Sankar Prasad Mitra, J.
1. This Rule is directed against an order of the Sixth Subordinate Judge, Alipore, being Order No. 56 of the 10th November, 1970, in Title Suit No. 3 of 1964 (Sagarmal Bengani v. Pokarmal Gurudayal) rejecting the defendant's application under Section 17-B (1) of the West Bengal Premises Tenancy Act, 1956 and another application under Section 5 of the Limitation Act. The facts briefly are as follows:
On January 21, 1964, Sagarmal Bengani filed Title Suit No. 3 of 1964 before the Subordinate Judge, Sixth Court, Alipore against Messrs. Pokarmal Gurdayal for ejectment of the defendant from a godown at premises No. P-3, Brojodayal Saha Boad, Cossipore, on the ground of default in payment of rent since April, 1963. Onthe 27th March, 1965, the Court passed an order under Section 17 (3) of the West Bengal Premises Tenancy Act, 1956, striking out the tenant's defence against delivery of possession. On May 5, 1965, the tenant applied for relief against forfeiture under Section 114 of the Transfer of Property Act. On May 20, 1965, the application for relief against forfeiture was rejected. On June 26, 1965, the suit was dismissed; but the landlord preferred an appeal to which we would revert a little later.
2. On the August 24, 1965, West Bengal Ordinance No. VI of 1965 was promulgated. Section 17-A (1) of this Ordinance was as follows:--
'Where any decree or order for the recovery of possession of any premises has been made in a suit or proceeding in which the defence against delivery of possession was struck out by an order under Sub-section (3) of Section 17, but the possession of such premises has not been recovered from the tenant by the execution of such decree or order, the tenant may make an application to the Court which made such decree or order within a period of sixty days from the commencement of the West Bengal Premises Tenancy (Amendment) Ordinance, ] 965, for setting aside such decree or order.'
3. This Ordinance was promulgated by the Governor of West Bengal on August 21, 19G3 and was published in the Calcutta Gazette Extraordinary on the August 24, 1965. The provisions of this Ordinance were also enacted by the West Bengal Legislature by the Act 29 of 1965. Section 17-A of that Act ran thus:--
'17-A. Power of Court to set aside decree or order for ejectment in certain cases.
(1) Where any decree or order for the recovery of possession of any premises has been made in a suit or proceeding in which the defence against delivery of possession was struck out by an order under subsection (3) of Section 17, but the possession of such premises has not been recovered from the tenant by the execution of such decree or order, the tenant may make an application to the Court which made such decree or order within a period of sixty days from the commencement of the West Bengal Premises Tenancy (Amendment) Ordinance, 1965, for setting aside such decree or order. .......'.
4. We are not directly concerned in this Bule either with the Ordinance of 1965 or with the Act of 1965; but we have quoted the above provisions merely to show that the legislature has consistently used the same form of expression in all the subsequent enactments we shall refer to later.
5. The landlord, in the instant case, preferred an appeal against the dismissal of the suit. The appeal was mark-ed as Title Appeal No. 1091 of 1965. This Title Appeal was disposed of on November 17, 1965. The Additional District Judge, Seventh Court, Alipore, reversed the judgment of the Trial Court and passed an ejectment decree in favour of the landlord. In 1966, the tenant filed a second. appeal being Second Appeal No. 1053 of 1966 in this Court against the judgment and decree of the Appellate Court- On April 20, 1966, a Division Bench of this Court in Civil Rule No. 529 (8) of 1966 directed the tenant to deposit Bs. 11,400.00 on or before the 1st May, 1966, or to continue to deposit Bs. 450.00 every month. According to the tenant, this order has up till now been complied with.
6. On August 26, 1967, the Governor of West Bengal promulgated West Bengal Ordinance VI of 1967. By this Ordinance Sections 17-B and 17-C were inserted into the West Bengal Premises Tenancy Act, 1956. In this application we are concerned with Section 17-C, the relevant portions whereof are as follows;--
'Section 17-C (1). Power of Court to set aside decree in cases where defence against delivery of possession struck out. Where a decree for the recovery of possession of any premises was passed before the commencement of the West Bengal Premises Tenancy (Amendment) Ordinance, 1967, in a suit in which the defence against delivery of possession was struck out by an order under Sub-section (3) of Section 17, but the possession of such premises has not been recovered from (he tenant by the execution of such decree, the tenant may, within a period of sixty days from the commencement of the West Bon-gal Premises Tenancy (Amendment) Ordinance, 3967, make an application to the Court which passed such decree to set aside such decree.'
7. This Ordinance was published in an Extraordinary issue of the Calcutta Gazette on August 26, 1967 which was, therefore, the date of its commencement. On November 29, 1967, the West Bengal Legislature had a session. Naturally, Ordinance No. VI of 1967, was to cease on January 9, 1968. That is why, on the 8th January 1968, the West Bengal Premises Tenancy (Amendment) Second Ordinance, 1968 (West Bengal Ordinance No. II of 1968) was promulgated as the Legislature was not in session. It is interesting to observe the language of the relevant portions of Section 17-C of this Ordinance. These are as follows:--
'17-C (1). Where a decree for the recovery of possession of any premises was passed before the commencement of the West Bengal Premises Tenancy (Amendment) Ordinance, 1967,--(West Bengal Ordinance VI of 1967), in a suit in which the defence against delivery of possession was struck out by an order under Sub-section (3) of Section 17, but the possession of such premises has not been recovered from the tenant by the execution of such decree, the tenant may, within a period of sixty days from the commencement o the West Bengal Premises Tenancy (Amendment) Ordinance, 1967, make an application to the Court which passed such decree to set aside such decree.'
8. We intend to emphasize that in this Ordinance of 1968 the same right which was given to the tenant by the Ordinance of 1967 was being repeated. The Legislature was fully conscious of the fact that the period of sixty days from the commencement of the Ordinance of 1967 had expired long before the promulgation. of the Ordinance of 1968 but had not thought it fit to make any changes in the appropriate provisions of Section 17-C of the 1968 Ordinance.
9. On March 26, 1968, the West Bengal Premises Tenancy (Amendment) Act, 1968 was enacted. We quote below the relevant provisions of Section 17-B of this Act:
'17-B. (1) Power of Court to set aside decree in cases where defence against delivery of possession struck out. Where a decree for the recovery of possession of any premises was passed before the commencement of the West Bengal Premises Tenancy (Amendment) Act, 1968, in a suit in which the defence against delivery of possession was struck out by an order under Sub-section (3) of Section 17, but the possession of such premises has not been recovered from the tenant by the execution of such decree, the tenant may, within a period of sixty days of such commencement, make an application to the Court which passed such decree to set aside such decree.'
