Jammu & Kashmir High Court
Dhani Ram Anand & Sons vs Indian Tourism Development ... on 27 February, 1995
Equivalent citations: AIR1996J&K12, AIR 1996 JAMMU AND KASHMIR 12
JUDGMENT Khan, J.
1. The short point that falls for consideration in this appeal is: Whether Sections 5 and 14 of the State Limitation Act, are available in computing the period of limitation of an appeal under the Central Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (for short, the Central Act)?
2. It arises in this way: Appellant is a licensee of a shop in Hotel Ashok, Jammu, belonging to respondent No. 1. His licence was to last for three years vide agreement dated 1-4-1983 expirable on 31-3-1986. On the expiry of his licence, eviction proceedings were initiated against him by the Estates Officer under the Central Act. He reacted by filing Writ Petition No. 957/86 in this court and obtained interior stay order against his eviction. This order was subsequently modified by a Division Bench of this Court providing as under:
"...........Respondent (ITDC) shall be at liberty to take possession of the shop in question from the petitioner subject to the result of writ petition in accordance with the procedure established by law......."
It appears that pursuant thereto fresh eviction proceedings were taken against the appellant and the order of eviction was passed on 3-6-1988. He appealed against this order before District Judge, Delhi, on 16-6-1988, when under Section 9 of the Central Act, he was required to file this appeal before the District Judge where the premises was situate i.e., District Judge, Jammu. This appeal naturally was dismissed on 9-8-1988 on the point of lack of jurisdiction.
3. Appellant thereafter filed a fresh appeal on 13-8-1988 before Addl. District Judge, Jammu, and while doing so, did not seek condonation of delay. However, he filed an application for condonation of delay on 18-1-1989 under Sections 5 and 14 of the State Limitation Act. On consideration, his appeal was dismissed as time barred by order dated 19-9-1992 on the ground that neither of the two sections were applicable in competing the period of limitation for filing appeal. Aggrieved by this he filed O.W.P. No. 889/92 in this court which was also dismissed vide order dated 17-2-1994 upholding the stand taken by the Addl. District Judge. He has now filed this appeal to assail the order of learned single Judge on variety of grounds. Some of the relevant grounds taken are: (a) that the impugned judgment had been passed without hearing as the OWP No. 889/92 was not listed for hearing on 17-2-1994 and no rejoinder was obtained from the appellant; (b) that the appeal is a continuation of the suit and consequently Section 14 of the State Limitation Act was available for computation of the period of limitation of appeal; (c) that even in the absence of Section 14 the courts below should have condoned the delay under Section 5 as good cause had been shown by the appellant; and (d) that the appellant could not be punished for the wrong advice of his advocate.
4. Mr. Gupta, learned counsel for the appellant pressed only two grounds into service. According to him, even when Section 14 was not attracted, the appellate court should have condoned the delay keeping in regard the circumstances provided in Section 5 of the State Limitation Act. Alternatively he urged that the appeal being continuation of the suit, there was no impediment in the application of Section 14 while computing the period of limitation of the appeal. He relied upon, AIR 1962 SC 361, AIR 1974 Punj & Har 229 and some judgments of this Court including 1983 Kash LJ 18, 1981 Kash LJ 42 and 1979 JKLR 686.
5. The grounds taken and the submissions made, in our view, are misconceived and misdirected. It should be taken well settled by now that Section 14 in terms does not apply in computing the period of limitation of an appeal. This is clear from the test of the provision itself Clauses (1) and (2) of which significantly omit the Appeal from its purview and specifically make it applicable only to a suit and an application. The relevant portion of these clauses is extracted as hereunder:
"14(1) In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding......."
(2) In computing the period of limitation prescribed for any application, the time during which the applicant had been prosecuting with due diligence another civil proceeding......"
A bare perusal of these provisions goes to show that the Appeal is specifically excluded from their purview. Holding otherwise would be to re-write these provisions and to provide for which was not intended by the legislation.
6. Mr. Gupta's submission that the appeal is the continuation of a suit may be correct in principle. But, it cannot be stretched to apply the provisions of the Limitation Act where such provisions are not specifically applicable when the Act itself makes a segregation and categorisation of the types of proceedings. This would be clear from the three different divisions contained in 1st Schedule appended to the State Act as also from its substantive provisions making clear distinction between the Suits, Appeals and Applications. If Mr. Gupta's contention was to be accepted, the provisions relating to suits would ipso facto become applicable to Appeals rendering the provisions regarding Appeals redundant. This surely is not the intent and scheme of the Act.
7. The next argument that the appellate Court should have taken in regard the requirements of Section 5 in the event of non-application of Section 14, is also misdirected. It requires to be borne in mind that though Section 5 of the Act, is applicable to Appeals but its operation in respect of special laws is excluded by Section 29 of the Act. This section makes the provisions contained in Sections 4, 9 to 18 and 22 only applicable to Special Acts to the extent they are not expressly excluded by such Act. There is no dispute that the Central Public Premises (Eviction of Unauthorised Occupants) Act, is a special Act attracting the provisions of the State Limitation Act only to the extent provided in Section 29. Therefore, once Section 29 excludes the application of Section 5, its provisions cannot be pressed in aid for condonation of delay. In the circumstances we hold that the provisions of Sections 5 & 14 of the State Limitation Act have no application for the purposes of computing the period of limitation of an Appeal under the Central Act.
8. It is a different matter that under Section 9 of the Central Act, appellant could have sought condonation of delay by satisfying the appellate Court that he was prevented from filing the appeal within time by a sufficient cause. He has admittedly not done so. Even if his application be treated as an application under this provision, it does not disclose any sufficient cause. We have perused this application wherein the only case set up by him was that he had filed the appeal in the Court of District Judge at Delhi, under the mistaken advice of his lawyer. This application is not supported by any affidavit of the lawyer concerned and, therefore, lacks in bona fides. It appears to us in the totality of circumstances that appellant has been resisting his eviction on one plank or the other and that even when the Appeal made under the Central Act was provided before the District Judge at Jammu, it seems to have been filed at Delhi to gain time and prolong the eviction. Appellant's diversion, therefore, to file the Appeal at Delhi does not appeal to be well-intentional and smacks of his design to avoid the inevitable. In the circumstances we are of the view that the appellant has failed to make out any sufficient cause for the delay in filing his Appeal before the Competent Forum.
9. We, therefore, reject this appeal in limine without any order as to costs.