doubt that there was a deliberate change of policy as evidenced by the amendment of Section 29, Sub-clause (2), of the Indian Limitation Act.

12. I, therefore, agree with the learned Chief Justice that we should answer the question as he has suggested we should do.

Weston, J.

13. I agree that the question referred to us should be answered in the negative. I have nothing further to add.


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