TINKORI BYSACK Vs. MUNSIF SECOND COURT HOWRAH

JUDGEMENT

(1.) THE petitigner asks for an order quashing the judgment of the learned Munsif, Second Court, Howrah, on the preliminary point of limitation. On the 23rd June 1952, the Thika Controller passed an order of eviction of the opposite party No. 2 on the application of the petitioner under section 5 of the Calcutta Thika Tenancy Act, 1949. The opposite party No. 2 preferred an appeal from the order. During the pendency of the appeal on the 21st of October, 1942 the Calcutta Thika Tenancy (Amendment) Ordinance, 1952 came into force. On the 19th January, 1953 the opposite party No. 2 preferred an application to the District Judge. Howrah, for relief under section 5 (2) of the Ordinance. The appeal came up for hearing on the 29th August, 1953 before the Second Additional Subordinate Judge who held that the opposite party No. 2 was entitled to relief under sec. 5 (2) of the Ordinance and he gave relief accordingly. The petitioner moved this Court for revision. By his order dated 12th January, 1954, Chunder, J. set aside the order dated 29th August 1953 and held that the Thika Controller was the only Court before which am application under sec. 5 (2) of the Ordinance could have been filed. He, therefore, directed the appellate Court to dispose of the application according to law, that is to say, to return the application to the party to take such further steps as the party may be legally advised. He observed that the question of limitation was to be decided if and when the application is filed in a proper Court. The application was accordingly returned to the opposite party No. 2 who filed it before the Thika Controller on the 26th February, 1954. On the 27th March, 1957 the application was taken up for decision of the preliminary question whether the application was barred by limitation. The learned Controller held that the opposite party No. 2 was prosecuting another civil proceeding with due diligence and in good faith in a Court without jurisdiction and that the opposite party No. 2 was entitled to exclude the time during which another civil proceeding was so prosecuted from the computation of the special period of limitation prescribed by section 5 (2) of the Ordinance and, therefore, the application was not harried by limitation. Section 5 (2) of the Calcutta Thika Tenancy (Amendment) Ordinance, 1952 provides that an application under that section may be made within three months of the commencement of the Ordinance. Now the Ordinance amended the Calcutta Thika Tenancy Act which is a special and local law relating to the landlord and tenant in respect of Thika tenancies in Calcutta. There can be no doubt that the Calcutta Thika Tenancy (Amendment) Ordinance, 1952 was a special and local law and that it is prescribed for a special period of limitation for an application under section 5 (2 ). The question then is whether section 29 (2) of the Indian Limitation Act applies to this special and local law.

(2.) ON behalf of the petitioner it is argued that section 29 (2) does not and cannot apply because the section must be read with the Preamble to the Limitation Act which explicitly states that the Limitation Act applies only to certain applications to Courts. It is contended that the Appellate Tribunal under the Calcutta Thika Tenancy Act is a persona designata and is not an ordinary Court and, therefore, section 29 (2) of the Indian Limitation Act cannot apply to the application contemplated by section 5 (2) of the Ordinance. I am unable to accept this argument. The section in its plain meaning applies to applications filed before an ordinary Court of law as also to applications filed before a persona designata. The Preamble to the Act does not cut down the plain meaning of the section. This point is concluded by the decision of a Division Bench of this Court in Imperial Bucket Co. v. Sm. Bhagwati Basak, (1) A. I. R. 1954 Cal. 520. Section 29 (2) of the Indian Limitation Act therefore clearly applies to section 5 (2) of the Ordinance which prescribes for a special period of limitation. It is not necessary to decide whether the case is covered by the first limb or by the second limb of section 29 (2) of the Indian Limitation Act. In either case it is clear that section 14 of the limitation Act applies to the application under section 5 (2) of the Ordinance. The provisions of sec. 14 of the Indian Limitation Act are not excluded by the special and local law.

(3.) ON behalf of the petitioner it is next contended that although section 14 is attracted to the local law by the force of section 29 (2) of the Limitation Act, section 14 (2) by its own language cannot apply in the circumstances of the case. It is contended that by section 14 (2) only the time taken for prosecuting a civil proceeding in a court can be excluded, that the Appellate Tribunal is not a court and as such, the time taken for prosecuting the previous civil proceeding before the Appellate Tribunal cannot be excluded.