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imperial Bucket Co., a Firm Vs. Sm. Bhagwati Basak - Court Judgment

LegalCrystal Citation
SubjectTenancy;Limitation
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 2470 of 1952
Judge
Reported inAIR1954Cal520
ActsWest Bengal Premises Rent Control (Temporary Provisions) Act, 1950 - Sections 17(3), 32(1) and 32(2); ;Limitation Act, 1908 - Sections 12, 29 and 29(2); ;West Bengal Premises Rent Control (Temporary Provisions) Act, 1948 - Section 32
Appellantimperial Bucket Co., a Firm
RespondentSm. Bhagwati Basak
Appellant AdvocateSitikantha Lahiri, Adv.
Respondent AdvocateBimala Charan Deb and ;Saroj Kumar Chatterji, Advs.
DispositionPetition succeeds
Cases ReferredAmritsar Sugar Mills Co. Ltd. v. Commissioner of Sales Tax
Excerpt:
- .....29 (2) (a), limitation act runs as follows: '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 ..... 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 section 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 .....'11. it cannot be disputed that the 1948 act was a special and local law. the 1948 act governed in part the relationship of landlord and tenant of certain categories. it was a local act because its operation was limited to certain.....
Judgment:

G.N. Das, J.

1. This is an application in revision on behalf of a tenant and is directed against an order passed by Mr. R. C. Dutt Gupta, learned District Judge, Howrah, dated 16-8-1952.

2. The facts shortly stated are that on 25-3-1949, the petitioner filed an application for fixation of standard rent in respect of the disputed premises under the provisions of the West Bengal Rent Control (Temporary Provisions) Act, 1948, hereinafter called the 1948 Act. On 9-4-1951, the Rent Controller passed an order fixing the standard rent. It appears from the certified copy of the order of the Rent Controller which was filed in the court below that an application for a certified copy of the order was made on 10-4-1951. The copy was ready for delivery to the petitioner on 20-4-1951. The appeal against the order of the Rent Controller was filed on 15-5-1951. It was duly registered and it came on for hearing before Mr. R. K. Dutt Gupta, learned District Judge, Howrah.

At that stage an objection was raised on behalf of the respondent to the appeal that the appeal had been filed out of time inasmuch as the time taken for obtaining a certified copy of the order of the Rent Controller could not be excluded, the provisions of Section 12, Limitation Act not being applicable to the appeal filed by the petitioner.

The learned District Judge gave effect to the preliminary objection being of the opinion that the period prescribed for filing an appeal under Section 32 (1) of the 1948 Act which was 30 days was absolute and was not liable to an extension by virtue of the provisions of Section 12, Limitation Act.

3. Against this order the petitioner moved this Court in revision and obtained the present Rule. The Rule came up for hearing before Chunder J. The learned Judge by an order dated 9-12-1952 referred the matter to a Division Bench. By a determination made by the Chief Justice this revision case has come up for hearing before us.

4. Mr. Lahiri, learned Advocate for the petitioner, has contended that the learned District Judge was in error in his view that the appeal had been filed, out of time. Mr. Lahiri has contended, that the effect of Section 17 (3), West Bengal Rent Control (Temporary Provisions) Act of 1950, hereinafter called the 1950 Act, attracted the 'provisions contained In Section 32 (2) of the 1950 Act.

5. In my opinion, this contention is not correct. Section 17 (3) of the 1950 Act only requires that the fixation of the standard rent should be made in accordance with the provisions of the 1950 Act even though the application for fixation of the standard rent might have been filed while the 1948 Act was in operation. Section 17 (3) does not make the whole of the 1950 Act applicable to proceedings for fixation of rent started while the 1948 Act was in force. This view was taken by a Bench of this Court in the case of -- 'P. C. Guha v. B. A. Basil', : AIR1951Cal554 (A). In that case it was pointed out that Section 17 (3) was limited in its application and did not make the 1950 Act wholly retrospective in its operation. It was further held that the forum of appeal against an order fixing the standard rent made on an application while the 1948 Act was in operation would be governed by the provisions of the 1948 Act.

6. Even conceding that Section 32 (2) of the 1950 Act was attracted, this would not assist the petitioner in the present case. Section 32 (2) of the 1950 Act is in these terms:

'Such appeal shall be filed within 30 days of the order of the Controller excluding the day of the order and such time as is required for obtaining a certified copy of the order.'

