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Rai Harendranath Chaudhuri Vs. Sm. Daulatmani Chaudhurani - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case Nos. 446, 558 and 559 of 1957
Judge
Reported inAIR1958Cal539,62CWN143
ActsLimitation Act, 1908 - Sections 5 and 29 - Schedule - Article 152; ;Tenancy Law; ;Calcutta Thika Tenancy Act, 1949 - Section 27; ;Code of Civil Procedure (CPC)
AppellantRai Harendranath Chaudhuri
RespondentSm. Daulatmani Chaudhurani
Appellant AdvocateSurendra Nath Bose, ;Ramendra Nath Bose and ;Sovendra Madhab Basu, Advs.
Respondent AdvocateChandidas Roy Chowdhury, Adv.
Cases ReferredC) and Virendra Kumar v. State of Punjab
Excerpt:
- .....act section 4 provides that subject to the provisions of section 3, the provisions of the code of civil procedure 1908, with respect to appeals from original decrees, shall, so far as may be, apply to appeals under that act; and section 6 provides that an appeal under that act shall be deemed to be an appeal under the code of civil procedure, 1908, within the meaning of article 156 of the first schedule to the indian limitation act, 1908. that case, therefore, was clearly one which came under article 156 of the indian limitation act and consequently their lordships had no difficulty in holding that section 5 of the indian limitation act would apply to an appeal under that act.4. in : air1955cal578 das gupta and debabrata mookerjee, jj. had to consider the question of the applicability.....
Judgment:

S.C. Lahiri, J.

1. These three revision cases raise the question whether Section 5 of the Indian Limitation Act will apply to appeals under section 27 of the Calcutta Thika Tenancy Act of 1949. The facts of these three cases which are not disputed are these:

2. On 29-9-1956, the Thika Tenancy Controller made an order of ejectment against the opposite parties and an appeal against that Order was filed in the court of the District Judge, 24-Parganas, on 20-11-1956. Under Section 27 of the Calcutta Thika Tenancy Act the period of limitation for filing an appeal against an order of the Controller is 30 days from the date of the order. In all these three cases the opposite parties filed applications for extension of time under Section 5 of the Indian Limitation Act on the allegation that though the order had been passed by the Controller on 29-9-1956, the opposite parties on account of physical infirmities of various descriptions, came to know of the order on 5-11-1956. They made an application for an urgent copy o the order on 9-11-1956, and filed the appeals before the District Judge on 10-11-1956. The office of the District Judge made a report that all these appeals were time barred by 12 days. The learned District Judge, however, upon the applications filed by the opposite parties, held that the opposite parties had made out a sufficient cause within the meaning of section 5 of the Indian Limitation Act and accordingly condoned the delay and ordered the appeals to be registered. Against that order the landlord petitioner has obtained the present rules.

3. On behalf of the landlord petitioner it has been contended that Section 5 of the Indian Limitation Act does not apply to appeals under Section 27 of the Calcutta Thika Tenancy Act of 1949. The question will have to be decided upon a proper interpretation of section 29(2) of the Indian Limitation Act. The scope of section 29(2) of the Indian Limitation. Act. has in recent years, been very Carefully analysed, in the cases of Province of Bengal v. Amulya Dhone Addy, 54 CWN 297; (AIR 1950 Cal 336)(A) & Bijan Lata Basak v. Bhudhar Chandra Das, : AIR1955Cal578 , both of which are Bench decisions, which are binding on us. In the case of Province of Bengal v. Amulya Dhone Addy (A), Mitter, J. pointed out that section 29 (2) of the Indian Limitation Act applies only to two classes of appeals:

(a) where the period of limitation prescribed in a special Act is different from that prescribed in the first schedule of the Limitation Act, and

(b) where the only period of limitation is that provided in the special Act and the appeal does not fall under any of the articles in the first schedule of the Limitation Act.

In the case of appeals coming under the first class, Sections 3 to 25 of the Limitation Act will apply but in the case of appeals coming under the secondclass, Sections 4, 9 to la and Section 22 will apply, unless they are expressly excluded, and the remaining sections of the Limitation Act will not apply.

