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Dharama Chand Roy Vs. NabIn Chandra Mondal - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 2993 of 1960
Judge
Reported inAIR1963Cal253,66CWN903
ActsLimitation Act, 1908 - Sections 4 to 25, 29 and 29(2); ;West Bengal Land Reforms Act - Section 57
AppellantDharama Chand Roy
RespondentNabIn Chandra Mondal
Appellant AdvocatePabitra Kumar Bose, Adv.
Respondent AdvocateChittatosh Mukherjee, Adv.
Cases ReferredSm. Annapurna Debi v. Jamini Mohan Ghosh
Excerpt:
- .....to this view, the period prescribed must be as in the special act but in order to compute that period sections 4 to 5 might be taken into account. this view was taken in ilr 5 cal 314, between gola chand v. kristo chunder and a series of other cases. the matter thereafter came to a full bench of this court reported in ilr 18 cal 368, between nagendra nath mullick v. mathura mohun. according to their lordships, the special or local law referred to therein i.e. act 10 of 1859 was a complete code in itself and therefore none of the provisions ot the limitation act would apply. hence, section14 of the limitation act 15 of 1877 would not apply. though the act of 1908 came into force, there was no much alteration so far as this matter was concerned. the result therefore was, according to.....
Judgment:
ORDER

Purushottam Chatterjee, J.

1. This is a petition under Article 227 of the Constitution against an order passed by the Munsif in exercise of his jurisdiction under Section 19 of the West Bengal Lard Reforms Act. The learned Munsif considered the circumstances in this case and condoned the delay in filing the appeal. He has not found whether he applied Section 5 of the Limitation Act or Section 18 of the Limitation ACT nor has he stated the reasons why he came to the conclusion that he was authorised by law to condone the delay, But the question remains whether he was authorised by law to condone the delay. Mr. Pabitra Kr. Bose on behalf of the appellant says that the Court has no jurisdiction nor power to condone the delay. According to him, no provision of the Limitation Act would apply because relevant Article in the Limitation Act does not refer to any appeal to the Munsif. It refers to an appeal to the District Judge and, therefore, according to him, there is no period of limitation prescribed by the Limitation Act and, according to him, the whole of the Limitation Act is excluded and because that is excluded, there is no question of applying either Section 5 of the Limitation Act or Section 18 of the Limitation Act. The result according to him is that the learned Munsif was not authorised by law to condone the delay. Mr. Chittatosh Mukherjee, on the other hand, replies by saying that when we consider the applicability of the period prescribed under the Limitation Act under the Special Act, we shall consider the same as far as they may be applicable. According to him, the Article of the Limitation Act really refers to the appeal court from the decision of the trial court and the appeal court under the Code of Civil Procedure, is the Court of a District Judge. Therefore, the reference really is to the Court of Appeal. He says that Section 5 or Section 18 of the Limitation Act applies.

2. The first question therefore is whether the Limitation Act applies. The preamble to the Limitation Actsays,

'whereas it is expedient to consolidate and amend the law relating to the limitation of suits, appeals and certain applications to courts ......... it is hereby enacted as follows:'

