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Bhonreylal and ors. Vs. Kunj Beharilal - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 55 of 1968
Judge
Reported inAIR1969Raj299b
ActsCode of Civil Procedure (CPC) , 1908 - Order 16, Rule 1 - Order 21; Limitation Act, 1963 - Sections 5 and 29(2)
AppellantBhonreylal and ors.
RespondentKunj Beharilal
Appellant Advocate R.P. Goyal, Adv.
Respondent Advocate M.L. Joshi, Adv.
Cases ReferredCanara Bank Ltd. Bombay v. Warden Insurance Co.
Excerpt:
.....lw 253 =(air 1964 raj 243) the subordinate courts do not permit the parties to summon witnesses if list of witnesses has not been submitted on their behalf within the prescribed period and such orders are being challenged in a good number of revision applications pending in this court. will stand defeated. but if it lays down any bar of time in respect of special cases in special circumstances like those contemplated by section 417(3) and (4), read together, it will be a special law contained within the general law. we are conscious of the fact that the language used by 'the legislature is perhaps not very happy, but we must put upon it a construction which will reconcile the various difficulties caused by the other sections of the limitation act and which will give effect to the object..........the subordinate courts generally are taking the view that they have no jurisdiction to extend the period prescribed by rule 1 of order 16 which requires the party to present in court a list of witnesses whom it proposes to produce on such date as the court may appoint and not later than 30 days after the settlement of issues. sub-rule (ii) says that:'no party shall produce or obtain process to enforce the attendance of witnesses other than those contained in the list referred to in sub-rule (1), except with the permission of the court and after showing good cause for the same and the court granting or refusing such permission shall record reasons for so doing.'after the interpretation of the above rule by this court in mst. tulsi bai v. chunilal, 1964 raj lw 253 = (air 1964 raj 243) the.....
Judgment:
ORDER

C.B. Bhargava, J.

1. The point for determination in this revision application by the defendants is whether the period of thirty days prescribed for presenting a list of witnesses under Order 16, Rule 1 as amended by the Rajasthan High Court can be extended by virtue of Section 5 of the Indian Limitation Act, (Act 36 of 1963).

2. The point is of some importance because the subordinate Courts generally are taking the view that they have no jurisdiction to extend the period prescribed by Rule 1 of Order 16 which requires the party to present in Court a list of witnesses whom it proposes to produce on such date as the Court may appoint and not later than 30 days after the settlement of issues. Sub-rule (ii) says that:

'No party shall produce or obtain process to enforce the attendance of witnesses other than those contained in the list referred to in Sub-rule (1), except with the permission of the Court and after showing good cause for the same and the Court granting or refusing such permission shall record reasons for so doing.'

After the interpretation of the above rule by this Court in Mst. Tulsi Bai v. Chunilal, 1964 Raj LW 253 = (AIR 1964 Raj 243) the subordinate Courts do not permit the parties to summon witnesses if list of witnesses has not been submitted on their behalf within the prescribed period and such orders are being challenged in a good number of revision applications pending in this Court.

In the present case also the defendants were ordered by the Court to submit a list of their witnesses within 20 days from 14th September, 1967 the date on which the issues were framed as the burden of proof of these issues lay on the defendants. Evidence was to be recorded on 30th November, 1967. The defendants did not comply with the order of the Court and submitted an application along with an affidavit on 16th October, 1967 for extending the period of limitation for submitting the list for the reasons mentioned therein. List of the witnesses and process fee was also filed on the same date.

On 24th October, 1967, the learned Civil Judge directed the application to be put up on the date of hearing in the presence of the opposite party and in the meanwhile also directed six witnesses to be summoned. On the date of hearing objection was raised on behalf of the plaintiff that the list of witnesses had not been filed within the time allowed by the Court or at any rate within 30 days from, the date of settlement of issues and as such the defendants had no right to examine any witness. The learned Civil Judge in view of the aforesaid judgment of this Court held that 'the provisions relating to the filing of the list of witnesses, are express, explicit and mandatory in command and admit no exception.' It was urged on behalf of the defendants that there was only one day's delay in submitting the list, but the Court said that 'if the delay of one day can be condoned, it can be condoned for any period and the very purpose of Order 16, Rule 1, Civil P. C. will stand defeated.'

