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Mehar Chand and ors. Vs. Twarsoo and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtHimachal Pradesh High Court
Decided On
Case NumberCriminal Petn. No. 27 of 1963
Judge
Reported inAIR1965HP44,1965CriLJ356
ActsLimitation Act, 1908 - Sections 12(2) and 29(2); ;Himachal Pradesh Panchayat Raj Act, 1952 - Sections 85(4) and 93
AppellantMehar Chand and ors.
RespondentTwarsoo and ors.
Appellant Advocate Kirti Ram, Adv.
Respondent Advocate Inder Singh, Adv.
DispositionPetition allowed
Cases ReferredJijibhoy N. Surty v. T. S. Chettyar
Excerpt:
- .....the copy of the order of the nyaya panchayat, should be excluded, under section 12(2) of the indian limitation. act, and that if that time be deducted, the application was within time. the sub-divisional judge did not accept this contention. he held that, in view of the provisions of section 85(4) of the himachal act, the indian limitation act was not applicable to an application for revision, against the order of a nyaya panchayat, and that the time, spent, in obtaining the copy of the order of the nyaya panchayat could not be excluded. the petitioners have filed the present petition, questioning the validity of the order of the sub-divisional judge, dismissing their application for revision, as time-barred.3. it is not disputed, that if the time, spent in obtaining the copy of.....
Judgment:

Om Parkash, J.C.

1. This petition, under Articles 226 and 227 of the Constitution of India, is directed against an order of the Sub-Divisional Judge, Mandi. The facts, in brief, leading to the filing of the petition, are as follows :

2. Respondent No. 1 had lodged a complaint, for various offences, against the petitioners, in the Nyaya Panchayat, Jitpur. Petitioner No. 2 had, also, lodged a cross-complaint in the same Nyaya Panchayat. The Nyaya Panchayat decided the complaint of respondent No. 1 and convicted the petitioners, sentencing them to pay fine. The cross-complaint, filed by petitioner No. 2, was still pending. The petitioners filed an application, for revision, under Section 93 oi' the Himachal Pradesh Panchayat Raj Act (hereinafter referred to as the Himachal Act) before the Sub-Divisional Judge, against their conviction, by the Nyaya Panchayat. The Sub-Divisional Judge rejected the application, as barred by time, having been filed beyond the period of sixty days, prescribed, under Section 93. It was contended, before the Sub-Divisional Judge, on behalf of the petitioners, that the time, spent, in obtaining the copy of the order of the Nyaya Panchayat, should be excluded, under Section 12(2) of the Indian Limitation. Act, and that if that time be deducted, the application was within time. The Sub-Divisional Judge did not accept this contention. He held that, in view of the provisions of Section 85(4) of the Himachal Act, the Indian Limitation Act was not applicable to an application for revision, against the order of a Nyaya Panchayat, and that the time, spent, in obtaining the copy of the order of the Nyaya Panchayat could not be excluded. The petitioners have filed the present petition, questioning the validity of the order of the Sub-Divisional Judge, dismissing their application for revision, as time-barred.

3. It is not disputed, that if the time, spent In obtaining the copy of the order of the Nyaya Panchayat, be excluded, the application for revision, filed by the petitioners, was within time. The crucial point, which requires decision, in the petition, is whether the provisions of Section 12(2) of the Indian Limitation Act, 1008, which was in force at the relevant time, were applicable to the application for revision, filed by the petitioners, and the time, spent in obtaining the copy of, the order of the Nyaya Panchayat could be excluded, in computing the period of limitation of sixty days, prescribed by Section 93 of the Himachal Act. The contention, on behalf of the respondents, is that those provisions were not applicable and that time, spent in obtaining the copy of the order of the Nyaya Panchayat, could not be excluded. Reliance has been placed, in support of this contention, on Sub-section (4) of Section 85 of the Himachal Act. That sub-section reads as follows :

'The Nyaya Panchayat shall follow the procedure prescribed by or under this Act. The Code of Civil Procedure 1908, the Indian Evidence Act 1872, the Code of Criminal Procedure 1898 and the Indian Limitation Act, 1908, shall not apply to any suit, case or probeeding in a Nyaya Panchayat except as provided in this Act or as may be prescribed.'

4. The Himachal Act does not provide for the applicability of any of the provisions of the Indian Limitation Act to an application for revision, filed, under Section 93. The argument, on behalf of the respondents, is that Sub-section (4), aforesaid, excludes the applicability of the Indian Limitation Act to a suit, case or proceeding in a Nyaya Panchayat, at whatever stage, that suit, case or proceeding may be, and that as revision, before the Sub-Divisional Judge, is only a stage of such a suit, case or proceeding, Sub-section (4) will exclude the applicability of the Indian Limitation Act to such a revision. This argument does notappear to be sound. A perusal of Sub-section makes it clear that its operation is confined to a suit, case, or proceeding, when it is pending be fore the Nyaya Panchayat. The sub-section does not either in terms, or by necessary implication, cover the case of a revision before the Sub-Divison Judge. I am of the view that Sub-section (4) does not exclude the applicability of the provisions of the Indian Limitation Act to an application for revision, under Section 93 of the Himachal Act, if those provisions be otherwise applicable.

5. The next question is whether, in particular the provisions of Section 12(2) of the Indian Limitation Act are applicable to an application for revision, under Section 93 of the Himachal Act For deciding this question resort is to be had to Sub-section (2) of Section 29 of the Indian Limitation Act. That sub-section reads:

'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 of 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.'

6. According to the provisions of the above sub-section, Section 12(2) will be applicable to art application for revision, filed under Section 93 of the Himachal Act, provided the application comes within the ambit of that section.

7. The learned counsel for the respondent argued that the provisions of Section 29(2) of the Indian Limitation Act were not at all applicable to the case, in hand. His contention, in this connection, was that the Himachal Act was a general law and was not a special or local law, This contention is without any substance. The Himachal Act is a local law as it is applicable to Himachal Pradesh only and not to the whole of. India. It is also a special law. 'Special Law'' has been defined in, Kaushalya Rani v. Gopal Singh, AIR 1964 SC 2CO to mean a law enacted for special cases, in special circumstances, in contradistinction to the general rules of the law laid down, as applicable generally to all cases with which the general law deals. The Himachal Act deals with a special subject, namely, the constitution, functions and powers of the Panchayats. The Himachal Act is, therefore, a special law. But even if it be assumed that the Himachal Act is a general law, the special provision, contained in Section 93, prescribing period of limitation, for an application for revision, will constitute a special law, as agaainst the general law of limitation, contained In the Indian Limitation Act. In AIR 1964 SC 290, supra, the rule of limitation, laid down is Sub-section (4) of Section 417 of the Code of Criminal Procedure was held to be a special law, though, the whole Code is a general law, regulating the procedure in criminal trials, generally.

8. Another contention of the learned counsel, for the respondents, was that the Indian Limitation Act did not prescribe any period of limitation for an application for revision, filed under Section 93 of the Himachal Act, and that, therefore, there was no difference between the periods of limitation, prescribed by the Indian Limitation Act and the Himachal Act and the provisions of Section 29 (2) did not apply. It was held in, Canara Bank, Ltd. v. Warden Insurance Co., Ltd., AIR 1953 Bom 35 that where the first schedule of the Indian Limitation Act does not prescribe any period for an appeal or an application but a special Act prescribes a period of limitation for that appeal or application, it shall be deemed that the period prescribed by the special Act, is different from the period prescribed by the Limitation Act, Chagla C. J. had observed:

'The period of limitation may be different under two different circumstances. It may be different if it modifies or alters a period of limitation fixed by the first schedule to the Limitation Act. It may also be different in the sense that it departs from the period of limitation fixed for various appeals under the Limitation Act. If the first schedule to the Limitation Act omits laying down any period of limitation for a particular appeal and the special law provides a period of limitation, then to that extent the special law is different from the Limitation Act.'