7. The expression 'such appeal' refers to an appeal contemplated by Section 32 CD of the 1950 Act. The appeal contemplated by Section 32 CD of the 1950 Act refers to an appeal made on an order made by the Rent Controller in proceedings initiated after the 1950 Act came into operation. The result is that even if Section 32 (2) was attracted, the petitioner can derive no benefit therefrom.

8. Mr. Lahiri has further contended that conceding that the 1948 Act was applicable and governed the forum of an appeal in case of an order fixing a standard rent on an application made while the 1948 Act was in operation the limitation prescribed under the 1948 Act was a branch of adjective law and as such the period of limitation prescribed in Section 32 (1) would not apply.

I have already said that even if we assume that the 1950 Act was applicable, that would not help the petitioner in getting round the difficulty occasioned by reason of the delay in filing the appeal beyond the period of 30 days.

9. Mr. Lahiri has further contended that the 1948 Act, assuming it applies, was a special and local law and as such the provisions contained in Section 29 (2), Limitation Act would be attracted with the result that Section 12, Limitation Act would be available to the petitioner in the matter of exclusion of time taken for obtaining a certified copy of the order of the Rent Controller.

10. The material portion of Section 29 (2) (a), Limitation Act runs as follows: '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 ..... 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 Section 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 .....'

11. It cannot be disputed that the 1948 Act was a special and local law. The 1948 Act governed in part the relationship of landlord and tenant of certain categories. It was a local Act because its operation was limited to certain areas. Section 32 (1) of the 1948 Act prescribed a period of limitation for filing an appeal which was different from that prescribed in Schedule 1, Limitation Act. There is no express provision in the 1943 Act which excludes the applicability of the provision contained in the Indian Limitation Act referred to in Section 29 (2) (a), Limitation Act.

The word 'expressly' has been construed by this Court in the case of -- 'sati Prosad Garga v. Gobinda Chandra' : AIR1929Cal325 to mean an express exclusion and not to mean exclusion by mere implication. The above discussion shows that Section 29 (2) (a), Limitation Act would be attracted to an appeal preferred under Section 32 (1) of 1948 Act and as such Section 12, Limitation Act would be applicable.

12. Mr. Dev, learned Advocate for the opposite party has, however, contended that Section 29 (2) (a), Limitation Act was excluded because the 1948 Act was a complete Code and did not admit of any extension of time under the provisions of Section 29 (2).

13. This general argument, in my view, proceeds on a misconception of the effect of the amendment of Section 29 (2) (a), Limitation Act as made by the Indian Limitation (Amendment) Act, Act 10 of 1922.

14. The submission made by Mr. Dev overlooks the effect of the legislative changes in the Indian Limitation Act since the enactment of the Indian Limitation Act (Act 14 of 1859). The question was debated as early as the year 1865. The question arose in connection with the applicability of the provisions of Section 14 of Act 14 of 1859 in its application to a suit for rent instituted under Act 10 of 1859,

A Full Bench of this Court answered the question in the negative being of the opinion that Act 10 of 1859 was a complete Code and did not admit of any extension by reason of the application of Section 14 of Act 14 of 1859 (Vide -- 'John Poulson v. Madhusudan Pal', (1865) 2 WR Act X Rule 21 (C) ). Since then the trend of judicial opinion has oscillated between two extreme views. The question again came up for consideration before the Full Bench of the Allahabad Court in the case of --'Dropadi v. Hiralal', 34 All 496 (D). This case turned on a construction of Section 29, Limitation Act, 1908 in its unamended form. The section in its unamended form ran as follows: 'Where by any special, or local law now or hereinafter in force in British India a period of limitation is especially prescribed for any suit, appeal or application nothing herein contained shall 'affect or alter' the period so prescribed.'

The Full Bench which was presided over by Sir Henry Richards, C. J. was of the opinion that 'where the special or local Act is not a complete Code the general provisions of the Indian Limitation Act cannot be said to affect or alter the period prescribed by a special Act but only the manner in which the period is to be calculated.' In that case an appeal had been filed against an order made under Section 37 of the then Provincial Insolvency Act (Act 3 of 1907) setting aside certain transfers made by an insolvent. The question was whether the time fixed for filing the appeal could be extended under Section 12, Limitation Act. The Full Bench was of the opinion that Section 12 was applicable and had the effect of extending the time being of the view that the Provincial Insolvency Act (Act 3 of 1907) was not a complete Code and the effect of Section 12 was not to affect or alter the period prescribed by the Provincial Insolvency Act.

15. The reservation made by the Full Bench namely that the special or local Act should not be a complete Code has, in my opinion, been rendered ineffective by the amendments of Section 29, Limitation Act as made by the Indian Limitation (Amendment) Act (Act 10 of 1922).