3. Hence it is clear that the Limitation Act applies to all appeals to all Courts. It is indeed true it does not apply to all applications but only to 'certain applications'. But there Is no doubt it applies to all appeals and we are now concerned with appeals. The first point taken by Mr. Bose Is that the Bhagchas Officer under the Land Reforms Act is no Court. Section 57 of the Bengal Land Reforms Act has come into force and the result of Section 57 Is that an order for restoration of possession Is to be treated as if such order Is a decree of a Civil Court This was a case where the application was for termination of cultivation and the Bhagchas Officer on the 7th January 1961 ordered eviction. Hence, the order for eviction, according to Section 57 of the Land Reforms Act, operates as a decree of a Civil Court. I have been referred to a decision of a Division Bench of Banerjee and Amaresh Roy, JJ. reported in 64 Cal WN 1062, between Brajendra Kumar v. Gosta Dolui, where their Lordships hem that the Munsif was a Civil Court and an appeal to a Munsif means an appeal to a Civil Court and to a persona designata. Hence, according to Section 57, which has now come into force, and also according to the decision of the Division Bench referred to above, the Munsif was a Civil Court within the meaning of the preamble to the Limitation Act. I should make it clear that the Limitation Act refers to all Courts, -- not merely to Civil Court, but if it is a Civil Court, there is no doubt that this is a Court within the meaning of the preamble. The result therefore is that the Indian Limitation Act applies because of its preamble to all appeals to the Munsif. The next question is, if the Limitation Act applies, does it apply entirely or only some of the provisions would apply? There is no doubt that the entirety of the Limitation Act would apply subject to any provision in the Limitation Act itself. Therefore, unless there is some other provision in the Limitation Act Sections 5 and 18 would apply. But there is another provision in the Limitation Act In Section 29 which deals with period of Limitation prescribed for any appeal by any special or local law. Section 29(2) of the Limitation Act, as it now stands, is the result of some controversy over the interpretation of Section 29 as it stood before the amendment by Act 10 of 1922 and as it stood by the Act of 1871. The history of the development ot this Section is of some importance for an appreciation of the amendment made in the Act in 1922. The relevant Section as it stood i.e. Section 6 of Act of 1871 is as follows:

'When by any law not mentioned in the schedule hereto annexed and now or hereafter to be in force in any part of British India, a period of limitation differing from that prescribed by this Act is specially prescribed for any appeal, nothing herein contained shall affect such law.'

Again, Section 29 as it stood before the amendment is as follows :

'Nothing in this Act shall affect or alter any period of limitation specially prescribed for any appeal by any special or local law now or hereafter to be in force in British India.'

A controversy arose regarding the interpretation of this Section. One view was that none of the provisions of the Limitation Act, namely, Sections 4 to 25 would apply where there is a special or local law. According to that view, the special or local law may be a complete Code and therefore the Limitation Act was excluded and, as the entire Act was excluded, nobody could take advantage of Sections 4 to 25. This was the view which was expressed in 2 Suth WR Act X p. 21, between John. Paulson v. Madnusudan Pal, and a series of other cases. But there was a contrary view where it was said that Section 29(1) of similar provisions In the earlier Acts provided that the period of limitation prescribed by the special or local law would apply to cases under the special or local law and the period of limitation prescribed under the Limitation Act would not apply and there was no dispute so far as this, but they held that Sections 4 to 25 relates not to the period proscribed but only to the computation of the period prescribed. According to this view, the period prescribed must be as in the special Act but In order to compute that period Sections 4 to 5 might be taken Into account. This view was taken in ILR 5 Cal 314, between Gola Chand v. Kristo Chunder and a series of other cases. The matter thereafter came to a Full Bench of this Court reported in ILR 18 Cal 368, between Nagendra Nath Mullick v. Mathura Mohun. According to their Lordships, the special or local law referred to therein i.e. Act 10 of 1859 was a complete Code in itself and therefore none of the provisions ot the Limitation Act would apply. Hence, Section14 of the Limitation Act 15 of 1877 would not apply. Though the Act of 1908 came into force, there was no much alteration so far as this matter was concerned. The result therefore was, according to another Full Bench decision in 1920 between Kalimuddin v. Sahibuddin, 24 Cal WN 4 : (AIR 1920 Cal 14 (2)), that none of the provisions of the Indian Limitation Act would apply where there is special and local law which would ba considered to be a complete Code by itself. But the Section itself was amended in 1922 and Section 29(2) may now be analysed in two parts. Part I: 'Where any special or local law prescribed for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first schedule, the provision of Section 3 shall apply as if such period was prescribed therefor in the schedule.'

This is no substantial alteration to the law. All that was provided is that Section 3 would apply. In the earlier Acts a period was prescribed but it was not stated that where there was an appeal after the period, the appeal must be dismissed but that was always understood even though Section 3 was not specifically extended. It was held that provisions for special law implied that, if the appeal is not filed within that time, the appeal must be dismissed. Hence, there was no substantial alteration with regard to this part, namely, part I as I have referred to above, then comes the next part:

'For the purpose of determining any period of limitation in any suit, appeal or application by any special or local law, the provisions contained in Sections 4, 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 sucn special or local law. The remaining provisions of this Act shall not apply.'

