Gujarat High Court
Shyam vs Union on 19 February, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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FA/3858/2009 20/ 20 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 3858 of 2009
With
FIRST
APPEAL No. 3859 of 2009
To
FIRST
APPEAL No. 3870 of 2009
=========================================================
SHYAM
SANTARAM SALI (MARATHI) - Appellant(s)
Versus
UNION
OF INDIA - Defendant(s)
=========================================================
Appearance
:
MR
UM SHASTRI for
Appellant(s) : 1,
MR BIPIN I MEHTA for Defendant(s) : 1,
MR JJ
YAJNIK for Defendant(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 19/02/2010
ORAL
ORDER
Heard learned Advocate Mr.UM Shastri for appellant and learned Advocate Mr. Bipin I. Mehta and Mr.J.J. Yajnik for respondent Union of India through General Manager, Western Railway, Churchgate, Mumbai.
By filing this group of appeals, appellants are challenging orders passed by Railway Claims Tribunal in Miscellaneous Application filed by claimants for condonation of delay in filing of an application for restoration before Railway Claims Tribunal dismissing their claim petitions in default, in absence of claimants.
Railway Claims Tribunal, Ahmedabad Bench, Ahmedabad has dismissed claim petitions filed by claimants for default, in absence of claimants as well as their advocate. Claimants therefore, filed restoration applications with applications for condonation of delay caused in filing of restoration applications. Miscellaneous Applications were filed by appellants before Railway Claims Tribunal for condonation of delay along with applications for restoration of claim applications which were dismissed for default. Said applications were filed after a period of one month from the date of order of dismissal for default of claim petition in view of contemplations of Rule 18(2) of Railway Claims Tribunal (Procedure) Rules, 1989, in view of dismissal of claim petition as per rule 18(1).
Said applications were resisted by respondent by filing reply contending that the petitioner has no right to file such delay condonation application under section 17(2) of the RCT Act. It was also contended that the restoration application intentionally has not been filed within the period of limitation as contemplated by Rule 18(2) of the RCT (Procedure) Rules, 1989. It was also contended that the petitioner has not filed copy of order along with these miscellaneous applications, therefore, it is difficult to understand the order, since it is not placed on record. Still however, petitioner has contended in the application that the order was passed dismissing claim petition on account of non payment of cost and for non prosecution. Therefore, it was observed by railway claims tribunal that considering said fact, order is undisputedly passed dismissing claim petition in view of rule 18(1) of RCT (Procedure) Rules, 1989 and, therefore, application filed for restoration of the claim petition is governed by provisions of rule 18(2) of the said Rules, 1989. It was also observed that there is no dispute of the either parties in respect of this position. It is undisputed fact that the miscellaneous application is filed beyond the period of 30 deays from the date of order of dismissal and, therefore, question involved for determination in the present application is, whether the application for restoration can be filed after 30 days from the date of dismissal for default as contemplated by rule 18 (1) of the said Rules. Therefore, claims tribunal has not gone into the merits of the case since primarily the jurisdiction with the tribunal needs to be decided which has ensuing effect on the determination of the applications. Thereafter, claims tribunal considered provisions of rule 18(2) of the Railway Claims Tribunal (Procedure) Rules, 1989, as under:
Rule 18(2) - Where an application has been dismissed for default and the applicant files an application within thirty days from the date of dismissal and satisfies the Tribunal that there was sufficient cause for his non appearance when the application was called for hearing, the Tribunal shall make an order setting aside the order dismissing the application and restore the same.
Provided, however, where the case was disposed of on merits the decision shall not be re-opened except by way of review.
Then, considering said provisions, Railway Claims Tribunal observed that said provision contemplates the restoration application has to be filed within 30 days from the date of order of dismissal and it does not contemplate any application beyond 30 days and there is no provision under the said Rules vesting jurisdiction or discretion in the tribunal to entertain an application for restoration filed beyond the period of 30 days as contemplated by the said provisions and, therefore, Railway Claims Tribunal dismissed Miscellaneous Applications filed by claimants for restoration of their claim petitions which were dismissed for default and, therefore, present appeals have been filed by appellants before this Court. Relevant observations made by Railway Claims Tribunal at page 15 and 16 of impugned order are reproduced as under:
In the present case, the application for restoration is is filed after 30 days from the date of order of dismissal for want of prosecution and for non compliance of order of cost as contended by the petitioner. The dismissal for default is contemplated by Rule 18(1) and restoration is contemplated in Rule 18(2) of the Railway Claims Tribunal (Procedure) Rules 1989. The provisions of 18(2) expressly provides that the applicant has to file application for restoration within 30 days. There is no contemplation of entertaining of such an application beyond 30 days. There is no contemplation of entertaining of such an application beyond 30 days. In the present case, the application is filed beyond 30 days. There is no express jurisdiction provided under the said provision for entertaining the application by condoning the delay. It is undoubtedly a rule of prudence that when there is no express provision in the law such provision cannot be imported and application cannot be entertained since it is never contemplated by the Rule makers.
Hence, in view of the above discussion, it is explicit that the applicant has filed this application for restoration after a period of one month from the date of impugned order and therefore, in view of Rule 18(2), the said application is not maintainable. It is pertinent to observe that as discussed above, the provisions of Rule 18(2) does not contemplate any discretion or jurisdiction with the Tribunal to entertain an application for restoration beyond a period of 30 days from the date of impugned order of dismissal for default. Therefore, since the application is filed beyond the period of 30 days as contemplated by section 18(2), the Tribunal has no discretion or jurisdiction to entertain the application and, therefore, application for condonation of delay as well as restoration of the claim petition stands dismissed for the reasons mentioned above.
Learned Advocate Mr. Shastri relied upon the decision of Division Bench of Kerala High Court in case of Pushpakaran versus Union of India, reported in 2008 ACJ 2469 and submitted that in said decision, identical question has been examined by Division Bench of Kerala High Court. He submitted that in said decision, Division Bench of Kerala High Court considered the provisions of Railways Act, 1989, sections 124 and 125, Railway Claims Tribunal Act, 1987, sections 16 and 18(3) (h), Railway Claims Tribunal (Procedure) Rules, 1989, Rule 18 and Limitation Act, 1963, Section 5 read with section 29(2) wherein claim petition was dismissed for default and application seeking restoration with an application for condonation of delay was rejected. It was held by Division Bench of Kerala High Court held that since Railway Claims Tribunal is not a civil court, it has no power to condone delay beyond the time fixed in the rules. Then, it is also held that the Railway Claims Tribunal can condone delay on sufficient reasons by applying section5 of Limitation Act. It was also held that as the claimants have given sufficient reasons for not filing application for restoration of claim application within 30 days, delay was condoned matter was remanded to Tribunal for adjudication on merits. Relevant observations made by Division Bench of Kerala High Court in para 3,4,5,6 and 7 are reproduced as under:
3. In Mukri Gopalan v.
C.P. Aboobacker, AIR 1995 SC 2272, it was held by the Supreme Court that appellate authority constituted under the Kerala Buildings (Lease and Rent Control) Act has got the power to condone the delay under section 5 of Limitation Act as appellate authority is not a person designata. Even though it is not a civil court, it has got all the powers of the civil court and in functioning as a court. It is also observed that there may be situations, wherein even courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for application under such acts and in the above sence of any specific exclusions, in such cases also Limitation Act will apply. It was held as follows:
'There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under schedule to the Limitation Act and only for such courts an express provision has to be made for applying Ss. 4 to 24 of the Limitation Act as found in second part of S.29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction S.3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of S.29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such laws and for computing period of limitation under such special or local law the Legislature has made available the machinery of section 4 to 24 inclusive as found in Limitation Act. Nowhere it is indicated that as per S.29(2) the Courts functioning under such special or local law must be governed whole by Civil Procedure Code.
In that case, Supreme Court also rejected the contention that section 29(2) of the Limitation Act is applicable only if special law permits the filing of application before civil court and not to the authority or Tribunal constituted under the special Law. It was held as follows:
'Before parting with the discussion on the question we may also refer to one submission of Shri Nariman. He submitted that Sections 4 to 24 of the Limitation Act would apply to Civil Courts as duly constituted under the Civil Procedure Code and if that is so even if they are to be made applicable to suit, appeal or application governed by periods of limitation prescribed by any special or local law, they necessarily require such suit, appeal or application to be filed under special or local law before full fledged Civil Courts as otherwise Sections 4 to 24 by themselves would not apply to them. It is difficult to agree. It has to be kept in view that Section 29(2) gets attracted for computing the period of limitation for any suit, appeal or application to be filed before authorities under special or local law if the conditions laid down in the said provision are satisfied and once they get satisfied the provisions contained in Section 4 to 24 shall apply to such proceedings meaning thereby the procedural scheme contemplated by these Sections of the Limitation Act would get telescoped into such provisions of special or local law. It amounts to a legislative shorthand. Consequently, even this contention of Shri Nariman cannot be countenanced.' Section 29(2) of the Limitation Act reads as follows:
'"S.29(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of S.3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Ss.4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.' It is clear that for attracting section 29(2), three conditions are to be fulfilled:
'(1) There must be a provision for period of limitation under any special or local law in connection with any suit, appeal or application.
(2) The said prescription of period of limitation under such special or local law should be different from the period prescribed by the schedule to the Limitation Act.
(3) There should not be any express provision in the special or local law contrary to the provisions in sections 4 to 24 of the Limitation Act.' If these three conditions are satisfied, sections 4 to 24 will be applicable in view of section 29(2). In this case, the period of limitation is provided under the Special law.Time fixed for filing an application for setting aside an order dismissing an application for default is 30 days. The above period is different from the period prescribed under the Schedule to the Limitation Act and there is no provision in the special law against application of sections 4 to 24 of the Limitation Act or against condonation of delay.
Therefore, applying the principles laid down in Mukri Gopalan's case, AIR 1995 SC 2272, in view of section 29(2), section 5 of the Limitation Act enables the Tribunal constituted under special law to condone the delay.
4. Apex Court in P. Sarathy v. State Bank of India, (2005) 5 SCC 355, it was held that for application of section 5 of the Limitation Act, court need not be a civil court but it will be sufficient if the authority or tribunal have trappings of court. Apex court has considered the question regarding application of section 14 of the Limitation Act ina proceeding before the Deputy Commissioner of Labour who is notified as appellate authority under the Shops and Establishments Act. It was held that the time spent before the Shop Appellate Authority can be excluded for computing the period of limitation in view of section 14 of the Limitation Act. We quote paras 12 and 13 of the above judgment herein below :
'12. It will be noticed that Section 14 of the Limitation Act does not speak of a "Civil Court" but speaks only of a "Court". It is not necessary that the Court spoken of in Section 14 should be a "Civil Court". Any Authority or Tribunal having the trappings of a Court would be a "Court" within the meaning of this Article.
13.
In Thakur Jugal Kishore Sinha v. The Sitamarhi Central Co-operative Bank Ltd., AIR 1967 SC 1494, this Court, while considering the question under the Contempt of Courts Act, held that the Registrar under the Bihar and Orissa Co-operative Societies Act was a Court. It was held that the Registrar had not merely the trappings of a Court but in many respects he was given the same powers as was given to an ordinary Civil Court by the Code of Civil Procedure including the powers to summon and examine witnesses on oath, the power to order inspection of documents and to hear the parties. The Court referred to the earlier decisions in Bharat Bank Limited v. Employees of Bharat Bank Ltd., 1950 SCR 459 : AIR 1950 SC 188; Maqbool Hussain v. State of Bombay, 1953 SCR 730 : AIR 1953 SC 325 and Brajnandan Sinha v. Jyoti Narain, (1955) 2 SCR 955 : AIR 1955 SC
66. The Court approved the rule laid down in these cases that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial tribunal, power to give a decision or a definitive judgment which has FINALITY and AUTHORITATIVENESS which are the essential tests of a judicial pronouncement.' In Shaik Saidulu v.
Chukka Yesu Ratnam, AIR 2002, SC, 749, it was held that section 5 of the Limitation Act will apply in an application before the Election Tribunal as there is no specific exclusion of Section 5 of the Limitation Act , 1956. A Full Bench of this Court as early as in 1980 in State of Kerala v. Syamala Thamburatti, 1980 KLT 34, held as follows:
'(4) In the light of the above discussion, it has to be held, and we hold, the sections 4 to 24 (inclusive) of the Limitation Act, 1963, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appepal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, sections 4 to 24 of Limitation Act, 1963 and so, the period of 60 days limitation prescribed in section 8-A has to be computed by applying sections 4 to 24 (inclusive) of the Limitation Act, 1963. ' In Brajnandan Sinha v.
Jyoti Narain AIR 1956 SC 66, it was held that in order to constitute a 'court' in the strict sense of the term, essential condition is that apart from the trappings of a court, it has power to give a decision or definite finding which is authoritatively equivalent to a judgment pronounced. Orders passed by the Railway Claims Tribunal is equivalent to judgments pronounced. In Satish Babu v. State of Kerala, 2000 (3) KLT 551, this court held that Forest Tribunal is a Court and in view of section 29(2), sections 4 to 24 of the Limitation Act will be applicable. In Duroflex Ltd. v. Johny Mathew, 2007(1) KLT 865, it was held by this court that when disposing the application under section 111 of the Companies Act, Company Law Board has to make a judicial decision and hence it is a court and section 5 of the Limitation Act will apply.
6.Rule 18 of the Railway Claims Tribunal (Procedure) Rules prescribes the time limit of 30 days in filing an application for setting aside an order dismissing the application for default.
But, there is no specific exclusion or prohibition in the section for extending the time. Hence, considering the mandate of section 29(2) of the Limitation Act, section 5 of the Limitation Act is applicable. It is true that before Mukri Gopalan's case, AIR 1995 SC 2272, there were a large number of decisions to the effect that section 5 of the Limitation Act is applicable only to a civil court. Now it has been consistently held that in the absence of specific exclusion or prohibition, it limitation is prescribed in a special law for filing an application, by virtue of section 5 read with section 29(2) of the Limitation Act, Tribunal which has all the trappings of court can condone delay on sufficient reasons. This is all the more applicable to the Railway Claims Tribunal in setting aside any order of dismissal for default of the applicant in view of section 18(3) of the Railway Claims Tribunal Act, 1987.
7. In view of the above discussions, we are of the opinion that section 5 of the Limitation Act is applicable and Tribunal should have condoned the delay as sufficient reasons are given for condoning the delay. Here, the son of the claimants died in an accident and application was filed for compensation before the Tribunal. It is true that on one day the claimants were absent and the application was dismissed for default. By filing an application for setting aside the order dismissing the application in default and for restoring the matter, the provisions of the Limitation Act for filing application will not be applicable. There is a time limit of 30 days in filing the application. Therefore, it has to be filed within 30 days. If sufficient cause is made out, Tribunal has got power to condone the delay under section 5 of the Limitation Act and liberal approach has to be adopted by the Tribunal. Here, adequate reasons are given by the appellants for condoning the delay. Therefore, the Tribunal ought to have condoned the delay. Therefore, we condone the delay in filing the application for setting aside the order dismissing the application for default and the matter is remanded to the Tribunal for deciding the question on merits. We are not expressing any opinion regarding the merits of the matter. Parties shall appear before the Tribunal on 14.01.2008. The appeal is allowed.
Learned Advocate Mr. Shastri submitted that recently, this Court had an occasion to consider same question in case of CHAUHAN AMITKUMAR MAGANBHAIS / OCHAUHANMAGANBHAI KHIMJIBHAI Versus UNION OF INDIA in Special Civil Application NO. 10613 of 2009 decided on 18.12.2009. He submitted that in that decision, this court considered aforesaid decision of Division Bench of Kerala High Court. I have considered said decision of this Court. Relevant paragraph 2,3,5 and 8 of said decision of this court are reproduced as under:
2. The facts of the case in brief are that the petitioner had filed Compensation Application before the Railway Claims Tribunal for receiving injury of chopping off his left hand up to elbow and last two fingers of right hand were also amputed. The Compensation Application of the petitioner was dismissed for default on very first occasion in absence of the petitioner as well as his advocate.
The petitioner filed Delay Application with Restoration Application on 16.10.2007 before the Railway Tribunal. The Delay Condonation Application was rejected by order dated 11.06.2009 stating that there is no provision in the said Rules for condonation of delay in filing Restoration Application. Hence, this petition.
3.Learned advocate for the petitioner submitted that in provision of Rule 18 the Tribunal has held that since the application is filed beyond period of 30 days from the date of impugned order of dismissal of default, his application could not be entertained. He stated that such a provision is illegal and arbitrary. He further submitted that the Tribunal ought to have entertained application.
5. Learned advocate for the petitioner has further relied upon the following decision:
Mukri Gopalan vs. C.P Abobacker-AIR 1995 SC 2272 P.Sarathy vs. State Bank of India-(2000)5 SCC 355 Thakur Jugal Kishor Sinha vs.Sitamarhi Central Co-operative Bank Ltd.- AIR 1967 SC 1494, Bharat Bank Ltd. vs. Employees-AIR 1956 SC 66 Shaik Saidulu vs. Chakku Yesu Ratnam-AIR 2002 SC 749 State of Kerala vs. Syamala Thamburatti-1980 KLT 34 Brajnandan Sinha vs. Jyoti Narain AIR 1956 SC 66 Sathish Babu vs. State of Kerala-2000 (3) KLT 551 Duroflex Ltd vs. Johny Mathew-2007 (1) KLT 865
8.
As a result of hearing and perusal of the record, it is evident that it is by now a well settled law that in absence of specific exclusion or prohibition, if limitation is prescribed in a special law for filing an application, by virtue of Section 5 read with Section 29(2) of the Limitation Act, Tribunal which has all the trappings of Court can condone delay on sufficient reasons. Therefore, the prayer of the petitioner that to declare the provisions of Rule-18(2) of the Railway Claims Tribunal Rules, 1989 as unconstitutional need not be considered.
Therefore, considering aforesaid decision of this Court wherein decision given by Division Bench of Kerala High Court in case of Pushpakaran, 2008 ACJ 2469 has been considered by this court and also considering said decision of Kerala High Court wherein Kerala High Court considered various decisions of apex court as referred to above, according to my opinion, as there is no specific exclusion or prohibition in the section for extending the time. Hence, considering the mandate of section 29(2) of the Limitation Act, section 5 of the Limitation Act is applicable. Therefore, Railway Claims Tribunal ought to have considered mandate of section 29(2) and ought to have held that it is having jurisdiction to consider application seeking condonation of delay filed beyond the period of 30 days from the date of order dismissing claim petitions for default. Therefore, orders passed by Railway Claims Tribunal dismissing Miscellaneous Applications filed by appellants seeking condonation of delay in filing of restoration application and also dismissing restoration application which are under challenge in these appeals are required to be quashed and set aside and delay in filing such applications for restoration of claim petitions is required to be condonedin interest of justice and it is also required to restore Restoration Application filed by appellants.
Accordingly, orders passed by Railway Claims Tribunal rejecting Miscellaneous Application filed by appellants in these appeals for condonation of delay in filing of restoration application and dismissing restoration application are hereby quashed and set aside and delay in filing such applications for restoration of claim petitions is hereby condoned, means, delay in filing of such restoration applications is condoned by this court in interest of justice and it is directed to Railway Claims Tribunal to restore original claim petitions filed by present appellants and to decide the same in accordance with law and on merits after giving reasonable opportunity of hearing to both parties. These appeals stand allowed accordingly with no order as to costs. Direct Service is Permitted.
(H.K. Rathod,J.) Vyas Top