PETITIONER:
VIDYACHARAN SHUKLA
Vs.
RESPONDENT:
KHUBCHAND BAGHEL AND OTHERS
DATE OF JUDGMENT:
20/12/1963
BENCH:
AYYANGAR, N. RAJAGOPALA
BENCH:
AYYANGAR, N. RAJAGOPALA
SINHA, BHUVNESHWAR P.(CJ)
SUBBARAO, K.
DAYAL, RAGHUBAR
MUDHOLKAR, J.R.
CITATION:
1964 AIR 1099 1964 SCR (6) 129
CITATOR INFO :
E 1969 SC 872 (17)
R 1970 SC1477 (6)
F 1974 SC 480 (11,3,14,16)
RF 1977 SC 56 (6)
RF 1989 SC1477 (12)
ACT:
Election-Appeal to High Court under s. 116-A-Whether in
computing period of limitation for filing an appeal to High
Court, time provided by s. 12 of Limitation Act for getting
a copy of the order can be excluded-Whether s. 29(2)(a)
applied to cases of appeal preferred under s. 116-A-
Relationship between the two limbs of s. 29(2) of Limitation
Act-Limitation Act, 1908 (9 of 1908), ss. 12, 29(2), First
Schedule, Art, 156-Representation of the People Act, 1951
(43 of 1951), v. 116-A.
HEADNOTE:
The appellant was elected to the House of the People from a
constituency in the State of Madhya Pradesh. The
respondents were the ,other contesting candidates.
Respondent No. 1 filed an election petition challenging the
election of the appellant. That election petition was
dismissed by the Election Tribunal. Against the order of
the TribunaL the first respondent preferred an appeal to the
High Court under s. 116-A
134-159 S.C.-9.
130
of the Representation of the People Act, 1951. Admittedly,
the appeal was filed more than 30 days after the order of
the Election Tribunal.. If the time requisite for obtaining
a copy of the order of the Tribunal was excluded, the appeal
was filed within 30 days. However, if that was not ‘done,
the appeal was out of time. The contention of the appellant
before the High Court was that the respondent No. 1 was not
entitled in law to exclude the time taken by him in
obtaining the copy of the order of the Tribunal. That
contention was rejected by the High Court. The High Court
also found that the appellant was guilty of two, corrupt
practices and hence his election was set aside. The
appellant came to this Court by special leave.
The only question raised before this Court was whether for
‘the purpose of computing the period of 30 days prescribed
under s. 116-A(3) of the Act, the provisions of s. 12 of the
Limitation Act could be invoked or not. Dismissing the
appeal,
Held: (per B. P. Sinha, C.J., K. Subba Rao, Raghubar Dayal
and N. Rajagopala Ayyangar JJ.) (i) The exclusion of time
provided for by s. 12 is permissible in computing the period
of limitation for filing.the appeal in the High Court.
Per B. P. Sinha, C.J., K. Subba Rao and N. Rajagopala
Ayyangar JJ.) (ii) Though the right of appeal is conferred
by s. 116-A of the Representation of the People Act, 1951,
and it is by virtue thereof that the appeal was filed by
respondent in the High Court, it is still an appeal “ under
the Code of Civil Procedure, 1908, to the High Court”. To
attract Art. 156 of the First Schedule to the Limitation
Act, it is not necessary for an appeal to be an “appeal
under the Code of Civil Procedure” that the right to prefer
the appeal should be conferred by the Code of Civil
Procedure. It is sufficient if the procedure for the filing
of the appeal and the power of the Court for dealing with
the appeal, when filed, are governed by the Code.
Per Raghubar Dayal and Mudholkar JJ.–There is no warrant
for holding that an appeal which is not given by the Code of
Civil Procedure is still an appeal under the Code merely
because its procedural provisions govern its course. Where
a right of appeal is given by some other law, the appeal
must be regarded as one udder that law and not under the
Code of Civil Procedure. There is no reason for construing
the words “under the Code of Civil Procedure” as meaning
“governed in the matter of procedure by the Code of Civil
Procedure”.
Held:(iii) (per B. P. Sinha, C.J., N. Rajagopala Ayyangar
and Raghubar Dayal JJ.) The entire sub-s. (2) of s. 29 of
the Limitation. Act has to be read as an integrated
provision and the conjunction “and” connects the two parts
and makes it necessary for attracting cl. (a) that the
conditions laid down by the opening words of sub-s. (2)
should be satisfied.
131
Per Subba Rao and Mudholkar JJ.-The second limb of sub-s.
(2) of s. 29 is wide enough to include a suit, appeal or an
application under a special or local law which is of a type
for which no period of limitation is prescribed in the First
Schedule.
Per Subba Rao J.-The use of the word “any” clearly shows
that the second part of sub-s. (2) of s. 29 does not depend
on the first part or vice versa. The second part of sub-s.
(2) is an independent provision providing for that category
of proceedings to which the first part does not apply.
Held: (i) that s. 116-A does not provide an exhaustive and
exclusive code of limitation for the purpose of appeals
against orders of Tribunals and also does not exclude the
general provisions of the Limitation Act. Section 29(2)(a)
of the Limitation Act speaks of express exclusion and there
is no express exclusion in s. 116-A(3) of the Representation
of the People Act, 1951. Moreover, the proviso to s. 116-
A(3) from which an implied exclusion is sought to be drawn
does not lead to any such necessary implication. The
proviso only restores the power denied to the Court under s.
29(2)(b) of the Limitation Act. If this proviso had not
been there, s. 29(2)(b) would have excluded the operation of
s. 5 of the Limitation Act with the result that even if a
sufficient cause for the delay existed, the High Court would
have been helpless to excuse the delay.
(ii)S. 12(2) of the Limitation Act applies to an appeal to
the High Court against the order of the Tribunal. An order
made under s. 98 of the Representation of the People Act,
1951, if it contains also the reasons for it, is a composite
document satisfying the definition of a judgment as well as
that of an order and thereby attracting the relevant
provisions of s. 12 of the Limitation Act. Section 12(2)
does not say that the order mentioned therein shall be only
such order as is defined in the Civil Procedure Code. If a
statute provides for the making of an order and confers a
right of appeal to an aggrieved party against that order
within a prescribed time, the time requisite for obtaining a
copy of the order can be excluded. The Act of 1951 empowers
the Tribunal to make an order and gives a right of appeal
against that order to the High Court and therefore s. 12(2)
is directly attracted without any recourse to the definition
of an order in the Code of Civil Procedure.
Per Mudholkar J.-The first limb of s. 29(2) is concerned
only with the proceedings under special or local law for
which a period of limitation is prescribed in the First
Schedule to the Limitation Act. If for such a proceeding
the period to be found in the First Schedule is different
from that prescribed under a special or local law, certain
consequences will follow under the provision. No
inconvenience is to be caused by giving a literal and
natural interpretation to the expression used by the
legislature in the first portion of sub-s. (2) of s. 29
because cases of other kind can easily come under the second
portion thereof. Case Law referred to.
132
JUDGMENT:
CIVIL APPELLATE JURISDICTION:, Civil Appeal No. 815 of 1963.
Appeal by special leave from judgment and order dated April
23, 1963, of the Madhya Pradesh High Court in 1st Appeal No.
23 of 1963.
G.S. Pathak, B. A. Musodkar, S. N. Andley and Rameshwar
Nath, for the appellant.
M. S. Gupta, for respondent No. 1.
December 20, 1963.
The following Judgments were delivered:
AYYANGAR J.-On behalf of the Chief Justice and himself) We
have had the advantage of perusing the judgment of our
brother Subba Rao J. and we agree with him that the appeal
should be dismissed.
The justification for this separate judgment, however, is
because of our inability to agree with him in his construc-
tion of the relative scope of the two limbs of s. 29(2) of
the Indian Limitation Act.
The facts of the case have been set out in detail in the
judgment of Subba Rao J. and it is therefore unnecessary to
repeat them. There were three principal points that were
urged before us on either side which require to be
considered and all of them turn on the proper construction
of s. 29(2) of the Indian Limitation Act which we shall for
convenience set out here:
“29(2) 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 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
133
(b) the remaining provisions of this Act
shall not apply.”
The learned Judges of the High Court have proceeded on the
basis that s. 29(2)(a) applies to the case of appeals
preferred under s. 116 A of the Representation of the People
Act, 1951 and on that footing have held that the appeal
presented to them by the respondent was within time if
computed after making the deductions permitted by s. 12 of
the Limitation Act. It is the correctness of this view that
is challenged before…..us.
Proceeding now to deal with the question whether the terms
of s. 29(2) are apt to take in appeals under the Re-
presentation of the People Act, the first matter to be con-
sidered necessarily is whether that Act is a ”special or
local law” within the opening words of the sub-section. As
to this, however, Mr. Pathak raised no dispute and he con-
ceded that s. 116A was such a “special or local law.” That
this “special or local law” prescribes “for an appeal a
period of limitation” is also evident. The first point of
controversy, however, has arisen as to whether “the period
of limitation prescribed by the special or local Law is
different from the period prescribed therefor by the first
schedule.” The contention urged strenuously before us by Mr.
Pathak, the learned counsel for the appellant, was that
there would be “a different period” only where for the
identical appeal (to refer only to that proceeding with
which we are immediately concerned) for which a period of
limitation has been prescribed by the special or local Law,
a period is prescribed by first column of the first
schedule. and there is a difference between the two periods.
It was his further contention that where the Indian
Limitation Act made no provision for such an appeal, s.
