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Nagreddy Vs. Khandappa and ors. - Court Judgment

LegalCrystal Citation
SubjectElection;Limitation
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 3772 of 1968
Judge
Reported inAIR1970Kant166; AIR1970Mys166; ILR1969KAR460; (1970)1MysLJ134
ActsLimitation Act, 1963 - Sections 4 and 5 - Schedule - Article 137; Mysore Village Panchayat (Election of the Chairman and the Vice-Chairman) Rules, 1959 - Rules 12 and 17; Industrial Disputes Act, 1947 - Sections 33-C and 33-C(2); Limitation Act, 1908 - Sections 2
AppellantNagreddy
RespondentKhandappa and ors.
Appellant AdvocateK. Jagannath Shetty, Adv.
Respondent AdvocateDoddakalegowda, High Court Govt. Pleader, Amicus Curiae
Excerpt:
.....taking into consideration the equity. -- section 115: executing court dismissing the execution petition as not maintainable inspite of clear instructions of the high court order of execution court was set aside and matter remitted to the execution court. - this is what they have stated in para 3 (of scwr) -(para 3 of air): further section 4 of the limitation act 1963, provides for the contingency when the prescribed period for any application expires on a holiday and the only contingency contemplated is 'when the court is closed'.again under section 5 it is only a court which is enabled to admit an application after the prescribed period has expired if the court is satisfied that the applicant had sufficient cause for not preferring the applications......territorial jurisdiction the village panchayat is situated. explanation: for the purpose of this rule. munsiff means- (i) in the bombay area, civil judge, junior division; (ii) in madras area, a district munsiff.' the facts are clear from this rule: (1) the application is required to be made before the munsiff. (2) it is to be made within 7 days from the date of publication of the result of the election, under rule 12. it must be mentioned that the application is not required to be filed in the court of the munsiff, but has to be filed before themunsiff indicating that it is to be filed before a persona designate.5. since the point did not appear to be free from difficulty, mr. doddakale gowda was requested to appear as amicus curiae as none appeared on behalf of the respondents. he.....
Judgment:

Tukol, J.

1. The sole question that arises in this writ petition for our decision is, whether Section 5 of the Limitation Act 1963 is applicable to an application filed before the Munsiff under Rule 17 of the Mysore Village Panchayat (Election of the Chairman and the Vice-Chairman) Rules, 1959, to be hereinafter/ referred to as the 'Rules.'

2. The election for the post of the Chairman of the Village Panchayat of Kollur in Chincholi Taluk, District Gulbarga, was held on 24-7-1968 and the results were published on 24-7-1968, itself, declaring that the present petitioner was duly elected as Chairman, Respondent No. 1 filed an election petition No. 13/68 before the Munsiff at Chincholi on 2-8-1968. The present petitioner opposed that application on the ground that there as a delay of two days in filing the petition and that the petition was liable to be dismissed as barred by time. The Munsiff took the view that the petitioner before him was under a bona fide belief that a copy of the declaration of the results was necessary for the petition and that the two days' delay was caused by bona fide mistake, since the Rules did not require a copy of the declaration of the result to be annexed to the petition. He accordingly allowed the application and adjourned the proceeding and called upon the respondents to file their counter to the election petition. It is the legality of this order that is required to be decided in this writ petition.

3. Mr. Jagannatha Shetty, the learned Advocate appearing for the petitioner, submitted that since the application for setting aside the election of the Chairman was required to be made to the Munsiff as a persona designata and not as a presiding officer of a Civil Court, the provisions of Section 5 of the Limitation Act were not applicable and that the Munsiff was in error in condoning the delay of two days and setting it down for further hearing.

4. Rule 17 of the 'Rules' lays down:

'Any member of the panchayat may challenge the validity of the election of the Chairman or the Vice-Chairman, as the case may be, within seven days from the date of publication of the result of election under Rule 12 by filing an election petition, together with a deposit of Rs. 100 as security for costs before the Munsiff within whose territorial jurisdiction the village Panchayat is situated.

Explanation: For the purpose of this rule. Munsiff means-

(i) in the Bombay area, Civil Judge, Junior Division;

(ii) in Madras Area, a District Munsiff.'

The facts are clear from this Rule: (1) The application is required to be made before the Munsiff. (2) It is to be made within 7 days from the date of publication of the result of the election, under Rule 12. It must be mentioned that the application is not required to be filed in the Court of the Munsiff, but has to be filed before theMunsiff indicating that it is to be filed before a persona designate.

