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How to ascertain limitation for filing revision before appellate bench of small cause court?

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE SIDE JURISDICTION

WRIT PETITION NO. 4977 OF 2009

Vasant Govind Tilak,
by his Constituted Attorney

Shrinivas Vaman Joshi,
Sayed Building No.2, Ram Nagar,Dombivali, Dist. Thane. .. Petitioner

Versus

1. Smt. Anusuya Dattaram Ghatge,
(since deceased)

2. Shri Arvind D. Ghatge,

3. Shri Subash D. Ghatge,
( since deceased)

4. Shri Milind D. Ghatge,

5. Dilip S/o. D. Ghatge,

6. Ms Shashikala D/o. Dattaram Ghatge,

residing at hut in Tilak Dham,8-A, Cama Road, Andheri (West,Mumbai – 400 068.

7. Vithoba Narayan Ghadge,
Age adult, Occ. Not known,

8. Smt. Rukmini Vithoba Ghadge,
Age adult, Occ. Not known,

9. Smt. Nirmala Nandkumar Ghadge,
Age adult Occ. Not known,

Nilesh Nandkumar Ghadge,
Age adult, Occ. Not known,

All residing in the hut, as extended

in Tilak Dham, 8-A, Cama Road,Andheri (West, Mumbai – 400 058. .. Respondents

Shri Bhavesh Parmar for the Petitioner.

Ms Bhargavi Raval i/by Ms Rekha Shukla for Respondent Nos.2, 4, 5 and 6.

Ms Divya Shah i/by M/s. Divya Shah & Co. for Respondent Nos.7 to 10.

 

CORAM : ABHAY.S. OKA, J

DATE ON WHICH JUDGMENT IS RESERVED: 29TH JANUARY, 2010.

DATE ON WHICH JUDGMENT IS PRONOUNCED: 9TH FEBRUARY,2010.

JUDGMENT:
1. This Writ Petition was taken up for final disposal.

Submissions of the learned counsel appearing for the Petitioner were heard on 6th January, 2010. On the same day, the submissions of the learned counsel appearing for 2nd, 4th, 5th and 6th Respondents were heard. On 20th January, 2010, the submissions of the learned counsel appearing for Respondent Nos.7 to 10 were heard. Following question arises in this Writ Petition under Article 227 of the Constitution of India.

“Whether the period of limitation provided under Article 131 of the Limitation Act, 1963 will apply to a Revision Application filed under Section 29(3 of the Bombay Rents, Hotel and Lodging Rates Control Act, 1947, or whether such a Revision Application will be governed by the residuary Article 137 of the Limitation Act, 1963.”
2. The Petitioner, who is the original Plaintiff, filed a Revision Application under Section 29(3 of the Bombay Rents, Hotel and Lodging Rates Control Act, 1947 ( hereinafter referred to as “the said Act of 1947″ before the Appeal Bench of the Court of Small Causes for challenging the judgment and order dated 10th March, 2005 passed by the trial Court. The revision application was filed in April, 2008. By the order impugned in this Writ Petition under Article 227 of the Constitution of India, the Application for condonation of delay made by the petitioner was rejected by the Appeal Bench of the Court of Small Causes by holding that Article 131 of the Limitation Act, 1963 ( hereinafter referred to as the Act of 1963” will apply.

The case of the Petitioner was that Article 137 of the said Act of 1963 will apply and therefore, the period of limitation will be of 3 years.

Therefore, a prayer for condonation of delay was made seeking condonation of delay of only 28 days.

3. Article 131 of the Limitation Act, 1963 reads thus:-

Article Description of application Period of Time from which
limitation period begins to run

131 To any court for the exercise Ninety days The date of the
of its powers of revision decree or order
under the Code of Civil or sentence
Procedure, 1908 ( 5 of sought to be
1908, or the Code of revised.
Criminal Procedure, 1898 (5 of 1898.)

Article 137 of the Limitation Act, 1963 reads thus:-

Article Description of application Period of Time from which limitation period begins to run 137 Any other application for Three years When the right which no period of to apply accrues.
limitation is provided

elsewhere in this division.