10. In Section 1 (2) of this Act it k specifically provided that the Act 'shall be deemed to nave come into force on the 26th day of August, 1967'. This was the date of commencement of Ordinance No. VI of 1967.
11. It is clear, therefore that, again and again, the legislature is trying to keep alive the right conferred on a tenant by the 1967 Ordinance and was not giving him a higher or an extended right. Incidentally, Section 6 of the Amendment Act of 1968 runs thus:--
'6 (1). The West Bengal Premises Tenancy (Amendment) Second Ordinance, 1968 is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken (including any order made, proceeding commenced, obligation or liability incurred), or deemed to have been done or taken, under the principal Act as amended by the said Ordinance shall continue to be in force and shall be deemed to have been done, taken, made, commenced or incurred, asthe case may be, under the principal Actas amended by this Act.'
12. There were similar provisions in Section 7 of the Second Ordinance of 1968 with respect to Ordinance No. VI of 1967. The Amendment Act of 1968 was a President's Act. It was President's Act No. 4 of 1968. That is why, after the termination of President's Rule the West Bengal Legislature under the provisions of Article 357(2) of the Constitution had to pass the West Bengal Premises Tenancy (Amendment) Act, 1969 which the President assented to on the 31st October, 1969. Section 17-B (1) of this Act reads thus:
'17-B (1). Power of Court to set aside decree in cases where defence against delivery of possession struck out: Where a decree for the recovery of possession of any premises was passed before the commencement of the West Bengal Premises Tenancy (Amendment) Act, 1968, in a suit in which the defence against delivery of possession was struck out by an Order under Sub-section (3) of Section 17, hut the possession of such premises has not been recovered from the tenant by the execution of such decree, the tenant may, within a period of sixty days of such commencement, make an application to 'he Court which passed such decree to set aside such decree. .........'.
13. Once again, the Legislature is sticking to the date of commencement of Ordinance No. VI of 1967, namely, the 26th August, 1967. And owing to the provisions of Article 357(2) itself there is no provision in the 1969 Act for 'Repeal and Saving.'
14. These are the statutory provisions we have to consider and construe in the present Rule- Coming back to the facts of the case it is alleged in paragraph 13 of the petition that on the 25th February, .1969, the petitioner's second appeal appeared in the list for hearing before P. N. Mookerjee and S.K. Chakraborty, JJ. and was adjourned till the reopening of the Court after the Easter vacation.
15. In paragraph 14 of the petition it is slated that the petitioner thereafter engaged Mr. Arun Kumar Dutt (Senior) as the petitioner's senior advocate in the second appeal. On the 9th April, 1969, a conference was held with the said senior advocate. At this conference the petitioner's partner Guidayal Berlia was present. Mr. A.K. Dutt was of opinion that it was necessary for the petitioner to file in the trial Court an application under Section 17-B (1) of the West Bengal Premises Tenancy (Amendment) Act, 1968 for setting aside the order of March 27, 1965, by which the petitioner's defence against recovery of possession was directed to be struck out and for other necessary reliefs. Mr. A. K. Dutt, says the petitioner, was also of the view that the petitioner oughtto, in the special facts and circumstances of the case, make an application to the trial Court for the aforesaid relief including a prayer for condonation of delay.
16. Two days thereafter on April 11, 1969, the petitioner made an application to the trial Court under Section 17-B (1) of the said Act and also an application under Section 5 of the Limitation Act. On May 7, 1969 the second appeal was dismissed. On November 10, 1970, the trial Court rejected the application under Sec-lion 17-B (1) and under Section 5. On December 21, 1970, the present rule was issued.
17. The first question to be decided in this Rule is the time within which a tenant had to apply for reliefs under Section 17-B (1). According to Mr. Bhabra, learned counsel for the petitioner, there is no time limit at all for making this application provided that it is made before a tenant is evicted by execution proceedings. Learned counsel says that the period of sixty clays from the date of commencement of the Amendment Act, 1968, that is, August 26, 1967, within which an application had to be made under Section 17-B (1), was a provision impossible of being carried into effect and the Court should take; no notice of it. As the time limit is not a matter of jurisdiction, the Court, submits Mr. Bhabra, can give relief under Section 17-B (1) when the other conditions prescribed by the section are satisfied.
18. Our attention has been drawn to two decisions of this Court on Section 17-B. In both the decisions it has been held that for certain purposes the date of commencement of President's Act No. 4 of 1968 is not tbe 26th August, 1967 as provided in Sub-section (2) of Section 1; but the 26th March, 1968, when the President gave his assent to the Act. The two learned Judges who delivered these two judgments reached the same conclusion; but their Lordships' reasonings were not the same. Both Mr. Bhabra for the petitioner and Mr. Ginwalla appearing for the opposite party before us, have submitted to us that, these two decisions cannot be accepted as correct. Mr. Bhabra's contention is that there is no time limit for making an application under Section 17-B (1). Mr. Ginwalla's contention is that the time limit is sixty days from the date of commencement which is, as prescribed in subsection (2) of Section 1 of the President's Act 4 of 1968, the 26th August, 1967.
19. The first decision of this Court we have been referred to, is the decision of Bijaycsh Mukherji, J. in Benu Roy v. Manindra Nath Chatterjee, 73 Cal WN 10. The learned Judge has principally relied on a passage in Maxwell on the 'Interpretation of Statutes' 10th Edition, at page 409. In this passage it is stated: '......where a particular day is named for its commencement (that is the commence-ment of an Act), but the Koyal assent is not given until a later day, the Act would come into operation only on the later day.' This passage rests on footnote (p) which bears 'Bum v. Carvalho, (1834) 4 Nev and M 893 Section 9, Newspaper Libel Act, 1881 (c. 60) required printers to make certain returns before July 31, 1881, yet it was not passed till the following August 27.'
20. Mr. Bhabra showed to us that this passage had been omitted in the 12th Edition of Maxwell's book. The reason for this omission, says Mr. Bhabra, is that it cannot be sustained by the authority of (1834) 4 Nev and M 893. This case decided that as the language of Section 30 of the Civil Procedure Act, 1833 was 'prospective only' it could not apply to any proceeding which took place before the Act was passed. The Court also made a comparison between the language of Section 30 and that of Section 21, which was sufficiently comprehensive to include all actions brought by executors and administrators whether before or after the passing of the Act: vide Craies on 'Statute Law', 7th Edition, page 385, footnote 18.
21. It is clear therefore, that the judgment of Bijayesh Mukherji, J. pronounced primarily on the above passage in the 10th Edition of Maxwell's 'Interpretation of Statutes' cannot be upheld by us. Moreover, Mukherji, J.'s attention, it appears, was not specifically drawn to the fact that the date of commencement of the Act is necessary for the purpose of determining which of the decrees were passed before that date. In other words, the significance of the word 'such' before the word 'commencement' and before the word 'decree' in Section 17-B (1) was not emphasized before Mukherji, J. The vulnerable decrees were decrees made before the commencement of the Act, that is, the August 26, 1967. And the application had to be made within sixty days of tbe August 26, 1967.
22. The result of the judgment ofBijayosh Mukherji, J. appears to be that the date of commencement for the decree is the August 26, 1967; but its date of commencement for an application under Section 17-B (1) is the March 26, 1968-Such a construction, if we may say so with great respect, causes violence to the language used in Section 17-B (1). It causes violence to 'such commencement' and 'such decree'. Then again, in the English Case of (1834) 4 Nev and M 893, Section 44 of the Act enacted that 'this Statute shall commence and take effect on the first day of June 1883'. In other words, the date of commencement of this Statute was prospective. In our case the date of commencement is retrospective. For all these reasons, we are unable to follow the judgment of Bijayesh Mukherji, J.
23. The next judgment is the judgment of Alak Gupta, J. in Md. Yusuf v. Golam Jilani, (1969) 73 Cal WN 736. Gupta, J. points out that the reasoning of Bijayesh Mukherji, J., based on the case of (1834) 4 Nev and M 893, cannot be supported. But his Lordship also is of the view that for purpose of Section 17-B the date of commencement of President's Act 4 of 1968 is the March 26, 1968. His Lordship has given his reasons in paragraphs 6 and 8 of the judgment. These paragraphs have been summarised in the head note as follows:--
'Whenever in the same Statute there is a particular enactment, such as that in the West Bengal Premises Tenancy (Amendment) Act, President's Act 4 of 1968, published and made known to the public, for the first time, on March 26, 1968, and introducing in the parent Act Section 17-A, the language of which is clearly prospective, and there is also a general enactment, such as Section 1 (2) prescribing that the aforesaid (Amendment) Act shall be deemed to have come into force on August 26, 1967, and the general enactment, taken in its most comprehensive sense, would overrule the special enactment, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the Statute to which it may properly apply. So considered, the commencement of the 1968 (Amendment) Act for the purpose of Section 17-A must be taken to be March 26, 19(58, when the said Act was published, the aforesaid section being thus saved from being entirely nugatory.'
Alak Gupta, J. therefore, has applied the doctrine of generalia specialibus non derogant to the relevant provisions of the West Bengal Premises Tenancy (Amendment) Act, 1908 and has held, inter alia, that an application under Section 17-A may be made within a period of thirty days of die 26th March, 1968.
24. The doctrine of generalia specialibus non derogant has been fully explained in the case of the Commr. of Income Tax, Patiala v. Shahzada Nand & Sons, : 60ITR392(SC) . The Supreme Court says that the maxim means that when there is a conflict between a general and a special provision, the latter shall prevail. The Supreme Court quotes in this connection Craies on Statute Laws, 5th Edition, at page 205. The passage runs thus:--
'The Rule is, that whenever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply.'
25. The Supreme Court points out that this Rule of construction is not of universal application. It is subject to the condition that there is nothing in the general provision, express or implied, indicating an intention to the contrary; see Maxwell on 'Interpretation of Statutes,' 11th Edition, at pp. 168 to 169. The Supreme Court then proceeds to say that when the words of the section are clear, but its scope is sought to be curtailed by construction, the approach suggested by Lord Coke in re: Heydon's case, (1584) 3 Co. Rep 7a, yields better results. The Supreme Court has said:
'To arrive at the real meaning, it is always necessary to get an exact conception of the aim, scope and object of the whole Act: to consider, according to Lord Coke: (1) what was the law before the Act was passed; (2) what was the mischief or defect for which the law had not provided; (3) what remedy Parliament has appointed; and (4) the reason for the remedy.'
26. We are of the view that this doctrine of generalia specialibus non derogant cannot be applied to the statute we have been called upon to construe. There is no general provision and special provision on the same subject. In Section 1 (2) it is apparent that the legislature wanted to make the statute retrospective. Therefore, the word 'commencement' used in the sections that follow Section 1 (2) of President's Act 4 of 1968 must have the meaning that can be derived for it from Section 1 (2). It seems to us that substitution of some date other than the date suggested in Section 1 (2) is not permissible. The purpose of the Act is to give relief against forfeiture to tenants with retrospective effect and it is that purpose which runs through all the other sections of the statute.
27. Let us, in this connection, refer to a few cases. In Sree Bank Ltd. v. Sarkar Dutt Roy & Co., : 3SCR708 Raghubar Dayal, J., observes:--
'It is not necessary for the retrospective operation of the provision of an Act that it must be stated that its provisions would be deemed to have always existed. That is one mode and may be an effective mode of providing that the provisions would have retrospective effect Retrospective effect of an enactment can also be gathered from its language and the object and intent of the legislature in enacting it.'
28. In Sahabuddin v. Mohan Lal, : AIR1951All227 , it is stated:
'Reliance was placed on certain provisions of the United Province? (Temporary) Control of Rent & Eviction Act..., and it was urged that the decree was no longer executable. This Act received theassent of the Governor-General on 28-2-1947 and was published in the U. P. Gazette. .. on 1-3-1947. Sub-section (3) of Section 1, however, provides that the Act must he deemed to nave come into force on 1-10-1946. The result, therefore, is that though the Act was passed in the year 1947 it was given retrospective effect from 1-10-1946. The compromise decree being dated 8-11-1916, it must be deemed to have been passed after the Act came into force.'
29. This judgment was followed in Radhey Lal v. Lareti, : AIR1954All150 . Both the judgments of Allahabad High Court were on statutes that wanted to give relief to tenants retrospectively.
30. Then again, ' Jessel, M. R. in Quilter v. Mapleson, (1882) 9 QBD 672 at p 674, has observed:
'The question whether an Act of Parliament is retrospective in its operation must be determine by the provisions of the Act itself, bearing in mind that a statute is not to be construed retrospectively, unless it is clear that such was the intention of the legislature. .......'
