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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

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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

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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

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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

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(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

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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-

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(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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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-,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.,

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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

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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

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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

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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

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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

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-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

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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:

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"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

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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

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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

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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.

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