29(2) and the provision contained in its (a) and (b) were
inapplicable. There have been several decisions on this
point but it is sufficient to refer to the decision of the
Bombay High Court in Canara Bank Ltd., Bombay v. The Warden
Insurance Co. Ltd., Bombay (1) where Chagla C.J. repelled
this construction and held that even where there was no
provision in the first schedule for an
(1) I. L. R. 1952 Bom. 1083.
134
appeal in a situation identical with that for which the spe-
cial law provides, the test of “a prescription of a period
of limitation different from the period prescribed by the
First Schedule is satisfied. This Court in State of U.P. v.
Smt. Kaushaliya etc.(1) upheld this construction and
approved ,the judgment of Chagla C.J. in the Canara Bank
case. Apart from the decision of this Court, we consider
the reasoning of Chagla C.J. to be unexceptionable and we
agree with Subba Rao J. in holding that the requirement of a
prescription by the special law “of a period different” from
that prescribed by the First Schedule is satisfied in the
present case.
The next point was one that arose on the submission of
counsel for the respondent and it was this. Assume that the
construction of the words “different from” urged by the
appellant were accepted, and this requirement would be
satisfied only if the First Schedule made provision for an
identical appeal as that under the special law, still it was
submitted by the respondent that even this was satisfied in
this case. For this purpose he relied on Art. 156 of the
first schedule which runs:
———————————————————–
Time from which
“Description of Period of period begins to
appeal limitation run
————————————————————
156.-Under the Code of Civil Ninety days The date of
Procedure, 1908, to a High decree or order
Court, except in the cases appealed from.”
provided for by article 51
and article 153.
The argument was that though the right of appeal in the case
before us was conferred by s. 116A of the Representation of
the People Act and it was by virtue thereof that the appeal
was filed by the respondent to the High Court, it was still
an appeal “under the Code of Civil Procedure, 1908, to a
High Court.” For this submission learned Counsel relied
principally on two decisions–one of the Calcutta and the
(1) A. 1. R. 1964 S. C. 416.
135
other of the Madras High Court, and they undoubtedly support
him. In Aga Mohd. Hamdani v. Cohen and Ors.(1) -as well as
in Ramasami Pillai v. Deputy Collector of, Madura(1) which
followed it-the Court held that to attract this article it
was not necessary in order to be an “appeal under the Code
of Civil Procedure” within the meaning of those words in
Art. 156, that the right to prefer the appeal should be
conferred by the Code of Civil Procedure but that it was
sufficient if the procedure for the filing of the appeal and
the powers of the court for dealing with the appeal were
governed by that Code. For adopting this construction the
Court relied on the reference in Art. 156 to Art. 151.
Article 151 dealt with appeals to the High Court from
judgment rendered on the original side of that Court. The
right to prefer these appeals was conferred by the Letters
Patent constituting the respective High Courts and not by
the Code of Civil Procedure, though the Code of Civil
Procedure governed the procedure, jurisdiction and powers of
the Court in dealing with the appeals so filed. There would
have been need therefore to except cases covered by Art. 151
only if the words “under the Code of Civil Procedure” were
understood as meaning appeals for the disposal of which the
provisions of the Code of Civil Procedure was made
applicable. We might mention that besides the Calcutta and
the Madras High Courts a Full Bench of the Allahabad High
Court also has in Daropadi v. Hira Lal (3 ) adopted a
similar construction of the Article, the learned Judges
pointing out that several Indian enactments, among them the
Indian -Succession Act, the Probate and Administration Act,
the Land Acquisition Act and the Provincial Insolvency Act,
proceeded on the basis of a legislative practice of con-
ferring rights of appeal under the respective statutes
without prescribing any period of limitation within which
the appeal should be preferred, but directing the
application, of the provisions of the Civil Procedure Code
to such appeals, the intention obviously being that Art. 156
would furnish the period of limitation for such appeals. We
consider that these deci-
(1) 1. L. R. 13 Cal. 221.
(3) 1. L. R. 34 Allahabad 496.
(2) 1. L. R. 43 Mad. 51.
136
sions correctly interpret Art. 156 and, in any event, we are
not prepared to disturb the decisions which have stood for
so long and on the basis of the correctness of which Indian
legislation has proceeded.
Mr. Pathak drew our attention to some decisions in which a
different construction was adopted of the word “under” a
particular enactment occurring in other Articles of the
Limitation Act and in particular some dealing with appeals
in certain criminal matters. In them the word ‘under’ was
understood as meaning “by virtue of”. He was, however,
unable to bring to our notice any decision in which the
construction adopted of Art. 156 which we have set out has
been departed from. In the cases dealing with the words
“under the Criminal Procedure Code” which he placed before
us, the situation would obviously be different, since the
indication afforded by the mention of Art. 151 in Art. 156
does not figure in the Articles dealt with. Therefore that
would be a circumstance pointing to a different result.
If the construction adopted of Art. 156 in the Calcutta and
Madras decisions to which we have referred were upheld,
there could be no controversy that an appeal under s. 116A
of the Representation of the People Act would be “under the
Code of Civil Procedure”, for s. 116A(2) enacts, to read the
material portion:
“116A. (2) The High Court shall, subject to
the provisions of this Act, have the same
powers, jurisdiction and authority, and follow
the same procedure, with respect to an appeal
under this Chapter as if the appeal were an
appeal from an original decree passed by a
civil court situated within the local limits
of its civil appellate juris-
diction…………………………
In this view even on the narrowest construction of the words
“different from those prescribed therefor in first schedule”
occurring the opening part of s. 29(2), the exclusion of
time provided for by Art. 12 of the Limitation Act would be
permissible in computing the period of limitation for filing
the appeal to the High Court in the case before us.
137
The last point which remains for consideration is one which
would be material only in the event of the two points we
have already dealt with being decided differently. This
relates to the relationship or inter-connection between the
first and the second limbs of s. 29(2) of the Limitation
Act. The reason why we are dealing with it is because of
our inability to agree with the construction which our
learned brothers Subba Rao & Mudholkar JJ. have placed on
this feature of the sub-section. Sub-section (2), it would
be seen, consists of two parts. The first sets out the
conditions to which the special law should conform in order
to attract section 3 and that part ends with the words ‘as
if such period were prescribed therefor in that schedule”.
This is followed by the conjunction ‘and’ that word by the
second part reading “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; and
(b) the remaining provisions of this Act
shall not apply.”
The question that has been debated before us is whether the
condition postulated by the first limb, namely the special
or local law prescribing a period of limitation for a suit
appeal etc. different from the period prescribed therefor by
the first schedule has to be satisfied in order to render
the provisions of cl. (a) applicable. If the conjunction
‘and’ was used for the purpose of indicating that the two
parts were cumulative, that is, if the two parts operated in
respect of the same set of circumstances, then unless the
opening words of sub-s. (2) were satisfied, there would be
no basis for the application of cl. (a) to the period
prescribed for a suit, appeal or application applicable by
the special or local law. If on the other hand, the two
parts of the sub-section could be read independently as if
they made provision for two separate situations, the result
would be that the words starting from “for the purpose
138
of determining any period of limitation prescribed for any
suit, appeal or application by any special or local law”
followed by clauses (a) & (b) would be an independent provi-
sion unrelated to the first part and therefore could operate
unhampered by the condition set out in the first part. In
other words, if the latter construction were adopted for
every suit, appeal or application for which a period of
limitation was prescribed by a special or local law, the
provisions in ss. 4, 9 to 18 & 22 would apply unless
excluded. Mr, Pathak urged that the conjunction ‘and’ could
in the context be construed only as rendering the second
limb a part and parcel of the first, so that unless the
conditions laid down by the opening words of the sub-section
were satisfied, the provisions of the Limitation Act set out
in cl. (a) would not be attracted to “determine the period
of limitation’ prescribed by the special or local law. The
question of the import and function of the conjunction ‘and’
was the subject of elaborate consideration by a Full Bench
of the Allahabad High Court in a decision in Sehat Ali Khan
v. Abdul Qavi Khan(1). The majority of the learned Judges
held that the two parts of the sub-section were independent
and that “for the purpose of determining any period of
limitation prescribed for any suit, appeal or application by
any special or local law”. cl. (a) would apply unless
excluded. Raghubar Dayal J. then a judge of that Court,
however, dissented from this view and held that the entire
sub-s. (2) had to be read as an integrated provision and
that the conjunction ‘and’ connected the two parts and made
it necessary for attracting cl. (a) that the conditions laid
down by the opening words of sub-s. (2) should be satisfied.
Mr. Pathak recommended for our acceptance the dissenting
judgment of Dayal J. We consider that the view expressed by
Raghubar Dayal J. as to the inter-relation of the two parts
of the sub-section reflects correctly our own construction
of the provision. Raghubar Dayal J. has approached this
question of construction from several angles including the
grammar of the passage. Without going into any of them, we
would rest our decision on a shorter ground. In order that
the second part might be held to be independent ,of the
first, the first part should itself be complete and be
1. L. R. [1956]2 Allahabad 252.
139
capable of operating independently. Unless this test were
-satisfied, the conjunction ‘and’ would have to be read as
importing into what follows it, the conditions or
consideration set out earlier as otherwise even the first
part would be incomplete. Let us now see whether the first
part could function without the second. The first part
reads “where any special or local law prescribes for any
suit, appeal or application a period of limitation different
from the period prescribed by the first schedule the
provision of s. 3 shall apply as if that period was
prescribed therefor in that schedule.” The question is what
this, standing by itself, would signify. If the conditions
prescribed by the opening words were satisfied, s. 3 of the
Limitation Act would be attracted Section 3 reads:
“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 the first schedule
shall be dismissed, although limitation has
not been set up as a
defence………………..