It is clear that the legislature did not accept either ot the two views advocated earlier, one view was that none of the Sections from 4 to 25 would apply; another view was, all of them would apply. So far as our Court, the aforesaid Full Bench cases decided that none of the provisions would apply if the Act was a complete Code In itself. The amended Section 29 stated that some of the provisions would apply in some circumstances. If there was no express exclusion by the special or local law, the provisions of Sections 4, 9 to 18 and Section 22 would apply and the remaining provisions would not apply. Therefore, if the special law made any special provision as to whether any or all of the Sections 4 to 25 would apply or not, that special law would still be binding. But, It, on the other hand, the special law did not expressly exclude Sections 4, 9 to 18 and Section 22, that would apply not because of the force of the special law but because of the force of the Indian Limitation Act. The reason is the Limitation Act applies In Its entirety to all Courts; and [section 29 made a provision for special and local law. It by such law there Is any express exclusion or express inclusion of any of the Sections 4 to 25, such exclusion or such Inclusion will be In force notwithstanding contrary provision In the Limitation Act. But if there was no express exclusion nor any express Inclusion, then because of section 29(2) of the Limitation Act and because of absence express exclusion in special or local law Sections 4, 3 to 18 would apply and in the absence of special inclusion the other provisions would not apply. Therefore, it is clear that, if the special law has not excluded Sections 4, 9 to 18 and Section 22, those Sections will apply provided the appeal is to a Court. We have held that the appeal is to a Civil Court and there is no provision in the Land Reforms Act which expressly excludes Sections 4, 9 to 18 and Section 22. Therefore, Section 18 on a plain construction. of the provision of Section 29(2) would apply and because the Limitation Act says, the remaining provisions of the Act shall not apply, Section 5 of the Limitation Act would not apply. But had Section 5 been expressly included to apply by the special or the local law Section 5 would have applied. Under the Land Reforms Act we find no provision which says that in determining the period of limitation Section 5 of the Limitation Act is to be taKen into account. 1, therefore, hold Section 5 of the Limitation Act would not apply to an appeal filed under the Land Reforms Act but all the same Section 18 of the Limitation Act would apply.

4. I would now discuss the authorities on the subject, particularly of this High Court. It is not necessary for me to refer to all authorities before 1922 because so far as all authorities before the amendment of 1922, they were governed by the Full Bench decisions in ILR 18 Cal 368 (FB) and 24 Cal WN 4 : (AIR 1920 Cal 14 (2)). We have only to refer to decisions subsequent to the amendment of 1922. I may refer to a decision reported in : AIR1933Cal782 of Mitter and M. C. Ghose, JJ. in Midnapore Zamindary Company, Limited v. Smt. Priyabala Dasi. Their Lordships were pleased to consider Section 29 of the Limitation Act and held that Section 18 of the Limitation Act applies to an application under Section 174, Clause 4 of the Bengal Tenancy Act. Their Loordships interpreted Section 29(2) as meaning that, if there was no express exclusion under the Bengal Tenancy Act, Section 18 would apply because of sub-cl. (a) of Clause 2 of Section 29. I may next refer to Commr. of the Pabna Municipality v. Nirade Sundari Dasya : AIR1942Cal544 , where Blswas, J. held that Section 15(2) of the Limitation Act would apply to Section 535 of the Bengal Municipal Act. His lordship observed,

'Reliance is placed in this connection on Sub-section (2) of Section 29 which is as is well known, added to the Indian Limitation Act of 1922 in order to remove an 'acunae in the law to which attention had been drawn invarious decisions of the Indian High Courts.'

Sub-section (2) of Section 29 expressly provides that for the purpose of determining any period of limitation prescribed for any suit by any special or local law the provisions of Section 4, 9 to 18 and Section 22 shall apply to the extent and so far as they are not expressly excluded by such special and local law. The question was whether there was an express exclusion. His Lordship considered the matter and found that there was no express exclusion and came to the conclusion that Section 15 of the Indian Limitation Act would therefore apply.

