Calcutta High Court (Appellete Side)
Sri Subodh Sardar vs Soul Chandra Naskar And Others on 3 September, 2014
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
1 Sl. 43 03.09.2014
.
S.d. C O 2417 of 2014
Sri Subodh Sardar
-versus-
Soul Chandra Naskar and others.
Mr. Amal Krishna Saha
Mr. Kartik Kumar Ray
Mr. B. Baidya
......for the petitioner.
Mr. Jiban Ratan Chatterjee
Mr. Hiranmoy Bhattacharaya
....for the opposite parties.
The petitioner complains of the District Judge declining an application under Sections 5 and 14 of the Limitation Act, 1963 on the ground that the petitioner had not been diligent in pursuing the petitioner's remedy in accordance with law.
The petitioner sought to challenge an order passed by the Civil Judge(Junior Division) on an appeal arising under Section 14H of the West Bengal Land Reforms Act, 1955 before this court by way of a petition under Article 227 of the Constitution. The petitioner withdrew such petition before this court upon pointing out that there was an alternative remedy available under the first proviso to Section 14H of the said Act that allowed a revision to be carried 2 from the order passed by the Civil Judge(Junior Division) to a District Judge within 60 days from the date of the order.
The order of the Civil Judge(Junior Division) was passed on May 31, 2010. The certified copy of such order was obtained on June 7, 2010. The petition under Article 227 of the Constitution was filed in February, 2011 and it was withdrawn with leave on August 8, 2012. The revision was lodged before the District Judge on September 21, 2012.
The opposite parties are represented upon notice and say that Section 14 of the 1963 Act excludes the time spent in proceeding bona fide in a court without jurisdiction. The opposite parties suggest that since a period in excess of eight months had been wasted by the petitioner prior to approaching this court under Article 227 of the Constitution, the period of limitation had expired even before the petition was filed in this court and there was no question of the period spent in this court to be considered under Section 14 of the1963 Act.
The further contention of the opposite parties is that in the second proviso to Section 14H of the said Act of 1955 making the provisions of Section 5 of the 1963 Act applicable only to appeals 3 filed before the Civil Judge(Junior Division), it would be evident that the provisions of the 1963 Act or of Section 5 thereof would not apply to any revision from an order passed by the Civil Judge (Junior Division).
The second argument is taken up first since there would be no necessity to address the first contention raised by the opposite parties if the second ground is accepted. In civil matters, any special or local law may prescribe a period of limitation different from the period prescribed by the schedule to the 1963 Act for filing any suit, appeal or application. However, if the special or local law does not expressly bar the operation of the 1963 Act, then the provisions of the 1963 Act will govern the same. Section 29(2) of the 1963 Act mandates that in case of any special or local law prescribing a different period of limitation for any suit, appeal or application, the provisions contained in Sections 4 to 24 (inclusive) of the 1963 Act "shall apply only insofar as and to the extent to which, they are not expressly excluded by such special or local law."
The second proviso to Section 14H of the 1955 Act only provides for the application of Section 5 of the 1963 Act to appeals before the Civil Judge (Junior Division); but nothing in Section 14H 4 of the 1955 Act expressly prohibits the operation of the 1963 Act in respect of a revision under Section 14H of the 1955 Act before a District Judge. By virtue of Section 29(2) of the 1963 Act, Sections 4 to 24 (inclusive) of the 1963 Act would apply to a revision under Section 14H of the 1955 Act before a District Judge and it cannot be implied, by virtue of the express provision for the application of Section 5 of the 1963 Act to appeals before the Civil Judge (Junior Division) and the absence of an equivalent stipulation in respect of a revision to a District Judge, that the provisions of Section 5 of the 1963 Act or other provisions of the 1963 Act would not apply to a revision before a District Judge.
