Skip to content


Mehar Singh Vs. Baldev Singh - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Misc. Petn. No. 24 of 1953
Judge
ActsLimitation Act, 1908 - Sections 12, 12 (2) and 29(2); ;East Punjab Urban Rent Restriction Act, 1949 - Section 15; ;Constitution of India - Article 227
AppellantMehar Singh
RespondentBaldev Singh
Appellant Advocate D.R. Chaudhary, Adv.
Respondent Advocate Kedar Ishwar, Adv.
DispositionPetition allowed
Cases ReferredJug Lal v. Karam Singh
Excerpt:
.....and section 15 of east punjab urban rent restriction act, 1949 - petition against order rejecting appeal as time-barred - contention that appellate authority should have disposed of appeal on merits and has erred in holding that it was time-barred and refusing to go into merits of case - perusal of order of appellate authority show that he was under impression that provisions of act of 1908 would not be applicable to appeals under act of 1949 - contention that provisions of section 12 are not expressly excluded by act and petitioner be entitled to exclude time requisite for obtaining copy of decree or order in computing period of limitation as per section 12 (2) - section 12 would apply to appeals preferred to appellate authority under section 15 (b) - appellate authority will go into..........rs. 32/-p. m. mehar singh then filed an appeal to the district judge, who has been appointed as 'appellate authority' for the purposes of the act. the latter held that the appeal was time-barred and, accordingly, rejected the appeal. since the order of the appellate authority is not open to revision, the petitioner has filed this petition under article 227 of the constitution. his contention is that the appellate authority should have disposed of the appeal on its merits and has erred in holding that it was time-barred, and thereby refusing to go into the merits of the case.2. a perusal of the order of the appellate authority would show that he was under the impression that the provisions of the limitation act would not be applicable to appeals under the east punjab urban rent.....
Judgment:
ORDER

Ramabhadran, J.C.

1. This is a petition under Article 227 of the Constitution and it arises under the following circumstances. The petitioner, Mehar Singh, filed an application under Section 4, East Punjab Urban Rent Restriction Act, as applied to Himachal Pradesh, against the respondent, Baldev Singh, for determination of the fair rent of a stall occupied by him. The Subordinate Judge of Mandi, who performs the functions of a Controller under the Act fixed the rent at Rs. 32/-p. m. Mehar Singh then filed an appeal to the District Judge, who has been appointed as 'Appellate Authority' for the purposes of the Act. The latter held that the appeal was time-barred and, accordingly, rejected the appeal. Since the order of the Appellate Authority is not open to revision, the petitioner has filed this petition under Article 227 of the Constitution. His contention is that the Appellate Authority should have disposed of the appeal on its merits and has erred in holding that it was time-barred, and thereby refusing to go into the merits of the case.

2. A perusal of the order of the Appellate Authority would show that he was under the impression that the provisions of the Limitation Act would not be applicable to appeals under the East Punjab Urban Rent Restriction Act. The Appellate Authority, in the course of his order, remarks

'It is admitted by the learned Counsel for the appellant that the provisions of the Indian Limitation Act do not apply in these cases and the appellant cannot claim any concession under Section 12 of the said Act'.

Learned counsel for the petitioner argued that a wrong admission made by a counsel on a point of law would not bind the party concerned, and it is for the Court to determine whether the petitioner was entitled to exclude the time requisite for obtaining a copy of the decree or order in computing the period of limitation, as contemplated in Section 12 (2), Limitation Act.

3. Learned counsel for the petitioner pointed out that the East Punjab Urban Rent Restrietion Act is a local law, as, contemplated in Section 29 (2), Limitation Act, and the period of limitation prescribed for an appeal under Section 15 (b) of the former Act is only 15 days; whereas under Article 152, the period of limitation for an appeal to the District Judge is 30 days from the date of the decree. That being the case, it is contended that the provisions of Section 12, Limitation Act, would apply to appeals to the Appellate Authority under the East Punjab Urban Rent Restriction Act, since the provisions of Section 12, Limitation Act, are not expressly excluded by the East Punjab Urban Rent Restriction Act..

It was further urged that once the provisions of Section 12 (2), Limitation Act, are applied, the appeal to the Appellate Authority would be in time. Learned counsel for the respondent on the other hand, urged that the provisions of Section 29(2), Limitation Act, would apply only to appeals to Courts. He argued that the Rent Controller and the Appellate Authority are not Courts, but only 'persona designata' and, therefore, the petitioner could not get the benefit of Section 12 of the Act, in any case. In this connection, he referred me to the Preamble to the Limitation Act. He also cited 'Charles E. Ring v. Collector of Bombay', AIR 1948 Bom 387 (A), where, with reference to Section 38, Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act of 1944, a single Judge of that High Court held that the provisions of the Limitation Act would not apply to a review application under that section.