5. I next refer to the decision of R. C. Mitter and P. N. Mitra, JJ. reported in : AIR1950Cal356 , between Province of Bengal v. Amulya Dhon Addy. The question there was whether Section 5 of the Indian Limitation Act would apply to an appeal to the High court under the Calcutta Improvement Trust Act. Hitter, J., considered the history of the development of Section 29. He found that the immediate cause for the amendment of theAct of 1922 is the decision of the Full Bench case between Kalimuddin Molla v. Shahibuddin Molla reported in 24 Cai WN 4 : (AIR 1920 Cal 14 (2)). Coming now to the interpretation of Section 29(2) he held that Section 5 of the Limitation Act would apply. The reason for such decision is as follows:

6. On an interpretation of the Calcutta Improvement Act he found that the Tribunal was a Court. He further found that the Calcutta Improvement Act did not provide for any period of limitation and he finally found that so far as the period of limitation, the Calcutta Improvement Act referred to Article 154 of the Limitation Act.

7. The position, therefore, Is because the Tribunal is a Court and the High Court is also a Court within themeaning of the Limitation Act, the Limitation Act would apply because of the preamble. If the Limitation Act applies, then all the Sections in the Limitation Act would apply. If all the Sections in the Limitation Act do apply, then Section 29 would be attracted and Section 29 says in substance, 'when there is a special or local law, the special and local law will determine the period of limitation.' Hence, the Limitation Act referred to the Calcutta Improvement Trust Act as the special or local law. When we refer to the special or local law, namely, the Calcutta Improvement Trust Act, that again refers to the general law,.namely, the Limitation Act. Therefore, by something like 'renvoi' the general law, namely, the Indian Limitation Act except Section 29(2) of the Act is applicable and, if the Indian Limitation Act is applicable, Section 5 would be applicable. . The Indian Limitation Act was found to beapplicable because the special law referred to it.

8. The next decision that I shall consider is a decision of Das Gupta and Debabrata Mookerjee, JJ. reported in : AIR1955Cal578 , between Bijanlata v. Bhudar. The question was whether Sections 4 to 25 of the Limitation Act would be applicable to appeals under Section 32 of the Rent Control Act of 1950. Their Lordships applied the principles in : AIR1950Cal356 . They considered on an interpretation of the various provisions of the West Bengal Rent Control Act o! 1950 and the rules thereunder that the Controller is a court and a court which is governed by the Code of Civil Procedure and therefore the general law would apply, namely, the Indian Limitation Act, The reason is the same viz. as the Controller was a Court according to the preamble of the Limitation Act, that Act would apply and that would attract Section 29. But on their interpretation of the provisions of the special law they found that the special law referred back to the general law because the special law stated that the Code of Civil Procedure would govern tne proceedings before the Rent Controller and because tne Rent Controller was a Court. Here again by the same process their Lordships came to the conclusion that the general Act would apply and I suppose the reason for such application is that the general Act referred to the special Act and the special Act referred back to the general Ad and finally their Lordships were pleased to hold that Section 5 of the Limitation Act would apply under such circumstances.

9. The next case that I should refer is between G.U. Bhatta v. The State : AIR1957Cal483 , decided by Guha Roy and Renupada Mukherji, JJ. According to their Lordships, Section 23 of the Limitation Act would apply to a proceeding under the Coal Mines Act. The reason is, as I understand the Judgment, that the Coal Mines Act was a special law. Therefore, unless S. 29(2)(a) the provisions of Sections 8 to 24 would apply (sic). Therefore Section 23 would apply.