I have already quoted the terms of Section 29 (a), Limitation Act as amended. In my opinion, the clear intention of the amendment was to make Section 4 Sections 9 to 18 and 22 applicable to suits, appeals and applications unless expressly excluded. But even conceding that the provisions contained in the Indian Limitation Act do not apply where the special or local law is a complete Code, the concession is of no assistance to the opposite party because, in my opinion the 1948 Act is not a complete Code. By virtue of the powers conferred under Section 47, Section 45 (2) of the Rent Control Act, 1948, rules have been framed under the Act which have statutory force. An examination of these rules clearly shows that the 19-18 Act was not exhaustive and that it was not a complete Code. The rules refer to other statutes. A reference to these statutes is necessary in order to give effect to the provisions contained in the 1948 Act. The position, therefore, is that even if it is assumed that the contention of Mr. Dev is correct the assumption does not assist the opposite party.

16. Mr. Dev has further contended that Section 29 (2) (a) has no application in the facts of the present case because the appeal that was filed in the Court below by the petitioner was an appeal which was not filed in any court but before a 'persona designata'. This contention has to be examined. Section 29 (2) (a) speaks of suit, appeal or application. In their plain meaning the words 'suit or appeal' refer to any suit or any appeal, be it filed' in a court or before a 'persona designata'.

But Mr. Dev contends that the words suit, appeal or application' must be construed in the light of the preamble to the Indian Limitation Act. The preamble to the Indian Limitation Act states that the Indian Limitation Act is a consolidating Act dealing with 'the law of limitation of suits, appeals and certain applications to courts.' Mr. Dev contends that the preamble must control the words 'suit or appeal' occurring in Secion 29 (2) (a), Limitation. Act.

He has referred us to the decision in the case of -- 'Powell v. Kempton Race Course Co. (1899) AC 143 (E). In that case Earl of Halsbury L. C. made the following pertinent observation: 'Two propositions are quite clear; one, that a preamble may afford useful light as to what a statute intends to reach, and the other that if an enactment is itself clear and unambiguous, no preamble can qualify or cut down the enactment.'

In my opinion, the words suit, appeal or application occurring in Section 29 (2) (a), Limitation Act are clear and unambiguous. They do not admit of any doubt or dispute. In this view no reference to the preamble is necessary.

I may also refer to the observation of Lord Davy in the case cited above at page 183 :

'The preamble is the key to the statute and affords a clue to the scope of the statute where the words construed are in themselves without the aid of the preamble capable of more than, one meaning.'

As I have said just now the words 'suit, appeal or application' are clear and unqualified. Even if there was any doubt about this matter, the words 'suit, appeal or application' must be construed on the principle, enunciated in the case of -- 'Makhan lal Roy v. Pramatha Nath', : AIR1953Cal50 (P), para 14 which runs as follows: 'It must also be borne in mind that a court ought not to put such an interpretation upon a statute of limitation by implication and inference as may have a penalizing effect unless the court is forced to do so by the irresistible force of the language used. The Limitation Act being an Act which takes away or restricts the right to take legal proceedings must, when the language is ambiguous, be construed strictly, i. e. in favour of the right to proceed.' Mr. Deb has referred us to the observations made by the Judicial Committee in the case of -- 'Nagendra Nath Dey v. Suresh Chandra Dey' which say that equitable considerations are out of place in construing the statute of limitation and that the strict grammatical meaning of the words is the only safe guide. That principle, however, is of no assistance to the opposite party. Here the words 'suit, appeal' in their grammatical meaning, mean any suit or appeal. Even if it be ambiguous the ambiguity must be resolved in favour of the right to proceed.

17. My conclusion, therefore, is that the rules of construction referred to above do not justify the court in adding to the words 'suit, appeal or application' the words 'to court'. The words 'suit, appeal or application' must be read in their plain sense as inclusive of any suit or appeal or application prescribed by a special or local law.

18. Our attention has also been drawn by Mr. Dev to the case of -- 'Charles E. Ring v. Collector of Bombay, AIR 1948 Bom 387 (H) which was decided by Tendolkar, J. sitting singly. In that case the question arose as to the period of limitation for an application for review under Section 38 of the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act (Act 7 of 1944). In the case cited there was no period of limitation prescribed by the special Act, and as such Section 29 (2) (a) could hardly apply.

