UMA SHANKAR PRASAD SINGH Vs. THAKUR LAKSHMI NARAYANJEE

JUDGEMENT

(1.) This is an application under Section 5 of the Limitation Act for extension of time. Under Section 17 of the Bihar Land Reforms Act, 1950 (Bihar Act 30 of 1950, an appeal lies to the Board constituted under Section 18 of that Act if the appeal is preferred within sixty days of the date of the decision of the Claims Officer under Section 16 of the Act. In the present case, the order of the Claims Officer was passed on 7th December, 1956, and the appeal was filed on 12-3-1957. According to the stamp report, which is not disputed, 13-2-1957 was the last date for filing the appeal, taking into consideration the time taken in obtaining copy of the order appealed against. On these facts, a petition has been filed under Section 5 of the Limitation Act for extension of time on the facts stated in the petition.

(2.) The question that arises is, whether Section 5 of the Limitation Act has any application to appeals filed under Section 17 of the Bihar Land Reforms Act. Section 29 of the Limitation Act, the relevant portion of it, reads as follows : "x x x x 2. Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed there for by the first schedule, the provisions of Section 3 shall apply, as if such period were prescribed therefor in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law (a) the provisions contained in Section 4, Sections 9 to 18, and Section 22 shall apply only in so" far as, and to the extent to which, they are not expressly excluded by such special or local law; and (b) the remaining provisions of this Act shall not apply. x x x x" There is no doubt that the Bihar Land Reforms Act is a special law providing for the transference to the State of the interests of proprietors and tenure-holders in land and of the mortgagees and lessees of such interests and for the constitution of a land Com mission for the State of Bihar with powers to ad vise the State Government on the agrarian policy to be pursued by the State Government consequent upon such transference and for other matters connected therewith. It is also a local law for the reason that it is applicable only to the State of Bihar. It is thus both a special and a local law within the meaning of the provisions of Section 29 of the Limitation Act. This position is not controverted by the learned Counsel appearing on behalf of the petitioner. The Bihar Land Reforms Act, which will hereafter be referred to as the Act, prescribes a different period of limitation for filing appeal to the Board constituted under Section 18 of the Act. Section 18 says that the Board shall consist of one member who shall be a Judge of the High Court, if the appeal preferred involves a claim exceeding ten thousand rupees. There is no doubt, therefore, that, although; an appeal lies to a High Court Judge, who constitutes the Board, the general period of limitation prescribed under the Limitation Act for filing civil appeals to the High Court is not applicable, but a special period of limitation of sixty days from the date of the order appealed against is provided for in Section 17 of the Act. The appeal under this Act is not to the High Court but to the Board, though that Board consists of a Judge of the High Court. There can be no doubt, therefore, that a special period of limitation has been prescribed for appeals under Section 17 of the Act. The question is, whether the provisions of Section 5 of the Limitation Act can be invoked in aid of the appellant for extending the time for filing the appeal. Section 29 of the Limitation Act, just quoted, says that Section 3 of that Act shall apply to such a case where a special or local law prescribes a different period of limitation for filing a suit, appeal or application. It also says that, for the purpose of determining the period of limitation prescribed by the special or local law for any suit, appeal or application, the provisions of Section 4 and other sections, mentioned in Sub-clause (a) of Clause (2) of Section 29 of the Limitation Act shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. Sub-clause (b) of Clause (2) of Section 29 further says that the remaining provisions of the Limitation Act, which will include Section 5, "shall not apply". A plain reading of Section 29 of the Limitation Act, therefore, shows that, in a case where a special or local law prescribes a period of limitation different from the period of limitation prescribed in the Limitation Act, Section 3 will apply, but not Section 5 and some other sections of the Limitation Act, except those mentioned in Sub-clause (a) of Clause (2) of Section 29, provided further that they are not expressly excluded by such special or local law, It is contended, however, on behalf of the petitioner that, as Section 3 of the Limitation Act has been made applicable by Clause (2) of Section 29, the other provisions mentioned in Section 3 must also be held applicable to such a case. I shall now read the relevant portion of Section 3 of the Limitation Act: "Subject to the provisions contained in Sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made after the period of limitation prescribed therefor by the first schedule shall be dismissed, although limitation has not been set up as a defence, x x x x" It is said that; as Section 3 mentions Sections 4 to 25, those sections also apply to a case under the special or local law. Section 3 of the Limitation Act en joins upon the Court to dismiss a suit, appeal or application if it is instituted, preferred or made after the period of limitation prescribed therefor in the first schedule to the Limitation Act, although limitation has not been set up as a defence- but this provision is made subject to Sections 4 to 25. That can only mean that, if the plaintiff, appellant or petitioner, as the case may be, is entitled in law to take advantage of the provisions of Sections 4 to 25 in saving the suit, appeal or application from limitation, Section 3, which provides for dismissal of the suit, appeal or application filed after the prescribed period of limitation, shall, only subject to the provisions contained in those sections, apply. This, in my judgment, is the meaning of the provisions of Section 3 of the Limitation Act. Even if, however, the grammatical construction of this section had induced the Court to take a different view and to hold that, by virtue of Section 3, the other sections, namely, Sections 4 to 25, also are made applicable, even that construction should not be allowed to prevail for the reason that the Limitation Act, read as a whole, namely, reading Section 3 with Section 29, makes it quite clear that, in case of a special or local law, Sections 3, 4, 9 to 18 and 22 have been made applicable and, as provided for by Sub-clause (b) of Clause (2) of Section 29, "the remaining provisions of this Act shall not apply". If Sections 3 and 29 are read together, there is no doubt in my mind as to the intention of the Legislature, and it is to the effect that, though Section 3 is made applicable and also Sections 4, 9 to 18 and 22 in the circumstances mentioned in Sub-clause (a) of Clause (2) of Section 29, the other provision of the Act have no application to a case under the special or local law. In Maxwell, Interpretation of Statutes, 9th Edition, page 55, it has been said that