31. We have cited the decisions in the foregoing paragraphs to indicate the various circumstances in which a statute is given retrospective operation. In our case the express provision in Section 1 (2) of President's Act 4 of 1968 is that the statute is retrospective. In other words, it explicitly intends to give relief to a tenant retrospectively. In these premises, we find it difficult to follow the judgment of Alak Gupta, J., in (1969) 73 Cal WN 736.
32. As we have said counsel for both the parties before us are agreed that they cannot rely either on the judgment of Bijayesh Mukherji, J. or on the judgment of Alak Gupta, J. to support the proposition that Presidents Act 4 of 1968 came into operation on the 26th March, 1968.
33. In view of this admitted position Mr. Bhabra for the petitioner has argued that if the Act did not come into operation on the 26th March, 1968, then the provisions of Section 17-B became impossible of being given effect to. In these circumstances, the only conclusion is, according to Mr. Bhabra, that for an application under Section 17-B there is no period of limitation at all. Mr. Bhabra relies on the maxims of (a) Lex non intendit aliquid impossibilia (the law intends not anything impossible) and (b) Lex non cogit ad impossibilia (the law does not compel the impossible). These maxims have been explained in Black on 'Interpretation of Laws', 2nd Edition at pages 119 to 120. A statute is never to be understood as requiring an impossibility, if such a result can be avoided by any fair and reasonable construction. The law itselfand the administration of it, must yield to that to which everything must bend -- to necessity. The law, in its most positive and peremptory injunctions, is understood to disclaim as it docs in its general aphorisms, all intention of compelling them to impossibilities; and the administration ol law must adopt that general exception in the consideration of all particular cases. The law is not so unreasonable as to require the performance of impossibilities as a condition to the assertion of acknowledged rights. .... .'Impossibility' is defined inlaw as that which, in the constitution and course of nature or of the law, no man can do or perform. An Act is said to be 'physically' impossible when it is contrary to the course of nature; and such an impossibility may be either absolute, when it is impossible in any and every case, as involving a reversal of the order of nature, or it may be relative, when it arises from the circumstances of the particular case, as for example, for A to make a payment to B, the latter being dead. This is sometimes called 'impossibility in fact'. To this class belongs also what is called 'practical' impossibility, where the Act can indeed be done, but only at an excessive or unreasonable expenditure of time, labour, or money. Again, an Act is said to be 'legally' impossible, when a recognised law or rule of law makes it impossible, as for a minor to make a valid will; and this class of Acts must not be confounded with those which are possible, but forbidden by law, as to commit a crime. Lastly, an Act is sometimes said to be logically' impossible when it is contrary to the nature of the transaction or involves a contradiction of terms; for instance, when A gifts property to B expressly for the latter's own benefit, but on condition that he shall transfer it to C.
34. Counsel for the petitioner has strongly relied on the above principles and has urged that the presumption against impossibility should be invoked for a proper construction of Section 17-B. And the provision therein that the application under the section has to be made within sixty days of the August 26, 1967, (when the Act itself was assented to on the March 26, 1968) should be construed to be a logical impossibility.
35. Learned counsel also relied on Alien in Law in the Making', 7th Edition, at page 462, where the same principles have been briefly discussed. Alien says: 'A Stautory rule may be perfectly reasonable and practicable in its general application, but in a particular instance, owing to inevitable circumstances, it may be impossible for an individual to comply with it. The maxim Lex non cogit ad impossibilia then applies. A Statute will not be construed as imposing on an individual a duty which it was not reasonably possible for him to perform.'
38. Mr. Bhabra also relied on the observation of Lord Dcnman, C. J. in Green v. Wood, (1845) 115 ER 455 at page 458, which reads:
'We are bound to give tn the words of the legislature all possible meaning which is consistent with the clear language used. But, if we find language-3 used which is incapable of a meaning, we cannot supply one........'
37. Our attention was also drawn to Maxwell's 'Interpretation of Statutes', 12th Edition, at page 326, which says: 'Enactments which impose duties upon conditions are, when these are not construed as conditions precedent to the exercise of a jurisdiction, subject to the maxim that Lex non cogit ad itnpossibilia. They are understood as dispensing with the performance of what is prescribed when performance of it is impossible.'
38. The case of Harding v. Price, (19-18) 1 KB 695, was then cited. The facts were that a trailer attached to a lorry collided with and damaged a stationary car while passing it. It was found as a fact that the driver of the lorry because of the noise the trailer was making did not know of the accident. He therefore did not stop or report the accident to the police as required by Section 22 of the Road Traffic Act, 1930. The Court has held that if a statute contained an absolute prohibition against the doing of an act, as a general rule mens rea was not a constituent of the offence: but there was for this purpose a difference between a statutory provision prohibiting an act and one imposing a duty to do something on the happening of an event. The driver could not report something of which he had no knowledge, and therefore he was not guilty of the offence.
39. The next case which Mr. Bha-bra cited was the case of the Queen v. The Justices of Leicestershire, (1850) 117 ER 391. After an order in bastardy had bean made, the putative father, intending to appeal, entered into a recognisance, according to stat. 8 & 9 Vict. c 10, S 3, and, on the same day, sent notice of his having done so by post to the woman, When the appeal came on to be tried, it was proved that the woman had died he-fore the notice to her was posted; and the Sessions being of opinion that a condition imposed by stat. 8 & 9 Vivt. c 10, s 3, as preliminary to an appeal had not been complied with, refused to hear the appeal. It was held, on demurrer to the return to a mandamus to enter continuance and hear the appeal, that performance of the condition imposed by law having by the act of God become impossible, its performance was excused; and a peremptory mandamus was awarded.
40. In the instant case these authorities are not apposite. We have al-ready indicated that the history of the legislation, we are dealing with, docs not suggest that the legislature was prescribing an impossibility. In fact, the legislature never intended to confer any right other than the right given by Ordinance No. VI of 1907. By this Ordinance the legislature introduced various sections into the principal Act including Section 17-C which has now become Section 17-B. The legislature's intention was to produce a situation in which the West Bengal Tenancy Act would contain these new provision as if the 1907 Ordinance was an Act.
41. A Special Bench of this Court in Tarak Chandra v. Ralanlal Ghosal. : AIR1957Cal257 has elaborately discussed what happens when a temporary Act is repealed. It was laid down that the general rule was that unless it contained some special provisions to the contrary, a temporary Act ceased to have any further effect after it had expired. The Special Bench said that no proceedings could be taken under it any longer. And proceedings already taken and pending also terminated automatically as soon as the temporary Act expired. The Special Bench was considering the West Bengal Premises Rent Control Act. 1950 which was limited in duration up to the 31st March, 1956. Before the judgment was delivered the West Bengal Legislature introduced new provisions for 'Repeal and Savings' by the West Bengal Premises Tenancy (Amendment) Act, 1956. The expressions used in the new provisions were subjected to severe criticism and Chakravartti, C. J. at Page 292, after corn-inc: to the conclusion that the new provisions had saved pending proceedings, observed:
'I am sensible that the construction I am adopting does not lie on the surface of the section and indeed involves some strain on its language. But the language is not wholly incapable of bearing the construction. .........'