In the case of appeals for which a period of limitation has been prescribed in the Special Act and also in the first schedule of the Limitation Act, and both the periods are identical, Section 29(2) has no application and all the provisions of the Limitation Act from Section 3 to Section 25 will be applicable. In : AIR1950Cal356 , Mitter and P. N. Mitter, JJ., had to consider the question whether an appeal under the Calcutta Improvement Appeals Act (Act XVIII of 1911) would be governed by the provisions of Section 5 of the Indian Limitation Act. In that Act Section 4 provides that subject to the provisions of Section 3, the provisions of the Code of Civil Procedure 1908, with respect to appeals from original decrees, shall, so far as may be, apply to appeals under that Act; and section 6 provides that an appeal under that Act shall be deemed to be an appeal under the Code of Civil Procedure, 1908, within the meaning of Article 156 of the first schedule to the Indian Limitation Act, 1908. That case, therefore, was clearly one which came under Article 156 of the Indian Limitation Act and consequently their Lordships had no difficulty in holding that Section 5 of the Indian Limitation Act would apply to an appeal under that Act.

4. In : AIR1955Cal578 Das Gupta and Debabrata Mookerjee, JJ. had to consider the question of the applicability of Section 5, Limitation Act to an appeal under Section 32 of the West Bengal Premises Rent Control Act (1950). Their Lordships followed the decision in : AIR1950Cal356 and came to the conclusion that the appeal under Section 32 of the Rent Control Act of 1950 was an appeal 'under the Civil Procedure Code to the court of a District Judge' within the meaning of Article152, Limitation Act and as the period of limitation prescribed in Article152 was the same as that in Section 32 of the Rent Control Act, Section 29(2) of the Limitation Act did not stand in the way of the applicability of Section 5 to such appeals. On the question whether such an appeal would be an appeal 'under the Code of Civil Procedure' their Lordships held that that expression includes not only appeals which are given by the Code of Civil Procedure but also appeals which are governed by the same procedure as prescribed by the Code of Civil Procedure. Authorities for this extended meaning of 'appeal under the Code of Civil Procedure' are to be found in the cases of Aga Muhammad v. Cohen, ILR 13 Cal 221 (C) which was approved and to follow ed by the Madras High Court in the case of Rama Sami v. Deputy Collector of Madura, ILR 43 Mad 51: (AIR 1920 Mad 407) (D), both of which again were followed in the case of : AIR1950Cal356 . In Bijanlata's case (B), their Lordships held that an appeal under Section 32 of the Rent Control Act (1950) was an appeal under Article 152 of the Limitation Act according to the extended meaning, because Section 32 (3) of the Act provided that the procedure for filing the appeal and powers and procedure of the court in entertaining and hearing the appeal shall be the same as in appeals from orders under the Code of Civil Procedure. As the provisions of the Code of Civil Procedure relating to appeals were thus expressly extended to appeals under Section 32 their Lordships found no difficulty in holding that they were appeals under Article152 of the Limitation Act and as the period of limitation prescribed by the Special Act was identical with the period prescribed by Article152, Section 5 would apply to such appeals.

5. Besides the above Bench decisions Mr. Basu appearing for the petitioner also cited the cases of Neel Ratan v. Emperor : AIR1933Cal124 and G. D. Bhattar v. The State, : AIR1957Cal483 . In the former case Rankin C. J. and Pearson, J. held that Section 5 did not apply to an appeal under the Emergency Powers Ordinance II of 1932 and in the latter case Guha Roy and Renupada Mookerjee, JJ. held that the application of the second half of Section 29(2) Limitation Act was not confined to cases covered by the first half and that the second half of that Section was of general application. These decisions however are of no assistance on the point which has arisen before us.

