Patna High Court
Sri Uma Shankar Prasad Singh vs Sri Thakur Lakshmi Narayanjee on 9 May, 1958
Equivalent citations: AIR1958PAT609, AIR 1958 PATNA 609, ILR 37 PAT 1155
ORDER C.P. Sinha, J.
1. This is an application under Section 5 of the Limitation Act for extension of time. Under Section 17 of the Bihar Land Reforms Act, 1950 (Bihar Act 30 of 1950, an appeal lies to the Board constituted under Section 18 of that Act if the appeal is preferred within sixty days of the date of the decision of the Claims Officer under Section 16 of the Act. In the present case, the order of the Claims Officer was passed on 7th December, 1956, and the appeal was filed on 12-3-1957. According to the stamp report, which is not disputed, 13-2-1957 was the last date for filing the appeal, taking into consideration the time taken in obtaining copy of the order appealed against. On these facts, a petition has been filed under Section 5 of the Limitation Act for extension of time on the facts stated in the petition.
2. The question that arises is, whether Section 5 of the Limitation Act has any application to appeals filed under Section 17 of the Bihar Land Reforms Act. Section 29 of the Limitation Act, the relevant portion of it, reads as follows :
"x x x x
2. Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed there for 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.
x x x x"
There is no doubt that the Bihar Land Reforms Act is a special law providing for the transference to the State of the interests of proprietors and tenure-holders in land and of the mortgagees and lessees of such interests and for the constitution of a land Com mission for the State of Bihar with powers to ad vise the State Government on the agrarian policy to be pursued by the State Government consequent upon such transference and for other matters connected therewith. It is also a local law for the reason that it is applicable only to the State of Bihar.
It is thus both a special and a local law within the meaning of the provisions of Section 29 of the Limitation Act. This position is not controverted by the learned Counsel appearing on behalf of the petitioner. The Bihar Land Reforms Act, which will hereafter be referred to as the Act, prescribes a different period of limitation for filing appeal to the Board constituted under Section 18 of the Act. Section 18 says that the Board shall consist of one member who shall be a Judge of the High Court, if the appeal preferred involves a claim exceeding ten thousand rupees.
There is no doubt, therefore, that, although; an appeal lies to a High Court Judge, who constitutes the Board, the general period of limitation prescribed under the Limitation Act for filing civil appeals to the High Court is not applicable, but a special period of limitation of sixty days from the date of the order appealed against is provided for in Section 17 of the Act. The appeal under this Act is not to the High Court but to the Board, though that Board consists of a Judge of the High Court.
There can be no doubt, therefore, that a special period of limitation has been prescribed for appeals under Section 17 of the Act. The question is, whether the provisions of Section 5 of the Limitation Act can be invoked in aid of the appellant for extending the time for filing the appeal. Section 29 of the Limitation Act, just quoted, says that Section 3 of that Act shall apply to such a case where a special or local law prescribes a different period of limitation for filing a suit, appeal or application.
It also says that, for the purpose of determining the period of limitation prescribed by the special or local law for any suit, appeal or application, the provisions of Section 4 and other sections, mentioned in Sub-clause (a) of Clause (2) of Section 29 of the Limitation Act shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. Sub-clause (b) of Clause (2) of Section 29 further says that the remaining provisions of the Limitation Act, which will include Section 5, "shall not apply".
A plain reading of Section 29 of the Limitation Act, therefore, shows that, in a case where a special or local law prescribes a period of limitation different from the period of limitation prescribed in the Limitation Act, Section 3 will apply, but not Section 5 and some other sections of the Limitation Act, except those mentioned in Sub-clause (a) of Clause (2) of Section 29, provided further that they are not expressly excluded by such special or local law, It is contended, however, on behalf of the petitioner that, as Section 3 of the Limitation Act has been made applicable by Clause (2) of Section 29, the other provisions mentioned in Section 3 must also be held applicable to such a case. I shall now read the relevant portion of Section 3 of the Limitation Act:
"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, x x x x"
It is said that; as Section 3 mentions Sections 4 to 25, those sections also apply to a case under the special or local law. Section 3 of the Limitation Act en joins upon the Court to dismiss a suit, appeal or application if it is instituted, preferred or made after the period of limitation prescribed therefor in the first schedule to the Limitation Act, although limitation has not been set up as a defence- but this provision is made subject to Sections 4 to 25.
