DHARAMA CHAND ROY Vs. NABIN CHANDRA MONDAL

JUDGEMENT

(1.) This is a petition under Article 227 of the Constitution against an order passed by the Munsif in exercise of his jurisdiction under Section 19 of the West Bengal Lard Reforms Act. The learned Munsif considered the circumstances in this case and condoned the delay in filing the appeal. He has not found whether he applied Section 5 of the Limitation Act or Section 18 of the Limitation ACT nor has he stated the reasons why he came to the conclusion that he was authorised by law to condone the delay, But the question remains whether he was authorised by law to condone the delay. Mr. Pabitra Kr. Bose on behalf of the appellant says that the Court has no jurisdiction nor power to condone the delay. According to him, no provision of the Limitation Act would apply because relevant Article in the Limitation Act does not refer to any appeal to the Munsif. It refers to an appeal to the District Judge and, therefore, according to him, there is no period of limitation prescribed by the Limitation Act and, according to him, the whole of the Limitation Act is excluded and because that is excluded, there is no question of applying either Section 5 of the Limitation Act or Section 18 of the Limitation Act. The result according to him is that the learned Munsif was not authorised by law to condone the delay. Mr. Chittatosh Mukherjee, on the other hand, replies by saying that when we consider the applicability of the period prescribed under the Limitation Act under the Special Act, we shall consider the same as far as they may be applicable. According to him, the Article of the Limitation Act really refers to the appeal court from the decision of the trial court and the appeal court under the Code of Civil Procedure, is the Court of a District Judge. Therefore, the reference really is to the Court of Appeal. He says that Section 5 or Section 18 of the Limitation Act applies.

(2.) The first question therefore is whether the Limitation Act applies. The preamble to the Limitation Act says,

(3.) Hence it is clear that the Limitation Act applies to all appeals to all Courts. It is indeed true it does not apply to all applications but only to "certain applications". But there Is no doubt it applies to all appeals and we are now concerned with appeals. The first point taken by Mr. Bose Is that the Bhagchas Officer under the Land Reforms Act is no Court. Section 57 of the Bengal Land Reforms Act has come into force and the result of Section 57 Is that an order for restoration of possession Is to be treated as if such order Is a decree of a Civil Court This was a case where the application was for termination of cultivation and the Bhagchas Officer on the 7th January 1961 ordered eviction. Hence, the order for eviction, according to Section 57 of the Land Reforms Act, operates as a decree of a Civil Court. I have been referred to a decision of a Division Bench of Banerjee and Amaresh Roy, JJ. reported in 64 Cal WN 1062, between Brajendra Kumar v. Gosta Dolui, where their Lordships hem that the Munsif was a Civil Court and an appeal to a Munsif means an appeal to a Civil Court and to a persona designata. Hence, according to Section 57, which has now come into force, and also according to the decision of the Division Bench referred to above, the Munsif was a Civil Court within the meaning of the preamble to the Limitation Act. I should make it clear that the Limitation Act refers to all Courts, -- not merely to Civil Court, but if it is a Civil Court, there is no doubt that this is a Court within the meaning of the preamble. The result therefore is that the Indian Limitation Act applies because of its preamble to all appeals to the Munsif. The next question is, if the Limitation Act applies, does it apply entirely or only some of the provisions would apply? There is no doubt that the entirety of the Limitation Act would apply subject to any provision in the Limitation Act itself. Therefore, unless there is some other provision in the Limitation Act Sections 5 and 18 would apply. But there is another provision in the Limitation Act In Section 29 which deals with period of Limitation prescribed for any appeal by any special or local law. Section 29 (2) of the Limitation Act, as it now stands, is the result of some controversy over the interpretation of Section 29 as it stood before the amendment by Act 10 of 1922 and as it stood by the Act of 1871. The history of the development ot this Section is of some importance for an appreciation of the amendment made in the Act in 1922. The relevant Section as it stood i.e. Section 6 of Act of 1871 is as follows: