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Dr. P.L. Jauhar Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectContempt of Court;Limitation
CourtRajasthan High Court
Decided On
Case NumberMisc. (Contempt of Court) Petn. No. 3 of 1974
Judge
Reported inAIR1975Raj61; 1974(7)WLN613
ActsContempt of Courts Act, 1971 - Sections 20; Limitation Act, 1963 - Sections 30
AppellantDr. P.L. Jauhar
RespondentState of Rajasthan and ors.
Appellant Advocate Rainarain Munshee, Adv.
Respondent Advocate A.K. Mathur, Adv. (for Nos. 1 to 4) and; D.K. Soral, Adv. (for No. 5)
DispositionPetition rejected
Cases ReferredPanna v. Madanlal
Excerpt:
.....to enforce his right in a court of law. ' it has further been held that in case the remedy to enforce a vested right is altogether barred, when the new law comes into force, without providing anv breathing time to a litigant, that remedy must continue to be governed by the old law of limitation, 12. it is thus well settled that ifthe new law of limitation does not destroy a vested or pre-existing right, itwould be nothing more than a law ofprocedure and would provide the periodof limitation for seeking the remedv ina court of law, even if it has the effectof curtailing the 'period of limitation prescribed under the earlier law, so long as itprovides a breathing time to the litigantto seek his remedy under. it will be recalled that october 30, 1971was at any rate, the date by which..........vested or pre-existing right, itwould be nothing more than a law ofprocedure and would provide the periodof limitation for seeking the remedv ina court of law, even if it has the effectof curtailing the 'period of limitation prescribed under the earlier law, so long as itprovides a breathing time to the litigantto seek his remedy under. the new law.it will be recalled that october 30, 1971was at any rate, the date by which thecontempt in question was alleged to havebeen committed, and as the act came intoforce on december 24, 1971, it was permissible for this court to initiate the proceedings for contempt upto october 29,1972. the petitioner therefore had ampleopportunity to move this court well within the period of limitation prescribed bysection 20 of the act. he did not, however, care.....
Judgment:
ORDER

P.N. Shinghal, J.

1. As the learned counsel for the respondents have been successful in raising a preliminary objection against the maintainability pf these proceedings on the grounds of limitation, it will be sufficient to state those facts which bear on it.

2. Dr. P. L. Jauhar, the present petitioner, filed S. B. Civil Writ Petition No. 946 of 1969 to challenge the appointment of Dr. Brii Mohan Sharma. respondent No. 5, as Deputv Director Medical (E. S. I.), by order Ex. 1' dated March 7, 1969, when that post fell vacant on the retirement of Dr. D. N. Rai. That petition was allowed by a judgment of this Court dated January 29, 1971, and it was directed as follows.--

'It will thus appear that the impugned order Ex. 1 dated March 7, 1969 is quite illegal, and it is set aside with the direction that the post of Deputy Director in question should be filled up by the State Government according to the law. The petitioner will be entitled to his costs from respondent No. 1.'

The State Government did not, however, revert Dr. Brii Mohan Sharma and did not care to fill the post of Deputy Director according to the law. The petitioner therefore filed the present petition on December 20, 1973, praying that the respondents may be suitably punished for disobedience of the aforesaid directions dated January 29, 1971. The petition was admitted, and rule was issued to the respondents requiring them to appear in this Court and answer the allegation. They filed their replies in which they took the ,plea, inter alia, that it was not permissible for this Court to initiate any proceedings for contempt after the expiry of the period of one year specified in Section 20 of the Contempt of Courts Act, 1971, hereafter referred to as 'the Act'. The learned counsel for the petitioner filed a rejoinder, as also an application under Section 5 of the Limitation Act, for condonation of the delay. The preliminary objection of the learned counsel for the respondents therefore relates to the bar of limitation, and it is necessary to decide the date on which the contempt is alleged to have been committed by the respondents.

3. As has been stated, the judgment in the writ petition was delivered on January 29. 1971 by which this Court set aside the order dated March 7, 1969 promoting Dr. Brii Mohan Sharma as Deputv Director Medical (E. S. L), which was a post encadred in the Rajasthan Medical Service, and gave the direction that the post should be filled by the State Government according to the law. It has been stated by the petitioner, in his affidavit dated February 6, 1974, and is not in dispute, that Dr. Brij Mohan Sharma was allowed to continue on the post of Deputy Director (E. S. I.) until April 1, 1971 and was thereafter transferred to the other cadre post of Deputy Director (Medical) which he held until October 30, 1971'. He was thereafter appointed as State Family Planning Officer, which was not a cadre post. It is therefore, quite clear, on the admitted facts, that the contempt, if any, was committed by October 30, 1971 whereas the present petition was filed on December 20, 1973.

4. The question then is whether proceedings for contempt could be initiated against the respondents after the expirv of the period of one year specified in Section 20 of the Act ?

