SRIKANTA DAS ADHIKARI Vs. JHARESWAR CHANDA

JUDGEMENT

(1.) This is an application under Article 227 of the Constitution of India. The petitioner challenged an order passed by the Learned Civil Judge (Junior Division) at Dantan, Midnapore (now West). The order passed by the Learned Court below dated 14th July, 2003 in J. Misc. Case No. 32 of 2003 is under challenge. The order was passed considering an application (herein petition) under Section 5 of the Limitation Act.

(2.) Originally a petition under Section 204 of the West Bengal Panchayat Act was filed by the petitioner being plaintiff therein challenging a result of the election on 21st June, 2003. The petitioner was ill from 12th May, 2003 to 20th June, 2003. The petitioner prayed for condonation of delay since the cause of delay was not intentional but was physical problem. According to the Court below, Section 5 of the Limitation Act provides that one can apply for condonation of delay having sufficient cause for not preferring an appeal or making application within the period. But the application under Section 204 of the Panchayat Act is not an application but a proceeding in the nature of suit. Section 29 (2) of the Limitation Act provides that where any special or local law prescribes for any suit, appeal or application a period of limitation is different from the period prescribed by the schedule. The provisions of Section 3 shall apply as if such period prescribed by the schedule for the purpose of determining the period of limitation is prescribed for any suit, appeal or application by any special or local law. The provisions contained in Sections 4 to 24 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. The West Bengal Panchayat Act being a special law is hit by Section 29 (2) of the Limitation Act as such Section 5 of the Limitation Act finds no application in the petition. Having rejecting the petition under Section 5 of the Limitation Act the plaint was also rejected under Order 7 Rule 11 of the Code of Civil Procedure.

(3.) The Learned Counsel appearing for the petitioner herein contended that as per Section 2 (b) of the Limitation Act, 1963 'application' includes a petition. Section 81 of the Representation of People Act, 1951 speaks about the presentation of petitions. It has been highlighted by the Learned Counsel appearing for the petitioner that the election petition under the Act is the petition but not the suit.