An analogy may be made by referring to Section 34 of the Arbitration and Conciliation Act, 1996. Section 34(3) of such Act permits an arbitral award to be challenged within three months of the arbitral award being received by the person challenging the same. The proviso to the sub-section allows a grace period of a further thirty days after the expiry of three months from the date of receipt of the arbitral award, but prohibits any challenge being received after the period of three months and thirty days from the date of receipt of the award by the use of the words, "but not thereafter." By virtue of Section 29(2) of the 1963 Act and the express exclusion of the application of the 1963 Act by 5 the words, "but not thereafter", the court has no jurisdiction to receive a challenge to an arbitral award under the 1996 Act beyond the period of three months and thirty days from the date of receipt of the award by the person challenging the same by condoning the delay beyond the period of 30 days after the expiry of three months from the date of receipt of the award by the person challenging the same. The expression "but not thereafter" limits the operation of Section 5 of the 1963 Act to a period of 30 days after the expiry of the stipulated period. However, since Section 34(3) of the 1996 Act does not expressly exclude other provisions of the 1963 Act, it has now come to be judicially recognised that even Section 14(2) of the 1963 Act would apply to Section 34 of the 1996 Act.
Since there is no equivalent express provision in Section 14H of the 1955 Act precluding the application of the 1963 Act to a revision before a District Judge, it cannot be implied that the 1963 Act would not apply to a revision before a District Judge since Section 29(2) of the 1963 Act makes the provisions of the 1963 Act applicable to a special or local law unless "expressly excluded".
As to the first contention of the opposite parties that if the wrong forum is approached after the expiry of the period of 6 limitation for approaching the appropriate forum, the period spent before such wrong forum becomes irrelevant, it has to be noticed that, typically, in matters where Section 14(2) of the 1963 Act is invoked there are three distinct periods: the period between the date of accrual of the cause of action and the date preceding the matter being filed before the wrong forum; the period spent before the wrong forum; and, the period after the matter is withdrawn from the wrong forum and the appropriate forum is approached. Section 14(2) of the Act would apply to the period actually spent before the wrong forum and not to the periods before or thereafter. Section 5 of the 1963 Act would govern the periods before and after the time spent in the wrong forum.
There is a huge difference between a period being excluded for the computation of the period of limitation and the delay over a certain period being condoned.
The two key elements of Section 14(2) of the 1963 Act are found in the expressions "prosecuting with due diligence" and "prosecuted in good faith". These expressions may not take within their fold the time spent by the applicant between the accrual of the cause of action and the filing of the proceedings before the wrong forum; but indicate that if the proceedings are prosecuted before the wrong forum with due diligence and good faith, the 7 period before the institution of the proceedings in the wrong forum may be seen to have been expended in good faith. In other words, if it is found that a matter had been prosecuted with due diligence and in good faith before a forum that suffered from a defect of jurisdiction or other cause of a like nature, the period expended prior to such wrong from being approached should be considered liberally for the purpose of assessing the sufficiency of cause shown in relation thereto in an application under Section 5 of the 1963 Act.
An application for exclusion of the time spent bona fide before a court without jurisdiction under Section 14(2) of the 1963 Act, is, generally, assessed charitably, particularly when a party seeks to challenge an order by way of an appeal or revision. The question that necessarily arises in the context is whether this court in exercise of its authority under Article 227 of the Constitution was a court which suffered "from defect of jurisdiction or other cause of a like nature" or was "unable to entertain" the petition, within the meaning of the relevant expressions in Section 14(2) of the 1963 Act.
Article 227 of the Constitution is couched in the widest words and gives the authority to a High Court to exercise "superintendence over all courts and tribunals throughout the 8 territories in relation to which it exercises jurisdiction." In theory, such provision vests unlimited authority on a High Court and does not restrict the kind of matters that it may receive in such jurisdiction or the nature of orders that can be complained of and dealt with thereunder. But the exercise of the power under Article 227 of the Constitution is guided by established judicial principles and an element of self-imposed restraint by the High Courts. It has come to be judicially accepted that if an order complained of is amenable to appeal or revision under some specific provision, a High Court will not entertain the complaint thereagainst under Article 227 of the Constitution. There may be occasions, however, where the special circumstances involved in a matter may impel the High Court to entertain a petition under Article 227 of the Constitution from a seemingly innocuous order of adjournment or even an order that is expressly appellable under some specific statute. The exercise of the jurisdiction under Article 227 of the Constitution is primarily to preserve the purity of the judicial system. Though such authority is mistakenly referred to as a plenary authority of revision, the power under Article 227 - akin though it may be to revision - is not merely that.
When there is a remedy available against an order of a court or a tribunal over which a High Court exercises superintendence under Article 227 of the Constitution - much like 9 when a petition under Article 226 of the Constitution is carried to a High Court despite a specific statutory remedy being available against the order or action complained against - the High Court will, ordinarily, not entertain the petition and leave the complainant free to pursue the statutory remedy in accordance with law. When a petition under Article 226 or under Article 227 of the Constitution is not received by a High Court on the ground of there being an alternative remedy available in respect of the order impugned or matters complained of, the time spent before the High Court has to be regarded as the time spent before a court which was "unable to entertain" the petition within the meaning of the relevant expression in Section 14(2) of the 1963 Act. It is an entirely different matter, however, as to whether the party that chose to approach the High Court under Article 226 or Article 227 of the Constitution can be seen to have prosecuted the matter with due diligence or in good faith. For example, an order passed by a court or a tribunal over which a High Court exercises superintendence may indicate, in the order itself, that a statutory remedy lay against such order. If the party seeking to challenge such order approaches the High Court under Article 226 or Article 227 of the Constitution by disregarding the recourse against the impugned order statutorily available, the party may be regarded to not have prosecuted the petition under Article 226 or Article 227 10 of the Constitution with due diligence or in good faith. But in the everyday case, it may not be easily presumed that a party approaching a High Court to challenge an order under Article 226 or Article 227 of the Constitution, and being turned away by the High Court and directed to the regular statutory forum, had not prosecuted the proceedings before the High Court with due diligence or in good faith. For, it ought not to be easily inferred that a party seeking to undo an order suffered by it would deliberately go to a court without jurisdiction or a High Court which was unlikely to entertain the challenge and advisedly refrain from carrying the challenge to the regular forum.
The petition under Article 227 of the Constitution was withdrawn on August 8, 2012 and the revision before the District Judge was lodged within reasonable time thereof on September 21, 2012. If the petitioner had delayed beyond the period of 60 days from the date of withdrawal of the petition from this court and the filing of the revision before the District Judge, there may have been merit in the opposite parties' assertion that the delay was inexcusable; though even in such a case, Section 5 of the 1963 Act would have applied to the period of the delay.
11
It is the case of the petitioner that the petitioner was not aware of the statutory remedy against an order of a Civil Judge (Junior Division) provided for in Section 14H of the 1955 Act and he had been misguided in approaching this court under Article 227 of the Constitution. The petitioner appears to have prosecuted the petition under Article 227 of the Constitution with due diligence and in good faith and, as such, the period expended before approaching this court should have been excused under Section 5 of the 1963 Act and the period spent in this court excluded in computing the period of limitation by giving the petitioner the benefit under Section 14(2) of the 1963 Act.
Since the revision was carried to the District Judge within reasonable time of the petition under Article 227 of the Constitution being withdrawn from this court, the District Judge ought to have seen the sufficiency of the cause shown by the petitioner in the application under Section 5 of the 1963 Act.
CO No. 2417 of 2014 succeeds and the order impugned dated March 25, 2014 is set aside. The delay on the part of the petitioner in approaching the District Judge is condoned and the District Judge is requested to hear the revision under Section 14H of the 1955 Act in accordance with law. It is hoped that the 12 revision will be disposed of by the District Judge on merits as expeditiously as the business of that court would permit.
There will be no order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
(Sanjib Banerjee, J.)