The contention was that the period of limitation should be determined by a reference to Article 173, Schedule I, Limitation Act. It was suggested that as the application for review under Section 38 of the aforesaid Rent Control Act of 1944 had to be made not to a court, the exemption sections detailed in Section 29(2)(a), Limitation Act could not be availed of. It was in that connection that the learned Judge made the observation relied on.

In my opinion, that case does not govern the present case. In any event, in my view, there is no justification for construing Section 29(2) (a), Limitation Act in a restricted sense. The section ought to have its full operation being intended to remove a hardship which existed before the amendment of that section by the Indian Limitation (Amendment) Act (Act 10 of 1922).

19. My conclusion, therefore, is that the time for filing the appeal should be extended by applying the provisions of Section 12, Limitation Act.

20. Mr. Dev has further contended that even assuming that this is the position, Section 12, Limitation Act cannot be attracted in the facts of the present case for two reasons. In the first place he has contended that Section 32(1) of the 1948 Act or the Rules framed under that Act did not require the filing of a certified copy of the order of the Rent Controller and as such Section 12, Limitation Act cannot apply. Such a contention was made but was repelled by the Judicial Committee in the case of -- 'Jijibhoy N. Surty v. T. S. Chettyar Firm', AIR 1928 PC 103 (I). In that case an appeal had been filed from a judgment of a Judge sitting singly on the Original Side of the Rangoon High Court. The appeal against the judgment had been filed beyond the period prescribed by the Letters Patent. The limitation was sought to be saved on the ground that the time required for obtaining a certified copy of the judgment should be added to the period prescribed by the Letters Patent. The rules of the Rangoon High Court did not require the filing of a certified copy of the judgment in case of an appeal under the Letters Patent. Even so, the Judicial Committee of the Privy Council held that the language of Section 12, Limitation Act is unqualified and that in all cases an appellant will have the benefit of Section 12 in case he annexed to the memorandum of appeal a certified copy of the judgment appealed from.

21. Mr. Dev has also contended that in the Rangoon case the appeal was filed before a Court whereas in the present case the appeal was filed not before a Court but before a 'persona designata'. This argument cannot be accepted. An appeal which was filed in the Rangoon case was filed in accordance with the provisions of the Letters Patent. Order 41 Rule 1, Civil P. C. which requires the annexing of a copy of the judgment appealed from was not applicable to such appeals. I do not see any valid ground for distinguishing the present case from the facts of the Rangoon case referred to above.

22. Mr. Lahiri has referred us to certain cases where the provisions of Section 12, Limitation Act have been applied on general principles.

He has referred us in the first place to the case of -- 'Mohon Lal Hardeo Das v. Commissioner of Income-tax B. & O.', AIR 1930 Pat 14 (J). The observations of Pazal Ali, J. which are relied on are in these terms:

'On general principle and in view of Section 29, limitation Act the period required for obtaining copies of the order under Section 32 or under Section 34 of the Act shall be excluded in computing the period of limitation for reference by an assessee under Section 66(2)(3).'

He has also referred us to the case of -- 'Kunja Behari v. Mrityunjoy Prasad', : AIR1950Cal54 (K) which was a case under Section 37(a), Bengal Agricultural Debtors' Act.

There is also a decision in the case of -- 'Amritsar Sugar Mills Co. Ltd. v. Commissioner of Sales Tax, U. P. (Lucknow)', AIR 1953 All 816 (L) where in case of an application for a reference under Section ll(2)(b), U. P. Sales Tax Act (Act 15 of 1943) the provisions of Section 12, Limitation Act were applied in computing the period of limitation prescribed by the said Act for making a reference under the relevant provisions of the aforesaid Act,

It is not necessary to base my decision on these cases because I have already reached the conclusion that Section 29(2)(a), Limitation Act makes the provisions of Section 12, Limitation Act applicable. In this view there is no doubt that the appeal which was filed before the appellate authority under Section 32 of the 1948 Act was filed in time,

23. In the above view it is not necessary to decide the question whether the appellate authority constituted under Section 32 of the 1948 Act is a Court or a 'persona designata'.

24. The result, therefore, is that the view taken by the learned District Judge as regards the limitation applicable to appeals preferred under Section 32 of the Rent Control Act must be overruled and it must be held that the appeal was filed in proper time.

25. The learned District Judge, who heard the appeal, did not deal with the merits of the appeal being of the opinion that the appeal itself was barred.

26. In the result, this petition succeeds. The Rule is made absolute and the case remitted to the District Judge for deciding the appeal on the merits in accordance with law. The petitioner will be entitled to the costs of this Rule, hearing fee being assessed at three gold mohurs.

Debabrata Mookerjee, J.

27. I agree.


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