JETHMAL Vs. AMBSINGH

JUDGEMENT

(1.) ALTHOUGH a law of limitation is primarily a law relating to procedure and as such comes into effect right from the moment it has been enacted and governs all proceedings instituted thereafter and has thus retrospective operation, there is ample authority in favour of the principle that whether or not a saving provision exist,* where a subsequent law curtails the period of limitation previously allowed, and such law comes into force atonce, it should not be allowed to have retrospective effect, which it would otherwise have, so as to destroy pre-existing vested rights of suits, because the giving of such retrospective effect amounts to not merely a change in procedure but a forfeiture of the very right to which the procedure relates. (Paras 20 & 8) (Wanchoo C. J. and Dave J. not expressing any view on the wider application of this principle, that is, where a law does not provide a saving clause, whether this principle can still be applied.) (Para 30) Where the language of the law of limitation is not precise and of doubtful import, such law may be construed equitably or reasonably, that is, such construction thereof may be adopted which favour the right to sue rather than which bars that right. Thus where it is a question of supplying an implied clause and it is possible to choose out of two implied clauses it would not be wrong for the court to choose that clause which obviates hardship. ] (Paras 23 & 31 In enacting the Marwar Limitation (Amendment) Act, 1949, the legislature thought it fit to provide a saving section, namely, sec. 4. From this the only reasonable inference is that it wanted to provide a facility to the litigants who would otherwise have been affected by the hardship brought about by the new Act. If we were to interpret this saving provision so as to hold that it applied only to suits to which were barred at the commencement of this Act, then two consequences seem to follow. First, that the saving clause does not more than what would have followed under the general principle as stated above Secondly, on this interpretation the right words to be understood or supplied after the expression "would be barred" being "at the commencement of the Act", the position under the saving section would in fact become worse because in that event all suits which are not barred at the commencement of the Act but must inevitably become barred for reasons entirely outside the control of the parties concerned, will not get any grace under sec. 4 whatever and their vested right of suit would be irrevocably lost. It would not be right to impute such an intention to the legislature, if an alternative reasonable interpretation is possible. Considering (1) that the Marwar Limitation (Amendment) Act, 1949, came into force atonce and (2) that the legislature clearly wanted to afford facilities to the litigants whose rights of suit were going to be affected under the new law, the missing words after the expression "would be barred" are not ''at the commencement of the Act" , but "at the time of its institution". (Para 21) Lalchand vs. Labura (1954 RLW 403 (over ruled)), Khusalbhai vs. Eabhai (ILR VI Bom. 26), Reg vs. Dorabji (11 Bom. HC Rep. 117), Chajmal Das vs. Jagdamba Prasad (ILR XI All. 408), Manjuri Bibi vs. Akkel Mahmud (XIX 1c 793), Gopeshwar vs. Jibanchandra (FB) (AIR 1914 Cal. 806), Lala Soniram vs. Kanhaiya Lal (XIX IC 291), Ramakrishna Chetty vs. Subraya Iyer (AIR 1916 Mad. 607), Rajah of Pittapur vs. Venkata Subha Row (AIR 1916 Mad. 912), Belgaum Dist. School Board vs. Md. Mulla (AIR 1945 Bom. 377), Cornil vs. Budson (120 English Report 160), Queen vs. The Leeds and Bradford Railway Company (21 E. J. M. C. 195), Towler vs. Chatterton (130 English Report 1280), The Ydun (1899) 15 TLR, 361), Negendra Nath vs. Suresh (AIR 1932 PC, 165), General A. F. & L. Assurance Corpn. vs. Janmahomed (AIR, 1941 P. C. 6), Delhi and London Bank vs. Orchard (. 4 I. A. 127), Mohd. , Sadast Ali vs. Lahore Corpn. (AIR, 1945 Lah. 324), Bans Bahadur Singh vs. Mt. Sakalraj Kuar. (AIR, 1924 Oudh, 385), Seshayya Subbadu (AIR, 1930 Mad 991), Durang Pal Singh vs. Pancham Singh (FB) (AIR 1939 All. 403), Udhavji Anandji vs. Bapudas Ramdas (AIR, 1950 Bom. 94), Maqbul Ahmed vs. Onkar Pratap (AIR. 1935 P. C. 85 ). B. N. Chanda, for Appellants; Sohan Nath, for Respondent; R. D. Gattani and Hastimal, amicus curae MODI, J.- This first appeal directed against a judgment and decree of the District Judge, Balotra, dated 27th January, 1954, dismissing the plaintiffs' suit as barred by time,, has been laid before this Full Bench, as it involves a very important point relating to the Law of Limitation.

(2.) THE facts of the case may be stated very briefly for our present purposes. THEre were money dealings between the plaintiffs appellants and the father of the defendant-respondent on whose death the present respondent was brought on the record as his heir and legal representative. THEre were two khatas between the plaintiffs and the respondent defendant's father. It was assumed in the trial court that the parties went into accounts on Migsar Sudi 3, Svt. 2004 corresponding to the 15th of December, 1947, and there came forth two accounts stated; one for a sum of Rs. 20,365/12/-and the other for a sum of Rs. 6,260/10/3. THE plaintiffs added as interest a sum of Rs. 9,041/- calculated at the stipulated rate of 14 as, per cent per mensem up to the date of the suit to the principal sum of Rs. 20,365/12/- on the one Khata, and a further sum of Rs. 3,178/3/- calculated at the rate of 1 per cent per mensem on the other khata and in the result the plaintiffs filed a suit for Rs. 38,845/9/3 in the court of the District Judge, Balotra, on the 23rd January, 1952. THE defendant respondent entirely repudiated the plaintiffs' claim and took a number of pleas in his defence; the most important of which was the plea that the suit was barred by limitation. THE trial court thought fit to try the issue of limitation, in the first instance, as the question involved was of pure law, and both parties had accepted that they did not want to lead any evidence on the issue in question. THE learned trial Judge came to the conclusion that the suit was barred by limitation and, he, therefore, dismissed the plaintiffs' suit. This appeal has been file from the above judgment and decree.

(3.) IN Rajah of Pittapur vs. Venkata Subba Row (5) (IR 1916 Maid. 912.), it was held, on a difference between two Judges that : - "the correct rule seems to be that though laws affecting limitation might abridge or enlarge periods of limitation in cases of suits or causes of action which were alive at the date when the new enactment came into force and which under the old law would expire afterwards, the change cannot, unless there is a clearly expressed intention to the contrary, either by apt words in the enactment or otherwise, be retrospective so as to destroy rights of suits which were alive on the date. "