42. It seems to us that this is the reason why the provisions, inter alia, of Section 17-B in the same form as the were in the West Bengal Ordinance No. VI of 1907 have been introduced again and again in the enactments that followed in addition to the saving provisions we have referred to. The legislative authorities were anxious that the right given to a tenant under Ordinance No. VI of 1967 and the proceedings commenced thereunder should not die with the expiry of the Ordinance, And they never intended to give to the tenant a higher or a larger or greater right.
43. The date of commencement of the West Bengal Ordinance No. VI of 1967 is the 26th August, 1967. The application under Section 17-C (which became Section 17-B in the later Statutes) had tobe made within a period of 60 days from the commencement of this Ordinance. On November, 29, 1967, the West Bengal Legisature had a session; but the Ordinance of 1967 was not converted into an Act. On. January 9, 1968, the Ordinance of 1967 vas to expire. That is why, a day earlier on January 8, 1968, another Ordinance was promulgated and it was called 'The West Bengal Premises Tenancy (Amendment) Second Ordinance, 1968 (West Bengal Ordinance No. II of 1968); but :his Ordinance did not make any changes as to the provisions for making an application under the relevant section. The Ordinance of 1968 was followed by President's Act No. 4 of 1968 which was known as the West Bengal Premises Tenancy (Amendment) Act, 1968. Section 17-B of this Act is a repetition of the provisions of Section 17-C of Ordinance No. VI of 1967. Moreover, Sub-section (2) of Sec. 1 of this Act makes it abundantly clear that the Act 'shall be deemed to have come into force on the 26th day of August, 1967' which is the date of commencement of Ordinance No. VI of 1907. Lastly, we have the West Bengal Premises Tenancy (Amendment) Act of 1969 which is an Act to re-enact the provisions ot President's Act 4 of 1968; but the 1969 Act also does not introduce any changes either in Section 1 (2) or in Section 17-B. The history of this legislation, therefore, leads us to the inevitable conclusion that the legislative authorities were consciously re-enacting the relevant provisions of 1967 Ordinance in the subsequent Acts and Ordinances just to keep alive the rights that were given to a tenant under the 1967 Ordinance. We are, therefore, of opinion that the commencement of President s Act 4 of 1968 accordingly is August 26, 1967 as mentioned in Section 1 (2) (hereof and that an application under Section 17-B (1) could be made within a period of sixty days only from the August 26, 1967. No other date, in our view, has any relevance to the applicability of this section. We do not also agree that the maxim 'Lex non cogit ad impossibilia' applies to Section 17-B (1).
44. The next question that arises for our consideration is whether the reference to sixty days in Section 17-B (1) is period of limitation. If it is a period of limitation, then the provisions in Section 5 of the Limitation Act or provisions analogous thereto may be invoked to save an application made beyond that period. Mr. Ginwalla for the opposite party contends that this is not a period of limitation. His point is that limitation merely bars the remedy and not the right. Section 17-B, according to him, docs not confer an unlimited right which is barred by limitation. The only right, says learned counsel, which Section 17-B confers, is a limited right exercisable within a certain period. In Section 17-B (1) Mr. Ginwallapoints out, the expression 'within a period of sixty days from such commencement', is sandwiched between the words 'may' and 'make'. In all the Acts and Ordinances to which our attention has been drawn in this Rule the same juxtaposition of words, occurs.
45. Mr. Ginwalla drew our attention to the differences between the language used in Section 17-A and Section 17-B on the one hand and Section 17 (2B) on the other. The language in Sections 17-A and 17-B are almost the same. But Section 17 (2B) opens with the words 'no application for extension of time for the deposit or payment of any amount under clause (a) of Sub-section (2A) shall be entertained unless it is made before the expiry of the time specified therefor in Sub-section (1) or sub-section (2),.........' According to Mr. Ginwalla this expression prescribes a period of limitation; but when a period is sandwiched between an auxiliary verb and a verb (like 'may' and 'make') it is not a period of limitation. The adverbial clause 'within a period of sixty days of such commencement' only limits the action of the verb. From this point of view Section 17-B (1) merely confers a limited right and as soon the period passes away, says Mr. Ginwalla, the right disappears or is exhausted.
46. Now, Section 39 of the West Bengal Premises Tenancy Act, 1956, is as follows:--
'Subject to the provisions in this Act relating to limitation, all the provisions of the Indian Limitation Act, 1908, shall apply to suits, appeals and proceedings under this Act.'
47. One of the sections of the Indian Limitation Act, 1908 is Section 5 which runs thus:
'Any appeal or application for a review of judgment or for leave to appeal or any other application to which this section may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed therefor, when the appellant or 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 applicant was misled by an order, practice or judgment of the High Court in ascertaining or computing the prescribed period of limitation may be sufficient cause within the meaning of this section.'
48. Mr. Ginwalla's argument before us is that Section 17-B (1) does not prescribe any period of limitation; it merely gives a right which subsists for a limited period which may be aptly called a limited right.' Assuming, says Mr. Ginwalla, this is a period of limitation. Section 5 of the Limitation Act has no application to it because the Tenancy Act itself prescribes the period for the making of an application under Section 17-B. Mr. Ginwalla has drawn our attention to Section 29(2) of the Limitation Act, 1963 which says, inter alia, that when any special or local law prescribes a period of limitation different from the period prescribed in the Limitation Act the provisions of Sections 4 to 24 shall apply in so far as, and to the extent to which, these provisions are not expressly excluded by such special or local law. Mr. Ginwalla submitted that if the intention of the framers of the Tenancy Act was to attract to its provisions, Section 5 of the Limitation Act, they would not have introduced Section 39 into their own Act. The provisions of Section 39, according to Mr. Ginwalla, expressly excludes the operation of Sections 4 to 24 of the Limitation Act.
49. We shall deal with this argument of Mr. Ginwalla at the appropriate time. But at the moment we only intend, incidentally, to point out that Section 39 of the Tenancy Act speaks of the provisions not of the Limitation Act of 1963 but of the Limitation Act of 1908. And in the latter Act Section 5 was not included in Section 29(2).