4. The learned counsel appearing for the Petitioner submitted that Article 131 of the said Act of 1963 is applicable only to revision applications filed invoking power of revision under the Code of Civil Procedure, 1908 ( hereinafter referred to as “the said Code of 1908 or the Code of Criminal Procedure, 1898 ( hereinafter referred to as “the Code of 1898” . He submitted that the said article 131 will not apply to a revision application under section 29(3 of the said Act of 1947. He submitted that residuary article 137 will apply .He placed reliance on a decision of the Apex Court in the case of Kerala State Electricity Board, Trivandrum v. T. P. Kunhaliumma, [AIR 1977 SC 282 ]. He also placed reliance on another decision of the Apex Court in the case of Vidyacharan Shukla v. Khubchand Baghel & Others, [AIR 1964 SC 1099 ]. Lastly, he placed reliance on a decision of the learned Single Judge of Gujarat High Court in the case of Sumitraben Ratilal Shah & Ors. v. Meghraj Trikamdas & Co., [ 1979(XX Gujarat Law Reporter 856 wherein it is held that the Revision Application under Section 29(3 will be governed by residuary Article 137. The learned counsel appearing for the 2nd, 4th, 5th and 6th Respondents submitted that the Revision Application under Section 29(3 is required to be treated as a revision application under the said Code of 1908 and, therefore, Article 131 of the said Act of 1963 will be applicable. The learned counsel appearing for the Respondent Nos.7 to 10 submitted that it is the Article 131 of the said Act of 1963 which will be applicable in view of a decision of Gujarat High Court in the case of Noorbhai Jamalbhai v. Ambalal Chunilal, [1969(X Gujarat Law Reporter 215]. She invited my attention to Rule 22(i of the Bombay High Court (Appellate Side Rules, 1960. Relying upon the said Rule, she submitted that at highest, a period of limitation may be 90 days. She submitted that the revision application itself was not maintainable.

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5. I have given careful consideration to the submissions. It is not in dispute that there is no period of limitation provided under the said Act of 1947. Therefore, in view of Sub-section (2 of Section 29 of the said Act of 1963, the provisions of Section 4 to Section 24 of the said Act of 1963 will apply to the proceedings under the said Act of 1947. Therefore, the period of limitation for a revision application under Section 29(3 will be governed by the provisions of the said Act of 1963. As pointed out earlier, Article 131 deals with the applications made to any Court for exercise of powers of revision under the Code of Civil Procedure,1908 (hereinafter referred to as the said Code of 1908 or the Code of Criminal Procedure,1898 (hereinafter referred to as the said Code of 1898. The question is whether a revision application under Section 29(3 of the said Act of 1947 can be termed as a Revision Application under the said Code of 1908.

6. In the case of Noorbhai Jamalbhai (supra, the Gujarat High Court was dealing with a Revision Application under Section 29(2 of the said Act of 1947 as amended by Gujarat Act No.18 of 1965. The said Sub-section (2 of Section 29 conferred a power of revision on the High Court. The learned Judge of the Gujarat High Court relied upon the Appellate Side Rules framed by the said High Court. Rule 17 of the said Rules provided that a period of limitation of 90 days will apply in case of revision applications, both, under Section 115 of the said Code of 1908 or Revision Applications under the local laws. On the basis of the said Rule, the Gujarat High Court came to the conclusion that the procedure governing revision application under Section 115 of the said Code of 1908 and the procedure governing the revision application under Section 29(2 of the said Act, 1947 was the same and both categories of the Revision Applications are the revision applications under the said Code of 1908. Therefore, Gujarat High Court held that a Revision Application under Section 29(2 of the said Act of 1947 is governed by the limitation provided by Rule 17 and Article 131 of the said Act of 1963.

Thus, in the said decision, the Gujarat High Court was dealing with a Revision to the High Court under a different provision i.e. Sub-section (2 of Section 29. The Gujarat High Court essentially relied upon the Rule 17 of its own Rules which provided that period of limitation will be 90 days in case of revision applications, both, under Section 115 of the said Code of 1908 as well as under special or local law. The Gujarat High Court thereafter proceeded to observe that the Amending Act 18 of 1965 which provided a remedy under Section 29(2 of the said Act of 1947 could not have intended that the Revision Application should be governed by residuary limitation of three years and such interpretation would, therefore, clearly frustrate the very object of the Limitation Act and such interpretation would make Rule 17 ultra vires. Essentially, the Gujarat High Court has relied upon its own rules which prescribed period of limitation of 90 days for revision applications under the local or special Acts.

