UNION OF INDIA Vs. RAM KANWAR

JUDGEMENT

(1.) THE following Judgment of the court was delivered by

(2.) THIS appeal by special leave is preferred against the judgment of a division bench of the Circuit bench of the Punjab High court at Delhi confirming that of a single Judge of that High court issuing a writ of mandamus against the Union of India directing it to restore possession of the flat requisitioned by the said government to the respondents.

(3.) TO appreciate the first contention it is necessary to read the relevant provisions of the Limitation Act, the clauses of the Letters Patent and the rules made by the High court. 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......' The First Schedule <FRM>JUDGEMENT_247_AIR(SC)_1962Html1.htm</FRM> LETTERS PATENT FOR THE HIGH court OF LAHORE. Clause 27. And WE do further ordain that it shall be lawful for the High court of Judicature at Lahore from time to time to make, rules and orders for regulating the practice of the court and for the purpose of adopting as far as possible the provisions of the Code of Civil Procedure, being an Act, No. V of 1908, passed by the governor-General in council and the provisions of any law which has been or may be made, amending or altering the same, by competent legislative authority for India, to all proceedings in its testamentary, intestate and matrimonial jurisdiction respectively. Clause 37. And We do further ordain and declare that all the provisions of these Our Letters Patent are subject to the legislative powers of the governor-General in Legislative council, and also of the governor-General in council under section seventy-one of the government of India Act, 1915; and also of the governor-General in cases of emergency under section seventy-two of that Act, and may be in all respects amended and altered thereby. Rules and Orders of the High court of Punjab. Rule 4: No memorandum of appeal preferred under clause 10 of the Letters Patent shall be entertained if presented after the expiration of 30 days from thedate of the judgment appealed from, unless the admitting bench in its discretion, for good cause shown, grants further time for the presentation. It is clear from the aforesaid provisions that while under Art. 151 of the Limitation Act a period of 20 days is prescribed for preferring an appeal from an order of the High court of Punjab in the exercise of its Original Jurisdiction, under r. 4 of High court Rules for an appeal under cl. 10 of the Letters Patent a period of limitation of 30 days is provided. If Art. 151 applies, the Letters Patent appeal in the present case was clearly barred. But if r. 4 could be invoked, then the appeal was well within time. The combined effect of the provisions may be stated thus: Under cl. 27 of the Letters Patent, the High court of Judicature of Lahore has the power to make a rule prescribing the period of limitation in respect of appeals from orders made by that court in exercise of its Original Jurisdiction to a division bench of that High court. Under el. 37 thereof, the provisions of the Letters Patent are subject to the legislative powers of the governor-General in Legislative council and, therefore, any rule made in exercise of a power conferred under the Letters Patent must necessarily be subject to the provisions of the Limitation Act which is a law made by the Legislative council. Article 151 of the Limitation Act prescribes the period of limitation of 20 days for preferring an appeal against an order made by the High court in exercise of its original jurisdiction, and if there is no other limitation on that section, r. 4 of the High court Rules must give way to the said Article. But s. 29(2) of the Limitation Act limits the scope of that section, for it says that where a special or local law prescribes for an appeal a period prescribed therefore in the said Schedule, the provisions of s. 3 shall apply as if such period were prescribed therefor in that Schedule, that is, if there is a special or local law prescribing a period of limition, it will be deemed to be the period of limitation prescribed by the First Schedule to the Limitation Act in respect of an appeal covered by that rule. TO state it differently, if r. 4 is a special law, the Limitation Act itself must be deemed to prescribe the period of limitation mentioned under that rule for the class of cases covered by the said rule, and to that extent the rule derogates from Art. 151 of the First Schedule to the Limitation Act. Article 151 must be read subject to the special law. In this view, the argument that cl. 37 of the Letters Patent makes the rule made by the High court subject to the Limitation Act and, therefore, that Art. 151 shall prevail over r. 4 has no force. Briefly stated, the legal position is this: Under el. 27 of the Letters Patent, the High court has power to make a rule prescribing the period of limitation for a Letters Patent appeal against an order of a single Judge made in exercise of the original jurisdiction of the High court, and by reason of cl.37 thereof, the said rule is subject to the provisions of the Limitation Act; but the Limitation Act itself saves the operation of the said rule. With the result that r. 4 applies to such an appeal, whereas Art. 151 of the Limitation Act will govern appeals not covered by r. 4 or appeals, from orders made by other High courts in exercise of their original jurisdiction, if no rule similar to r. 4 is made by the said High court or High courts.