50. Our attention was also drawn to an unreported judgment of A. N. Bay, J. and Bagchi, J. in National Traders v. Dr. Lalit Mohan Roy, (A. F. O. D. No. 689 of 1963) decided 011 19-3-1969 (Cal). In this judgment it has been stated that Section 5 of the Limitation Act does not apply to an application under Section 17 (2-A) of the West Bengal Premises Tenancy Act, 1956. Ray, J. has inter alia, observed: 'Section 5 of the Limitation Act relates to an extension of lime in matters dealt with by the Limitation Act. These provisions (that is the provisions of the Tenancy Act) do not come within the purview of the Limitation Act.' These observations appear to be obiter dicta. At page 31 of the judgment of Bagchi, J. we find that the Learned Judge has stated:
'To understand the meaning of the expression 'the Court' in the provisions of the sections and sub-sections we have discussed, we have analysed and considered all such sections and sub-sections and we have come to this conclusion that the expression 'the Court' in the sections and sub-sections, we have analysed and considered, relates to the Court, not of appeal, but of first Instance.'
51. The position, therefore, is that Ray and Bagchi, JJ. were of opinion that an application under Section 17 (2-A) was not maintainable before the Appeal Court but had to be made before the Trial Court. After arriving at this conclusion the Learned Judges proceeded to make observations on the applicability of theLimitation Act. It is clear, therefore, that anything said in this judgment about limitation is obiter dictum. We may, in this connection, refer to the Privy Council's judgment in Shankarlal v. Hira Lal, AIR 1950 PC 80. The Privy Council has said that if the Court holds that the suit is not maintainable by reason of failure to comply with notice under Section 80 of the Civil Procedure Code, findings given on merits are obiter and do not support the plea of res judicata either in favour of or against a party. Alien in his 'Law in the Making' at page 261 has quoted the observations of Lord Sterndale, M. R. in Slack v. Leeds Industrial Cooperative Society, (1923) 1 Oh 431 (CA). These observations are as follows:--
'Dicta are of different kinds and of varying degrees of weight. Sometimes they may be called almost casual expressions of opinion upon a point which has not been raised in the case, and is not really present to the judge's mind. Such dicta, though entitled to the respect due to the speaker, may fairly be disregarded by judges before whom the point has been raised and argued in a way to bring it under fuller consideration. Some dicta, however, are of a different kind; they are, although not necessary for the decision of the case, deliberate expressions of opinion given after consideration upon a point clearly brought and argued before the Court. It is open, no doubt, to other judges to give decisions contrary to such dicta, but much greater weight attaches to them than to the former class.'
52. According to Mr. Bhabra, the Division Bench's observations on limitation in National Trader's case, A. F. O. D. No. 689 of 19G3, D/- 19-3-1969 (Cal), are dicta of the former kind as it docs not appear from the judgment that all relevant matters were placed before the learned Judges concerned. There is, for instance, no reference to any arguments advanced on the basis of Section 39 of the West Bengal Premises Tenancy Act, 1956. In our view whether the dicta are of the former or the latter kind they are not binding on us and we are free to decide to the contrary if we are convinced that Section 5 of the Limitation Act applies to Section 17-B of the West Bengal Premises Tenancy Act, 1956.
53. What, after all, is the Law ofLimitation? A Law of Limitation limits the time after which a suit, or other proceedings cannot be maintained in any Court of Justice. In other words, a Law of Limitation limits or prescribes a time at the end of which persons liable to sue shall become exempt from answering therein: vide U. N. Mitra's Law of Limitation and Prescription, 6th Edition at page 1.
54. Now, Section 17-B (1) of the West Bengal Premises Tenancy Act, 19561prescribes a period of sixty days from the ,6th August, 1967, after which an application under the section cannot be maintained. It seems to us that a provision of this nature cannot but be a period of limitation. The distinction which Mr. Ginwalla drew between the languages used in Sections 17 (2A) and 17 (2B) on the one hand and the language of Section 17-B (1) on the other appears to be more verbal than substantive. These are merely ways of describing the same thing differently. In this context we have to appreciate the provisions of Section 39 of the West Bengal Premises Tenancy Act, 1956. This section applies the whole of the Indian Limitation Act, 1908 to the Tenancy Act subject to the provisions in the Tenancy Act relating to limitation. The provisions in the Indian Limitation Act are, broadly speaking, of two types. There are provisions prescribing periods within which suits or proceedings are to be instituted. Secondly, there are also provisions regarding the computation of such periods including those relating to enlargements of such periods in appropriate cases.
55. We have already referred toSection 29(2) of the Limitation Act, 1963 on which Mr. Ginwalla had relied. The effect of these provisions is that Sec. 5 of the Limitation Act would apply to a special or local law unless expressly excluded by such law. Before Section 5 was brought within the purview of Section 29(2), the expression 'expressly excluded' was construed in several decisions. For instance, in Sati Prosad v. Gobinda Chandra, AIR 1929 Cal 325 at p 327, Cuming, J. (sitting with Mallik, J.) has observed: 'By the expression 'expressly' I think it is meant that express reference is made to the specific section in the Act; and that unless such reference is made to the section and by that reference they are expressly excluded, then they would apply.' Two other Calcutta cases support the same view. In District Board Chittagong v. Emdadal Hoque, AIR 1940 Cal 805, Henderson, J. had to consider whether the provisions of Section 146 of the Bengal Local Self-Government Act, 1885 excluded the application of Section 15(2) of the Limitation Act. The wording of the relevant portion o Section 146 was as follows:--
'Every such action shall be commenced within three months next after the accrual of the cause of action and not afterwards.'
5fi. It was argued before the learned Judge that the words 'and not afterwards' amounted to express exclusion. Henderson, J. has followed the Division Bench's decision in AIR 1929 Cal 325 (supra) and has held that these words do not constitute express exclusion and Section 15(2) of the Limitation Act appliedto Section 146 of the Bengal Local Self-Government Act.
57. Biswas, J. took the same view with reference to the relevant provisions of the Bengal Municipal Act in Commrs. of Pabna Municipality v. Nirode Sundari, AIR 1942 Cal 544.
58. The High Court at Pepsu inMukandi Ram v. Executive Engineer, Sangrur Circle, AIR 1956 Pepsu, 40 has also taken the same view. In para 8 of the judgment at p. 43 it has been observed with reference to Section 29 of the Limitation Act that the exclusion must be by express words, that is by express reference to the section and not exclusion as a result of logical process of reasoning.
