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Virendra Kumar Khairulal Jaiswal Vs. K.L. Aney - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 30 of 1974
Judge
Reported inAIR1976Bom125; 1975MhLJ80
ActsBombay Prohibition Act, 1949 - Sections 146-A; Limitation Act, 1963 - Sections 4 to 24; Code of Civil Procedure (CPC), 1908 - Sections 80
AppellantVirendra Kumar Khairulal Jaiswal
RespondentK.L. Aney
Appellant AdvocateA.M. Bapat, Adv.
Respondent AdvocateM.G. Rajkarne, Asst. Govt. Pleader
Excerpt:
.....concerned provision but the period of limitation was prescribed in section 167 of the act, section 167 of the said act provided that no suit shall be commenced without one month's previous notice in writing, nor after six months from the date of the act complained of. it was contended that the suit had to be brought within a period of six month from the date of the act complained of even if a notice is required to be given and the notice period could not be excluded from the period of limitation. it may well be that the legislature by adding the words 'and not afterwards' did intend to exclude the applicability of those provisions of the limitation act which would operate to extend time in various contingencies. unfortunately, however, if that was the intention of the legislature, they..........six month from the date of the act complained of even if a notice is required to be given and the notice period could not be excluded from the period of limitation. this contention was negative by this court. taking recourse to the provisions of section 29(2) of the limitation act, 1908, which was then prevailing and which is almost similar to the present section 29(2) expect for the provision made applicable, it was held that the notice period had to be excluded while computing the limitation for filing of the suit. however, in a later case of the calcutta high court in commrs. of pabna municipality v. nirode sundari dasya basak, : air1942cal544 , the phraseology used in the provision was similar to the one used in section 146-a of the bombay prohibition act. that was a case under the.....
Judgment:

Padhye, J.

1. The plaintiff has filed this appeal challenging the dismissal of his suit on the preliminary ground of limitation. The plaintiff filed this suit for damages amounting to Rs. 1500/- against the defendant, who was at the relevant time a Police Sub-Inspector on the ground that he had

*Against order of P.D. Apshankar, Civil J., Sr. Division, Yeotmal, in Suit No. 2 of 1972.)

illegally seized the goods of the plaintiff which he had purchased from the Hyderabad Firm. The seizure of the goods was on 24-7-1971. The goods were seized by him purporting to act under the Bombay Prohibition Act.

2. The plaintiff gave a notice to the defendant under Section 80 of the Civil P.C. on 28-1-1972. The suit is, therefore, filed beyond the period of four months and within the period of six months from the date of the act complained of. The defendant, therefore, raised a preliminary objection before the lower Court that the suit not having been filed within a period of four months from the date of the act complained of, the suit was barred by limitation. The defendant contended that the suit would be governed by the provisions of Section 146-A of the Bombay Prohibitions Act which specifically provides for a period of limitation of four months for bringing an action against the Government Officer and such suit has to be instituted within four months from the date of the act complained of. The plaintiff, however, contended that since the suit was against the Government Officer, a two months' Notice under Section 80 of the Civil P. C. had to be given and, therefore, the period of the said notice had to be excluded for computing the period of limitation for the suit. There is no dispute that if the two months' period for the notice under Section 80 of the Civil P.C. is excluded, then the suit would be within limitation.

3. Section 146A of the Bombay Prohibition Act provides that all actions which may be lawfully brought against the Government or any of the aforesaid officers or persons, in respect or anything done or alleged to have been done in pursuance of this Act, shall be instituted within four months from the date of the act complained of and not afterwards. and any such action shall be dismissed etc. The officers mentioned in Section 146-A are the officers referred to in the earlier sections of the Act. It has been contended on behalf of the plaintiff-appellant that since a notice under Section 80 of the code of Civil Procedure is mandatory, the period of such notice will have to be excluded under the provision of Section 15(2) of the Limitation Act. Section 15(2) of the Limitation Act provides that in computing the period of limitation for any suit of which notice has been given, or for which the previous consent or sanction of the Government or any other authority is required, in accordance with the requirements of any law for the time being in force, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be executed. If Section 15(2) of the limitation Act, 1963, can be invoked, then in that case the suit would be within limitation.