6. The question therefore is whether an appeal under Section 27 of the Calcutta Thika Tenancy Act is an appeal which comes under any of the articles of the first schedule of the Limitation Act. If it does SECTION 5 of the Limitation Act will apply whether thf period of limitation prescribed by that article be the same as or different from the period of thirty days provided for by Section 27. Mr. Roy Chowdhury appearing for the opposite party has contended that an appeal under Section 27 Thika Tenancy Act is an appeal under the Code of Civil Procedure within the meaning of Article 152 Limitation Act like an appeal under Section 32 of the Rent Control Act (1950). We feel serious difficulty in accepting this contention. Even according to the extended meaning of 'Appeals under the Code of Civil Procedure' under Article 152 the appeal has to be governed by the Code of Civil Procedure so far as procedure is concerned. Can it be said that an appeal under Section 27 of the Thika Tenancy Act satisfies that condition? After a good deal of hesitation I have come to the conclusion that this question must be answered in the negative. Unlike an appeal under Section 32 of the Rent Control Act (1950) to which the Provisions of the Civil Procedure Code have been expressly made applicable neither the Calcutta Thika Tenancy Act itself nor the statutory rules framed thereunder extend the provisions of Civil Procedure Code relating to apeals to an appeal under Section 27(4) which request the appellate tribunal to 'send for the records & 'after perusing the record, and if necessary taking such evidence itself or personally making such further enquires as it thinks fit' to make an order deciding the appeal after giving the parties an opportunity of being heard. Section 27(5) gives the appellate tribunal the power to review. Section 32 gives the person deciding the appeal the power to inspect any premises or to authorise any person subordinate to him to do the same and also the power to enforce attendance of witnesses and to compel production of documents in the same manner as provided in the case of a court by the Civil Procedure Code. The powers to take additional evidence, hold further enquiry, to inspect the premises are not ordinarily enjoyed by the appellate court under the Code of Civil Procedure except in special circumstances codified in Order 41, Rule 27. Then again if all the provisions of Civil Procedure Code relating to appeals applied to appeals under Section 27 Thika Tenancy Act what was the use of making a special provision in Section 27(5) that the person hearing the appeal shall have the power to review his order and what was the use of providing by Rule 13 of the Rules framed under Section 34 of the Act that in reviewing his order under Section 27 (5) the appellate officer shall follow as far as may be the procedure laid down in Order 47 of the Code? Again Rule 12 is in these terms:

'In making enquiries under this Act the Controller, the Chief Judge of the Court of Small Causes, the District Judge or the person or persons appointed under Section 27(2) shall follow as nearly as may be, the procedure laid down in the Code of Civil Procedure, for the trial of suits'.

It is significant that this rule merely extends the procedure laid down in the Civil Procedure Code for the trial of suits to enquiries by the Chief Judge or the District Judge; it does not extend by the Procedure prescribed by the Civil Procedure Code for entertaining and hearing appeals to such enquiries. The position therefore is that the Calcutta Thika Tenancy Act and the rules framed thereunder merely extend the power of review under the Civil Procedure Code to enquiries by the District Judge or Chief Judge or persons appointed under Section 27(2) and they further confer on the appellate tribunal certain powers which under the Civil Procedure Code are enjoyed by the court of original jurisdiction. In these circumstances it is impossible to hold that an appeal under Section 27 is an appeal which is governed by the same procedure as prescribed by the Code of Civil Procedure. Consequently such an appeal is not an appeal under the Code of Civil Procedure, within the meaning of Article 152 Limitation Act, even according to the extended meaning attributed to that article by the authorities which I have already read.

7. There is still another reason why an appeal under Section 27, Calcutta Thika Tenancy Act cannot (SIC) anneal 'under the C. P. C. to the District Judge' within the meaning of Article 152 of the Limitation Act. Article 152 speaks of appeals to the District Judge only while Section 27 provides for appeals to the Chief Judge of the Court of Small Causes in a certain class of cases and to the District Judge in certain other classes of cases. As an appeal to the Chief Judge of the Court of Small Causes is not contemplated or covered by Article 152 I cannot hold that an appeal under Section 27, Calcutta Thika Tenancy Act is an appeal within the meaning of Article 152 of the Limitation Act. It is unreasonable to hold that an appeal to the District Judge under Section 27, Thika Tenancy Act is an appeal within the meaning of Article 152 and is to be governed by one rule of procedure while an appeal to the Chief Judge of the Court of Small Causes conferred by the same section is not an appeal under Article 152 and is to be governed by a different rule of procedure.