59. It may be noted that Section 39 of the Tenancy Act has stated that all the provisions of the Indian Limitation Act, 1908 shall apply to suits, appeals and proceedings under the Tenancy Apt subject to the provisions in the Tenancy Act relating to limitation. Section 29 (2) of the Indian Limitation Act, 1908 ran thus:
'Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first Schedule the provisions of Section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law-
(a) the provisions contained in Sec. 4, Sections 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 such special or local law; and
(b) the remaining provisions of this Act shall not apply.'
60. Now, clause (b) of Section 29 (2) of the Limitation Act, 1908, expressly provided that apart from the provisions mentioned in clause (a) 'the remaining provisions of this Act shall not apply.' The expression 'the remaining provisions of this Act shall not apply' in Section 29 (2) (b) of the Limitation Act, 1908, has been construed to mean that the remaining provisions of the Act shall not apply of their own force unless they are expressly made applicable by the special or local Act: vide Madhorao v. Balaji, AIR 1926 Nag 236.
61. Under the provisions of Section 8(1) of the General' Clauses Act, 1897, reference to the Limitation Act, 1908 in the Tenancy Act is to be read as reference to the Limitation Act, 1963; vide Ram Prosad v. Bijoy Kumar, : AIR1966Cal488 Section 29(2) of the Limitation Act, 1963, provides:
'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 periods were the periods prescribed by the Schedule 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 only in so far as, and to the extent to which they are not expressly excluded by such special or local law.'
62. Far from express exclusion of above sections, in our case, Section 39 of the Tenancy Act has expressly made all the provisions of the Limitation Act, 1908 applicable to the Tenancy Act subject to periods of limitation mentioned in the Tenancy Act itself. This clear invocation to all the provisions of the Limitation Act of 1908, in our opinion, attracts the provisions of Section 5 of that Act to the appropriate provisions of the Tenancy Act including Section 17-B (1). The intention of the legislature, it seems to us, has always been that Section 5 could be availed of in suitable cases.
63. My learned brother has taken the same view with reference to other subsections of Section 17 in Mrs. Gouri Bose v. Sukumar Ghose, (1971) 75 Cal WN 342.
64. There is another judgment of S. C. Ghose, J. in Rajputana Trading Co. Private Ltd v. Malaya Trading Agency, : AIR1971Cal313 Ghose, J. is of opinion that the provisions 'relating to limitation' contained in Section 17 of the West Bengal Tenancy Act, 1956 are not contrary to or inconsistent with the provisions of Sec. 5 of the Limitation Act and Section 5 can, In proper cases, be applied to Section 17 of the Tenancy Act. But Ghose, J. felt bound by a judgment of R. M. Datta, J. in Suit No, 829 of 1966 (Cal) (Jatindra Nath Samanta v. M/s. Rash Behari Dutta & Co.) and held that Section 5 was not attracted to an application for extension of time to deposit rent under Section 17 (2A) of the Tenancy Act, the view of R. M. Datta, J., as we have already indicated, we are unable to accept.
65. Let us now examine whether the petitioner has shown sufficient cause for condoning the delay in making its application under Section 17-B (1). We have already referred to the statements in paragraph 14 of the petition. The sum and substance of the paragraph is that the petitioner on April 9, 1969, was For the first time advised by Mr. A.K. Dutta, senior advocate, that an application under Section 17-B should be made and on the April 11, 1969, the petitioner applied to the Trial Court under Section 17-B as also under Section 5 of the Limitation Act. In Paragraph 15 of the petition it is stated that the application under Section 17-B could not be made within time owing to'bona fide misapprehension of the legal position and the facts and circumstances as aforesaid.'
66. Our task in this application is to decide whether these statements constitute 'sufficient cause' within the meaning of Section 5 of the Limitation Act. Mr. Bhabra for the petitioner, submits that Section 17-B is worded in an abstruse mariner. It is not a case of the litigant's negligence but a case of default owing to cumbersome wording of the statute. Reliance is placed on the Supreme Court's observations in Ramlal v. Rewa Coal Fields Ltd., : 2SCR762 In para 7 of its judgment at p. 363 the Supreme Court observes:
'In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the Law of Limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice.'
67. These principles are well-settled. And Mr. Bhabra's contention is that in the instant case there has been no negligence, no inaction, no absence of bona fides on the part of the petitioner. The language of the statute is not clear and that would be the justification, according to Mr. Bhabra, for condoning the delay in making the application. When a statute is doubtful, says Mr. Bhabra, the docrine of ignorantia juris neminem excusat does not apply.
68. In support of his proposition learned counsel cited several authorities. In Earl Beauchamp v. Winn, (1873) 6 HL (English and Irish Appeals) 223 at p. 234, it has been held that the rule ignorantia juris neminem excusat applies where the alleged ignorance is that of a well-known rule of law, but not where it is that of a matter of law arising upon the doubtful construction of a grant. In the latter case it is not decisively a ground for refusing relief. This case is not an authority on the principles enacted in Section 5 of the Limitation Act. It is a case of private rights arising out of a Deed of Grant and both parties were under a mistake. Equitable relief was sought against mutualmistake and the Court said that where, in the making of an agreement between two parties, there has been a mutual mistake as to their rights, occasioning an injury to one of them, the rule of equity is in favour of interposing to grant relief.
69. The next case of Mr. Bhabrais the case of Seaton v. Seaton, (1888) 13 AC 61, This is also a decision of the House of Lords. In this case the construction of certain provisions of the Infants' Settlement Act, 1855 had arisen and Lord FitzGerald at pages 77 to 78 has explained the maxim ignorantia juris non ex-cusat. Lord FitzGerald has said that the true meaning of the maxim is that parties cannot excuse themselves from liability from all civil or criminal consequences of their acts by alleging ignorance of the law, but there is no presumption that the parties must be taken to know all the legal consequences of their acts, and especially where difficult questions of law, or of the practice of the1 Court arc involved.
70. Whether or not the doctrine of ignorantia juris non excusat applies depends therefore to a certain extent on how simple the law is. If, for instance, the law which is violated involves difficult questions of construction or of the practice of the Court ignorance of law may be excused. In our case we do not find the complications envisaged by the House of Lords. Here, there were only two possible arguments. One argument was that the application under Section 17-B had to be made within sixty days of the 26th August 1967. The other argument was that the application had to be made within sixty days of the 26th March, 1968; but the tenant, in the instant case, did not come with his application within any of these periods. And Mr. Ehabra's contention that there is no period of limitation appears to us to be untenable. Moreover, neither in Paragraph 14 nor in Paragraph 15 of the petition is it stated that the petitioner was under a misapprehension as to the date within which an application under Section 17-B (1) was to be made. On the contrary, the clear trend of these paragraphs is that the petitioner was all along wholly ignorant of the rights conferred on a tenant by Section 17-B.
