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Punni Vs. State of U.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 874 of 1969
Judge
Reported inAIR1971All387
ActsLimitation Act, 1963 - Sections 12(2) and 29(2); Uttar Prdesh Panchayat Raj Act, 1947 - Sections 83(1), 85 and 89
AppellantPunni
RespondentState of U.P. and ors.
Appellant AdvocateS.K. Tewari, Adv.
Respondent AdvocateStanding Counsel and ;Shambu Prasad, Adv.
DispositionPetition allowed
Excerpt:
limitation - sub section (2) of section 12 of limitation act, 1908 - time required for obtaining a certified copy - not required with memorandum of appeal - excluded in computing period of limitation. - - 11 of 1955 which came into force on april 15, 1956. the substituted section does not contain any provision like that in sub-section (5) of section 85 as it was before the said amendment......period of sixty days provided in the said section 89 for a party to apply to have an order of the nyaya panchayat revised. the contention of the applicant in revision was that he was entitled to exclude the period spent in obtaining a copy of the order of the nyaya panchayat sought to be revised. the learned munsitf held that no such exclusion could be made as the provision in section 12(2) of the indian limitation act which permits the exclusion of time taken in obtaining a copy of the order sought to be revised is inapplicable to the case.in ram singh v. panchayati adalat, air 1954 all 252, a single judge of this court had taken the view that section 12(2), as it then was, was applicable and the applicant was entitled to the deduction of the time spent in obtaining a copy of the order.....
Judgment:

Gur Sharan Lal, J.

1. This writ petition has been referred to a Division Bench because of a conflict between two Single Judge decisions of this Court mention in the order of reference of Satish Chandra, J.

2. The writ petition itself was filed to get quashed an order of Munsif Kasganj in which he held a revision filed before him under Section 89 of the U. P. Panchayat Raj Act to be time barred The revision had been filed beyond the period of sixty days provided in the said Section 89 for a party to apply to have an order of the Nyaya Panchayat revised. The contention of the applicant in revision was that he was entitled to exclude the period spent in obtaining a copy of the order of the Nyaya Panchayat sought to be revised. The learned Munsitf held that no such exclusion could be made as the provision in Section 12(2) of the Indian Limitation Act which permits the exclusion of time taken in obtaining a copy of the order sought to be revised is inapplicable to the case.

In Ram Singh v. Panchayati Adalat, AIR 1954 All 252, a Single Judge of this Court had taken the view that Section 12(2), as it then was, was applicable and the applicant was entitled to the deduction of the time spent in obtaining a copy of the order of the Panchayati Adalat. On the other hand in Chivdeni Rai v. Bans Narain Rai, AIR 1954 All 391 another single Judge of this Court held that on account of the provisions of Section 83 of the U. P. Panchayat Raj Act the Limitation Act was wholly inapplicable to the proceedings in a case of a Nyaya Panchayat and it was, therefore, doubtful if Section 12(2) of the Limitation Act applied to such proceedings.

It may be mentioned at this stage that Section 12(2) of the Indian Limitation Act which was in force at the time the above two decisions were given did not cover a revision and therefore even if Section 12(2) had applied to proceedings in Nyaya Panchayat cases, the time spent in obtaining a copy of the judgment of a Nyaya Panchayat for getting the judgment or order revised could not be excluded in computing the period of Limitation laid down in the section for filing a revision. In the Indian Limitation Act of 1963 the case of a revision has also been included in the ambit of Sub-section (2) of Section 12.

3. Before proceeding to discuss the main point in controversy it may be stated that the learned Counsel for the Opposite Party pointed out the fact that though earlier there was a provision in the rules framed under the U. P. Panchayat Raj Act for a copy of an order sought to be revised being filed along with an application for revision, the provision has since been deleted and stood deleted at the time relevant for the purposes of this case. We, however, do not see any significance in the said deletion so far as the question of exclusion of time under Section 12(2) of the Limitation Act is concerned. Section 12(2) does not make the exclusion of time required for obtaining a copy of the order sought to be revised dependent upon any requirement of such a copy being filed along with an application for revision. On the other hand it is absolute in its terms.

The matter has been subject of consideration by the Supreme Court in S. A. Gaffoor v. Ayesha Begum, reported in 1970 UJ (SC) 784 and it was held by the Supreme Court that time required for obtaining a certified copy which was not required to be filed with the memorandum of appeal was to be excluded in computing the period of limitation. This settles the point raised before us.

4. Section 29(2) of the Indian Limitation Act reads:--

'(2) 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 of 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 context to which, they are not expressly excluded by such special or local law.'

The contention of the learned Counsel for the opposite party is that because Section 83 excludes the application of the Indian Limitation Act as a whole, therefore, the provisions of Sections 4 to 24 of the Limitation Act shall be taken to be expressly excluded by the special or local law, that is, the U. P. Panchayat Raj Act. There can be no controversy about this provided it can be held that Section 83 of the U. P. Panchayat Raj Act excludes the application of the Indian Limitation Act to all proceedings arising under that Act.