4. Learned counsel for the petitioner pointed out that the Bombay case cited above would not go against him, because there, the Act did not prescribe any period of limitation for a review application under Section 38 of that Act. That being so, Section 29 (2) obviously would have no application. In --'Imperial Bucket Co., a firm v. Sm. Bhagwati Basak', AIR 1954 Cal 520 (B), cited by learned counsel for the petitioner, a Division Bench of the Calcutta High Court, was dealing with the question of an appeal under Section 32 (1), West Bengal Premises Rent Control Act. In that case, too, the District Judge of Howrah, as the Appellate Authority, rejected an . appeal from the Rent Controller on the ground that it was time-barred, holding that the time spent in obtaining a certified copy of the Rent Controller's order could not be excluded by virtue of the provisions of Section 12, Limitation Act. Their Lordships found that there was no express provision in the West Bengal Premises Rent Control Act excluding the operation of the provisions contained in the Limitation Act, referred to in Section 29 (2), Limitation Act. Their Lordships then discussed the question whether the provisions of Section 29 (2), Limitation Act, would apply to proceedings under the Bent Control Act.

In the words of their Lordships:

'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 Limitation Act. The preamble to. the Limitation Act states that the 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 Section 29 (2) (a), Limitation Act.

He has referred us to the decision in the case of --'Powell v. Kempton Park Race Course Co. (1899) AC 143 (C). 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), LimitationAct, are clear and unambiguous. They do notadmit of any doubt or dispute. In this viewno reference to the preamble is necessary.'

'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--'Makhanlal Roy v. Pramatha Nath', AIR 1953 Cal 50 (D).

'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.'

Their Lordships then referred to the Bombay case cited by the respondent's learned Counsel, namely, AIR 1948 Bom 387 (A), and remarked:

'In that case the question arose as to the period of limitation for an application for review under Section 38, Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act (Act 7 of 1944). In the case cited there was no periodof limitation prescribed by the special Act, and as such Section 29(2) (a) could hardly apply.'

In conclusion, their Lordships observed:

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

5. On behalf of the petitioner, my attention was also drawn to--''Waryam Singh v. Amar Nath', AIR 1954 SC 215 (E)--a case from Himachal Pradesh--where their Lordships of the Supreme Court observed that:

'The Court of the Judicial Commissioner of Himachal Pradesh exercises jurisdiction in relation to the whole of the territories of Himachal Pradesh. The Rent Controller and the District Judge exercising jurisdiction under the Act are certainly Tribunals, if not Courts, and they function within the territories of Himachal Pradesh. Therefore, Article 227(1) read with Article 241 confers on the Court of the Judicial Commissioner power of superintendence over such Tribunals.'

6. To sum up, therefore, in my opinion, the provisions of Section 12 of the Limitation Act would apply to appeals preferred to the Appellate Authority under Section 15(b), East Punjab Urban Rent Restriction Act.

7. The question is: whether this Court should now interfere under its powers conferred by Article 227 of the Constitution? As was held in--'Jug Lal v. Karam Singh', AIR 1954 Pepsu 173 (F) :

'Section 12(2) does not require any prayer or application on the part of a party for the exclusion of the time spent in obtaining copies as such exclusion is made imperative by the section itself and it is the duty of the Court to exclude such time.'

'Where a court dismisses an appeal or application as time-barred on an erroneous conception of law, that apparently is failure to exercise jurisdiction vested in it.'

'Where the Financial Commissioner in revision under Section 84, Punjab Tenancy Act does not accept the law as stated in Section 12, Limitation Act, and refuses to apply the provisions of that section on unsustainable grounds, his decision is clearly in flagrant violation of Section 12, Limi-tation Act, and a petition under Article 227 is competent in respect of that decision.'

8. The result is: I allow this petition, and set aside the order of the Appellate Authority, Mandi, dated 3-11-1953, dismissing Mehar Singh's appeal as time-barred. The Appellate Authority will go into the question of limitation once more, by giving the appellant the benefit of the provisions of Section 12, Limitation Act. If he then finds that the appeal is within time, he will hear and dispose of it on its merits.

9. Since I have allowed the petition on a point of limitation, which, to my mind, was not correctly decided by the Appellate Authority, I make no order as to the costs of this petition.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //