GOPAL SARDAR Vs. KARUNA SARDAR

JUDGEMENT

(1.) CIVIL APPEAL NO. 4688 OF 1998.

(2.) CIVIL APPEAL NO. 444 OF 2000.

(3.) Mr. Ranjit Kumar, learned senior counsel for the respondent in C. A. No. 444 of 2000 and Shri Shibshankar Sarkar, learned senior counsel for the appellant in C. A. No. 4688 of 1998 contended that an application made under Section 8 of the Act is a suit; hence Section 5 of the Limitation Act does not apply in making an application under Section 8 of the Act; Schedule to the Limitation Act contains three divisions, relating to suits, appeals and applications respectively; Article 97 of the Limitation Act, relates to enforcement of right of pre-emption and there is no reference to pre-emption suit anywhere else in the Schedule; under Article 97, the period of limitation prescribed is one year. As per Section 29(2) of the Limitation Act, the period of limitation prescribed under any special or local law for any suit, appeal or application is different from the period prescribed in the Schedule of the Limitation Act. Section 3 of the Limitation Act shall apply as if such period is the period prescribed by the Schedule of the Limitation Act and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 shall apply insofar as and to the extent to which they are not expressly excluded by such special or local law. The learned senior counsel submitted that under Section 14-H of the Act, a period of limitation is prescribed for filing an appeal or revision; in the second proviso thereto, it is expressly provided that Section 5 of the Limitation Act shall apply to an appeal under the said section. Under Section 14(O) for filing an appeal, 30 days is the period of limitation prescribed. Expressly, provision is also made in the same section enabling the appellate authority to permit further time for filing an appeal on sufficient cause being shown. Again under Section 19(2), a period of limitation of 30 days is prescribed for filing an appeal and in the proviso attached to the said sub-section, it is clearly and expressly stated that the provisions of Section 5 of the Limitation Act shall apply to an appeal under the said section. Under Section 8 of the Act, for filing an application for pre-emption, various periods of limitation are prescribed but unlike under other provisions aforementioned, no provision is made for applying Section 5 of the Limitation Act. Hence, by necessary implication the application of Section 5 of the Limitation Act is excluded to such proceedings. It was also urged that the Act is a complete Code relating to pre-emption proceedings. Even after amendment of certain provisions of the Act, no such provision was made under Section 8 to apply Section 5 of the Limitation Act. The learned senior counsel cited few decisions in support of their submissions. They urged that the impugned order in C. A. No. 4688 of 1998 cannot be sustained and the impugned order made in C. A. No. 444 of 2000 is to be upheld.