5. It has been argued by Mr. Rajnarain, learned counsel for the petitioner, that a statute of limitation ceases to be a statute of mere procedure where it shortens the period of limitation and the period of limitation prescribed by Section 20 of the Act cannot therefore govern the present petition because the cause of action which had accrued to the petitioner earlier, under the Contempt of Courts Act, 1952, could not be defeated by recourse to Section 20 of the Act. The learned counsel has placed reliance on Rajah of Pittapur v. Gani Venkata Subba Row, AIR 1916 Mad 912, Panna v. Madan Lal, ILR (1955) 5 Rai 529 = (AIR 1955 Rai 173) and Govt. of Raiasthan v. Sang-ram Singh, AIR 1962 Rai 43 (FB) in support of his argument He has also invited attention to the decisions in Syed Mohammed Yar Khan v. Syed Yousuf Yar Khan, ILR (1964) Andh Pra 474 and Syed Yousuf v. Sved Mohammed. AIR 1967 SC 1318. There is considerable case law on the point, but it would be sufficient to refer to the more important decisions.

6. As has been held by their Lordships af the Supreme Court in C Beepa-thuma v. Shankaranaravana, AIR 1965 SC 241 and Ramprasad Dagaduram v. Vijaykumar Motilal, AIR 1'967 SC 278 the law of limitation is a Procedural law and the provisions existing on the date of the suit will be applicable to it. But it is equally well settled that where a subsequent law of procedure comes into force at once, without giving an opportunity to the parties to seek their remedy under it. it cannot be allowed to have retrospective operation merely on the ground that it is a law of Procedure, for that would otherwise destroy their preexisting rights.

7. A similar point arose for consideration in Khusalbhai v. Kabhai, (1882) ILR 5 Bom 26. Referring to an earlier decision in their Court, their Lordships held as follows,--

'But we think that it is somewhat too broadly stated in that case that 'an Act of limitation, being a law of procedure, governs all proceedings, to which its terms are applicable, from the moment of its enactment, except so far as its operation is expressly excluded or postponed'. This general rule must admit of the qualification that, when the retrospective application of a statute of limitation would destroy vested rights, or inflict such hardship or injustice as could not have been within the contemplation of the Legislature, then the statute is not. any more than any other law, to be construed retrospectively.''

This rule of interpretation has been accepted all through. Thus it has been held in Ramakrishna Chettv v. Subbaraya Iyer. ILR 38 Mad 101 = (AIR 1916 Mad 607) after a consideration of the decision in Khushalbhai's case (1882) ILR 6 Bom 26, that it is unreasonable to suppose that the subsequent Act 'intended to destroy a man's right without giving him an opportunity to comply with its provisions'. It was argued before their Lordships that if the Act in question be held not to be applicable to the case before them, it would logically lead to the conclusion that it would not apply to any case where the cause of action for rent arose before that Act was passed. Their Lordships repelled the argument as follows:--

'But this would certainlv not be the case; for, the principle we have enunciated would not applv to cases where three years did not elapse before the Act came into force, for then, the rule enacted in it would not have the effect of destroying the cause of action vested in the land-holder for the rent due to him.'

The point arose for consideration in Manjuri Bibi v. Akkel Mahmud, (1913) 19 Ind Cas 793 (Cal). Their Lordships considered the decision in Khushalbhai's case (1882) ILR 6 Bom 26 and held that the new procedure would not apply where its application would prejudice the rights established under the old law.

8. I may refer here to the decision in Rajah of Pittapur's case AIR 1916 Mad 912, on which reliance has been placed by Mr. Rajnarain. That was a Full Bench decision where Wallis. C. J., with whom Kumaraswamy Sastri, J was in agreement, held as follows after a consideration of the decision in Ramakrishna Chettv v. Subbarava Iyer, ILR 38 Mad 101 = (AIR 1916 Mad 607) :--

'I think that Sadasiva Aivar, J., was right in following the carefully considered judgment of Banson and Sundara Aiyar, JJ., in Ramakrishna Chetti v. Subbraya Ayyar and that the principle to be applied is that where an Act contains provisions for the limitation of suits which take away altogether a vested right of suit without providing anv equivalent remedy, then according to the approved rule of construction, the provisions must he considered to have been enacted subject to the implied exception that thev were not to extend to such vested rights of suit which were to continue subject to the rules of limitation in force at the passing of the Act.'

It was held that although the laws affecting limitation might abridge or enlarge periods of limitation in causes of action which were alive at the date when the new enactment came into force and which under the old law would exoire afterwards, the change could not. unless there was a clearly express intention to the contrary, be retrospective so as to destroy rights of suits which were alive on that date. I am unable to find anything in the judgment which can be said to support the argument of Mr. Rajnarain that Section 20 of the Act would not be applicable in the present case even though the petitioner had a period of almost 10 months after the coming into force of the Act within which to move this Court for initiating proceedings for contempt against the respondents.