In other words, if the special or local law prescribed a
period of limitation different from that prescribed by the
first schedule by the application of the first part of sub-
s. (2), the court is enabled to dismiss suits, appeals and
applications filed beyond time. If this is the only effect
it would be seen that the provision is inane and redundant,
because even without it, by the very prescription of a
period of limitation the jurisdiction of the court to
entertain the suit, appeal etc. would be dependent on the
same being filed in time.
It is possible, however, to construe the reference to s. 3
in s. 29(2) to mean that the power to dismiss the suit,
appeal etc. if filed beyond the time prescribed, is subject
to the modes of computation etc. of the time prescribed by
applying the provisions of ss. 4 to 25 which are referred to
in the opening words of s. 3. On this construction where a
case satisfies the opening words of s. 29(2) the entire
group of ss. 3 to 25 would be attracted to determine the
period of limitation prescribed by the special or local law.
Now let us test this with reference to the second limb of s.
29(2) treating the latter as
140
a separate and independent provision. That part starts with
the words “for determining any period of limitation pres-
cribed for any suit, appeal or application by any special or
local law” (italics ours). The words italicised being
perfectly general, would manifestly be comprehensive to
include every special or local law, and among these must
necessarily be included such special or local laws which
satisfy the conditions specified by the first limb of s.
29(2). We then have this strange result that by the
operation of the first part ss. 3 to 25 of the Limitation
Act are made applicable to that class of special and local
laws which satisfy the conditions specified by the first
limb, whereas by the operation of the second limb the
provisions of section 3, 5, 6 to 8 & 19 to 21 & 23 to 25
would not apply to the same class of cases. A construction
which would lead to this anomalous result cannot be accepted
and we, therefore, hold that subject to the construction we
have put upon sub-s. (2) of s. 29 both the parts are to be
read as one whole and that the words following the
conjunction ‘and’ “for the purpose of determining any period
of limitation” etc. attract the conditions laid down by the
opening words of the sub-section.
As we have pointed out earlier this does not affect the
result. We agree that the appeal fails and we direct that
it be dismissed with costs.
SUBBA RAo J.-This appeal by special leave raises the
question of true construction of the provisions of s. 29(2)
of the Indian Limitation Act, 1908 (9 of 1908), in the
context of its application to s. 116-A of the Representation
of the People Act, 1951 (43 of 1951), hereinafter called the
Act.
The facts relevant to the question raised lie in a small
compass and they are not disputed. The appellant was
elected to the House of the People from the Mahasamund
parliamentary constituency in the State of- Madhya Pradesh
in the third general elections. The respondents were the
other contesting candidates. Respondent 1 filed an election
petition before the Election Commissioner of India under ss.
80 and 81 of the Act for setting aside the election of the
appellant and it was duly referred to the Election Tribunal.
The
141
Election Tribunal, by its order dated January 5, 1963, dis-
missed the election petition. On February 11, 1963, the
first respondent preferred an appeal against the said order
of the Election Tribunal to the High Court of Madhya Pradesh
at Jabalpur. Under sub-s. (3) of s. 116-A of the Act every
appeal under Ch. IVA of the Act shall be preferred within a
period of thirty days from the date of the order of the Tri-
bunal under s. 98 or s. 99 thereof. Admittedly, the appeal
was filed more than 30 days from the said order. If the
time requisite for obtaining a copy of the order of the
Tribunal was excluded, the appeal was filed within 30 days;
but if in law it could not be excluded, the appeal would
certainly be out of time. The appellant contended before
the High Court that respondent I was not entitled in law to
exclude the time so taken by him in obtaining a copy of the
order of the Tribunal, but that plea was rejected by the
High Court. On merits, the High Court held that the
appellant had committed two acts of corrupt practice as
defined by s. 123(4) of the Act and on that finding it
declared the election of the appellant void. It is not
necessary to go into the details of the judgment ofthe
High Court given on the merits of the case,as nothingturns
upon them in this appeal, for the learned,counsel confined
his argument only to the question of limitation. The
present appeal has been preferred by the appellant against
the said order of the High Court setting aside his
,election.
The only question, therefore, is whether for the purpose of
computing the period of 30 days prescribed under s. 116A (3)
of the Act the provisions of s. 12 of the Limitation Act can
be invoked.
Mr. Pathak, learned counsel for the appellant, in an ela-
borate argument placed before us the different aspects of
the question raised, and I shall deal with his argument in
the appropriate context in the course of my judgment. It
would be ,convenient at the outset to read the relevant
provisions of the Act and those of the Limitation Act.
142
The Representation of the People Act, 1951.
Decision of the Tribunal
Section 98. At the conclusion of the trial of an election
petition the Tribunal shall make an order:-
(a) dismissing the election petition; or
(b) declaring the election of all or any of
the returned
candidates to be void; or
Section 116-A. (1) An appeal shall lie from every order made
by a Tribunal under section 98 or section 99 to the High
Court of the State in which the Tribunal is situated.
(2)The High Court shall, subject to the provisions of this
Act, have the same powers, jurisdiction and authority, and
follow the same procedure, with respect to an appeal under
this Chapter as if the appeal were an appeal from an
original decree passed by a civil court situated within the
local limits of its civil appellate jurisdiction.
(3)Every appeal under this Chapter shall be preferred
within a period of thirty days from the date of the order of
the Tribunal under section 98 or section 99:
Provided that the High Court may entertain an appeal after
the expiry of the said period of thirty days if it is satis-
fied that the appellant had sufficient cause for not
preferring the appeal within such period.
The Indian Limitation Act, 1908
Section 29.-(2) 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
143
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,
section 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.
Section 12.-(2) In computing the period of limitation
prescribed for an appeal, an application for leave to appeal
and an application for a review of judgment, the day on
which the judgment complained of was pronounced, and time
requisite for obtaining a copy of the decree, sentence or
order appealed from or sought to be reviewed, shall be
excluded.
(3)Where a decree is appealed from or sought to be
reviewed, the time requisite for obtaining a copy of the
judgment on which it is founded shall also be excluded.
Section 116-A of the Act confers a right of appeal against
an order of the Tribunal under s. 98 or s. 99 thereof; sub-
s.(3) thereof prescribes a period of limitation of 30
days for preferring such an appeal. Section 29 of (the
Limitation Act attracts, by fiction, the provisions of s. 3
thereof to an appeal described in s. 29 of the said Act;
with the result, the provisions of sub-ss. (2) and (3) of s.
12 of the Limitation Act are attracted thereto; and if those
sub-sections were attracted in computing the period of
limitation prescribed for an appeal the time requisite for
obtaining a copy of the decree or order or judgment on which
it is founded shall be excluded. Learned counsel for the
appellant, therefore, contends that s. 29 of the Limitation
Act does not apply to an appeal under s. 116-A of the Act.
The first argument of learned counsel is that for invoking
sub-s.(2) of s. 29 of the Limitation Act the necessary
condition is that the First Schedule thereto shall prescribe
a period of limitation for an appeal and that a special law
shall prescribe for the same type of appeal a different
period of limitation and that, as in the
144
present case the First Schedule has not prescribed any
period of limitation to an appeal under s. 116-A of the Act
against an order of the Tribunal, sub-s. (2) of s. 29 of the
Act -is not attracted. This argument is met by learned
counsel for the respondents in two ways, namely, (i) that
the First Schedule to the Limitation Act has prescribed a
period of limitation for such an appeal, and (ii) that sub-
s. (2) will apply even to a case where the First Schedule to
the Limitation Act has not prescribed any period of
limitation for an appeal, but a special law prescribed a
period of limitation for such an appeal. I shall proceed to
consider the two limbs of the argument separately.
Has the First Schedule to the Limitation Act prescribed a
period of limitation for an appeal against an order of an
Election Tribunal under s. 98 or s. 99 of the Act? Article
156 of the First Schedule to the Limitation Act says that to
an appeal under the Code of Civil Procedure, 1908, to a High
Court, except in the cases provided for by article 151 and
article 153, the period of limitation is 90 days from the
date of the decree or order appealed from; and article 151
referred to in article 156 provides for an appeal against a
decree or order of any of the High Courts of Judicature at
Fort William, Madras, and Bombay, or of the High Court of
Punjab in the exercise of its original jurisdiction. What
does the expression “under the Code of Civil Procedure” in
art. 156 of the First Schedule to the Limitation Act
connote? Does it mean that a right of appeal shall be
conferred under the Code of Civil Procedure, or does it mean
that the procedure prescribed by the said Code shall apply
to such an appeal? A comparison of the terms of art. 156
and art. 151 indicates that the emphasis is more upon the
procedure applicable to an appeal than on ‘the right of
appeal conferred under an Act. The heading of the first
column in the First Schedule to the Limitation Act is
“Description of appeal”. The phraseology used in art. 156
describes the nature of the appeal in respect of which a
particular period of limitation is prescribed. It does not
refer to a right conferred under the Code of Civil
Procedure, but only describes the appeal with reference to
the procedure applicable thereto. Though the word “under”
may support the contrary view, the reference to
145
-art. 151 therein detracts from it. Article 151 is an
exception to art. 156, indicating thereby that, but for the
exception art. 156 will apply to an appeal covered by art.
151: that is to say, an appeal under art. 151 is deemed to
be an appeal under the Code of Civil Procedure. Though a
right of appeal is conferred under the Letters Patent, it is
deemed to be an appeal under the Code of Civil Procedure,
because the Code of Civil Procedure governs the said appeal.