71. Mr. Bhabra also referred us to an obiter dictum of Pickford, J. in Gregory V. Torquay Corporation, (1911) 2 KB 556 at p. 559. The dictum is: 'if a statute conferred a new right of action and also prescribed a limited time within which that right of action might be enforced, it may be that it could not be properly called a statute of limitations.'
72. In the instant case this dictum need not be considered by us. We are clearly of opinion, for reasons stated above, that the Legislature's intention was that all applications under Section 17-B (1) should be made within sixty days of the26th August, 1967. But if the petitioner's case is that its delay in making the application should be condoned inasmuch as the petitioner was under the impression that the 'period of sixty days from such commencement' was not a period of limitation, the petitioner should have made a specific statement to this effect while giving his reasons for not making the application within time. No such statement has been made either in Paragraph 14 or in Paragraph 15 of the petition.
73. The position, therefore, is that the petitioner's explanation for delay in making the application under Section 17-B (1) is 'bona fide misapprehension of legal position' and this misapprehension, according to the petitioner, was removed by the opinion of Mr. A. K. Dutt which the petitioner obtained on April 9. 1969. This is not a case of mistake of law arising out of wrong legal advice but a case of ignorance of law arising from not taking any legal advice on the petitioner's rights under Section 17-B till the April 9, 1969. The question is whether this is a sufficient cause within the meaning of Section. 5 of the Limitation Act,
74. The Bombay High Court in Sitaram v. M. N. Nagrashna, : (1954)IILLJ703Bom has discussed to some extent the problem we have been called upon to resolve in this case. The Bombay High Court says that there is a distinction between ignorance of law and mistake of law. Ignorance of law is ignorance of the rights of a party which the law confers upon him. Mistake of law is mistake in establishing those rights by, for instance, going to one forum instead of another. The party knows his rights, he wants to assert them, and establish them, but through mistake in understanding the provisions of the law goes to a wrong forum instead of going to the forum which the law has set up for the determination of his rights. In cases where there is a mistake of law, the Courts have almost uniformly taken the view that the time taken up by asserting the right in a wrong Court or wrong forum should be excused and the Courts have largely been influenced by the principle underlying Section 14 of the Limitation Act; but ignorance of law has been held to be not only no excuse but also no sufficient cause for failing to assert ft party's rights in the forum established by law. The Bombay High Court is of opinion that the words 'sufficient cause' in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice when neither negligence nor inaction nor want of bona fides is imputable to the appellant. Therefore, if a party be guilty of negligence or bad faith, no relief can be given under Section 5 of the Limitation Act. He should not also be guilty of inaction. And when a party does not choose to bestir himselfbecause he Is Ignorant of his rights, he is clearly in law guilty of inaction.
75. Now, what are the facts of this case. The petitioner before us took part in all kinds of proceedings in the Trial Court, before the Additional District Judge, Seventh Court, Alipore as also in a second appeal to this Court. The petitioner even made an application for leave to appeal to the Supreme Court when its second appeal was dismissed; but there was total inaction on its part so far as an application under Section 17-B (1) was concerned owing to ignorance of its rights under that section. And inaction of this nature cannot be condoned by a Court of law by exercising its powers under Section 5 of the Limitation Act.
76. Mr. Bhabra, learned counsel for the petitioner, submits that it is true that mere ignorance of the law cannot be recognised as a sufficient reason for delay under Section 5 of the Limitation Act. But this rule of law, says Mr. Bhabra, has also its limitations. In Sitaram v. Nimba, (1888) ILR 12 Bom 320, A obtained a decree against B as the heir and legal representative of his deceased uncle C. The decree directed that the amount adjudged should be recovered from C's assets in the hands of B. In execution of this decree certain property was attached. B claimed this property as his own and sought to remove the attachment, but the Court passed an order confirming the attachment on November 20, 1880. In 1881 B filed a regular suit to set aside this order. The suit was dismissed in 1885, as barred by Section 244 of the Civil Procedure Code. Thereupon B filed an appeal from the Order in execution made on the 20th November, 1880. This appeal was rejected as time-barred. The Bombay High Court has held that the time spent in the actual proceedings in the suit to set aside the order in execution might be deducted in computing the delay that occurred before the appeal was filed. But the plaintiff was not entitled to a deduction of the time that intervened between the date of the order appealed against and the date of filing the suit inasmuch as mere ignorance of law was not an excuse for the delay for that would be putting a premium on ignorance.
77. Mr. Bhabra contends that theabove case is a case of 'mere ignorance'and the principle laid down therein has no general application. He has cited the case of Dadabhai Jamsetji v. Maneksha Sorabji, (1897) ILR 21 Bom 552, which says that the presentation of an appeal to a wrong Court under a bona fide mistake may be 'sufficient cause' within the meaning of Section 5 of the Limitation Act. Learned counsel has also referred to the case of Krishna Mohan Ghosh v. Surapati Banerjee, AIR 1925 Cal 684 (1). In thiscase the appellant was an ignorant milkman without any previous experience of litigation and pleaded ignorance of his duty to substitute the legal representative of the deceased respondent though he was warned of the respondent's death. The Calcutta High Court has held that in the circumstances of the case, the delay was bona fide and that sufficient cause was shown within the meaning of Section 5. Apart from the fact that this was a case of bona fide mistake not arising out of any latches or negligence, it is to be observed that here there was no question of asserting any right but merely the duty of substituting the legal representative of a deceased respondent.
78. To sum up the position we may observe that there may be extenuating circumstances justifying the application of Section 5 or the Limitation Act when a party is ignorant of his rights; but such circumstances are, indeed, rare. For instance, in the present case if the petitioner had stated that it was under the impression that there was no period of limitation for an application under Section 17-B (1) owing to the impossibility of applying the relevant provisions, the petitioner's case under Section 5 might navel deserved careful consideration; but as we have pointed out, the only ground appears to be that the lawyers who were conducting the petitioner's case before the trial Court, the first appeal Court and the second appeal Court never advised the petitioner as to its rights under Section 17-B until the petitioner came to Mr. A. K. Dutt. A plea of this nature, is, in our opinion, a plea of mere ignorance of law arising out of the petitioner's neglect or failure to seek proper legal advice. On this plea we would not be justified in excusing the petitioner's delay under Section 5 of the Limitation Act.
79. In the result, this Rule is discharged. The interim order is vacated. There will be no order as to costs.
Salil Kumar Datta, J.