10. The next decision that 1 shall refer is a decision of Lahiri and Witter, JJ. reported in 62 Ca| w N 143 : (AIR 1948 Cal 539), between Raj Harendra Nath v. Daulat Mani. The question for consideration of their Lordships was whether Section 5 of the Indian Limitation Act would apply to an appeal under Section 27 of the Calcutta Thika Tenancy Act. Their Lordships considered a large number of decisions and came to the conclusion that an appeal filed before the District Judge was not merely to a Court but also to a persona designata. Their Lordships further found that Section 27, Thicka Tenancy Act itself provided a period of limitation. They further found that by the Act, namely, the Calcutta Thika Tenancy Act and the rules thereunder some of the provisions of the Code of Civil procedure would apply. The result therefore is that the Indian Limitation Act may apply because it is a Court but it is not merely a Court, also a persona designata but the procedure in the Court is not the same as under the Code of Civil Procedure. Only some of the rules of the Code of Civil Procedure would apply. Therefore, their lordships were of opinion that the District Judge functioning as an appellate court is not an ordinary court of the land governed by the ordinary [aw of the land, namely, the Code of Civil Procedure. Their Lordships therefore held that the entirety of the Limitation Act would not apply but Section 29(2) would apply. As I understand the judgment, because it is a Court, the Limitation Act would be attracted and if the Limitation Act is attracted, the special law, namely; the Calcutta Thika Tenancy Act has to be referred to. But their Lordships found that the special law, namely, the Calcutta Thika Tenancy Act did not refer back to the general law (sic) Sections 4 to 25 of the Limitation Act would not apply but the provisions of Section 29 would apply ana therefore according to Section 29(2)(a), Section 5 would not apply.

11. The next decision that I shall refer is a judgment of Bachawat, J. reported in Tinkori Bysack v. Munsif Second Court, Howrah, 64 Cal WN 719. According to his Lordship, Section 14(2) of the Limitation Act would apply. His Lordship considered Section 29(2) and held that the meaning of the word 'Court' in the preamble to the Limita tion Act is not restricted to Civil Courts but would include a persona designata, the appellate tribunal under the Calcutta Thika Tenancy Act. The decision is based on the same reasons as in the judgment of Lahiri and Mitter, JJ. in the aforesaid case of : AIR1958Cal539 , that is, because of the preamble, the Limitation ACT was attracted and because the Limitation Act was attracted, Section 29 would be attracted and there would be no reference back to general law because the special law did not refer back. The result would be Section 29(2)(a) would apply.

12. Finally, I may refer to a Judgment of myself, a very recent judgment, in C. R. Nos. 3458 and 4337 0f 1961 (Cal) between Sm. Annapurna Debi v. Jamini Mohan Ghosh where I have considered the provisions of Section 17(2) of the West Bengal Premises Tenancy Act. It was no doubt that the proceeding was before a Court but an application had to be filed in Court which was not provided under the Code of Civil Procedure. The application under Section 17 (2) of the Premises Tenancy Act was something created by the special Act and I held that the special Act would apply so far as such application under Section 17 (2) is concerned and the provisions of the Sections 4 to 25 of the Act would not apply because the application under Section 17 (2) was not contemplated by or under the Code, and the result was that Section 29(2)(a) would apply and Section 5 of the Limitation Act would not.

13. Having now considered the cases aforesaid, I am of opinion that there is no conflict of decisions. On an interpretation of some statutes the High Court came to the conclusion that the special Act referred to the general Act and did not prescribe any period of limitation or did prescribe the same period of limitation as in the Limitation Act and further found that the procedure was as in the Civil Procedure Code in its entirety. The result was that the general Act was found to apply; in my opinion, the special Act in such cases referred back to the general Act and all the provisions of the general Act other than Sec 29 of the Li mitation Act would apply; but in all those cases where the High Court found that the special ACT did not refer to the general Act, Section 29(2) would occupy the field. Therefore, there is no difference of opinion so far as the interpretation of Section 29(2). But different statutes have been interpreted differently and some of them have been considered to refer back to the general law, others have been considered not to refer back to the general law.

14. Coming now to the Land Reforms Act, we find in Section 57 of the Act that the Code of Civil Procedure would apply not in its entirety but in reference to a particular matter as in a case of Calcutta Thlka Tenancy Act and the Munsif was (sic) not merely as a Court but also as a persona designata. That it is a Court can be concluded from the latter part of Section 57 of the Land Reforms Act. But reading the provisions of the Land Reforms Act together with the decision of Lahiri and Witter, JJ. and also the decision of Baneriee and Amaresh Roy, JJ. we come to the conclusion that the Munsif is both a court and a persona designata and the procedure is not the procedure of the Code of Civil Procedure. The result is, we cannot say that the special and local law, namely, the Land Reforms Act refers back to the general Act. It does rot. The consequence is Section 29(2) applies.