So the main question for our consideration is whether the effect of the provision in Section 83 (1) is to exclude the application of the Indian Limitation Act not only to cases which come before the Nyaya Panchayat but all proceedings arising under the Act. Section 83 purports to lay down the procedure and power to ascertain truth by the Nyaya Panchayat is cases in its three kinds of jurisdiction under the Act civil, criminal and revenue. About the Nyaya Panchayat the section lays down that 'It shall follow the procedure prescribed by or under this Act. The Code of Civil Procedure, 1908 the Code of Criminal Procedure, 1898, the Indian Evidence Act, 1872 and the Indian Limitation Act, 1908 shall not apply to any civil case, Criminal case or revenue case in a Nyaya Panchayat except as provided in this Act or as may be prescribed.' It is noteworthy that the provision is not that the aforesaid enactments will not apply to a civil case, criminal case or revenue case triable by a Nyaya Panchayat even if it is tried otherwise than by a Nyaya Panchayat or to any other proceeding relating to such a case. On the other hand, the words which follow after the words 'civil case, criminal case or revenue case' are 'in a Nyaya Panchayat', which words in the above context, appear to mean 'before a Nyaya Panchayat'.

5. Sections 85 and 89 of the U. P. Panchayat Raj Act provide respectively for transfer of cases and for revising orders of Nyaya Panchayats and they thereby confer special jurisdiction on sub-divisional Magistrate in connection with a class of criminal cases Munsiffs in respect of a class of civil cases and sub-divisional Officers in respect of a class of revenue cases to try which jurisdiction has been conferred by the Act upon Nyaya Panchayats. It is to invoke this special jurisdiction that an application may be made by a party in a case before a Nyaya Panchayat for transfer of the case under Section 85 or for revision of order of the Nyaya Panchayat under Section 89. The sub-Divisional Officer, Magistrate, or Munsiff exercises jurisdiction under these two sections as a Sub-Divisional Magistrate, Munsiff or Sub-Divisional Officer and a proceeding arises before him by virtue of making of an application, be it under Section 85 or under Section 89. The question arises whether such a proceeding can be regarded as criminal case, civil case or revenue case in a Nyaya Panchayat for the purposes of Section 83.

In AIR 1954 All 391, Asthana, J., took the view that the provision was applicable not only in respect of proceedings pending in a Panchayati Adalat but also in the revisional court and he relied upon a decision of Agarwala, J., in Bansi v. State, AIR 1952 All 38. In Bansi's case the matter which came to be decided by this Court was whether Section 435, Criminal Procedure Code applied even to an order passed by the sub-Divisional Magistrate under the U. P. Panchayat Raj Act whether that order be of dismissal of the revisional application or of interference with the order passed by the Panchayati Adalat. Reliance was placed for the decision principally upon Sub-section (5) of Section 85 of the U. P. Panchayat Raj Act, as it then stood. The said Sub-section (5) provided that 'except as aforesaid, a decree or order passed by a Panchayati Adalat in any suit, case or proceeding under this Act shall be final and shall not be open to appeal or revision in any Court.' It was thought that in the face of that express provision entertainment of a revision under Section 436 Code of Criminal Procedure against an order of the sub-Divisional Magistrate would be indirectly doing what this sub-section prohibits. Section 85 was, however, substituted by Section 89 of U. P. Act No. 11 of 1955 which came into force on April 15, 1956. The substituted section does not contain any provision like that in Sub-section (5) of Section 85 as it was before the said amendment. On the other hand revision has been provided for by Section 89 expressly. It is, therefore, no longer open to say that even in a criminal case triable by a Nyaya Panchayat, if an order is passed by the sub-divisional Magistrate under Section 85 or 89, then entertaining a revision under Section 435, Criminal Procedure Code would be contrary to the provisions or spirit of Section 85.

On the other hand, it will appear that to read in Section 88 of the U. P. Panchayat Raj Act that the Code of Civil Procedure, Code of Criminal Procedure, the Indian Evidence Act and the Indian Limitation Act shall not apply to any proceeding arising under the Act and relating to a civil case, criminal case or revenue case triable by a Nyaya Panchayat would be to altogether change the context in which the provision is contained and the effect of the words 'in a Nyaya Panchayat'. The section purports to lay down the procedure to be observed by a Nyaya Panchayat and for that purpose excludes the application of the aforesaid Acts. It is difficult to hold that even though the Act confers some jurisdiction in a sub-Divisional Magistrate, a Munsiff or a sub-Divisional Officer, it intends that when acting as Sub-Divisional Magistrate, Munsiff or Sub-Divisional officer such authority though otherwise governed in its procedure by the two codes and the Limitation Act will not be governed by them. The proceeding arising before a Munsiff on a revision being filed under Section 89 of the U. P. Panchayat Raj Act even though in relation to a case triable by a Nyaya Panchayat is a proceeding before the Munsiff as such and in our view exclusion of application of the Code of Civil Procedure and the Indian Limitation Act to the proceeding before the Munsiff would require an express provision to that effect and the exclusion in the limited Form contained in Section 83 cannot be interpreted to extend to the revisional proceeding under Section 89 of the Act. In this view of the matter Section 29(2) of the Indian Limitation Act will become applicable to the case of the period of limitation of sixty days prescribed by Section 89 of the U. P. Panchayat Raj Act and in consequence, the provision in Section 12(2) of the Indian Limitation Act will also apply. We may state that incidentally this interpretation will also be more conducive to justice than a view to the contrary. After all a person who wants to file a revision must have opportunity to look into the order which has been passed and decide for himself whether filing a revision would be worthwhile instead of filing it even before he has been able to obtain a copy of the order.

6. The point decided above being the sole point arising for decision in the writ petition, we allow the writ petition and quash the impunged order of the Munsif dated February 18, 1969 and direct him to decide the revision afresh according to law. Costs on parties.


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