7. At this juncture, it will be necessary to consider the decision of the Apex Court in the case of Vidyacharan Shukla (supra. The Apex Court dealt with the Article 156 of the Limitation Act of 1908 which provided that the period of limitation of appeal “under the Code of Civil Procedure,1908 to a High Court” will be 90 days except in cases provided for by the Articles 151 and 153. The issue before the Apex Court was as regards the period of limitation of an appeal under Section 116A of the Representation of Peoples Act, 1951 ( here-inafter referred to as “the said Act of 1951”. The said decision is by a Constitution Bench. There were separate Judgments delivered. In his judgment, Subba Rao, J. dealt with the issue before Apex Court. It is observed that:

“SUBBA RAO, J.– This appeal by special leave raises the question of true construction of the provisions of Section 29(2, of the Indian Limitation Act, 1908 (9 of 1908, in the context of its application to Section 116- A of the Representation of the People Act, 1951 (43 of 1951, hereinafter called “the Act”.

13. The facts relevant to the question raised lie in a small compass and they are not disputed. The appel- lant was elected to the House of the People from the Mahasamund Parliamentary Constituency in the State of Madhya Pradesh in the third General Elections. The respondents were the other contesting candidates. Re- spondent 1 filed an election petition before the Elec- tion Commissioner of India under Sections 80 and 81 of the Act for setting aside the election of the appel- lant and it was duly referred to the Election Tribunal.

The Election Tribunal, by its order dated January 5, 1963, dismissed the election petition. On February 11, 1963, the first respondent preferred an appeal against the said order of the Election Tribunal to the High Court of Madhya Pradesh at Jabalpur. Under sub-sec- tion 3 of Section 116-A. of the Act every appeal, under Chapter IV-A of the Act shall be preferred within a period of thirty days from the date of the order of the Tribunal under Section 98 or Section 99 thereof. Ad- mittedly, the appeal was filed more than 30 days from the said order. If the time requisite for obtaining a copy of the order of the Tribunal was excluded, the ap- peal was filed within 30 days; but if in law it could not be excluded, the appeal would certainly be out of time. The appellant contended before the High Court that Respondent 1 was not entitled in law to exclude the time so taken by him in obtaining a copy of the or- der of the Tribunal, but that plea was rejected by the High Court. On merits, the High Court held that the appellant had committed two acts of corrupt practice as defined by Section 123(4 of the Act and on that finding it declared the election of the appellant void. It is not necessary to go into the details of the judgment of the High Court given on the merits of the case as nothing turns upon them in this appeal, for the learned counsel confined his argument only to the question of limitation. The present appeal has been preferred by the appellant against the said order of the High Court setting aside his election.

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14. The only question, therefore, is whether for the purpose of computing the period of 30 days prescribed under Section 116-A(3 of the Act the provisions of Section 12 of the Limitation Act can be invoked.”
(Emphasis added)

8. Thereafter, in paragraph 16, Subba Rao,J. proceeded to observe as under:

“Article 156 of the First Schedule in the Limitation Act says that to an appeal under the Code of Civil Procedure, 1908, to a High Court, except in the cases provided for by Article 151 and Article 153, the period of limitation is 90 days from the date of the decree or order appealed from; and Article 151 referred to in Article 156 provides for an appeal against a decree or order of any of the High Courts of Judicature at Fort William, Madras and Bombay or of the High Court of Punjab in the exercise of its original jurisdiction. What does the expression “under the Code of Civil Proced- ure” in Article 156 of the First Schedule to the Limita- tion Act connote? Does it mean that a right of appeal shall be conferred under the Code of Civil Procedure, or does it mean that the procedure prescribed by the said Code shall apply to such an appeal? A comparis- on of the terms of Article 156 and Article 151 indic- ates that the emphasis is more upon the procedure ap- plicable to an appeal than on the right of appeal con- ferred under an Act. The heading of the first column in the First Schedule to the Limitation Act is “Descrip- tion of appeal”. The phraseology used in Article 156 describes the nature of the appeal in respect of which a particular period of limitation is prescribed. It does not refer to a right conferred under the Code of Civil Procedure, but only describes the appeal with refer- ence to the procedure applicable thereto. Though the word “under” may support the contrary view, the reference to Article 151 therein detracts from it. Article 151 is an exception to Article 156 indicating thereby that but for the exception, Article 156 will apply to an appeal covered by Article 151 that is to say, an appeal under Article 151 is deemed to be an appeal under the Code of Civil Procedure. Though a right of appeal is conferred under the Letters Patent, it is deemed to be an appeal under the Code of Civil Procedure, be- cause the Code of Civil Procedure governs the said ap- peal. As Rajamannar, C.J., observed in Kandaswami Pillai v. Kannappa Chetty “It is well established that the Limitation Act and the Code are to be read together, because both are statutes relating to procedure and they are in pari materia and, therefore, to be taken and construed together as one system as explanatory of each other.”