4. The defendant-respondent, on the other hand, contends that the provisions of Section 146-A of the Bombay Prohibition Act pointedly show that the suit has to be brought within four months from the date of the act complained of, notice or no notice. The learned counsel for the defendant-respondent lays great stress on the words 'and not afterwards' in Section 146-A of the Bombay Prohibition Act. It is said that the words 'and not used in Section 146-A show that the period of limitation of four months can in no circumstances be extended and the suit in every case has to be instituted within four months from the date of the act complained of without there being any extension of any time on any account whatsoever. It is further stated the Bombay Prohibition. Act being a Special Act must prevail over the General Act and the period of limitation given in the Special Act must be strictly adhered to.

5. The learned Judge of the trial Court has accepted the contention of the defendant and has dismissed the suit on the ground of limitation itself without entering into merit of the case.

6. Even though the Bombay Prohibition Act is a Special Act, it does not make any specific provision for giving of a notice to the Government or the Government officer before bringing an action against them in respect of anything done or alleged to have been done in pursuance of the Act. In some other Acts there are specific provisions regarding giving of the notice before the institution of a suit. Since the action is to be against the Government Officer a notice under Section 80 of the Civil P.C. is necessary and without such a notice the suit is liable to be defeated. Section 80 of the Civil P.C., which is considered to be a mandatory provision, prohibits a suit against the Government or the Govt. Officer, Section 80 of the Civil P.C., in terms, says that no suit be instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity until the expiration of the two months next after notice in writing has Ben delivered to, or left at the office etc. The trial Court has proceeded on the basis that the limitation for the suit is four months as provided under Section 146-A of the Bombay Prohibition Act and the notice under Section 80 of Civil P.C. is required to be given and we are also proceeding on the same footing. If, therefore, the notice under Section 80 of the Civil P.C. is required to be given, then normally the provisions of Section 15(2) of the Limitation Act must take effect, unless then are excluded be a provision in the Special Act.

7. For this purpose, we may refer to Section 29(2) of the Limitation Act, which says that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period f limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. The effect, therefore, of Section 29(2) of the Limitation Act is that unless the application of the provisions of Sections 4 to 24 or any of them is expressly excluded by such special law, the aforesaid provisions will apply and Section 15(2) being one of the aforesaid provisions, the same will apply unless it is expressly excluded by a special law like the Bombay Prohibition Act. We have, therefore, to see whether the provisions of Section 15(2) being one of the aforesaid provisions, the same will apply unless it is expressly excluded by a special law like the Bombay Prohibition Act. We have, therefore, to see whether the provisions of Section 15(2) of the Limitation Act, with which we are concerned in this case, are expressly excluded by the provisions of Section 146-A of the Bombay Prohibition Act, which is a Special Act.

8. It is urged on behalf of the defendant-respondent that the words 'and not afterwards'' used to Section 146-A of the Bombay Prohibition Act denote unambiguously that the provisions extending the period of limitation beyond the period of four months are excluded and the period of four months can in no circumstances be extended. He lays emphasis on the words 'and not afterwards' which according to him, could not be taken to be superfluous and must be taken to read only as excluding the provision of law for extending this period of four months from the date of the act complained of . He urges that if the provisions of Section 15(2) were to be applied in a case like this falling under Section 146-A, then no effect could be given to the words 'and not afterwards'. In a way, the contention of the learned counsel for the defendant-respondent is not without substance or force. However, that is not the only way to look at the said provision.

9. Section 29(2) of the Limitation Act in very clear terms says that the provisos contained in Sections 4 to 24 will apply even in respect of the limitation prescribed under a Special Act unless those provisions or any of them are expressly excluded by such special law. The question is whether it can be said that Section 146-A of the Bombay Prohibition Act expressly excludes the operation of Section 4 to 24 which include Section 15(2) of the Limitation Act. We do not find any such express exclusion in Section 146-A of the Bombay Prohibition Act. We are unable to read into Section 146-A any express exclusion from the use of tae words 'and not afterwards'. If the intention of the Legislature was to exclude the operation of the provisions of Section 4 to 24, then the Legislature would have definitely mentioned those provisions which were sought to be expressly excluded. The use of the words 'and not afterwards' only lays an emphasis that the period of four months is an outer limit for bringing an action against the Government or the Government Officer if no other mandatory requirement is to be observed. It does not say that in a case where a mandatory notice is required to be given, even then the limitation would be only four months and four months alone from the date of the act complained of.