8. I now turn to another important point raised by Mr. Roy Chowdhury for the opposite party. He argues that the Calcutta Thika Tenancy Act does not create any new appellate authority but invests the ordinary courts of the country with power to hear appeals against orders of the Thika Tenancy Controller, with the result that the procedure prescribed by the Code of Civil Procedure will apply to such appeals, and in that case the appeal will be an appeal under Article 152 of the Limitation Act to which Section 5 will also apply. The root authority on this point is the decision of the Judicial Committee in the case of Secy. of State v. Chelikani Rama Rao, 43 Ind App 192: (AIR 1916 PC 21) (G) which was followed in the cases of Hem Sing v. Basant Das and Adai Kappa v. Chandra Sekhar .

9. In the case of Secy. of State v. Chelikani Rama Rao (G), the Privy Council was dealing with an appeal against a decree made by the Madras High Court in a proceeding under the Madras Forest Act of 1882. Section 10 of the Act provided that if the claim made by the private owner be rejected wholly or in part by the Forest Settlement Officer the claimant 'may within thirty days of the date of the order prefer an appeal to the District Court in respect of such rejection only'; but there was no further provision for an appeal against the decision of the District Judge. In spite of that the claimant filed an appeal to the High Court against the decision of the District Judge and the High Court reversed and varied the decision of the District Judge. One of the points raised before the Privy Council was that the appeal before the High Court was incompetent in the absence of any provision to that effect in the statute. In repelling this argument Lord Shaw made the following observations at page 197 of 43 Ind App : (at p. 23 of 1916 PC).

'It was contended on behalf of the appellant that all further proceedings in courts in India were incompetent, those being excluded by the terms of the statute just quoted. In their Lordships' opinion this objection is not well founded. Their view is that when proceedings of this character (meaning assertion of a legal right to possession of and property in land) reach the District Court that Court is appealed to as one of the ordinary Courts of the country with regard to whose procedure, Orders and decrees the ordinary rules of Civil Procedure Code apply';

again at page 198 after distinguishing the case of Rangoon Botatoung Co., v. Collector Rangoon 39 Ind App 197 (PC) (J), Lord Shaw states :

'If the ordinary Courts of a country are seized of a dispute of that character, it would require in the opinion of the Board, a specific limitation to exclude the ordinary incidents of litigation'.

10. In order to bring the present case within the aforesaid principle it would be necessary to establish that an appeal to the District Judge under Section 27 is an appeal to the District Court as one of the ordinary Courts of the country. On this subject there has been some discussion at the Bar as to whether the District Judge in Section 27 is a 'persona designata or a Court. On behalf of the petitioner it has been contended that the District Judge is a 'persona designata' and not a Court as has been held by Bachawat, J., in the case of Mamta Ghose v. Mrs. Charuchandra, 60 Cal WN 1032 (K). On behalf of the opposite party reliance has been placed under Section 3(17) of the Indian General Clauses Act, which does not apply to a Bengal Act but which nevertheless corresponds to Section 3 (12) of the Bengal Act, and also upon the principles laid down in the case of Nara Narayan v. Aghore Chandra, 39 Cal W. N. 971 (L) (Hender-son and Khundkar, JJ.) and Bazler Rahman v. Amiruddin : AIR1944Cal401 of (Biswas & Latifur Rahman, JJ.) The decision of Bachawat, J., is a direct authority on the point. In Naranarayan's case (L), it was held that the District Judge exercising powers under Section 37 of the Bengal Municipal Act of 1932, was not a persona designata but a Court subject to the superintendence of the High Court within the meaning of Section 107 of the Government of India Act, as it then stood and in Bazler Rahaman's case ( M), it was held that the District Judge exercising revisional powers under Section 40-A of the Bengal Agricultural Debtor's Act was a Court subordinate to the High Court within the meaning of Section 115 Civil Procedure Code. In both these cases, however, it was laid down that the expressions 'District Judge' 'Court of the District Judge' and 'District Court' are interchangeable. The question whether the District Judge in Section 27 of the Thika Tenancy Act, is a persona designata or a Court is really of no practical importance, because as has been pointed out in the case of Mt. Dirji v. Smt. Goalin, 1LR 20 Pat 373 at p. 388 : (AIR 1941 Pat 65 at p. 68) (FB) (N) by Fazl Ali, J., in delivering the judgment of the Full Bench that there is no real antithesis between a persona designata and a Court; since even if an Act may single out a particular Judicial Officer by his official designation to perform certain functions and in that sense he may be called a persona designata, yet the powers and functions assigned to him may be of a judicial character and in that sense he may be a Court. In this way a persona designata may be a Court provided the powers assigned to him by a statute are of a judicial character. This view was also accepted in Bazler Rahaman's case (M). We have therefore to examine the powers assigned to the District Judge by Section 27 Thika Tenancy to determine whether the District Judge is a Court. In view of the fact that the District Judge is required to determine the dispute finally upon a presentation of their respective cases by the parties, that he is required to decide the questions upon evidence that he is empowered to summon and enforce attendance of witnesses and compel production of documents in the same manner as is provided for by the Civil Procedure Code and in view of the fact that the order made by him may be executed in the manner provided in the Civil Procedure Code for the execution of decrees and lastly that the procedure prescribed by the Civil Procedure Code for the trial of suits is to apply as nearly as may be, to the determination of appeals presented before him it is difficult to resist the conclusion that the District Judge is a Court. The powers and functions assigned to the District Judge by the Calcutta Thika Tenancy Act and the rules framed thereunder fulfil all the requirements of a judicial power as laid down by the Supreme Court in the cases of Bharat Bank v. Employees of Bharat Bank Ltd., : (1950)NULLLLJ921SC (O) Maqbool Hossain v. State of Bombay, : 1983ECR1598D(SC) and Virendra Kumar v. State of Punjab, : 1956CriLJ326 . I accordingly hold that the District Judge exercising powers under the Calcutta Thika Tenancy Act is a Court although he is also a persona designata because he has been singled out by the Act by his official designation.