It may be mentioned that in their application the defendants had stated that the list of witnesses could not be submitted within 30 days from 14th September, 1967 because the defendants were misled by the fact that the Rajasthan Government had declared holidays from 11th October, 1967 to 14th October, 1967 and 15th October, 1967 was Sunday and they had thought that 14th October, 1967 would also be observed as a holiday by the Civil Courts. Therefore, the list was filed on Monday the 16th October, 1967 instead of 14th October, 1967. The learned Civil Judge, as already stated, rejected the application without giving thought to the question whether time for submitting the list could be extended by virtue of Section 5 of the Indian Limitation Act. Section 5 of the Limitation Act of 1963 is as follows:--

'Any appeal or any application, other than an application under any of the provisions of Order 21 of the Code of Civil Procedure. 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.

Explanation-- The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.'

It will be seen that the present section applies to all applications other than those arising under Order 21 of the Civil Procedure Code, 1908 relating to the execution of decrees, whereas under the old Act of 1908 Section 5 was applicable to applications to which it was made applicable by or under any enactment in force. The new section has brought above two important changes:

1. that it applies to all applications except those under Order 21, Civil P. C.

2. That it also applies to all special or local enactments unless specifically excluded by any of them, because under Section 29(2) it is provided:-- '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 for 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 extent to which they are not expressly excluded by such special or local law.' The law under the Act of 1908 was different because under Section 29(2) of that Act, Section 5 was not applicable where the period of limitation prescribed by special or local law for the appeal or application was different from that prescribed by the Limitation Act. But the present Act makes Sections 4 to 24 applicable to appeals and applications under special or local laws also unless they are expressly excluded by the special or local law. The question, therefore, arises whether Order 16, Rule 1 as amended by the Rajasthan High Court which prescribes 30 days period for submitting the list of witnesses is a special law within the meaning of Section 29(2) of the Limitation Act and whether the period prescribed is different from the period prescribed by the schedule under the Limitation Act so as to attract the application of Section 29(2) of the Limitation Act.

3. So far as the first question is concerned there was conflict of judicial opinion and some High Courts took the view that the Civil Procedure Code and the Criminal Procedure Code are not a special law even where they deal with the question of limitation. But that controversy has now been set at rest by their Lordships of the Supreme Court in Union of India v. Ram Kanwar, AIR 1962 SC 247 and Kaushalya Rani v. Gopal Singh,, AIR 1964 SC 260. In the first case it was held that

'Rule 4 in Chap. 1, of the Punjab High Court Rules and Orders, Vol. V, framed by the High Court in exercise of the legislative power conferred upon the said High Court under Clause 27 of the Letters Patent, is a law made in respect of special cases covered by it and is a special law within the meaning of Section 29(2) of the Limitation Act.'

In the second case the question which fell for determination was whether Section 5 of the Limitation Act applied to applications for leave to appeal against acquittal by private complainant and in that connection it was observed by their Lordships that:

'The whole Code of Criminal Procedure Is indeed a general law regulating the procedure in criminal trials generally, but it may contain provisions specifying a bar of time for particular class of cases which are of a special character. Such a law will be a 'special law1 with reference to the law generally governing the subject matter of that kind of relationship. A 'special law', therefore, means a law enacted for special cases, in special circumstances, in contradistinction to the general rules of the law laid down, as applicable generally to all cases with which the general law deals. In that sense, the Code is a general law regulating the procedure for the trial of criminal cases, generally; but if it lays down any bar of time in respect of special cases in special circumstances like those contemplated by Section 417(3) and (4), read together, it will be a special law contained within the general Law. The Limitation Act is a general law laying down the general rules of limitation applicable to all cases dealt with by the Act; but there may be instances of a special law of limitation laid down in other statutes, though not dealing generally with the law of limitation. Once It is held that the special rule of limitation laid down in Sub-section (4) of Section 417 of the Code is a 'special law' of limitation, governing appeals by private prosecutors, there is no difficulty in coming to the conclusion that Section 5 of the Limitation Act is wholly out of the way, in view of Section 29(2)(b) of the Limitation Act.'

