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Bijanlata Bassak Vs. Bhudhar Chandra Das - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata High Court
Decided On
Case NumberCivil Rule Nos. 2659 and 2660 of 1953
Judge
Reported inAIR1955Cal578,59CWN639
ActsLimitation Act, 1908 - Sections 3 to 25 and 29(2) - Schedule - Article 152; ;West Bengal Premises Rent Control Act, 1950 - Section 32(1)
AppellantBijanlata Bassak
RespondentBhudhar Chandra Das
Cases ReferredProvince of Bengal v. Amilya Dhon Addy
Excerpt:
- .....local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by schedule i, the provisions of section 3 shall apply, as if mich 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 spcial 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; and (b) the remaining provisions of this act shall not apply.' 3. this section was analysed by this court in -- 'province of bengal v. amilya dhon addy : air1950cal356 . their lordships were of opinion that the first.....
Judgment:

K.C. Das Gupta, J.

1. These two Rules came up for hearing before Chunder J. and have been referred by him to a Division Bench.

2. The only question which arises for consideration in these Rules is whether there is any reason to interfere with the order of the court of appeal below rejecting an application under Section 5, Limitation Act for extension of time for filing the appeals. It appears that both the appeals were filed by the landlord against orders passed on 26-8-1950 on applications for fixation of rent by a tenant.

The memorandum of one appeal was filed on 5 9-1950 and that of the other was filed on 16-9-1950, but in both cases without any copy of the order appealed from. The copies of the orders were filed as late as 10-7-1953 and at the same time applications were filed in both the cases for condoning the delay. The learned court below has dismissed these applications.

It was of the opinion that Section 5, Limitation Act did not apply to appeals under the West Bengal Premises Rent Control Act inasmuch as Section 29(2), Limitation Act stood in the way. It was further of opinion that in any rase the affidavit filed on behalf of the appellant did not disclose arty circumstance which, could justify any order condoning the delay in filing the certified copy. Section 29(2), Limitation Act is in these words:

'Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by Schedule I, the provisions of Section 3 shall apply, as if Mich 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 spcial 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; and

(b) the remaining provisions of this Act shall not apply.'

3. This section was analysed by this Court in -- 'Province of Bengal v. Amilya Dhon Addy : AIR1950Cal356 . Their Lordships were of opinion that the first portion of Clause (2) of Section 29 deals with only those cases where a period of limitation is prescribed under the Schedule of the Limitation Act but a different period of limitation has been prescribed in the special law and that the effect of the words 'the provisions of Section 3 shall apply' was that Sections 4 to 25, Limitation Act will also apply as Section 3 itself provides that

'subject to the provisions contained in Sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made, after the period of limitation, prescribed therefor by Schedule I shall be dismissed........'

Their Lordships further held that the second part of Clause (2) applied to those cases where no period of limitation was prescribed in the schedule to the Limitation Act and to these cases the provisions of Sections 4, 9 to 18 and 22 shall apply to the extent to which they were not expressly excluded by the special law and that the remaining provisions of the Act shall not apply. I respectfully agree with this analysis of the provisions or Clause (2) of Section 29 of the Act.

It is important to notice that interpreted as above, Sub-section (2) of Section 29 does not include any provision for cases where the same period is prescribed both in Schedule I, Limitation Act and in the special law.

4. In my judgment, it will be absurd to think that the Legislature intended that though where a different period is prescribed in the special law than the period prescribed in the schedule to the Limitation Act, all the Sections 4 to 25 shall apply, these will not apply where the same period is prescribed in the schedule to the Limitation Act as well as in the special law.

It seems reasonable to hold that the reason why nothing was said in Section 29(2) as regards caseswhere the same period is prescribed both in theschedule to the Limitation Act and in the speciallaw was that no need was felt for any such special provision, it being taken for granted that wherethe same period is prescribed the provisions of Sections 3 to 25, Limitation Act will apply.

5. The next question for consideration is whether any period has been prescribed for these appeals under the Limitation Act. In my judgment, even if the provisions of Sub-section (2) of Section 32 that these appeals will have to be filed within 30 days of the date of order were not there, the period of 30 days would he the period of limitation for these appeals under Article 152, Limitation Act. Article 152 prescribes the limitation of 30 days for appeals

'under the Code of Civil Procedure, 1908, to the Court of a District Judge.'

It has been held by this Court in a ' number of cases that the words 'under the Code of Civil Procedure' does not mean that the appeal is given under the Code of Civil Procedure out that all appeals, procedural matters in connection with which are governed by the Code of Civil Procedure are governed by this Article.

The result of Sub-section (3) of Section 32 is that appeals under Section 32(1) are governed in procedural matters by the Code of Civil Procedure. They are there-tore clearly appeals 'under the Civil Procedure Code, 1908'.

6. The next question is whether the appeals were to the District Judge. The provision is that in respect of premises within the Ordinary Original Civil Jurisdiction of the Calcutta High Court an appeal lies to the Chief Judge of the Court of Small Causes and in all other cases it lies to the District Judge of the district in which - the promises is situated. The question is whether the Chief Judge of the Court of Small Causes should be considered to be a District Judge for the purpose of Article 152, Limitation Act.

It is to be noticed that the Act itself provides that the Chief Judge of the Court of Small Causes shall entertain and hear the appeal in the capacity of a judicial officer as described in para. (1), sub-para, (ii) of Schedule B. Turning to the Schedule, we find that the Chief Judge of the Calcutta Court of Small Causes shall function as a court of the District Judge under the Bengal, Agra and Assam Civil Courts Act, 1887, for the purpose mentioned in the Schedule.

The necessary conclusion is that an appeal to the Chief Judge of the Court of Small Causes under Section 32(1) is really an appeal to the District Judge within the meaning of Article 152, Limitation Act.

7. My conclusion therefore is that the Same period of limitation has been prescribed as regards these appeals both in the Schedule to the Limitation Act as well as in the special law. The necessary consequence therefore is that the provisions of Sections 3 to 25, Limitation Act will be applicable.

8. The odier question is whether the learned Judge acted wrongly is the exercise of his discretion in holding that no sufficient cause had been made out. Turning to the application, I find that the only statement of fact to make out a case of sufficient cause -for condoning the delay 'was that the lawyer was not conversant with the practice of filing appeals. J find it difficult to understand how a statement of this nature that the lawyer did not know the law on the subject can be accepted as a sufficient cause.

Where there is some dispute about the law or the law is in an unsettled state, a mistake by the learned lawyer can He accepted as sufficient cause but where the matter is beyond dispute, a statement thai the lawyer did not know the law cannot be accepted as a sufficient excuse under Section 5, Limitation Act. I am unable to hold therefore that the learned Judge has exercised his discretion (sic) ongly in refusing the application under Section 5, Limitation Act.

9. I would, therefore, discharge both these Rules. There will be no order as to costs.

Debabrata Mookerjee, J.

10. I agree.


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