5. Since the point did not appear to be free from difficulty, Mr. Doddakale Gowda was requested to appear as Amicus Curiae as none appeared on behalf of the respondents. He has drawn our attention to a number of decisions of the different High Courts, which have taken the view that the provisions of the Limitation Act would be applicable to applications filed before a persona disignata. We are thankful to Mr. Doddakale Gowda for the assistance he rendered to us. However, it is not necessary to refer to these decisions since the point is concluded by the two decisions of the Supreme Court relied upon by Mr. Jagannatha Shetty, learned Advocate appearing for the petitioner.

6. In Town Municipal Council Atrani v. Presiding Officer, Labour Court, Hubli, Civil Appeals Nos. 170 to 173 of 1968, decided by the Supreme Court on March 20, 1969 (reported in : (1969)IILLJ651SC ), their Lordships had to consider whether Article 137 of the Limitation Act 1963 was applicable to an application filed before the Labour Court under Section 33-C(2) of the Industrial Disputes Act 1947. During the course of the judgment, their Lordships referred to the Full Bench decision of the Bombay High Court in P. K. Porwal v. Labour Court at Nagpur, (1968) 70 Bom LR 104 (FB), which took the view that Article 137 of the Limitation Act applies to applications filed under laws other than the Code of Civil Procedure, After referring to the previous history and the interpretation of old Article 181 and to the preamble of the New Limitation Act 1963, their Lordships concluded:

'It is clear, therefore, that proceedings other than suits and purposes connected therewith are now covered by the law of limitation. Another important change to be noticed is that in the preamble of the old Act, were the words 'limitation of suits, appeals and certain applications to courts'. Thus the preamble itself limited that Act to certain applications only and those applications also were applications to Courts only. That part of the preamble is now dropped by the new Act. This is the second indication of the intention of the Legislature to widen the application of the new law of limitation, making it applicable to all applications.' Dealing with this point, their Lordships of the Supreme Court expressed their inability to agree with the view taken by the Bombay High Court. They stated: 'Under the old Limitation Act, no doubt, the long title was 'An act to consolidate and amend the law for the limitation of suits and for other purposes', while in the new Act of 1983, the long title is 'An Act to consolidate and amendthe law for the limitation of suits and other proceedings and for purposes connected therewith'. In the long title, thus, the words, 'other proceedings' have been added; but we do not think that this addition necessarily implies that the Limitation Act is intended to govern proceedings before any authority, whether executive or quasi-judicial, when, earlier, the old Act was intended to govern proceedings before civil Courts only. It is also true that the preamble which existed in the old Limitation Act of 1908 has been omitted in the new Act of 1963. The omission of the preamble does not, however, indicate that there was any intention of the legislature to change the purposes for which the Limitation Act has been enforced. The Bombay High Court also attached importance to the circumstances that the scope of the new Limitation Act has been enlarged by changing the definition of 'applicant' in Section 2(a) of the new Act so as to include even a petitioner and the word 'application' so as to include a petition. The question still remains whether this alteration can be held to be intended to authorities other than Courts. We are unable to find any provision in the new Limitation Act, which would justify holding that these changes In petition were intended to make the Limitation Act applicable to proceedings before bodies other than Courts.'

7. Another decision relied upon by the learned counsel for the petitioner is Nityananda M. Joshi v. Life Insurance Corporation of India. : (1969)IILLJ711SC . In that case also their Lordships had to consider the applicability of Article 137 of the Limitation Act 1963 to an application by employees under Section 33-C of the Industrial Disputes Act. After referring to the decisions quoted above, their Lordships reiterated the same view and affirmed the earlier view as regards the applicability of the provisions of the Limitation Act only to proceedings taken before civil Court. This is what they have stated in para 3 (of SCWR) --(Para 3 of AIR):

'Further Section 4 of the Limitation Act 1963, provides for the contingency when the prescribed period for any application expires on a holiday and the only contingency contemplated is 'when the Court is closed'. Again under Section 5 it is only a Court which is enabled to admit an application after the prescribed period has expired if the Court is satisfied that the applicant had sufficient cause for not preferring the applications. It seems to us that the scheme of the Indian Limitation Act is that it only deals with applications to Courts, and that the Labour Court is not a Court within the Indian Limitation Act, 1963'.

In view of the law laid down by the Supreme Court, we hold that Section 5of the Limitation Act 1963 is not applicable to a proceeding initiated on an application under Rule 17 of the 'Rules' and that the Munsiff ought to have dismissed the application as barred by time,

8. In the result, we allow this writ petition and the order passed by the Munsiff is set aside. Since the Munsiff has decided the application on a preliminary point and fixed it for further hearing, we think that it is appropriate that he should pass the final order in the case. Therefore, the Munsiff is directed to dismiss the petition and pass suitable orders as to costs before him. No costs in this.

9. Writ petition allowed.


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