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Goodman and Company, by Its Proprietor R.C. Mallikeswaran Vs. R.S. Thirunavukarasu - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Reported in(1976)2MLJ221
AppellantGoodman and Company, by Its Proprietor R.C. Mallikeswaran
RespondentR.S. Thirunavukarasu
Cases ReferredPalai v. T. J. Joseph
Excerpt:
.....to the government pleader, pondicherry as well as to the standing counsel for the central government, mr. examples of local statutes are those conferring on particular local authorities' powers not enjoyed by local authorities generally; it would then follow that the suit having been filed on 23rd february, 1971 that is to say, more than five years after the time of the disputed transaction (july 1965), it is clearly barred by the local law of limitation. nor can a plea alleging bad faith be set up. i fail to see how this general article could apply to the plaintiff's action when the special article 2272 is clearly applicable thereto. the reason given by the lower court for holding that the plaintiffs claim is barred is clearly wrong, though its conclusion can be supported upon the..........local law prescribes for any suit, appeal or application a period of limitatior 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 purppse 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 extent to which they are not expressly excluded by such special or local law.as reference is made in clause (2) of section 29 to section 3 of the limitation act, it is necessary to abstract clause (1) of that section, which alone is relevant for the present purpose and which runs as follows:(1) subject to the provisions.....
Judgment:

S. Maharajan, J.

1. The plaintiff, Goodman and Company, by its proprietor Mallikeswaran has filed this revision petition against the judgment of the Principal District Munsif, Pondicherry, dismissing the plaintiff's suit against Thirunavukarasu, the respondent herein, with costs.

2. The suit itself was filed for recovery of possession of a radio set from the defendant, or in the alternative, for' recovery of Rs. 450 being the value thereof. The case of the plaintiff was that in the month of July, 1965, the defendant' came to the plaintiff's company for the purchase of a radio set. The plaintiff was willing to sell the plaint schedule radio set to the defendant, but the defendant said he would observe the functioning of the radio set for 2 or 3 days and if he was satisfied with the quality of the set, he would pay for the same. But the defendant neither paid the money nor returned the radio set. The suit itself was filed on 23rd February, 1971. The defendant denied the plaint allegation and said that the radio had been gifted to hi in in 1965 for the services rendered by him to the plaintiff's company.

He also contended that the plaintiff's claim was barred by limitation.

3. The Court below, relying upon Articles 14 and 68 of the Indian Linita-tion Act of 1963, held that the suit not having been filed within three years, was. barred by time.

4. It is against this judgment, the plaintiff has preferred this revision petition. As some important questions of law are in volved in this case, I directed notice to issue to the Government Pleader, Pondicherry as well as to the Standing Counsel for the Central Government, Mr. K. Parasaran.

5. Mr. Parasaran appeared and argued the questions of law with his usual thoroughness. The main question that arises for consideration is whether the period of limitation prescribed by the Limitation Act, 1963, applies to the facts of this case, or that prescribed, by the Code Civil. The suit dealing took place in July, 1965. The de jure merger of the erstwhile French Indian territory took place on 16th August, 1962. Under Section 4 of the Pondicherry (Administration) Act, 1962 which came into force on 6th December, 1962, it was provided as follows:

(1) All laws in force immediately before the appointed day in the former Fraach Establishments or any part thereof shall continue to be force in Pondicherry until arrended or repealed by a competent Legislature or other competent authority.

(Appointed day' has been defined in Section 2(A) of the Act to mean-the 16th day of August, 1962, being the date of entry into force of the Treaty of Cession between India and France.)