9. The aforesaid observations of Chagla C. J. were approved by the Supreme Court in Vidyacharan Shukla v. Khubchand Baghel, AIR 1964 SC 1099, wherein it was laid down that Section 29(2),of the Indian Limitation Act, would apply evento a case where a difference between the speciallaw and the Limitation Act arose by the omissionto provide for a limitation to a particular proceeding under the Limitation Act. It must, there fore, be held that the period of limitation, prescribed by Section 93 of the Himachal Act, is differentfrom the period, prescribed by the Indian Limitation Act. The contention of the learned, counselfor the respondents, on this point, is to be rejected.

10. It was also, contended, by the learnedcounsel for the respondents, that Sub-section (2) ofSection 29 applies to suits, appeals or applicationswhich lie in Courts and that as the Sub-DivisionalJudge was only a persona designata and not a Court, the provisions of the aforesaid sub-section will not apply to an application for revision, filed before him. In this connection, the learned counsel referred to the preamble of the Indian Limitation Act. That preamble speaks of consolidating and amending the law relating to the limitation of suits, appeals and certain applications to Courts. But the word 'Courts' is not mentioned In Sub-section (2) of Section 29. The words 'any suit, appeal or application', in that sub-section, are not followed by the word 'Courte' as in preamble of the Act. There appears to be a conflict between the preamble and Sub-section (2) of Section 29 of the Indian Limitation Act. It is well-settled that where the language of an Act is clear, the preamble is to be disregarded and full effect is to be given to the express provisions of the Act, even though they appear to go beyond the terms of the preamble, vide M/s. Burrakur Coal Co. Ltd. v. Union of India, AIR 1961 SC 954. The preamble of the Indian Limitation Act cannot override the express provisions of Sub-section (2) of Section 29 of the Act and the operation of the word 'application' in that sub-section cannot 'be limited to applications, which are made in a Court only. The word 'application' will include applications made to a I persona designata. It was held in Imperial Bucket Co. v. Sm. Bhagwati Basak, AIR 1954 Cal 520 that in their plain meaning, the words 'suit, appeal or application' in Section 29(2), referred to any suit or appeal, be it filed in a Court or before a persona designata.

11. The argument of the learned counsel for the respondents that the provisions of Section 29(2) of the Indian Limitation Act are not applicable to the case, in hand, has got no force and is rejected.

12. By virtue of the povisions of Section 29(2) of the Indian Limitation Act, Section 12(2) of that Act will apply to the resent case, if an application for revision falls within the ambit of that section. Section 12(2) does not specifically cover an application for revision. But the word, 'appeal' used, therein, has been given a liberal interpretation and construed to include an application for revision, vide Standard Type Foundry v. C. Venkataramaniah, AIR 1941 Mad 589. The provisions of Section 12(2) will therefore apply to an application for revision. It will not be out of place to point out that the 1963 Limitation Act specifically mentions an application for revision in Section 12(2).

13. It follows, from the above discussion that the provisions of Section 12(2) of the Indian Limitation Act were applicable to the application for revision, filed by the petitioners, before the Sub-Divisional Judge, and that the time spent in obtaining the copy of the order of the Nyaya Panchayat, was to be excluded, In computing the period of sixty days, prescribed by Section 93 of the Himachal Act. That time was to be excluded, even if under the rules, it was not necessary to file the copy of the order with the application for revision, vide Jijibhoy N. Surty v. T. S. Chettyar AIR 192S PC 103. After deducting the time, spent in obtaining the copy of the order of tha Nyaya Panchayat, the application for revision was, admittedly, within time. The Sub-Divisional Judge should have decided the application for revision on merits and should not have dismissed it as time-barred. By refusing to so decide the application, on merits, he failed to exercise jurisdiction, vested in him by law. His order is without jurisdiction and liable to be quashed.

14. The petition is allowed. The order oi the Sub-Divisional Judge, holding that the appcation for revision was barred by time, is quashed by a writ of certiorari. The Sub-Divisional Judgeis directed to dispose of the application for revision on merits in accordance with law.


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