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Municipal Councillors of Puri Municipality Vs. Madhusudhan Das Mohapatra - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 203 of 1958
Judge
Reported inAIR1961Ori133
ActsLimitation Act, 1908 - Sections 4, 5 and 12(2)
AppellantMunicipal Councillors of Puri Municipality
RespondentMadhusudhan Das Mohapatra
Appellant AdvocateAsok Das, Adv.
Respondent AdvocateR.N. Misra, Adv.
DispositionAppeal dismissed
Cases ReferredMd. Abdul Kasim v. Chaturbhuj Sahai
Excerpt:
.....amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory..........appellant was entitled to exclusion of the period of the vacation for the purpose of computing the period of limitation and whether the defendant appellant may be said to have filed the appeal within time. for determination of this question section 4 and section 12(2) have to be considered and for convenience of reference they are quoted below :--'section 4. where the period of limitation prescribed for any suit, appeal or application expires on a day when the court is closed, the suit, appeal on application may be instituted, preferred or made on the day that the court re-opens.s. 12(2) in computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was pronounced,.....
Judgment:

S. Barman, J.

1. The main point involved in this second appeal is a question of limitation, arising out of a suit filed by the plaintiff against the Municipal Council of Puri Municipality represented by its Chairman and another for, inter alia, compensation for damages alleged to have been caused by obstruction to the plaintiff in his right of free access to the shop room which was the subject-matter of the suit.

2. The plaintiffs cause of action against the defendants was the alleged obstruction to the shop room and deprivation of his right to light and air to the said shop room on the facts and circumstances as stated in the plaint. The defence taken was that the Municipality had a statutory right to grant temporary licence to the defendant No, 2 for holding a betel stall on a platform which is alleged to have caused the aforesaid obstruction; that in fact there was no obstruction as alleged and consequently no damage was caused to the plaintiff; that the plaintiff had no prescriptive right to light and air as claimed.

The trial Court decreed the suit in favour of the plaintiff and granted compensation of Rs. 750/. In appeal, the learned lower appellate Court, while finding on merits that no damages have been proved and the plaintiff had no right to the damages as claimed, dismissed the appeal on the ground that the appeal before the lower appellate Court was barred by limitation and affirmed the decisicn of the learned trial Court. Hence this second appeal.

3. The main point of law which arises in this case is the question of limitation. For appreciation of the point, the following dates have to be kept in view. On April, 18, 1956, the trial Court delivered his judgment decreeing the suit in the plaintiff's favour as aforesaid. On April 28, 1956, the decree was drawn up. On May 12, 1956, the Civil Court closed for the summer vacation for one month and six days.

In the meantime on May 28, 1956, the limitation for filing the appeal expired during the vaca-tion. On June 18, 1956 the Court reopened after the vacation. On the same day the defendant (appellant herein) applied for certified copy of the judgment and decree. On September 6, 1956 certified copy of the judgment and decree is stated tohave been ready for delivery. On September 19, 1956 the defendant filed the appeal before the viewer appellate Court.

It is on these dates that the point of limitation has to be decided. The question is whether the defendant appellant was entitled to exclusion of the period of the vacation for the purpose of Computing the period of limitation and whether the defendant appellant may be said to have filed the appeal within time. For determination of this question Section 4 and Section 12(2) have to be considered and for convenience of reference they are quoted below :--

'Section 4. Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal on application may be instituted, preferred or made on the day that the Court re-opens.

S. 12(2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded.'

It appears from the authorities cited in course of hearing of this appeal that until 1935 the High Courts in India gave different interpretation to Section 4 included among the Sections in Part II relating to limitation of suits, appeals and applications and the sections in Part III, relating to computation of period of limitation, including Section 12.

In 1935 for the first time their Lordships of the Privy Council in Maqbul Ahmad v. Onkar Pratap Narain Singh, AIR 1935 PC 85 : 62 Ind App 80 pointed out that Section 4 of the Limitation Act merely provides that if the prescribed time in a Civil proceeding expires when the Court is closed, the proceeding can be instituted on the day when the Court reopens arid that the section does not alter or extend the period of limitation prescribed for the proceeding,

Lord Tomlin, in delivering the judgment of the Privy Council, made it clear that there is a marked distinction in form between Section 4 in Part II, and the sections in Part III relating to computation of period of limitation covering Sections 12 to 25; that the language employed in Section 4 indicates that it hag nothing to do with computing the prescribed period; that what the section provides is that, where the period prescribed expired on a day when the Court is closed, notwithstanding that fact, the application may be made or the appeal may be filed on the day that the court reopens; so that there is nothing in the section which alters the length of the prescribed period; whereas in Section 14 and other Sections of a similar nature (including Section 12) in part III of the Act, the direction begins with the words : 'In computing the period of limitation prescribed for any application', certain periods shall be excluded. Thus, it has been made amply clear that a litigant is not entitled, in computing the period of limitation for the filing of an appeal, to take into account the time taken in obtaining copies of judgment and decree appealed from, if the application for those copies is made after the expiry of the period of limitation notwithstanding the fact that the right to file the appeal subsists in view of the provisions of Section 4.