10. The question about the exclusion of the period of a notice from the period of limitation prescribed by a Special Act came up for consideration in different High Courts and in fact, in respect of a similar provision where the words 'and not afterwards' have been employed. First we may refer to a decision of this Court in Chhaganlal Sakerlal v.Municipality of Thana, (AIR 1932 Bom 259), which was a case under the Bombay District Municipal Act. Of course, the words 'and not afterwards' were not in the concerned provision but the period of limitation was prescribed in Section 167 of the Act, Section 167 of the said Act provided that no suit shall be commenced without one month's previous notice in writing, nor after six months from the date of the act complained of. It was contended that the suit had to be brought within a period of six month from the date of the act complained of even if a notice is required to be given and the notice period could not be excluded from the period of limitation. This contention was negative by this Court. Taking recourse to the provisions of Section 29(2) of the Limitation Act, 1908, which was then prevailing and which is almost similar to the present Section 29(2) expect for the provision made applicable, it was held that the notice period had to be excluded while computing the limitation for filing of the suit. However, in a later case of the Calcutta High Court in Commrs. of Pabna Municipality v. Nirode Sundari Dasya Basak, : AIR1942Cal544 , the phraseology used in the provision was similar to the one used in Section 146-A of the Bombay Prohibition Act. That was a case under the Bengal Municipal Act in which it was provided that a suit against the Commissioners of any municipality or any of its officers shall be commenced within six months next after the accrual of the cause of action and not afterwards and a similar contention was raised before the Calcutta High Court, but the said contention was negatived,

11. It was observed in that case that sub-section (2) of Section 29, Limitation Act expressly provides that for the purpose of determining any period of limitation prescribed for any suit by any special or local law, the provisions contained in Sections 4, 9 to 18 and 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. From this the learned Judge observed that the plaintiff would be entitled to the benefit of Section 15(2) in computing the special limitation under Section 532(2) of the Bengal Municipal Act. Then later the learned Judge observed repelling the argument on behalf of the defendant:

'It may well be that the Legislature by adding the words 'and not afterwards' did intend to exclude the applicability of those provisions of the Limitation Act which would operate to extend time in various contingencies. Unfortunately, however, if that was the intention of the Legislature, they failed to carry it out by using appropriate language for that purpose. The language they used 'and not afterwards' might possibly operate in the way intended, but by reason of the terms used in Section 29(2)(a), Limitation Act, I think it fell short of what was thereby required. The words 'expressly excluded' mean what they may. In order that the exclusion may be express, I think that the particular sections of the Limitation Act which are intended to be excluded must be specifically indicated by the special or local law in question. So far as the words 'and not afterwards' are concerned, the utmost that can be said is that the exclusion of those sections of the Limitation Act may be easily spelt out therefrom, but, in my opinion, they will not amount to an express exclusion.'

The learned Judge then relied upon an earlier decision of the same High Court in District Board, Chittagong v. Maulvi Emdadal Hoque, : AIR1940Cal305 .

12. We have also another decision of the Assam High Court in Tinsukia Municipal Board v. Bankim chandra Ghose AIR 1950 Ass 101. A similar question arose there also and the provision of that Act dealt in that case was almost similar to the provision here. Clause (2) in the section provided that every such action shall be commenced within three months next after the accrual of the cause of action and not afterwards. A similar argument was also advanced there to the effect that the words 'and not afterwards' would show that the Legislature intended that the plaintiff suing a Municipal Board had only three months from the date the cause of action accrued, and no suit could be instituted afterwards. It was argued that the implication of the requirement would be that notice of one month must be given within this period and that it cannot be added to the period of suit. Repelling the contention, the learned Judge held:

