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E.C. Pereira Vs. Somani and Co., Ltd. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai High Court
Decided On
Case NumberCivil Revision Application No. 561 of 1957
Judge
Reported in(1958)60BOMLR1369
AppellantE.C. Pereira
RespondentSomani and Co., Ltd.
DispositionApplication dismissed
Excerpt:
.....rules to extend time for filing the memorandum.;the powers exercised by the full court under section 38 of the presidency small cause courts act, 1882, are revisional powers and not appellate powers, and, therefore, section 12(2) of the indian limitation act, 1908, is not applicable to an application made under section 38.;eastley v. rozario (1943) 46 bom. l.r. 389 and doraiswami v. radhakrishna [1938] a.i.r. mad. 669, referred to. - - in all cases where a party's right is defeated by limitation, the court is anxious to help the party. the very basis of the law of limitation is that the right of a party is defeated because he did not present his claim in time. but once the application under section 38 is in time, there is power in the small causes court to extend time for filing the..........presidency small cause courts act has, been held to be barred by limitation. in all cases where a party's right is defeated by limitation, the court is anxious to help the party. but in matters of limitation the court cannot be influenced by considerations of justice and equity. the very basis of the law of limitation is that the right of a party is defeated because he did not present his claim in time.2. the facts briefly are that the suit in the small causes court was decided on october 5, 1956. section 38 gives a party eight days' time to make an application to the full court for a new trial. on october 12, 1956, an application for a new trial was prepared by the advocate for the petitioner along with the application for extension of time for filing the memorandum of grounds......
Judgment:

M.C. Chagla, C.J.

1. This is rather an unfortunate ease where the application of the petitioner under Section 38 of the Presidency Small Cause Courts Act has, been held to be barred by limitation. In all cases where a party's right is defeated by limitation, the Court is anxious to help the party. But in matters of limitation the Court cannot be influenced by considerations of justice and equity. The very basis of the law of limitation is that the right of a party is defeated because he did not present his claim in time.

2. The facts briefly are that the suit in the Small Causes Court was decided on October 5, 1956. Section 38 gives a party eight days' time to make an application to the Full Court for a new trial. On October 12, 1956, an application for a new trial was prepared by the advocate for the petitioner along with the application for extension of time for filing the memorandum of grounds. Unfortunately, the advocate of the petitioner, instead of presenting this to the Court, sent it to the Deputy Registrar. On the October 15, 1956, the petitioner presented this application, which was then traced, with a memorandum to the trial Court. The trial Court held that the application was barred by limitation. On October 16, 1956, the application with the memorandum was presented to the Full Court and that Court took the same view and dismissed the application, The petitioner has now come in revision.

3. In the first place, it is urged by Mr. Walawalkar that apart from any practice or rules of the Small Causes Court, his application was in time because he was entitled to deduction of time under Section 12 of the Limitation Act, and it is pointed out that the petitioner applied for a certified copy of the judgment on October 12, 1956, and he obtained the copy on October 22, 1956. Therefore, he is entitled to deduct ten days, and inasmuch as he filed the application on October 15, 1956, in any view of the case that application is in time. Now, the difficulty in the way of Mr. Walawalkar is that Section 12 of the Limitation Act only applies with regard to certified copies to appeals, applications for leave to appeal, and applications for review of judgments, and in order that the petitioner could come within Section 12(2) he must satisfy me that the application he presented to the Full Court was an appeal. Looking at the language of Section 38 it is clear that the application which a party is entitled to make under that section is not an appeal. In the first place, Section 38 does not confer any statutory right upon the party. The only right he has is to make an application and the Court is given discretion to grant the application or not. If a party is given a right of appeal, it is a substantive right, it is a statutory right, and the exercise of that right cannot be dependent upon the discretion of the Court. Therefore, it has been consistently held that the powers exercised by the Full Court under Section 38 are revisional powers and not appellate powers. See Eastley v. Razario (1943) 46 Bom. L.R. 389 and Doraiswami v. Radhakrishna AIR [1938] Mad. 669. Mr. Walawalkar has drawn my attention to the heading of Chapter VI in which this section appears and the heading is 'New trials and appeals'. Mr. Walawalkar says that there is no section in the Chapter which deals with appeals and therefore the Legislature, when it used this Chapter heading, intended that an application under Section 38 should be an appeal. Now, a right of appeal cannot be inferred by implication, nor can it be inferred by a Chapter heading. Either a right of appeal is conferred by the statute or it not. If the language of the section is clear, that language cannot be controlled either by a marginal note or by a Chapter heading, and if Section 38 does not confer a right of appeal, that right of appeal cannot be imported by looking at the heading of Chapter VI.

4. The next contention of Mr. Walawalkar is that under the rules and practice of the Small Causes Court, this application should have been granted. It is said that it is the usual practice to make an application under Section 38 accompanied by an application for extension of time for filing a memorandum. That, unfortunately, was not made within eight days from October 5, 1956. But Mr. Walawalkar contends that it was open to the Full Court to extend time when the application was made on October 16, 1956. Now, Rule 38 of the Presidency Small Causes Court Rules deals with this question and power is given to the Court for granting further time. But it will be noticed that the power is to grant further time in filing the memorandum; not for extending time for making the application under Section 38. The period of limitation for filing an application under Section 38 is governed by Section 38 itself and no power is given either under the Limitation Act or under the Rules of the Small Causes Court for extending that period. But once the application under Section 38 is in time, there is power in the Small Causes Court to extend time for filing the memorandum, and this is clearly consistent with the practice followed in the Small Causes Court for many years, because a party who wants to apply to the Full Court makes the application within time and in that game application he asks for extension of time under Rule 38 for filing a memorandum. This is what the petitioner did on October 12, 1956, but unfortunately for him that application did not reach the right quarter. It is equally clear that there is no power in the Small Causes Court to condone delay for sufficient cause under Section 5 of the Limitation Act. That section has not been made applicable to this application, and unless that section is made applicable, there is no power in the Court to condone delay or to extend the time of limitation. In my opinion, the Courts below were right in the view that they took.

5. The result is that the revision application fails. Rule discharged with costs.


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