9. I may refer here to the decision in Gopaldas Ganpatdas v. Tribhowan, AIR 1921 Bom 40 where the question for consideration was whether Section' 48 of the Code of Civil Procedure. 1908. could be said to have a retrospective effect on the plaintiff's decree. Their Lordships referred to the test of possibility of compliance and held, as follows, that Section 48 must have retrospective effect on the decree.--

'For the 12 years laid down by Section 48 did not expire till 1910. and the plaintiffs had therefore about 2 years from the passing of the new Code for taking steps to get their decree executed by sale of the immovable property.'

10. Reference may also be made to the decision in Khondkar Mahomed Saleh v. Chandra Kumar. AIR 1930 Cal 34. It has been held in that case that statutes of limitation cannot be considered as anything else than matters relating to procedure, and ordinarily such statutes have their operation from the date fixed in the statute and govern all matters before the Court after the commencement of the operation of the statute, but there is one exception and it is that where under the Act as amended the application could not be made, the amendment will not apply retrospectively, for the principle is that the effect of an amendment is to regulate and not to confiscate a vested right. Their Lordships therefore gave retrospective effect to the provision in the law of limitation because while it had the effect of cutting the period for making the application, it did not take awav the right to do so. A similar view has been taken in Pearev Lal v. Solugir, AIR 1946 All 58.

11. The point arose tor consideration in this Court in Jethmal v. Ambsingh, AIR 1955 Raj 97 (FB) and it was held that even though the Legislature may not have provided a saving clause in the new Act, the reduced period of limitation should not receive retrospective ope-ration so as adversely to affect the suits which would have become barred at the commencement of the Act. but alt such suits would continue to be governed by the old law. That decision was taken into consideration by Full Bench in Sangram Singh's case, AIR 1962 Raj 43 (FB) and it was held as follows,--

'It is a well settled proposition of law that the new law of limitation would not revive a barred right. Similarly, it may be taken to be equally well settled that the new law of limitation cannot be construed retrospectively so as to destroy altogether the remedy of litigant to enforce his right in a Court of law.'

It has further been held that in case the remedy to enforce a vested right is altogether barred, when the new law comes into force, without providing anv breathing time to a litigant, that remedy must continue to be governed by the old law of limitation,

12. It is thus well settled that ifthe new law of limitation does not destroy a vested or pre-existing right, itwould be nothing more than a law ofprocedure and would provide the periodof limitation for seeking the remedv ina Court of law, even if it Has the effectof curtailing the 'period of limitation Prescribed under the earlier law, so long as itprovides a breathing time to the litigantto seek his remedy under. the new law.It will be recalled that October 30, 1971was at any rate, the date by which thecontempt in question was alleged to havebeen committed, and as the Act came intoforce on December 24, 1971, it was permissible for this Court to initiate the proceedings for contempt upto October 29,1972. The petitioner therefore had ampleopportunity to move this Court well within the period of limitation prescribed bySection 20 of the Act. He did not, however, care to do so, for he filed the present petition on December 20, 1973, longafter the expiry of the period of one yearprescribed by Section 20 of the Act. Therespondents are thus justified in contending that it was not permissible for thisCourt to initiate the present proceedingsafter the expiry of the period of one yearprovided by that section.

13. I have gone through the cases cited by Mr. Rajnarain. As has been shown, the decision in Rajah of Pittapur's case does not support his contention. The decision in Panna v. Madanlal was based on the manciple of destruction of right enunciated in Rajah of Pittapur's ease and cannot avail the petitioner. Sangram Singh's case is also of no help to the petitioner for I have referred to the view which has been propounded there. Syed Mohammad Yar Khan's case and Sved Yousuf Yar Khan's case were quite different where saving clauses had been provided in the new law. These cases cannot therefore avail the petitioner.

14. This leaves for consideration the application which has been made under Section 5 of the Limitation Act. All that Mr. Rajnarain has found it possible tp urge in regard to it is that the petitioner made representations to the State Government from time to time and did not move this Court earlier because he had been assured that action for creating a supernumerary Post of Deputv Director was being taken and he would be given the benefit of Rule 35 of the Rajasthan Service Rules. The other learned counsel have argued that Section 5 of the Limitation Act is not applicable to the present case. It will be sufficient to sav that even if it is assumed that Section 5 of the Limitation Act is applicable, the grounds taken by the petitioner for condoning the delay are quite unsatisfactory and it cannot be said that the petitioner had sufficient cause for not making the petition within the prescribed period. In fact the application shows that the petition for taking contempt proceedings has been purposely delayed and has been motivated by personal and extraneous considerations, and I have no hesitation in rejecting it altogether.

15. In the result, the preliminary objection is upheld and the rule is discharged. There will however be no order as to the costs.


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