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Jeet Mal Kapoor Trust and ors. Vs. the State of U.P. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Case NumberMisc. Appln. No. 7247 of 1958
Judge
Reported inAIR1959All702
ActsLimitation Act, 1908 - Sections 5 and 29; Cawnpore Urban Area Development Act, 1945 - Sections 29(2) and 119(5)
AppellantJeet Mal Kapoor Trust and ors.
RespondentThe State of U.P.
Advocates:Kamta Nath Seth, Adv.
Excerpt:
.....sub-section (5) of section 119 of cawnpore urban area development act, 1945 does not prescribe a special period of limitation for the appeal - appeal for the purpose of limitation be regarded as an appeal under the code of civil procedure code, 1908 - sub- section ( 2) of section 29 has no application - section 5 of limitation act applies - proprio vigore. - - 3. we have heard learned counsel and we are satisfied that this is a fit case for the grant of special leave to appeal and leave is granted accordingly. section 5 applies therefore 'proprio vigore'.5. we are satisfied that there has been no unreasonable delay on the part of the appellants in applying to the chairman for the grant of a certificate under section 119 (1) (a) of the development act, and upon that being refused in..........within the meaning of article 156 of the first schedule to the indian limitation act, 1908.' the period prescribed under article 156 is ninety days from the date of the decree or order appealed from, which in this case is 8-11-1957. after making allowance for the time spent in obtaining a certified copy of that order the prescribed period expired on 6-2-1958, a date, it will be observed, which is prior to that upon which the chairman of the tribunal rejected the application for a certificate that the case was a fit one for appeal. the question is whether the court has power to admit the appeal after the period of limitation, if the appellants can satisfy the court that they had sufficient cause for not preferring it within such period. the answer to this question depends upon whether.....
Judgment:

O.H. Mootham, C.J.

1. A piece of land belonging to the applicants was acquired by the Kanpur Improvement Trust as part of an improvement scheme, and by an award dated 21-3-1949, the Land Acquisition Officer awarded the applicants the sum of Rs. 5,818/12/-as compensation. This award was not accepted by the applicants, and at their request the matter was referred to the Kanpur Development Board Tribunal constituted under Section 108 of the Cawnpore Urban Area Development Act, 1945.

That Tribunal by an order dated 8-11-1957, enhanced the award by Rs. 2,097.81. The applicants were however dissatisfied with this order and desired to appeal from the Tribunal's decision to this Court under Section 119 (1) of that Act.

2. Section 119 (1) reads thus:

'119. (1) An appeal to the High Court shall lie from a decision of the Tribunal if--

(a) the Chairman of the Tribunal grants a certificate that the case is a fit one for appeal or,

(b) the High Court grants special leave to appeal, provided that the High Court shall not grant such special leave unless the Chairman of the Tribunal has refused to grant a certificate under Clause(a)'.

The applicants duly applied to the Chairman forthe requisite certificate, but this was refused on19-2-1958. They then made the application forspecial leave which is now before us.

3. We have heard learned counsel and we are satisfied that this is a fit case for the grant of special leave to appeal and leave is granted accordingly. The question however arises whether the appeal can now be entertained by this Court or whether it is beyond time.

4. Sub-section (5) of Section 119 of the Act provides that

'An appeal under Sub-section (1) shall be deemed to be an appeal under the Code of Civil Procedure., 1908, within the meaning of Article 156 of the First Schedule to the Indian Limitation Act, 1908.'

The period prescribed under Article 156 is ninety days from the date of the decree or order appealed from, which in this case is 8-11-1957. After making allowance for the time spent in obtaining a certified copy of that order the prescribed period expired on 6-2-1958, a date, it will be observed, which is prior to that upon which the Chairman of the Tribunal rejected the application for a certificate that the case was a fit one for appeal.

The question is whether the Court has power to admit the appeal after the period of limitation, if the appellants can satisfy the Court that they had sufficient cause for not preferring it within such period. The answer to this question depends upon whether the provisions of Section 5 of the Indian Limitation Act apply. The Cawnpore Urban Area Development Act is local law and Sub-section (2) of Section 29 of the Limitation Act provides that--

'(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first schedule, the provisions of Section 3 shall apply as if such period were prescribed therefor in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law--

(a) the provisions contained in Section 4, Sections 9 to 18, and Section 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; and

(b) the remaining provisions of this Act shall not apply.'

If therefore the Development Act prescribes for this appeal a period of limitation different from the period prescribed therefor in the first schedule to the Limitation Act then Section 5 of the latter Act will have no application, for it is common ground that there is no express provision in the Development Act making that section applicable.

We are however of opinion that Sub-section (5) of Section 119 of the Development Act does no more than provide that the appeal referred to therein shall be treated as though it were an appeal under the Code of Civil Procedure. The sub-section does not in our opinion prescribe a special period of limitation for the appeal; it merely says that the appeal shall, for the purposes of limitation, be regarded as an appeal under the Code of Civil Procedure.

The period of limitation is therefore that which is prescribed by the Limitation Act for an appeal under that Code, and accordingly Section 29 (2) has no application in the present case. Section 5 applies therefore 'proprio vigore'.

5. We are satisfied that there has been no unreasonable delay on the part of the appellants in applying to the Chairman for the grant of a certificate under Section 119 (1) (a) of the Development Act, and upon that being refused in applying to this Court for special leave under Clause (b) of the same sub-section.

We are satisfied, therefore, that the appellantshad sufficient cause for not preferring the appealwithin time. The appeal, which has already beenpresented to this Court subject to special leave toappeal being granted accordingly be admitted onpayment of requisite court-fee within 2 months.


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