(3.) Province of Bengal v. Amulya Dhon Addy, AIR 1950 Cal 356 (A), was a case where the question was, whether Section 5 of the Limitation Act was applicable to an appeal against a decision of the President or the Tribunal established under the Calcutta Improvement Act (Bengal Act 5 of 1911). That Act made no provision for appeal, and Act 18 of 1911 (Central) was enacted as a supplement to the Bengal Act 5 of 1911 giving right of appeal against the decision of the President or the Tribunal. There is no doubt that both these Acts, Bengal Act 5 of 1911 and Central Act 18 of 1911, were local and special laws within the meaning of Section 29 of the Limitation Act, but there was no special period of limitation prescribed for filing appeals under Central Act 18 of 1911, and in Section 6 of that Act, the following provision was made : "'An appeal under Section 3 shall be deemed to be an appeal under the Code of Civil Procedure, 1908, within the meaning of Article 156 of Schedule I, Limitation Act." It is clear, in my opinion, therefore, that in that case the provisions of Section 29 (2) of the Limitation Act were not at all called in for consideration because the opening words of this clause are "where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first schedule..." Their Lordships of the Calcutta High Court, however, elaborately considered the question as if Section 29 (2) of the Limitation Act was attracted, and they observed as follows : "(14) Some of the decisions have also proceeded on the assumption that where none of the Articles of Schedule I, Limitation Act, covers an appeal or application allowed by the special or local law and the local or special law prescribes the period of limitation, the ease is to be considered to be a case where the special or local Act had prescribed a period of limitation different from that prescribed in Schedule I, Limitation Act. On this basis it has been laid down that the effect of Section 29 (2), Limitation Act (the amended section), attracts pro-prio vigore only the last part of Section 3, Limitation Act, which empowers the Court to dismiss suo motu a suit, appeal or application filed beyond time, and also Sections 4, 9 to 18 and 22 but not the other sections of the Limitation Act mentioned in the first part of Section 3 unless the local or special law by its own provisions makes any of those excluded sections applicable. The case of Nilratan Ganguly v. Emperor, ILR 60 Cal 571: (AIR 1933 Cal 124): 34 Cr LJ 633 (B), expounds this view. Strictly speaking although it is not necessary for us in this case to consider the correctness of these views, we may state that as at present advised we are not prepared to fully endorse them for the following reasons : "(15) Cases calling for decision would necessarily fall into four types, namely, (1) Where the local or special law is silent on the matter of limitation in respect of suits, appeals or applications contemplated or authorised by it, and some Article of Schedule I, Limitation Act, would cover them; (2) Where some article of that schedule would have covered such suits, appeals or applications, but the local or special law had prescribed a period of limitation different from that prescribed in the relevant Article of Schedule I, either by altering the period of time mentioned in Clause 2 of the relevant Article of Schedule I or by prescribing a starting point different from that indicated in Col. 3 thereof; (3) Where none of the Articles of Schedule I would have covered such appeals or applications and the local or special law itself prescribed limitation. ..... (4) Where none of the Articles of Sch. I would have covered such appeals or applications and the special or local law prescribed none. It is not necessary to consider this case for the purpose of our discussion. "(16) In the first type what is contained in Section 3, Limitation Act, the whole of it would be applicable as before. The amendment of 1922 does not touch that case. The case we are considering would in substance fall within this type". After having made the aforesaid observations that that case was covered by the first type of cases mentioned above, their Lordships went on to consider the second and third types' of cases, and they laid down as follows :