15. Because Section 29(2) applies, for the purpose of determining the period of limitation Secs. 4 and 9 to 18 and 22 would apply unless there is a special exclusion in the said Act. There is no specific exclusion in the said Act, namely, the West Bengal Land Reforms Act. The conelusion therefore is that those Sections of the Limitation Act do apply. Then again on the interpretation of Section 29(2)(b) the remaining provisions would not apply unless it is specifically included by the provisions of the special Act, but the Land Reforms Act has not made any specific provision for the application of the remaining Sections. 'The remaining Sections include S. 5. Therefore, S. 29(2)(b) excludes S. 5 and the special law does not include S. 5 of the Limitation Act. The result remains, Section 5 of the limitation does not appply.

16. The second question is whether Section 18 applies. Reading Section 29(2), we gst that in determining the period of limitation for ... .appeals Secs. 4, 9 to 18 and 22 are to apply. Mr. Bose says, but if we refer back to sec. 18, we would find Section 18 has no application to appeals. According to him, Section 18 would not apply. But I cannot accept his argument. It is indeed true that, if the general Act applies, then Section 18 would not apply to an appeal and the only relevant Section that would apply may be Section 5 of the Limitation Act. But as I have stated, because of Section 29(2) and because of the specific provision under Section 29(2), for purpose of determining the period of appeal by any special or local law Section 18would apply, hence this Section does apply only with regard to appeals under any special or local law. I findthere is no contradiction between Section 18 and Section 29(2) which expressly refers to Section 18. The position is in cases where the general Act applies, sec. 18 would not apply to appeals but Sec, 5 would apply, whereas in case of appeals under any special or local law, Section 18 would apply unless specifically excluded and Section 5 will not apply unless specifically included. The result is that Section 18 would not apply to appeals under the general law but Section 5 would apply and ordinarily with regard to appeals under the special law Section 5 would not apply but sec. 10 would apply. It is quite clear therefore that the legislature had some policy with regard to that. Lahiri and Witter JJ. have considered that there is hardship If Sec 5 Is not applied but that hardship is mitigated to a certain extent by the provision that Section 18 would apply.

17. As stated above the special Act does not exclude Section 18 of the Limitation Act for the purpose of determining the period of limitation under the provision of Section 29(2). Section 18 of the Limitation Act would apply even to appeals because it is specifically included in Section 29(2)(a) of the Limitation Act. The result, in my opinion, is tnat Section 5 of the Limitation Act would not apply to appeal but Section 18 would apply.

18. Mr. Bose says that the Limitation Act does not apply because the relevant Article refers to the District Judge. Section 29(2) refers merely to the 'period prescribed under the Limitation Act and does not refer to the authority to which an appeal is preferred. Therefore, the period prescribed is the important thing which we have to refer and it is now too late to say that the special courts constituted under the special Acts are no courts for the purpose of the Indian Limitation Act. Bachawat, J. has held that the Limitation Act applies even though the appellate officer is a persona designata. There are other decisions of our High Court and other Courts that the Limitation Act would app'y to appeals to special tribunals created by special statutes.

19. I, therefore, overrule the argument of Mr. Boss so far as this point. The final result therefore is thatSec. 18 of the Limitation Act would apply and the question for the appellate authority is to decide whether Section 18 would extend the period of limitation. That question has not been considered by the appellate authority theMunsif.

20. I, therefore, set aside the order of the learnedMunsif, send the matter back to him and direct him to decide whether on the facts disclosed Section 18 of the Limitation Act would apply or not. He would be at liberty to direct parties to adduce evidence on the relevant matters If he so thinks fit and proper. He would first consider whether the appeal was within time taking into account Section 18 of the limitation Act; then he will consider the merits of the appeal.

21. The result is that the Rule is made absolute. The matter is sent back to the appellate authority tor decision on the questions aforesaid and such other questions as may arise in accordance with law and in accordance with the observations aforesaid.

22. There would be no order for costs.


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