That can only mean that, if the plaintiff, appellant or petitioner, as the case may be, is entitled in law to take advantage of the provisions of Sections 4 to 25 in saving the suit, appeal or application from limitation, Section 3, which provides for dismissal of the suit, appeal or application filed after the prescribed period of limitation, shall, only subject to the provisions contained in those sections, apply. This, in my judgment, is the meaning of the provisions of Section 3 of the Limitation Act.
Even if, however, the grammatical construction of this section had induced the Court to take a different view and to hold that, by virtue of Section 3, the other sections, namely, Sections 4 to 25, also are made applicable, even that construction should not be allowed to prevail for the reason that the Limitation Act, read as a whole, namely, reading Section 3 with Section 29, makes it quite clear that, in case of a special or local law, Sections 3, 4, 9 to 18 and 22 have been made applicable and, as provided for by Sub-clause (b) of Clause (2) of Section 29, "the remaining provisions of this Act shall not apply".
If Sections 3 and 29 are read together, there is no doubt in my mind as to the intention of the Legislature, and it is to the effect that, though Section 3 is made applicable and also Sections 4, 9 to 18 and 22 in the circumstances mentioned in Sub-clause (a) of Clause (2) of Section 29, the other provision of the Act have no application to a case under the special or local law. In Maxwell, Interpretation of Statutes, 9th Edition, page 55, it has been said that "the words of a statute, when there is a doubt about their meaning are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the legislature has in view. Their meaning is found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained."
In my opinion, however, there is no scope, even on the language used, for the argument that, because Section 3 of the Limitation Act has been made applicable, the other sections mentioned in Section 3 are also to apply. Another reason that suggests to me for holding that, by virtue of Section 3, Sections 4 to 25 do not apply to a case under the special or local law, which prescribes a different period of limitation, is that if, by virtue of Clause (2) of Section 29, which makes Section 3 applicable even to cases under special or local law, Sections 4 to 25 were intended to be made applicable by reason of Section 3, then there was absolutely no need for the legislature to enact Sub-clause (a) of Clause (2) of Section 29 providing for the application of Sections 4, 9 to 18 and 22 which would be covered by Section 3 itself. In that view of the matter, Sub-clause (a) of Clause (2) of Section 29 had been absolutely redundant; and the established rules of interpretation of statutes forbid the Courts to hold that any provision of the statute is redundant.
Section 42-B of the Act also distinctly provides "The provisions of this Act shall have effect notwithstanding anything contained in any other law for the time being in force''. There is no scope, therefore, for the application of Section 5 of the Limitation Act to appeals under the Act. Learned Counsel has, however, placed some authorities in support of his proposition that Sections 4 to 25 mentioned in Section 3 of the Limitation Act are applicable to a case like the present one by reason of the application of Section 3.
3. Province of Bengal v. Amulya Dhon Addy, AIR 1950 Cal 356 (A), was a case where the question was, whether Section 5 of the Limitation Act was applicable to an appeal against a decision of the President or the Tribunal established under the Calcutta Improvement Act (Bengal Act 5 of 1911). That Act made no provision for appeal, and Act 18 of 1911 (Central) was enacted as a supplement to the Bengal Act 5 of 1911 giving right of appeal against the decision of the President or the Tribunal.
There is no doubt that both these Acts, Bengal Act 5 of 1911 and Central Act 18 of 1911, were local and special laws within the meaning of Section 29 of the Limitation Act, but there was no special period of limitation prescribed for filing appeals under Central Act 18 of 1911, and in Section 6 of that Act, the following provision was made :
"'An appeal under Section 3 shall be deemed to be an appeal under the Code of Civil Procedure, 1908, within the meaning of Article 156 of Schedule I, Limitation Act."
It is clear, in my opinion, therefore, that in that case the provisions of Section 29 (2) of the Limitation Act were not at all called in for consideration because the opening words of this clause are "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..." Their Lordships of the Calcutta High Court, however, elaborately considered the question as if Section 29 (2) of the Limitation Act was attracted, and they observed as follows :
"(14) Some of the decisions have also proceeded on the assumption that where none of the Articles of Schedule I, Limitation Act, covers an appeal or application allowed by the special or local law and the local or special law prescribes the period of limitation, the ease is to be considered to be a case where the special or local Act had prescribed a period of limitation different from that prescribed in Schedule I, Limitation Act. On this basis it has been laid down that the effect of Section 29 (2), Limitation Act (the amended section), attracts pro-prio vigore only the last part of Section 3, Limitation Act, which empowers the Court to dismiss suo motu a suit, appeal or application filed beyond time, and also Sections 4, 9 to 18 and 22 but not the other sections of the Limitation Act mentioned in the first part of Section 3 unless the local or special law by its own provisions makes any of those excluded sections applicable. The case of Nilratan Ganguly v. Emperor, ILR 60 Cal 571: (AIR 1933 Cal 124): 34 Cr LJ 633 (B), expounds this view. Strictly speaking although it is not necessary for us in this case to consider the correctness of these views, we may state that as at present advised we are not prepared to fully endorse them for the following reasons :
"(15) Cases calling for decision would necessarily fall into four types, namely, (1) Where the local or special law is silent on the matter of limitation in respect of suits, appeals or applications contemplated or authorised by it, and some Article of Schedule I, Limitation Act, would cover them; (2) Where some article of that schedule would have covered such suits, appeals or applications, but the local or special law had prescribed a period of limitation different from that prescribed in the relevant Article of Schedule I, either by altering the period of time mentioned in Clause 2 of the relevant Article of Schedule I or by prescribing a starting point different from that indicated in Col. 3 thereof; (3) Where none of the Articles of Schedule I would have covered such appeals or applications and the local or special law itself prescribed limitation. ..... (4) Where none of the Articles of Sch. I would have covered such appeals or applications and the special or local law prescribed none. It is not necessary to consider this case for the purpose of our discussion.
"(16) In the first type what is contained in Section 3, Limitation Act, the whole of it would be applicable as before. The amendment of 1922 does not touch that case. The case we are considering would in substance fall within this type". After having made the aforesaid observations that that case was covered by the first type of cases mentioned above, their Lordships went on to consider the second and third types' of cases, and they laid down as follows :
"(17) In our view, Section 29 (2) deals with the second and third types and that in a distinctive manner. The first part of that section contemplates the second and the last part the third type. The language employed in the opening paragraph would suggest that the use of conjunctive particle 'and' and the repetition of the phrase 'prescribed for appeal or application by any special or local law' in the second part.
The result is that for the second type the whole of Section 3, Limitation Act, is made applicable, unless that section had been excluded by the special or local law, with the result that in that type of cases it would be legitimate for the plaintiff, appellant to invoke the aid of Sections 4 to 25, Limitation Act, to save his suit, appeal or application from being dismissed for having been filed beyond the period of time prescribed. It seems to us that what has been overlooked in previous cases is that Section 3 does not provide simpliciter or dismissal of suit etc...... filed out of time, but itself subjects that power to certain qualifications."
With the greatest respect for their Lordships, it must be held that all these observations in regard to the second type of cases, which represents the present case which I am dealing, were mere obiter dicta as they have themselves said that the case with which they were concerned fell under the first type of cases mentioned by them. Even if these observations were needed for the decision of that case, I am definitely of the opinion that the decision to which their Lordships arrived with regard to the second type of cases was not correct.
4. The next case is the case of Bijanlata Bassak v. Bhudhar Chandra Das, AIR 1955 Cal 578 (C), which has been relied upon by the petitioner. In that case, it was held that Sections 3 to 25 of the Limitation Act were applicable to an appeal to the Chief Judge of the Court of Small Causes under Section 32 (1), West Bengal Premises Rent Control Act (17 of 1950) which was really an appeal to the District Judge under the Code of Civil Procedure, 1908, within the meaning of Article 152 of the Limitation Act, as the same period of limitation had been prescribed as regards these appeals both in the Schedule to the Limitation Act as well as in the special law, and the necessary consequence was that the provisions of Sections 3 to 25 of the Limitation Act were applicable to such an appeal.
It will be apparent, therefore, that the provisions of Section 29 (2) of the Limitation Act did not come in for consideration as their Lordships said that Section 29 (2) of the Limitation Act did not include any provision for cases where the same period was prescribed both in Schedule I, Limitation Act, and the special or local law; but their Lordships agreed with the analysis of the provisions of Clause (2) of Section 29 of the Limitation Act as made in the case reported in AIR 1950 Cal 356 (A), already referred to. In my judgment, here again, the observations in regard to the interpretation given to Section 29 (2) of the Limitation Act in the AIR 1950 Cal 356 (A), case were also obiter.
5. I shall now consider some of the other cases of this Court and other Courts.
6. In Kristo Singh Sardar v. Secy. of State, 8 Pat LT 710: (AIR 1927 Pat 333) (D), it was held that Section 5 of the Limitation Act had no application to proceedings under the Land Acquisition Act, although no reasons were given. In Hasan Imam v. Brahmdeo Singh, ILR 9 Pat 747: (AIR 1930 Pat 301) (E), Section 29 of the Limitation Act came in for particular consideration. Their Lordships dealt with the effect of the amendment of Section 29 of the Limitation Act made in 1922, and they said :
"The effect of the amendment was to extend and not to restrict the operation of the Limitation Act...... There is an express reference in Section 29 (2) to Section 3 which itself refers to Sections 4 to 25. Sections 4, 9 to 18 and 22 are specifically made applicable so far as not expressly excluded and the only reasonable way in which Clause (b) can be read is that the remaining provisions of the Act, if they are to apply, are to be specially applied. They will not be applied by force of the Limitation Act itself."
In Surya Mohan Thakur v. State of Bihar, ILR 30 Pat 126: (AIR 195L Pat 462) (F), it was held that Section 29 of the Limitation Act provided that the sections of the Act like Section 4, Sections 9 to 18 and Section 22 were to apply not entirely but only to the extent they were not expressly excluded by any special or local law, whereas the remaining provisions of the Act were not to apply at all. It was further held that the rules such as the Bihar (War Requisition of Property) Compensation Rules, 1945, framed under the Defence of India Act, were rules framed for purposes of emergency and the exigency of War and they would therefore come under the bar provided for in Section 29 of the Limitation Act, 1908, After quoting Section 29 of the Limitation Act, it was further observed as follows:
"It will be seen from the provisions, quoted above, of Section 29 of the Limitation Act that if these rules are within the purview of the words 'special or local law' then Section 5 of the Limitation Act is entirely out of the way. The sections of the Limitation Act like Section 4, Sections 9 to 18 and Section 22 are to apply not entirely but only to the extent they are not expressly excluded by such special or local law."
It was finally decided that the appellant in that case was not entitled to the benefit of Section 5 of the Limitation Act. In ILR 60 Cal 571: (AIR 1933 Cal 124) (B), their Lordships, after having discussed several authorities of various Courts, held that the Emergency Powers Ordinance, 2 of 1932, was a special law within the meaning of Section 29 of the Limitation Act, and that Section 5 of the Limitation Act had no application to an appeal under Section 39 of the Ordinance. In Mafizur Rahman v. Sm. Jamila Khatun, 42 Cal WN 1174 (G), it was ruled that Section 5 of the Limitation Act had no application to a case under the Registration Act, which was a special law.
In M. Venkatramayya v. T. Venkata Subbayya, AIR 1946 Mad 351 (H), Section 29 (2) of the Limitation Act came in for consideration; and as Section 25-A of Madras Act 4 of 1938 prescribed no special period of limitation different from that prescribed by Schedule I of the Limitation Act for filing an appeal, it was held that Section 5 of the Limitation Act applied. In K. Ramakotayya v. N. Sitharamaswami, AIR 1946 Mad 381 (I), it was held that Section 5 of the Limitation Act was not applicable to an application for passing a final decree under Order 34, Rule 5, of the Code of Civil Procedure, &, therefore, the Court had no power to condone the delay in filing such an application.
In Chheda Lal v. Officer, Commanding Station Meerut Cantonment, AIR 1941 All 207 (J), it was held that the expression "the remaining provisions of this Act shall not apply" in the amended Section 29 of the Limitation Act simply meant that they were not to apply proprio vigore that is, merely by virtue of the Limitation Act itself, and that, if they were to apply, the grounds for applying them must be found in the special or Local Act itself, and Section 5 of the Limitation Act was held not applicable to an appeal under Section 29 of the Cantonments (House Accommodation) Act; and the decision in ILR 9 Pat 747: (AIR 1930 Pat 301) (E), as also in ILR 60 Cal 571: (AIR 1933 Cal 124) (B), referred to above, was accepted as a good law.
7. It is no use multiplying cases on this point, and I am firmly of the view that Section 5 of the Limitation Act has got no application to an appeal under the provisions of the Bihar Land Reforms Act, and further that, merely because Section 3 of the Limitation Act is made applicable by Section 29 of that Act, the other sections mentioned in Section 3 are not applicable to appeals under a special or local law.
8. In the view which I have taken of the legal position, it is not necessary now to deal with the application on its merits, and I hold that the Board has no power to extend the period of limitation, under Section 5 of the Limitation Act, as pro vided for by the Bihar Land Reform Act. The application under Section 5 of the Limitation Act is, therefore, dismissed with costs. Hearing fee Rs. 32/-.