4. It may be pointed out that Section 5 was not held applicable in that case because it was governed by the Limitation Act of 1908. In view of these two decisions it can be safely stated that O. 16, Rule 1 is a special law within the meaning of Section 29(2) of the Limitation Act.

The other question viz., whether the period prescribed under Order 16, Rule 1 is different from the period prescribed by the schedule, is also concluded by a judgment of their Lordships of the Supreme Court in Vidayacharan Shukla v. Khubchand Baghel, AIR 1964 SC 1099. There their Lordships held that:--

'Section 29(2) Limitation Act would apply even to a case where difference between the special law and the Limitation Act arose by the omission to provide for a limitation to a particular proceeding under the Limitation Act.'

Subba Rao, J. as his Lordship then was, agreeing with the majority view observed:--

'With this background let us revert to the construction of Section 29(2) of the Limitation Act. When the First Schedule of the Limitation Act prescribes no time for a particular appeal, but the special law prescribes a time limit to it, can it not be said that under the First Schedule of the Limitation Act an appeal can be filed at any time, but the special law by limiting it provides for a different period? While the former permits the filing of an appeal at any time, the latter limits it to the prescribed period. It is, therefore, different from that prescribed in the former.'

In the same judgment, their Lordships also referred the following observations of Chagla, C. J. in Canara Bank Ltd. Bombay v. Warden Insurance Co., Ltd. Bombay, AIR 1953 Bom 35:

'The period of limitation may be different under two different circumstances. It may be different if it modifies or alters a period of limitation fixed by the First Schedule to the Limitation Act. It may also be different in the sense that it departs from the period of limitation fixed for various appeals under the Limitation Act. If the first Schedule to the Limitation Act omits laying down any period of limitation for a particular appeal and the special law provides a period of limitation then to that extent the special law is different from the Limitation Act. We are conscious of the fact that the language used by 'the Legislature is perhaps not very happy, but we must put upon it a construction which will reconcile the various difficulties caused by the other sections of the Limitation Act and which will give effect to the object which obviously the Legislature had in mind, because if we were to give to Section 29(2) the meaning which Mr. Adarkar contends for, then the result would be that even Section 3 of the Limitation Act would not apply to this special law. The result would be that although an appeal may be barred by limitation, it would not be liable to be dismissed under Section 3.'

5. In the present case also as no period1 of limitation is prescribed under the Limitation Act for making applications under Order 16, Rule 1 but 30 days period is prescribed under Rule 1 of Order 16 as amended by the Rajasthan High Court it will be a different period from the period prescribed under the schedule within the meaning of Section 29(2) of the Limitation Act. Thus Order 16, Rule 1 is a special law and prescribes a different period from the period prescribed by the schedule and as such it falls under Section 29(2) and Section 5 of the Limitation Act applies to it. Therefore, the Court has got power to extend the period of limitation prescribed under Order 16, Rule 1 if it is satisfied that there was sufficient cause for not making such application within the prescribed period. The learned Civil Judge was therefore, not right in coming to the conclusion that he had no power to extend the period of limitation and accept the list after the expiry of 30 days. Since the learned Civil Judge has not expressed any opinion on the question whether the defendants had shown any sufficient cause for extending the period of limitation the case will have to go back for deciding that question.

6. The revision application is accordingly accepted, the order of the learned Civil Judge dated 6th December, 1967, is set aside and he is directed to decide whether the defendants had any sufficient cause for not submitting the list of witnesses within 30 days and in case he finds that there was sufficient cause for it he would issue summonses to the witnesses and examine them. If on the other hand he finds that the defendants were not prevented by any sufficient cause for submitting the list of witnesses within 30 days, their application for summoning the witnesses shall stand rejected. In the circumstances of the case I make no order as to costs.


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