11. Even this conclusion does not help the opposite party in bringing these cases within the observations of Lord Shaw in Chelikani Rama Rao's case (G); because it has yet to be seen whether under Section 27 the District Judge is appealed to 'as one of the Ordinary Courts of the country.' In Chelikani Rama Rao's case (G), the Madras Forest Act gave a right of appeal to the District Court without specifying how the appellate power was to be exercised by the District Court and without in any way circumscribing that power.

The Calcutta Thika Tenancy Act, on the other hand does not leave theexer-cise of appellate power by the District Judge at large. It provides that the appellate power is to be exercised in the manner prescribed by Section 27 (4), section 32 and Rule 12. Section 27 (6) provides that subject to review the order made by the District Judge shall be final. I have already said that the Act and the Rules framed thereunder extend only some of the provisions of the Civil Procedure Code to appeals before the District Judge and not others. The necessary implication is that those Provisions of Civil Procedure Code, which have not been made applicable to appeals before the District Judge do not apply to those appeals. When the Statute itself extends some of the provisions of the Civil Procedure Code to the exclusion of the rest it is not possible to hold that the appeal before the District-Judge is one to which all the Rules of the Civil procedure Code would apply.

12. For the reasons given above I have come to the conclusion that' the District Judge in deciding appeals committed to him by Section 27 Calcutta Thika Tenancy Act, acts as a Court, but not as an ordinary Court of the country, i.e., as a Court of the District Judge within the meaning of Section 3 of the Bengal Agra and Assam Civil Courts Act (XII of 1887), but as a Court of Special judicial jurisdiction and is governed not by the procedure prescribed by the Civil Procedure Code but by the special procedure prescribed by the Calcutta Thika Tenancy Act and its rules. As such an appeal before him cannot be treated as an appeal under the Civil Procedure Code within the meaning of Article 152 Limitation Act, the result is that in respect of such appeals the only period of limitation is that prescribed by Section 27 Calcutta Thika Tenancy Act and it does not fall under any of the articles in the first Schedule of the Limitation Act. Such an appeal is an appeal, under Class (b) enumerated in the beginning of this judgment to which Section 5 of the Limitation Act does not apply.

13. We realise the hardship that will be caused to litigants as a result of this conclusion; but the remedy lies in obtaining a suitable amendment of Rule 12 by making the procedure prescribed by Civil Procedure Code for appeals applicable to appeals under Section 27 of the Act.

14. In the result I would make these Rules absolute and set aside the orders made by the learned District Judge. In the circumstances of these cases I would make no order as to costs.

J.P. Mitter, J.

15. I agree.


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