GUNVANTLAL MANEKCHAND Vs. ATULKUMAR AND CO

JUDGEMENT

(1.) The respondent who is original plaintiff had filed Summary Suit No. 4757 of 1982 in the Small Causes Court at Ahmedabad for the purpose of recovering an amount of Rs. 1,726.50 from the petitioner who was original defendant in that suit. The learned Judge decreed the suit by judgment and order dated 19/06/1984. Therefore, an application against the order dated 28-3-1985 passed by the Appellate Bench. Small Cause Court, Ahmedabad rejecting an application to set aside the judgment and decree passed by a Judge of that Court. for new trial under Sec. 38 of the Presidency Small Cause Courts Act, 1882 was filed by the present petitioner before the Appellate Bench of the Small Causes Court with a prayer to set aside the judgment and decree passed by the learned Judge and to hold a fresh trial. The said application was filed on 3/07/1984 and was registered as New Trial Application No. 23 of 1984. The Appellate Bench relied on the case of E. C. Pareira v. Somani and Co. Ltd.,. and came to the conclusion that a period of limitation for filing an application under Sec. 38 is governed by Sec. 38 itself and no power is given either under the Limitation Act or under the Rules of Small Cause Court for extending the period and in that view of the matter the Appellate Bench dismissed the said application as barred by provisions of the Limitation Act, by order dated 28-3-1985. Being aggrieved by the said order, the petitioner who is original defendant has filed the present Revision Application. At the time of hearing of this Revision Application, it was contended by Shri B. K. Damani, the learned Counsel for the petitioner that reliance placed by the Appellate Bench of Small Causes Court, Ahmedabad on the case of E. C. Pareira v. Somani and Co. Ltd., reported in. was not justified at all inasmuch as the said judgment was delivered under the provisions of old Limitation Act, namely, The Indian Limitation Act, 1908. According to the learned Counsel the provisions of Sec. 5 of the Limitation Act, 1963 would apply to the present case and the Appellate Bench ought to have entertained new trial application, on merits as sufficient cause was made out by the petitioner for not filing the said application within the time prescribed under the law.

(2.) As against this, it was contended by Shri V. J. Desai that the time-limit of 8 days laid down in Sec. 38 of the Presidency Small Causes Courts Act, 1882 is a special law of limitation and therefore, provision of Sec. 5 would not be applicable and the Appellate Bench was justified in placing reliance upon the case of E. C. Pareira v. Somani and Co., (supra) and in rejecting the application filed by the petitioner. In support of his contention that the Presidency Small Causes Courts Act, 1882 is a special law, the learned Counsel placed reliance on the case of Kausalya Rani v. Gopalsinh, reported in AIR 1964 SC 260. In the said case before the Supreme Court, the respondent therein was committed to the Court of Sessions to stand his trial under Sec. 493 or in the alternative under Sec. 495 of the I.P.C. The prosecution was launched by a petitioner on complaint filed by the appellant before the Magistrate. The respondent was tried by the Addl. Sessions Judge, Gurdaspur, who acquitted him. The appellant before the Supreme Court, therefore, filed an application on 22/04/1960 - very much later than 60 days from the date of the order of acquittal for special leave to appeal from that order under Sec. 417, subsec. (2) of Code. While it was admitted on behalf of the appellant that the apple was filed long after the period prescribed by sub-sec. (4) of Sec. 417 of the Code, it was argued that the delay could be condoned under Sec. 5 of the Limitation Act. The Supreme Court on an elaborate examination of the provisions of the Code and the Limitation Act came to the conclusion that the bar of time prescribed by sub-sec. (4) of Sec. 417 was a special law within the meaning of Sec. 29 of the Limitation Act and that therefore, Sec. 5 of the Limitation Act would not be available to the appellate for condoning the admitted delay in filing the application for special leave. The Supreme Court after considering the provisions of the Code and Limitation Act, ruled that as far as appeal by a private prosecutor is concerned, the legislature was astute to specifically lay down in Sec. 417 itself that the foundation for such an appeal should be laid within 60 days from the date of the order of acquittal. In that sense this rule of 60 days bar is a special law, i.e., to say a rule of limitation which is specially provided for in the Code itself, which does not ordinarily provide for a period of limitation for appeals or applications and the provisions of the Code supplemented by the provisions of Sec. 29 subsec. (2) of the Limitation Act make it clear that Sec. 5 of the Limitation Act would not apply for an application for special leave to appeal, under Sec. 417, sub-sec. (3) of the Code and in that view of the matter the Supreme Court dismissed the appeal.

(3.) In view of what has been laid down by the Supreme Court in the above referred case, it will hav to be held that the time prescribed of a days in Sec. 38 of the Presidency Small Cause Courts Act, 1882 is a special law, i.e., to say - a rule of limitation, which is specially provided for in the said Act itself, which does not ordinarily provide for a period of limitation for appeals or applications.