So, it comes to this that Section 4 only allows an appellant to file an appeal on the opening dayof the Court but it does not operate as to extend the period of limitation. Although in the decision in the Privy Council case, the Board was concerned only with the question of combining the periods under Sections 4 and 14, the principles of the decision will also apply equally to any such attempt alt combination of the periods under Section 4 and Section 12, as the words in the judgment of their Lordships, -- 'whereas in Section 14 and other sections of similar nature in the Act', are sufficiently wide and significant.

4. In the present case, the appellant under Section 4 could take the benefit of the period up to June 18, 1956, when the Court reopened; but he could not add to it the benefit of Section 12(2) permitting exclusion of the time requisite or required for obtaining a copy of the decree. In other words, the benefit of Section 12(2) cannot be tagged to that of Section 4. Indeed, this view is supported by the scheme of the Limitation Act itself, for it appears that Section 4 comes under Part II-- Limitation of Suits, Appeals and Applications -- covering Sections 3 to 11. Part III -- Computation of period of Limitation -- covers Sections 12 to 25 as aforesaid.

Thus it is very clear, from the scheme of the Act itself, that Section 4 is one of the provisions which fixes the point of time in which a suit may be instituted, appeal preferred and application made; whereas Section 12 is one of the sections under Part III for computation of period of limitation which provides for exclusion of time in certain cases as provided therein.

In my opinion, the defendant appellant is not entitled to further extension of the period for preferring the appeal beyond the date of reopening of the Court, that is to say, June 18, 1956 on which date he could have preferred the appeal, although the period of limitation had already expired about three weeks earlier on May 23, 1956. This he could do by virtue of Section 4 of the Act. But he could not tag on tc it a further period as the time requisite for obtaining a copy of the decree. I, therefore, hold that the appeal before the lower appellate Court was barred by limitation.

5. Mr. Asok Das, learned counsel for the defendant appellant, relied on certain decisions which all are prior to the Privy Council decision in 1935 referred to above. He cited before me certain decisions of the Patna High Court, appearing to have taken a different view on facts and circumstances peculiar to each of these cases. It seems to me that if the Privy Council interpretation, -- of Section 4 under part II and the sections under Part III including Section 12 and Section 14,--was then available to the Indian High Courts they might have taken a different view and the decisions might have been otherwise. Since the Privy Council decision in 1935 there have been certain recent decisions by the Lahore and Madras High Courts and lately by the Allahabad High Court and Madhya Bharat High Court all following the Privy Council interpretation of the said Sections as discussed above.

I am thus further strengthened in my view by the aforesaid decisions of the different High Courts in India following the Privy Council decision in 1935, Bhawani Cloth Mills Ltd. v. Parmeshari Dass, MR 1947 Lah 168; A. Kamaraju v. B. Saramma, AIR 1942 Mad 604; Mukat Behari-lal v. Addl. Dist. Magistrate (Executive), Bareilly, AIR 1959 All 699; Sadasivrao Gangadhar v. Ram-chandra, AIR 1954 Madh B. 18.

6. A further point pressed on behalf of the defendant appellant was that the learned Subordinate Judge on October 6, 1956, had already found that the appeal was within time in an application under Section 5 of the Limitation Act which order was passed as ex parte in the absence of the plaintiff respondent. It was contended, on behalf of the defendant appellant, that inasmuch as that ordec had been made and no review petition was filed challenging the correctness of the order, it amounted to res judicata and could not be set aside by the successor of the learned Subordinate Judge who had made the said order.

This contention is successfully repelled by Mr. R. N. Misra, learned counsel for the plaintiff respondent, who contended that the said order was not a final order. It was an ex parte provisional order. The learned counsel further submitted that such an ex parte order under Section 5 of the Limitation Act is always subject to reconsideration and could never be final. In support of his contention, he relied on a decision of the Patna High Court which supports his contention -- Md. Abdul Kasim v. Chaturbhuj Sahai, AIR 1922 Pat 47.

I am of opinion that there is no merit in the defendant's contention that the said ex parte pro-visional order of the learned Subordinate Judge, under Section 5 of the Limitation Act, could not be disturbed.

7. In this view of the matter, the decisionof the learned lower appellate Court is upheld.This appeal is accordingly dismissed with costs.


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