As Rajamannar, C.J., observed in Kandaswami Pillai v.
Kannappa Chetty(1),
“It is well established that the Limitation
Act and the Code are to be read together,
because both are statutes relating to
procedure and they are in pari materia and,
therefore, to be taken and construed together
as one system as explanatory of each other.”
So construed it may reasonably be held that art. 156
provides for an appeal governed by the procedure prescribed
by the Code of Civil Procedure. This view was accepted by
the Calcutta High Court as early as 1886 in Aga Mahomed
Hamadani v. Cohen(1). There, under s. 49 of the Burma
Courts Act (XVII of 1875), where the amount or value of a
suit or proceeding in the Recorder’s Court exceeded Rs.
3,000, and was less than Rs. 10,000, an appeal lay to the
High Court. Under s. 97 of the said Act, “save as otherwise
provided by this Act, the Code of Civil Procedure shall be,
and shall, on and from the 15th day of April 1872, be deemed
to have been in force throughout British Burma”. Section
540 of the Civil Procedure Code of 1882, which was in force
at that time, read:
“Unless when otherwise expressly provided by
this Code or by any other law for the time
being in force, an appeal shall lie from the
decrees or from any part of the decrees of the
Courts exercising original jurisdiction to the
Courts authorized to hear appeals from the
decisions of those Courts.”
(1) A. T. R. 1952 Mad. 186.
134-159 S.C.-10.
(2) (1886) I. L. R. 13 Cal. 221.
146
The effect of this provision of the Code on
the Burma Courts Act was that where an appeal
was not expressly excluded by any special Act,
an appeal lay to whatever court which under
the enactment in force was the appropriate
court. But this section was overborne by the
Burma Courts Act to the extent it conferred a
right of appeal from the Recorder’s Court to
the High Court subject to certain conditions,
for s. 49 of the Burma Courts Act had taken
away the right of appeal of value under a
prescribed amount and conferred such a right,
when the subject-matter of the appeal was
between two prescribed amounts, from the
decree of the Recorder’s Court to the High
Court. It is, therefore, not correct to say,
as contended by the learned counsel, that a
right of appeal was conferred under s. 540 of
the Code of Civil Procedure, 1882. After the
passing of the Burma Courts Act, a right of
appeal was, conferred under s. 49 of that Act
and not under s. 540 of the Code. It was
contended before the Calcutta High Court, as
it is now contended before us, that art. 156
of Schedule 11 of the Limitation Act did not
apply to an appeal under the Burma Courts Act,
on the ground that the said appeal was not an
appeal under the Code of Civil Procedure. The
learned Judges observed thus, at p. 224:
“Now, what is meant by an appeal under the
Civil Procedure Code? A particular appeal was
given by the Burma Courts Act and the Burma
Courts Act is still the only Act which
prescribes to what Court this appeal shall
lie. If it had not been given by the Burma
Courts Act then s. 540 of the Civil Procedure
Code would have been sufficient to give it,
provided that some Court was by some enactment
provided as the proper Court to hear the
appeal. The procedure in appeals in every
respect is governed by the Code of Civil
Procedure, The Limitation Act, Schedule 11.
Art. 156, when it speaks of the Civil Pro-
cedure Code is, on the face of it, speaking of
a Code which relates to procedure, and does
not ordinarily deal with substantive
rights:
and the
147
natural meaning of an appeal under the Civil
Procedure Code appears to us to be an appeal
governed by the Code of Civil Procedure so far
as procedure is concerned.”
It is manifest from this passage that the learned Judges did
not repel the contention on the ground that the right of
appeal was conferred by s. 540 of the Code of Civil Proce-
dure, but expressly for the reason that the natural meaning
of the relevant expression in art. 156 of Sch. 11 of the
Limitation Act was that the appeal mentioned therein was one
governed by the Code of Civil Procedure. This decision was
followed by a Division Bench of the Madras High Court in
Ramaswami Pilai v. The Deputy Collector of Madura(1). The
learned Judges, Abdur Rahim and Oldfield, JJ., held that
art. 156 of the Limitation Act (IX of 1908) applied to
appeals filed under s. 54 of the Land Acquisition Act (1 of
1894). The right of appeal was conferred under the Land
Acquisition Act, but the procedure prescribed by the Code of
Civil Procedure governed that appeal. The same argument now
raised before us was raised, but was repelled. After citing
the relevant part of the passage from the judgment of the
Calcutta High Court extracted above, the learned Judges
stated at p. 55 thus:
“It seems to us that this is the correct
interpretation of article 156. There seems to
be no good reason for saying that an appeal
under the Civil Procedure Code means only an
appeal the right to prefer which is conferred
by the Code itself. On the other hand it
would not be straining the language of the
article too much to hold that an appeal, the
procedure with respect to which, from its
inception to its disposal, is governed by the
Civil Procedure Code, may rightly be spoken of
as an appeal under the Code.”
Then the learned Judges referred to art. 151 of the Limita-
tion Act and concluded thus:
(1) (1919) 1 L. R. 43 Mad. 51.
148
“That also tends to show that what is meant by
the legislature is appeals, the hearing and
disposal of which is governed by the rules of
procedure laid down in the Civil Procedure
Code.”
Though about 77 years have passed by since the decision of
the Calcutta High Court and though the Limitation Act was
amended a number of times, the Legislature did not think fit
to express its dissent from this view by amendment or
otherwise. No direct decision has been brought to our
notice which has differed from, or even questioned the
correctness of, this decision. In this context we may also
refer to the decision of the Allahabad High Court in Dropadi
v. Hira Lal(1) where it is pointed out) that several Indian
enactments, for instance, the Succession Act, the Probate
and Administration Act, the Land Acquisition Act and the
Provincial Insolvency Act, confer rights of appeal and
direct the application of the provisions of the Code of
Civil Procedure to such appeals, but prescribed no period
within which such appeals might be filed, the idea being
that art. 156 of the Limitation Act would furnish the period
of limitation for the filing of such appeals. Mr, Pathak,
learned counsel for the appellant, brought to our notice a
number of decisions which considered the forum to which an
appeal shall lie against an order under s. 476 of the Code
of Criminal Procedure and the procedure to be followed
therein.
In Nasaruddin Khan v. Emperor(1), where an appeal under s.
476-B of the Code of Criminal Procedure from the Court of
the Munsif was heard in part by the District Judge, and on
the next date of hearing the appellant’s pleader was not
present in Court, it was held that the District Judge was
entitled to consider that the appeal had been abandoned and
to dismiss it under the provisions of Order XLI of the Code
of Civil Procedure. In Mt. Abida Khatoon v. Chote Khan(1),
the Allahabad High Court held, under similar circumstances,
that an appellate court could set aside an order dismissing
an appeal for default. The Nagpur High Court in
(1) (1912) I. L. R. 34 All. 496.
(2) (1926) I. L. R. 53 Cal. 827.
(3)A. I. R. 1956 All. 155.
149
Bholanath Balbhadra Sahai v. Achheram Puran Kurmi(1), held
that in such an appeal the appellate Court could exercise
its power under 0. XLI, r. 27 of the Code of Civil Pro-
cedure. In Chandra Kumar Sen v. Mathuria Debya (2 ) , the
Calcutta High Court applied to such an appeal the period of
limitation prescribed under art. 154 of the Limitation Act.
It is said that the combined effect of these decisions is
that the procedure applicable in an appeal against an order
made by a civil court under s. 476 of the Code of Criminal
Procedure is that prescribed by the Code of Civil Procedure
whereas the period of limitation is that prescribed for an
appeal under the Code of Criminal Procedure. But the lear-
ned counsel himself conceded that there is a conflict of
decisions on the question whether to an appeal against the
order of a civil court under s. 476-B of the Code of
Criminal Procedure, the civil procedure applies or the
criminal procedure applies and, therefore, the only decision
which may have some bearing on the question now raised is
that in Chandra Kumar Sen v. Mathuria Debya(2). There, an
application was filed before the Subordinate Judge for
filing of a complaint against the petitioner under s. 476 of
the Code of Criminal Procedure. That was rejected. The
complainant preferred an appeal to the District Judge more
than 30 days prescribed under art. 154 of the Limitation
Act. The learned District Judge held that no question of
limitation arose, for the District Judge suo motu could
lodge a complaint in the criminal court when an offence in
connection with the administration of civil justice came to
his notice. On that reasoning he instituted a complaint.
The High Court held that the appeal was filed before he
District Judge under s. 476-B of the Code of Criminal
Procedure and that under art. 154 of the Limitation Act it
should have been filed within 30 days from the date of the
order of the Subordinate court. It will be noticed that no
argument was raised in that case that the appeal was
governed by the Code of Civil Procedure and, therefore, the
appropriate article of the Limitation Act was not art. 154,
(1) A. 1. R. 1937 Nag. 91.
(2) (1925) I. L. R. 52 Cal. 1009.
150
but art. 156 thereof, for the simple reason that whichever
article applied the apPeal was clearly barred by limitation.
It is not, therefore, permissible to read into the decision
the entire argument now advanced before us. The present
question was neither raised nor argued in that case. It
may, therefore, be safely held that for over 75 years the
decision of the Calcutta High Court on the construction of
art. 156 of the Limitation Act stood the ground. Though it
must be conceded that the point is not free from difficulty,
we are not prepared to depart from the construction put upon
the article as early as 1886 and which was not dissented
from all these years. 1, therefore, hold that the expression
“appeal under the Code of Civil Procedure” in art. 156 of
the Limitation Act means an appeal governed by the Code of
Civil Procedure.
Even so, it is contended that under s. 116-A(2) of the Act
the High Court, though it has the same powers, jurisdiction
and authority of an appellate court governed by the Code of
Civil Procedure, is not empowered to follow the procedure
prescribed under the Code in respect of receiving the
appeals. This argument is contrary to the express terms of
sub-s. (2) of s. 116-A of the Act. Under that sub-section,
“The High Court shall, subject to the provisions of this
Act, have the same powers, jurisdiction and authority and
follow the same procedure, with respect to an appeal under
this Chapter as if the appeal were an appeal from an
original decree passed by a civil court situated within the
local limits of its civil appellate jurisdiction”. Under
the second part of sub-s. (2) of s. 11 6-A of the Act, a
fiction is created, namely, that though a right of appeal is
conferred by s. 116-A(1) of the Act, the appeal thereunder
for the purpose of sub-s. (2) will be deemed to be an appeal
from an original decree passed by a civil court situated
within the local limits of its civil apPellate jurisdiction.
The first part of the sub-section describes the purposes for
which the fiction is invoked, namely, the exercise of the
powers, jurisdiction and authority and the following of the
procedure with respect to such an appeal. The powers,
jurisdiction and authority take in the powers, jurisdiction
and authority exercisable by an appellate tribunal in regard
to various matters prescribed in the Code of Civil
151
Procedure. What does the word “procedure” mean? The
procedure must necessarily be the procedure governing such
-an appeal. It means, inter alia, the manner of receiving
an -appeal in the court, the preparation of records of the
appeal, the posting of the appeal and the manner of its
disposal. We find it impossible to exclude from the word
“procedure” the filing and receiving of an appeal in the
court. If that part was excluded, how could the appeal be
received in the High Court? The answer given is that the
Government might make rules under s. 169(1) of the Act.
When s. 168(2) confers a statutory power on the High Court
to follow the procedure prescribed by the Code of Civil
Procedure, we ,cannot invoke the general power of the
Central Government to make rules under s. 169(1) of the Act.
If so, the procedure prescribed by 0. XLI of the Code of
Civil Procedure, along with the other relevant provisions of
the said Code, equally applies to an appeal filed under s.
116-A (2) of the Act. The result is that under s. 116-A(2)
of the Act, the appeal, by fiction, is equated with an
appeal filed under the ,Code of Civil Procedure in the
matter of not only the exercise ,of the powers, jurisdiction
and authority but also in the matter ,of procedure to be
followed from the date of receipt of the :appeal to its
final disposal. For the aforesaid reasons, I hold that the
special law, namely, the Act, prescribes a period of
limitation different from the period prescribed therefor by
the First Schedule to the Limitation Act within the meaning
of art. 29 (2) of the Limitation Act. If so, s. 12 of the
Limitation Act is attracted, and the 1st respondent was
entitled to exclude the time taken by him for obtaining the
copy of -the order.
Even assuming that art. 156 of Schedule 1 to the Limitation
Act did not prescribe a period of limitation for the kind of
appeal under consideration, the question arises whether sub-
s. (2) of s. 29 of the Limitation Act would not be appli-
cable if no period was prescribed by the First Schedule for
an appeal created by a special law but the special law pres-
cribed a period of limitation for the same. The history of
this provision throws some light on this question. The
first Limitation Act was passed in the year 1859 (Act XIV of
1859). Section 3 of that act provided:
152
“When, by any law now or hereafter to be in
force, a shorter period of limitation than
that prescribed by this Act is specially
prescribed for the institution of a particular
suit, such shorter period of limitation shall
be applied notwithstanding this Act.”
The provisions of the Act of 1859 were repealed by the Limi-
tation Act IX of 1871. Section 6 of that Act, which is
relevant to the present inquiry, read:
“When, by any law not mentioned in the
schedule hereto annexed, and now or
hereafter
to be in force in any part of British India, a
period of limitation differing from that
prescribed by this Act is especially
prescribed for any suits, appeals or
applications, nothing herein contained shall
affect such law.”
The Limitation Act of 1871 was replaced by Act XV of 1877.
Section 6 of this Act read:
“When, by any special or local law now or
hereafter 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 same provision was retained in the Limitation Act IX of
1908, but it was amended in the year 1922 in the present
form. Before the amendment of 1922, there was a difference
of view on the following questions, namely, (1) whether the
general provisions of the Limitation Act, where the word
“prescribed” alone without reference to any Act, was used or
even where that word was not used, would be applicable to
special or local laws, and (2) whether the general
provisions of the Limitation Act did not apply at all to the
periods of limitation prescribed by special or local laws.
Decisions holding that the general provisions of the
Limitation Act did not apply to periods of limitations
prescribed by other laws relied upon the expression “affect
or alter” used in the section as it then stood. Section 29
of the Limitation Act was amended to remove the conflict
with a view to make the
153
general provisions applicable to the period of limitation
prescribed by special or local laws. A comparison of the
phraseology of the earlier sections shows that while s. 3 of
the Limitation Act of 1859 used the words “shorter period”,
s. 6 of the Act of 1871 used the expression ”differing”,
and s. 6 of the Acts of 1877 and 1908 removed both the
expressions. The result was that s. 6 of the Act of 1871
saved all the special or local laws which prescribed a
special period of limitation from the operation of the
provisions of the Limitation Act. As the section then
stood, it applied to all special or local laws prescribing a
-,period of limitation whether the Limitation Act prescribed
any period of limitation or not for suits or appeals similar
to those governed by special or local laws, or where the
period of limitation so prescribed by special or local laws
was shorter or longer than that prescribed in the Limitation
Act. Can it be said that by the Amending Act of 1922, a
conscious departure was made by the Legislature to impose a
condition for the application of sub-s. (2) of s. 29,
namely, that a period of limitation should have been
expressly prescribed by the First Schedule to the Limitation
Act in respect of a suit or appeal governed by the special
or local law? There was no occasion for such a departure.
To put it in other words, apart from resolving the conflict,
did the Legislature intend to exclude a particular category
of proceedings governed by special or local laws from the
operation of the benefit conferred by sub-s. (2) of s. 29?
No justification was suggested for such a departure and we
find none.
The problem may be approached from a different perspective.
The scheme of the Limitation Act may be briefly stated thus:
The preamble to the Act shows that it was passed to
consolidate and amend the laws relating to the law of
limitation in respect of the proceedings mentioned in the
Act. It applies to the whole of India. Part 11 comprising
ss. 3 to 11 deals with limitation of suits, appeals and
applications; Part III comprising ss. 12 to 25 provides for
computation of periods of limitation; and Part V deals with
savings and repeals. We are not concerned with Schedules II
and III for they have been repealed. The First Schedule
consists of three divisions: the first division provides for
the period
154
of limitation for suits; the second division, for appeals;
and the third division, for applications. Article 120 found
in the first division prescribes for a suit for which no
period of limitation is prescribed elsewhere in the
Schedule; art. 181 in the third division prescribes for
application for which no period of limitation is prescribed
elsewhere in the Schedule or by s. 48 of the Code of Civil
Procedure. But no such residuary article is found in the
second division dealing with appeals. The Limitation Act
was conceived to be an exhaustive code prescribing for every
conceivable proceeding, whether suit, appeal or application,
subject to the saving in Part V thereof. It follows that
there is no period of limitation for an appeal not provided
for in the second division unless the special or local law
prescribes for it. If so, it may reasonably be said that,
as the First Schedule of the Limitation Act prescribes no
limitation for an appeal not covered by arts. 150 to 157
thereof, under the Limitation Act such a suit or appeal can
be filed irrespective of any time limit.
With this background let us revert to the construction of s.
29(2) of the Limitation Act. When the First Schedule of the
Limitation Act prescribes no time limit for a particular
appeal, but the special law prescribes a time limit to it,
can it not be said that under the First Schedule of the
Limitation Act an appeal can be filed at any time, but the
special law by limiting it provides for a different period?
While the former permits the filing of an appeal at any
time, the latter limits it to the prescribed period. It is,
therefore, different from that prescribed in the former.
‘This problem was considered by a Division Bench of the Bom-
bay High Court, consisting of Chagla C.J., and Gajendra-
gadkar J., in Canara Bank Limited, Bombay v. The Warden
Insurance Company, Ltd., Bombay(1). Therein, Chagla C.J.,
speaking for the Court, observed at p. 1086 thus:
“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
(1) I. L. R. [1952] Bom. 1083.
155
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. We are
conscious of the fact that the language used
by the Legislature is perhaps not very happy,
but we must put upon it a construction which
will reconcile the various difficulties caused
by the other sections of the Limitation Act
and which will give effect to the object which
obviously the Legislature had in mind, because
if we were to give to s. 29 (2) the meaning
which Mr. Adarkar contends for, ‘then the
result would be that even s. 3 of the
Limitation Act would not apply to this special
law. The result would be that although an
appeal may be barred by limitation, it would
not be liable to be dismissed under s. 3″.
A Full Bench of the Allahabad High Court, in Sehat Ali Khan
v. Abdul Qavi Khan(1) also dealt with this question. The
learned Judges expressed conflicting views. Mootham C.J.,
assumed that the first limb of the sub-section ,did not
apply to a case where the schedule omitted to provide for a
period of limitation. On that assumption he proceeded to
consider the second limb of the sub-section. DayalJ.. took
the view that for the application of the first part of
s.29(2) the period of limitation should have been prescribed
by the First Schedule. Agarwala J., agreed with the view of
the Bombay High Court. Bhargava J., agreed with the view
expressed by Mootham C.J., and Upadhya J., did not agree
with the view of the Bombay High Court. A Division Bench of
the Madhya Pradesh High Court in Beharilal Chaurasiya v.
Regional Transport Authority (2)
(1) I. L.R. (1956) 2 All. 252.
(2) A. 1. R. 1961 M. P. 75,77.
156
agreed with the view expressed by the Division Bench of the
Bombay High Court. Dixit C.P., speaking for (the Court,
stated thus:
“A special law may provide a period of
limitation and schedule I may omit to do so.
None the less the special law would be
different from the Limitation Act. Section 29
(2) of -the Limitation Act is not very happily
worded. It must be construed so as to avoid
absurdity. The, expression ‘a period of
limitation different. from the period
prescribed therefor by the first
schedule’
occurring in s. 29 (2) cannot be construed as
meaning that schedule 1 must also positively
prescribe the period of limitation.. Such a
construction would not be in accordance with
the intention of the Legislature and would
lead to an absurdity.”
The learned Chief Justice proceeded to consider the ano-
malous position that would arise if a literal construction
was given to the provisions of the first part of the
section. This Court, in Kaushalya Rani v. Gopal Singh (1),
had to. consider this question incidentally in the context
of the application of s. 29(2) of the Limitation Act to an
application for special leave to appeal against an order of
acquittal under sub-s. (3) of s. 417 of the Code of Criminal
Procedure. This Court held that s. 5 of the Limitation Act
would not apply to an application for special leave to
appeal under sub-s. (3) of s. 417 of the Code of Criminal
Procedure. The Limitation Act does not provide any period
of limitation for an application for special leave to appeal
from an order of acquittal under the said section. If that
be so, on the argument of learned counsel for the appellant,
s. 29 of the Limitation Act could not be invoked. But this
Court held that s. 29(2) of the Limitation Act applied, but
that section excluded the application of s. 5 to the said
application. Sinha C.J., speaking for the Court, observed:
“Hence it may be said that there is no
limitation
prescribed by the Limitation Act for an
(1) A. I. R. 1964 S. C. 260
157
appeal against an order of acquittal at the
instance of a private prosecutor. Thus, there
is a difference between the Limitation Act and
the rule laid down in s. 417 (4) of the Code
in respect of limitation affecting such an
application. Section 29(2) is supplemental in
its character in so far as it provides for the
application of s. 3 to such cases as would not
come within its purview but for this
provision.”
‘This observation clearly supports the position that s.
29(2) would apply even to a case where a difference between
the special law and the Limitation Act arose by the omission
to provide for a limitation to a particular proceeding under
the Limitation Act.
1, therefore, hold that in the instant case the Act provides
a period of limitation different from that prescribed
therefor by the First Schedule to the Limitation Act and,
therefore, it is governed by s. 29(2) of the said Act.
Even if my view on the construction of the first limb of s.
29 of the Limitation Act were wrong, it would not help the
appellant, for his case squarely falls within the scope of
the second limb of the section., For convenience I restate
the relevant part of the section:
“……….. and for the purpose of
determining any period of limitation
prescribed for any suit, appeal or application
by any special or focal law.”
Learned counsel for the appellant relied upon the conjunc-
tion “and” in support of his contention that the use of that
conjunction makes the following sentence a limitation on the
first part of the section. He further argues that if it is
not a limitation but an independent clause, it will lead to
the -anomaly of ss. 4 to 25 of the Limitation Act applicable
to proceedings failing under the first part and only some of
the provisions thereof, namely, ss. 4, 9 to 18 and 22 apply-
ing to the second part of the section. Apart from the
grammatical construction, which I will consider presently, I
do not see any anomaly in ss. 4 to 25 of the Limitation Act
applying to the first part of the section and only some of
158
them applying to the second part thereof. Those proceedings
to which the first part applies, by fiction the period
prescribed in the special or local law is treated as
prescribed in the First Schedule itself. There cannot
possibly be any reason why s. 3 of the Limitation Act in
toto shall not apply to them. But the same cannot be said
in the case of the proceedings of a different type not
provided for in the First:Schedule. So, the Legislature
specified the sections applicable tothem and excluded
the general sections which relate tolegal disabilities,
acknowledgements, part-payments and others specified
therein. The Legislature may_ have -thought that such
articles are not generally appropriate to proceedings under
special or local laws for reliefs not provided for in the
First Schedule.
Now, coming to the construction of the section, the relevant
rule of construction is well settled. “A construction which
will leave without effect any part of the language of a
statute will normally be rejected”; or to put it in a
positive form, the Court shall ordinarily give meaning to
every word used in the section. Does the conjunction “and”
make the following clause a limitation on the preceding one?
No rule of grammatical construction has been brought to our
notice which requires an interpretation that if sentences
complete by themselves are connected by a conjunction, the
second sentence must be held to limit the scope of the first
sentence. The conjunction “and” is used in different
contexts. It may combine two sentences dealing with the
same subject without one depending upon the other. But, if
the interpretation suggested by the learned counsel be
accepted, we would not be giving any meaning at all to the
word “any” used thrice in the second part of the section,
namely ”any period”, “any suit” and “any special or local
law”. If the second part is a limitation on the first part,
the sentence should read, “for the purpose of determining
the period of limitation prescribed for such suit, appeal or
application by such special or local law.” Instead of that,
the use of the word “any” clearly demonstrates that the
second. part does not depend upon the first part or vice
versa. There is no reason why we should attribute such a
grammatical deficiency to the legislature when every word in
the second part of
159
the section can be given full and satisfactory meaning. I
would, therefore, hold that the second part is an
independent provision providing for the aforesaid category
of proceedings to which the first part does not apply. This
is the view expressed by the majority of the judges of the
Full Bench of the Allahabad High Court in Sehat Ali Khan v.
Abdul Qavi Khan(1). I agree with the same.
It was then said that s. 116-A of the Act provided an
exhaustive and exclusive code of limitation for the purpose
of appeals against orders of tribunals and reliance is
placed on the proviso to sub-s. (3) of that section, which
reads:
“Every appeal under this Chapter shall be
preferred within a period of thirty days from
the date of the order of the Tribunal under
section 98 or section 99.
Provided that the High Court may entertain an
appeal after the expiry of the said period of
thirty days if it is satisfied that the
appellant had sufficient cause for not
preferring the appeal within such period.”
The contention is that sub-s. (3) of s. 116-A of the Act not
only provides a period of limitation for such an appeal. but
also the circumstances under which the delay can be excused,
indicating thereby that the general provisions of the
Limitation Act are excluded. There are two answers to this
argument. Firstly, s. 29(2)(a) of the Limitation Act speaks
of express exclusion but there is no express exclusion in
sub-s. (3) of s. 116-A of the Act; secondly, the proviso
from which an implied exclusion is sought to be drawn does
not lead to any such necessary implication. The proviso has
become necessary, because, if the proviso was not enacted.
s. 29(2)(b) of the Limitation Act would have excluded the
operation of s. 5 of the Limitation Act, with the result
that even if a sufficient cause for the delay existed, the
High Court would have been helpless to excuse the delay. 1,
therefore, hold that the proviso to sub-s. (3) of s. 116-A
of the Act only restores the power denied to the court under
s. 29(2)(b) of the Limitation Act.
1) I. L. R. [1956] 2 All. 252.
160
Lastly, it is contended that s. 12(2) of the Limitation Act,
on its express terms, would not apply to an appeal to the
High Court against an order of the Election Tribunal under
s. 98 of the Act. Elaborating the argument it is said that
in order to exclude the time for obtaining a copy of the
order appealed against, the original shall be a decree or
order within the meaning of s. 12(2) or judgment within the
meaning of s. 12(3) of the Limitation Act and the order
under s. 98 of the Act is neither a decree nor an order or a
judgment within the meaning of the said sub-sections of s.
12 of the Limitation Act. Reference is made to the defini-
tions of decree, judgment and order in sub-sections (2), (9)
and (14) of s. 2 of the Code of Civil Procedure,
respectively, and it is contended that the order under s. 98
of the Act does not fall under any of the said three
expressions as defined therein. Under sub-s. (9) of s. 2 of
the Code of Civil Procedure, “judgment” is defined to mean
the statement given by the judge of the grounds of a decree
or order. Sub-section (14) of s. 2 of the said Code defines
“order” to mean the formal expression of any decision of a
civil court which is not a decree. It follows from the said
definitions that judgment is a statement of the reasons
given by the judge and order is the formal expression of his
decision. Section 104 of the said Code says, “An appeal
shall lie from the following orders, and save as otherwise
expressly provided in the body of this Code or by any law
for the time being in force, from no other orders.” Order XX
of the Code deals with the manner of pronouncing a judgment
and decree. Under 0. XX, r. 20, of the Code, “Certified
copies of the judgment and decree shall be furnished to the
parties on application to the Court, and at their expense.”
Under s. 141 of the Code, “The procedure provided in this
Code in regard to suits shall be followed as far as it can
be made applicable, in all proceedings in any court of civil
jurisdiction”. The effect of these provisions is that a
decree is a formal expression of adjudication conclusively
determining the rights of parties with regard to all or any
of the controversies in a suit, whereas order is a formal
expression of any ,decision of a civil court which is not a
decree. Judgment is a statement given by the judge of his
grounds in respect of ,a decree or order. Ordinarily
judgment and order are en-
161
grossed in two separate documents. But the fact that both
are engrossed in the same document does not deprive the
statement of reasons and the formal expression of a decision
of their character as judgment or order, as the case may
be.