There is a proviso to Clause (1) of Section 4 which says that references in any such law to the President or Government of the French Republic shall be construed as references to the Central Government, references to the Governor of the French Establishments in India, to the Commissioner of the Republic for the French Establishments in India, to. the Chief Commissioner for the French Establishments, to the Chief Commissioner of the State of Ponidicherry or to the Chief Commissioner, Pondicherry, shall be construed as references to the Administrator of Pondicherry and references to the State of Pondicherry shall be construed as references to Pondicherry. Clause (2) of Section 4 of the Pondicherry (Administration) Act prescribes that for the purpose of facilitating the application of any such law in relation, to the administration of Pondicherry and for the purpose of bringing the provisions of any such law into accord with the provisions of the Constitution, the Central Government may, within three years from the appointed day, by order, make such adaptations and modifications,. whether by way of repeal or amendment, as may be necessary Or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made. By the Fourteenth Amendment to the Constitution, which caire into force on 28th December, 1962,in the First Schedule to the Constitution under the heading 'II. The Union Territories', after entry 8, the following entry was inserted, namely:

9. Pondicherry : The territories which immediately before the sixteenth day of August, '62, were comprised in the French Establishments in India kiown as Pondicherry, Karaikal, Mahe and Yanam.

The Government of Union Territories Act, 1963 was passed by Parliament and it received the assent of the President on the 10th MaY of 1963, whereby provision was made for legislative Assemblies and Ministers for the Union Territories including the Union Territory of Pondicherry. It is important to rerrember that when the Limitation Act, 1963, was passed by Parliament on 5th October, 1963,the Urion Territory of Pondicherry had already become part of India. Clause (2) of Section 1 of the Limitation Act, 1963, says that it extends to the whole of India except the State of Jammu and Kashmir. It would, therefore, follow that the Union Territory of Pondicherry having become part of India, the Limitation Act automatically extended to Pondicherry. N,o doubt, under Clause (3) of Section 1 of the Limitation Act, it shall come into forco on such date as the Central Government may, by notification in the Official Gazette, appoint. By S.O. 3118 of the Ministry of Law, Legislative Department, datid 29th October, 1963, the Central Government appointed the 1st day of January, 1964, as the date on which the said Act shall come into force. It may, therefore,, be taken that the Limitation Act, 1963, came into force in the Union Territory of Pondicherry on the 1st day of January, 1964. It is necessary now to find out if, by virtue of the provision of the Limitation Act, 1963, the French Law of Limitation, which had been in force till the 1st day of January, 1964, was in any manner repealed or modified. Reference may be made in this connection to Section 29 of the Indian Limitation Act, 1963 Clause (2) of which says:

Where any special or local law prescribes for any suit, appeal or application a period of limitatior 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 purppse 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 extent to which they are not expressly excluded by such special or local law.

As reference is made in Clause (2) of Section 29 to Section 3 of the Limitation Act, it is necessary to abstract Clause (1) of that section, which alone is relevant for the present purpose and which runs as follows:

(1) Subject to the provisions contained in Sections 4 to 24 (inclusive) every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.

Clause (2) of Section 3 defines when a suit should be deemed to have been jnstituted and when a claim by way of setoff or a counter claim shall be treated as a separate suit and shall be deemed to have been instituted. The cumulative effect of Section 3 and Section 29(2) of the Limitation Act is that where any special or local law prescribed for a' proceeding a period of limitation different from that 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 the period of limitation prescribed for any proceeding by any special or local law, the provisions contained in Sections 4 to 24 shall apply to the extent to which they are not expressly excluded by such special or local law. Mr. Parasaran, Jearned counsel for the Central Government concedes that the periods of limitation prescribed by the French Code Civil have in no manner been repealed by the Indian Limitation Act, though, no doubt, persons governed by the Code Civil will get the additional benefit of the provisions of Sections 4 to 24 of the Limitation Act to the extent to which those provisions are not expressly excluded by the Code Civil or special or local law. In supporer of this concession he points out that all that Section 32 of the Indian Limitation Act seeks to repeal is the Indian Limitation Act, 1908, and no other law. In further support of this concession, he refers to Section 30 of the Limitation Act, 1963, which takes the precaution of providing that any suit for which the period of limitation under the Limitation Act, 1963, is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908, may be instituted within a period of five years next after the commencement of the 1963 Act or within a period prescribed for such suit by the Indian Limitation Act, 1908, whichever period expires earlier. It is further conceded by him that the French Code Civil is a local law or a special law within the meaning of Section 29 of the Limitation Act, 1963. In support of this view, reference is made by him to Halsbury's Laws of England, Third Edition, Volume 36, page 363 paragraph 533, which deals with 'General, local and personal statutes' and adds;

The classification of statutes into general, local and personal is a classification based on the extent of their operation. A statute is said to be general if it applies to the whole community, local if it is limited in respect of area, personal if it is limited in respect of individuals.