'We do not think such an intention can be attributed to the Legislature. It cannot be gathered from the language of the clause under consideration. It merely provides a period of limitation is emphatic language. It does not deal with the principles or rules governing the computation of the period. It is in its nature like the clauses of Schedule I, Limitation Act by which periods of limitation for different kinds of suits are laid down. The Assam Municipal Act is admittedly not exhaustive so far as the statement of the law of limitation is concerned. It does not embody a complete code of limitation. Where therefore, it specifies or prescribes a period for a suit, the method of computing that period would be regulated by the general rules laid down in the Limitation Act for the purpose.'

The decision of this Court referred to earlier has been relied upon in that decision.

The question again arose in Madras High Court in Trustees, Madras Port v. M. C. Industries AIR 1967 Mad 109. There also Section 110 of the Madras Port Trust Act provided that no suit or other proceeding shall be commenced against any person for anything done, or purporting to have been done, in pursuance of this Act without giving to such person one month's previous notice in writing of the intended suit or other proceeding, and of the cause thereof, nor after six months from the accrual of the cause of such suit or other proceeding. The contention there raised was that the language of Section 110 was emphatic that no suit shall be filed afterwards. After considering the provisions of Section 29(2) of the Limitation Act, the learned Judges observed as under noting the contention of the learned counsel for the defendant;

'Learned counsel next contends that it must be considered on the language of Section 110 that the applicability of Section 15 of the Indian Limitation Act is expressly excluded. Learned counsel submits that on the emphatic language (nor after six months) it is a compelling inference that the suit must be filed within six months and that there can be no extension of the period. It is pointed out that Section 110 does not say that the suit must be filed within six months. It goes further and says that it shall not be filed after six months. But the question for consideration is whether in the circumstances, it can be said that the applicability of Section 15(2) is 'expressly excluded' in the language of the section. In my view, a particular section can be considered to be expressly excluded only if there are specific words to the effect excluding the applicability of the section. The language and the meaning of the words 'expressly excluded' in Section 29(2) cannot be whittled down. However imperative the time limit may be under Section 110, it may be necessary implication, one has to say that Section 15(2) of the Limitation Act is excluded, and an outer limit fixed.'

In conclusion, the learned Judge said:

'Section 110 only provides a period of Limitation different from that indicated under the Indian Limitation Act and it will be open to the plaintiffs in the absence of express exclusion of the applicability of Section 15(2) of the Limitation Act to rely upon the provisions of Section 15(2) of the Indian Limitation Act in computing the period.'

Here also the decisions of this Court in Chhaganlal v. Thana Municipality AIR 1932 Bom 259 and in pabna Municipality v. Nirode Sundari, : AIR1942Cal544 have been relied upon.

13. It would thus be seen that the use of the words 'and not after wards' does not make any difference as to the applicability of the provisions of Ss. 4 to 24 of the Limitation Act in view of Section 29(2) of the said Act, since the provisions, particularly of Section 15(2), of the Limitation Act have not been expressly excluded by Section 146-A of the Bombay Prohibition Act. We are, therefore, unable to take the view as has been taken by the learned trial Judge that the period of notice given under Section 80 of the Civil P. C. cannot be excluded from the period of limitation of four months prescribed by Section 146-A of the Bombay Prohibition Act. We are in respectful agreement with the views expressed in the decisions aforestated as, in our view, that is the construction that can be put upon the provisions of Section 146-A of the Bombay Prohibition Act. The learned trial Judge, therefore, was in error in holding the suit as barred by time without giving effect as to the provisions of Section 15(2) of the Limitation Act.

14. Accordingly the decree of the trial Court dismissing the suit is set aside. Since the trial Court did not go into the merits of the case in the view it has taken on the point of limitation, it is necessary to remand the case to the trial Court for decision of the suit on merits on all contentions that may be raised by the parties, except the point of limitation, which has been decided by us.

15. The appeal, therefore, succeeds and is allowed. The respondent will pay the costs of this appeal to the appellant.

16. Appeal allowed.


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