With this background let me look at the provisions of s.116-
A of the Act. Under sub-s. (1) thereof, an appeal shall lie
from every order made by a Tribunal under s. 98 or s. 99 to
the High Court of the State in which the Tribunal is
situated. Under s. 98 of the Act,
“At the conclusion of the trial of an election
petition the Tribunal shall make an order-
(a) dismissing the election petition;or
(b) declaring the election of all or any of
the returned candidates to be void; or
(c)declaring the election of all or any of
the returned candidates to be void and the
petitioner or any other candidate to h
ave been
duly elected. ”
Part VI of the Act provides for disputes regarding
elections-, Ch. III thereof prescribes the procedure for the
trial of election petitions, and s. 90 therein says:
“(1)Subject to the provisions of this Act and
of any rules made thereunder, every election
petition shall be tried by the Tribunal, as
nearly as may be, in accordance with the
procedure applicable under the Code of Civil
Procedure, 1908, to the trial of suits.”
There is noprovision in the Act defining how the
decision should be given. It could not have been the
intention of the Legislature that the Tribunal need not give
the statement of reasons for its decision. As under s. 90
of the Act the Election Tribunal is directed to try election
petitions as nearly as may be in accordance with the pro-
cedure applicable under the Code of Civil Procedure, it is
the duty of the Election Tribunal to give a statement of
reasons for its decision. It is open to it to issue two
documents–one embodying the reasons for the decision and
the
134-159 S.C.-11.
162
other, the formal expression of its decision: the former
will be its judgment and the latter, its order. It may
issue both in the same document in which case the judgment
as well as the order is embodied in the same document. If
so it is manifest that an order made under s. 98 of the Act,
if it contains also the reasons for it, is a composite
document ,satisfying the definition of a judgment as well as
that of an ,order and thereby attracting the relevant
provisions of s. 12 of the Limitation Act. That apart, a
different approach to the question raised leads to the same
conclusion. Section 12(2) of the Limitation Act does not
say that the order mentioned therein shall be only such
order as defined in the Civil Procedure Code. If a statute
provides for the making of can order and confers a right of
appeal to an aggrieved party -against that order within a
prescribed time, sub-s. (2) of s. 12 of the Limitation Act
says that the time requisite for obtaining a copy of such
order shall be excluded. The Act em-powers the Tribunal to
make an order and gives a right of -appeal against that
order to the High Court. Section 12(2) of the Limitation
Act is, therefore, directly attracted without any recourse
to the definition of an order in the Code of Civil
Procedure. In either view, s. 12 of the Limitation Act
-applies and, therefore, the time taken for obtaining a copy
,of the said order shall be excluded in computing the period
,of limitation.
In the result, the appeal fails and is dismissed with costs.
RAGHUBAR DAYAL J.-I agree that the appeal be dismissed, but
for different reasons.
I am of opinion that the first part of s. 29(2) of the Limi-
tation Act applies only when a special or local law
prescribes -a period of limitation for an appeal and when
for that particular appeal a period of limitation is
prescribed in the First Schedule to the Limitation Act, as
omission to prescribe a period of limitation cannot be
equated with the prescribing ,of any positive period of
limitation within which the appeal should be filed, and that
the second part of s. 29(2) of the Act is independent of the
first part and can apply to cases to which the first part
does not apply. I am also of ,opinion that art. 156 of the
First Schedule applies to appeals
163
which are instituted in view of the right of appeal
conferred by any special or local law and not in pursuance
of the provisions of s. 96 C.P.C. I do not elaborate my
views as I agree with what my learned brother Mudholkar J.,
has said in construing the first part of s. 29 (2) of the
Limitation Act and art. 156 of the First Schedule and agree
with my learned brother Ayyangar J., with respect to his
construction of the second part of s. 29(2).
The proviso to s. 116(a) of the Representation of the People
Act gives discretion to the High Court to entertain an
appeal presented after the expiry of 30 days from the date
of the order of the Tribunal in case it is satisfied that
there is sufficient cause for the late presentation of the
memorandum of appeal. The respondent has applied in this
Court for the condonation of the delay in filing the appeal
in the High Court. In the circumstances of the case, I
consider it a fit case for condoning the delay. There was a
difference of opinion in the High Courts regarding the
applicability of s. 12 of the Limitation Act to such
appeals. The delay was of a few days. The Election
Tribunal passed the order on January 5, 1963 and the appeal
was filed on February 11, 1963.
A party can reasonably desire to obtain a copy of the
judgment for deciding, after studying it, whether it is
worthwhile appealing against it, and if so. on what grounds.
I am satisfied that there was sufficient cause for the
respondent’s not presenting the appeal within the period of
limitation. I therefore condone the delay and confirm the
order of the High Court.
MUDHOLKAR J.-While I agree with my brother Subba Rao J. that
the appeal should be dismissed, I regret my inability to
agree with all the reasons which he has given.
I need not recapitulate the facts which have been set out
-fully in the judgment prepared by my learned brother but I
would only state the point which we have to consider in this
appeal. The point is whether for the purpose of computing
the period of 30 days prescribed by s. 116A(3) of
164
the Representation of the People Act, 1951 under which an
appeal can be preferred from the decision of the Election
Tribunal, the provisions of s. 12, sub-s. (2) of the Limita-
tion Act, whereunder the time requisite for obtaining a copy
of the decree and the day on which the judgment complained
of was pronounced can be excluded can be pressed in aid. It
was contended before us that the appeal should be deemed to
be one under the Code of Civil Procedure, in which case it
would fall under art. 156 of the First Schedule to the Limi-
tation Act, and that though a shorter period of limitation
is prescribed for it by the Representation of the People Act
the provisions of s. 12(2) of the Limitation Act would be
attracted by reason of the provisions of cl. (a) of s.
29(2). Reliance was 
laced in this connection on the first
limb of s. 29(2). Alternatively it was argued that the
first limb of s. 29, sub-s. (2) of the Limitation Act would
also apply to an appeal under the Representation of the
People Act even though it does not fall under art. 156 of
the Limitation Act since a different period of limitation
was prescribed for it from that prescribed for an appeal in
the First Schedule of the Limitation Act and that,
therefore, cl. (a) thereof would attract s. 12(2) of the
Limitation Act. Finally it was argued that even if the
appeal cannot be regarded as one falling within the first
limb of s. 29(2) sub-s. (2) of s. 12 would still apply
because the second limb of sub-s. (2) of s. 29 is wide
enough in its ambit to include a suit, appeal or application
for which no period of limitation is prescribed in the first
schedule but a period of limitation has been prescribed by a
special or local law. My learned brother has held in his:
judgment that an appeal provided for by s. 116A of the
Representation of the People Act would be an appeal underthe
Code of Civil Procedure and thus fall under the first column
of art. 156 of the First Schedule of the Limitation Act. He
has also held that the 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
the first schedule” occurring in the first limb of sub-s.
(2) of s. 29 would include a suit or an appeal’ even though
it is not of a type for which a period of limitation is
prescribed in the First Schedule because it is enough if the
special law prescribes for such an appeal a period
165
which is different from any period prescribed in the First
Schedule. I regret I am unable to agree with either of
these views. Finally, however, my learned brother has
construed the second limb of sub-s. 2 of s. 29 “and for the
purpose of ,determining any period of limitation prescribed
for any suit, appeal or application by any special or local
law” as being wide enough to include a suit, appeal or an
application under a special or local law which is of a type
for which no period of limitation is prescribed in the First
Schedule. With this last conclusion I agree. In my
judgment what he has said on the last point is enough for
the purpose of disposing of the appeal in the way proposed
by him. As, however, I do not agree with what he has said
on the first two points I must briefly indicate my reasons
for coming to different conclusions.
In support of the conclusion that art. 156 applies, my
learned brother has relied upon the decision in Aga Mahomed
Hamadani v. Cohen (1) which was followed by the Madras High
Court in Ramasami Pillai v. the Deputy Collector of
Madura(1). The first of these two cases was one from what
was then British Burma. Under s. 49 of the Burma Courts
Act, 1875 (XVII of 1875) an appeal Jay to the High Court
from the decision in a suit or proceeding before the
Recorder’s Court in which the amount or value was not less
than Rs. 3,000 and was not more than Rs. 10,000. Section 97
of that Act said: “save as otherwise provided by this Act,
the Code of Civil Procedure shall be, and shall, on and from
the 15th day of April, 1872, be deemed to have been in force
throughout British Burma.” Section 540 of the Code of Civil
Procedure, 1882 which was in force at that time read thus:
“Unless when otherwise expressly provided by
this Code or by any other law for the time
being in force, an appeal shall lie from the
decrees or from any part of the decrees of the
Courts exercising original jurisdiction to the
Courts authorised to hear appeals from the
decisions of those courts.”