Examples of local statutes are those conferring on particular local authorities' powers not enjoyed by local authorities generally; those establishing particular bodies for the performance of purely local functions; those authorising the carrying out of particular works by bodies, for example authorities carrying on nationalised undertakings or commercial concerns, whose overall functions may not be of a purely local nature; and those relating to particular charitable and educational foundations and institutions.

In Municipal'Council, Palai v. T. J. Joseph : [1964]2SCR87 , the Supreme Court has observed as follows:

A general statute applies to all persons and localities within its jurisdiction and scope as distinguished from a special one which in its operation is confined. to a particular locality and, therefore, where it is doubtful whether, the special statutewas intended to be repealed by the general statute the Court should try to give effect to both the enactments as far as possible.

The saving provisions, of the Limitation' Act, 1963, makelit clear that all French enactments relating to limitation, which were in,force in the Union Territory of Pondicherry, at the time the Limitation Act, 1953, came into force shall continue to be in force, with this difference, namely, that the periods of limitation prescribed in the local laws must continue to apply as if such periods were the periods prescribed by the Schedule to the Indian Limitation Act, 1963, 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 on condition that those provisions are not expressly excluded by such special or local law as has been in force in the Union Territory of Pondicherry.

6. This being the legal situation, I shall next proceed to consider which provision of the local law applies to the suit transaction. The plaintiff's ; claim in this case is one for the recovery of the price of a radio. The penultirrate paragraph of Article 2272 of the Code Civil says that suits filed by physicians, surgeons, dentists, midwives and phar-iracists for their visits, operations and medicaments shall become barred by efflux of two years. The last paragraph of Article 2272 says that action filed by merchants for goods sold by them particularly to non-merchants shall be extinguished by the lapse of two years. Mr. Stanislas, is fair enough to concede that this is the local law of limitation which would govern this action. It would then follow that the suit having been filed on 23rd February, 1971 that is to say, more than five years after the time of the disputed transaction (July 1965), it is clearly barred by the local law of limitation. In the Court below, reliance was placed by the petitioner upon Article 2262 of the Code Civil, which prescribes that all rights of action. whether in fern or in personam are extinguished by prescription after thirty years and the person who sets up a title by prescription for thirty years is not obliged to rely on any title; nor can a plea alleging bad faith be set up. I fail to see how this general Article could apply to the plaintiff's action when the special Article 2272 is clearly applicable thereto. The Court below rejected the plaintiff's claim, not on the ground that Article 2262 is not applicable, but of the ground that Articles 14 and 68 of the Indian Limitation Act, 1963, would apply to the suit, and the suit having been filed more than three years after the transaction is barred under those Articles of the Indian Limitation Act. The reason given by the lower Court for holding that the plaintiffs claim is barred is clearly wrong, though its conclusion can be supported upon the reasoning adopted and the conclusions recorded by me. I, therefore, hold this petition fails, which will consequently stand dismissed. As the respondent is unrepresented I mafe no order as to costs. However, as counsel appeared on behalf of the Central Government as well as on behalf of the Union Territory 6f Pondicherry, I think it fair to fix counsel's fee at Rs. 250 each.

7. This petition having been posted on Friday the nineteenth day of March, 1976, for being mentioned before the Hon'ble Mr. Justice Suryamurthi., in the 1 presence of the aforesaid advocates, the Court made the following.

8. The counsel's fee appears to have been fixed for the purpose of enabling the respective counsel to collect their fee from the respective Government.


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