(1) (1886) 1. L. R. 13 Cal. 221
(2) (1919) 1. L. R. 43 Mad. 51
166
The question which the High Court had to consider in that
case was whether the appeal could be said to be in time as
it fell to be governed by art. 156 of the First Schedule to
the Limitation Act. For deciding this matter the High Court
proceeded to consider what was-meant by an appeal under the
Code of Civil Procedure. While dealing with the matter the
High Court observed:
“A particular appeal was given by the Burma
Courts. Act and the Burma Courts Act is still
the only Act which prescribes to what Court
this appeal shall lie. If it had not been
given by the Burma Courts Act then s. 540 of
the Civil Procedure Code would have been
sufficient to give it. provided that some
Court was by some enactment provided as the
proper Court to hear the appeal. The
procedure in appeals in every respect is
governed by the Code of Civil Procedure. The
Limitation Act, Sch. 1, Art.. 156 when it
speaks of the Civil Procedure Code is, on the
face of it, speaking of a Code which relates
to procedure, and does not ordinarily deal
with substantive rights: and the natural
meaning of an appeal under the Civil Procedure
Code appears to us to be an appeal governed by
the Code of Civil Procedure so far as
procedure, is concerned.”
Referring to this, my learned brother has
observed:
“It is manifest from this passage that the
learned judges did not repel the contention on
the ground that the right of appeal was
conferred by s. 540 of the Code of Civil
Procedure, but expressely for the reason that
the natural meaning of the relevant expression
in art. 156 of Sch. 1 of the Limitation Act
was that the appeal mentioned therein was one
governed by the Code of Civil Procedur
e.”
That is true. It is, however, not material for my purpose
to consider whether or not the High Court was right in hold-
ing that the appeal before it was under the Burma Courts
167
Act. I would assume that the High Court was right but it is
necessary to point out that the provisions of s. 29 of the
Limitation Act as then in force did not come for considera-
tion in that case. The question would then be whether its
view that an appeal, though not provided by the Code of
-Civil Procedure, would yet be deemed to be an appeal under
the Code for the purpose of art. 156 of the Limitation
Act,,, was right. With respect I do not think that there
was any warrant for holding that an appeal which was not
given by, the Code would still be one under the Code merely
because the procedural provisions thereof would govern its
course-. Where the right of appeal is given by some other
law, the appeal must be regarded as one under that law and
not under the Code. I see no valid reason for construing
the words ‘under the Code of Civil Procedure’ as meaning
‘governed in the matter of procedure by the Code of Civil
Procedure’. For, that is, in effect, what the High Court
has done in this case. By reading the article in the way it
has done the High Court has virtually construed the only
provision in the Limitation Act dealing with normal civil
appeals; to the High Court as a residuary article which
would take in all appeals by whatever law they may be
provided, merely because the procedure relating to appeals
contained in the Code of Civil Procedure was applicable to
them. This would in my judgment go against the plain
intended of the Legislature. Indeed, while a right to
institute a suit or make an application is a wider kind of
right. there can be no right of appeal unless some statute
confers it. That is why the Legislature has expressly
enacted residuary provisions, Arts. 120 and 180, for suits
and applications respectively in the Limitation Act. The
First Schedule is divided into three divisions. Article 156
is one of the eight article& contained in the second
division which deals with appeals. The first division of
that schedule deals with suits. There, provision is made
for a variety of suits including some under special laws.
but it was realised that it could not be exhaustive.
Therefore, art. 120 was provided therein, which deals with
“Suits for which no period of limitation is provided
elsewhere in this schedule.” The third division of the First
Schedule deals with applications of different kinds.
Article 181 makes provision for applications for which no
168
period of limitation is prescribed elsewhere in the
Schedule. In the second division, however, which deals with
appeals, there is no provision analogous to art. 120 and
art. 181. Four of the eight articles deal with appeals
under the Code of Criminal Procedure and four with appeals
other than those under the Code of Criminal Procedure. As
already stated, only one of these articles deals with normal
civil appeals to the High Court, namely, art. 156. It is
not couched in language similar to that used in art. 120 and
art. 181. Would we then be justified in reading the first
column of art. 156 to mean the same thing as is said in the
first column of arts. 120 or 181? The Legislature knew that
appeals have been provided by various special laws; but it
made no provision for such appeals in this Schedule appa-
rently for the reason that a law which confers a right of
appeal is expected to provide for the period of limitation
for such an appeal. That seems to be the explanation for
the absence of a residuary provision for appeals.
The first difficulty, therefore, in interpreting art. 156 in
the way contended for by -the respondents is that where a
different period of limitation for appeal is expressly pro-
vided by a special law art. 156 will not in terms be
attracted. To bring such an appeal under it would clearly
go against the express intention of ‘the Legislature which
was to confine that article to appeals under the Code of
Civil Procedure. The next difficulty is that the entry
deals with appeals “under” the Code of Civil Procedure and
not appeals arising out of proceedings to which the Code of
Civil Procedure applies. Nor again, does it include an
appeal which is only deemed to be under the Code of Civil
Procedure. Be it noted that so far as proceedings under the
Representation of the People Act are concerned, the whole of
the Code of Civil Procedure does not apply but only so much
of it as is expressly made applicable by the provisions of
the Representation of the People Act. It was said that if
the provisions of 0. XLI, of the Code of Civil Procedure
were not applicable to an appeal under the Representation of
the People Act there would be no provision whereunder the
party could at all file an appeal. It seems to me, however,
that there can be no difficulty at all in this matter as
every
169
-High Court has made rules partly under the Constitution
-and partly in exercise of its inherent power to make
suitable provisions in regard to this and allied matters.
The Calcutta High Court, however, does not appear to have
given ,the full consideration in Cohen’s case(1) to the
ambit of art. 156 and that is another reason why I find
myself unable to accept the correctness of the view it has
taken in that case.
It was then said that the view should be accepted on the
ground of stare decisis. In this connection it was pointed
out thatso far no court has dissented from that view and
indeed theview was fully accepted in Ramasami
Pillai’s .case(1) bythe Madras High Court. In so far
as the principle of stare decisis is concerned it is nothing
more ‘than,. as observed by Dowrick in Justice According to
the English ,Common Lawyers (1961 ed. p. 195), a precipitate
of the notion of legal justice. In other words it is the
principle that judicial decisions have a binding character.
But in India the position is not quite the same. Here the
decision of a High Court is not even always binding upon it
in the sense that it can be reconsidered by a Full Bench.
No doubt its decision may bind all courts subordinate to it
as also all Judges sitting singly or in division benches of
the High Court. It is also true that a decision of a
Division Bench of a High Court is binding on every other
Division Bench of that High Court but there again there have
been cases where one Full Bench has reconsidered the
decision of an earlier Full Bench. In any case the decision
of a High Court has no more than persuasive character in so
far as this ‘Court is concerned. In that view the decision
of the Calcutta High Court, even though it may not have been
dissented from since the time it was rendered, cannot, in
the proper sense of the term be regarded as stare decisis.
What could be stare decisis in this Court would be its own
previous ,decisions. But even here instances are not
wanting where, unlike perhaps the House of Lords, we have
considered ourselves free to go back on previous decisions.
(See The Bengal Immunity Company Limited v. The State of
Bihar ors. 3 Finally, even where a decision has not been
(1) (1886) I. L. R. 13 Cal. 221
(2) (1919) I. L. R. 43 Mad. 51
(3) [1955] 2 S. C. R. 603
170
dissented from for a long time, but has on the other hand
been followed, it is not entitled to be treated as
immutable, particularly where it deals only with a question
appertaining to the adjective law, such as the law of
limitation. There may be a great deal to be said in favour
of not disturbing even erroneous decisions affecting
substantive rights to property which have stood undisturbed
for a long time on the ground that such a course may
unsettle existing titles to property. But this or similar
considerations which would justify leaving such decisions
undisturbed would not stand in the way of overruling an
erroneous decision on a matter appertaining to the adjective
law however ancient the decision may be(1). Therefore, I do
not feel myself persuaded to hold that the present appeal
can be regarded as of a type falling within the first column
of art. 156 of the First Schedule to the Limitation Act.
In order to deal with the second ground given by my learned
brother it is necessary to reproduce the provisions of s.
29, sub-s. (2) of the Limitation Act. They run thus:
“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 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.”
(1) See Allen, Law in the, making (5th edn.) p. 209 fn. 3
171
While expressing the view that the legislature has not ex-
pressed itself happily while enacting this provision he has
agreed with the view taken in Canara Bank Ltd. v. The Warden
Insurance Co., Ltd., Bombay(1), which was followed by the
High Court of Madhya Pradesh in Beharilal Chaurasiya v.
Regional Transport Authority(1). In that case the Bombay
High Court has held that art. 156 is attracted on the ground
that the period provided by the special law is different
from that contained in the First Schedule. With great
respect to the learned Judges, I find it difficult to strain
the language used in the first limb of s. 29 (2) in this
manner. The legislature has in clear terms spoken of cases
in which a special or local law has prescribed for a suit,
appeal or an application a period of limitation “different”
from that prescribed by the First Schedule. Now, the
governing words are “suit, appeal or application”.
Therefore, what has to be seen is whether a suit, appeal or
application under a particular local or special law is of a
kind similar to one for which a period of limitation is
prescribed in the First Schedule. The first limb of sub-s.
(2) of s. 29 is concerned only with proceedings of this
kind, that is, proceedings under special or local law for
which a period of limitation is provided in the First
Schedule. If for such a proceeding the period to be found
in the First Schedule is different from that prescribed
under a special or local law certain consequences will
follow under the provision. I do not think that any
inconvenience would be caused by giving literal and natural
interpretation to the expression used by the legislature in
the first portion of sub-s. (2) of s. 29 because cases of
other kind can easily come under the second portion thereof.
Since I agree with my learned brother about what he has said
regarding the second limb of sub-s. (2) of s. 29 the aapeal
must be dismissed with costs as proposed by him.
(1) I. L. R. 1952 Bom. 1083.
Appeal dismissed.
(2) A.I.R. 1961 M. P. 75.
172