So construed it may reasonably be held that Article 156 provides for an appeal governed by the procedure prescribed by the Code of Civil Procedure.

This view was accepted by the Calcutta High Court as early as 1886 in Aga Mahomed Hamadani v. Cohen 8.”

9 In paragraph 18, the Honourable judge came to the conclusion that:

“Though it must be conceded that the point is not free from difficulty, we are not prepared to depart from the construction put upon the article as early as 1886 and which was not dissented from all these years. I, there- fore, hold that the expression “appeal under the Code of Civil Procedure” in Article 156 of the Limit- ation Act means an appeal governed by the Code of Civil Procedure.”
(Emphasis added)

10. Ayyengar, J. for himself and for B.P.Sinha C.J. in paragraph 6 held thus:

“The argument was that though the right of appeal in the case before us was conferred by Section 116-A of the Representation of the People Act and it was by vir- tue thereof that the appeal was filed by the respondent to the High Court; it was still an appeal “under the Code of Civil Procedure, 1908, to a High Court”. For this submission learned counsel relied principally on two decisions — one of the Calcutta and the other of the Madras High Court, and they undoubtedly support him. In Aga Mohd. Hamdani v. Cohen 3 as; well as in Ramasami Pillai v. Deputy Collector of Madura 4 which followed it, the Court held that to attract this article it was not necessary in order to be an “appeal under the Code of Civil Procedure” within the meaning of those words in Article 156, that the right to prefer the appeal should be conferred by the Code of Civil Procedure but that it was suffi- cient if the Procedure for the filing of the appeal and the powers of the Court for dealing with the appeal were governed by that Code. For adopting this construction the Court relied on the reference in Article 156 to Article 151. Article 151 dealt with ap- peals to the High Court from judgments rendered on the original side of that Court. The right to prefer these appeals was conferred by the Letters Patent con- stituting the respective High Courts, and not by the Code of Civil Procedure, though the Code of Civil Pro- cedure governed the procedure, jurisdiction and powers of the Court in dealing with the appeals so filed. There would have been need therefore to except cases covered by Article 151 only if the words “under the Code of Civil Procedure” were understood as meaning appeals for the disposal of which the provi- sions of the Code of Civil Procedure was made applic- able. We might mention that besides the Calcutta and the Madras High Courts a Full Bench of the Allahabad High Court also has in Dropadi v. Hira Lal 5 adopted a similar construction of the Article, the learned Judges, pointing out that several Indian enactments among them the Indian Succession Act, the Probate and Ad- ministration Act, the Land Acquisition Act and the Pro- vincial Insolvency Act proceeded on the basis of a legislative practice of conferring rights of appeal under the respective statutes without prescribing any period of limitation within which the appeal should be preferred, but directing the application of the provisions of the Civil Procedure Code to such appeals, the inten- tion obviously being that Article 156 would furnish the period of limitation for such appeals. We consider that these decisions correctly interpret Article 156 and, in any event, we are not prepared to disturb the decisions which have stood for so long and on the basis of the correctness of which Indian legislation has proceeded.”

ig (Emphasis added Raghubar Dayal, J in paragraph 33 held thus:-

“I am also of opinion that Article 156 of the First Schedule applies to appeals which are instituted in view of the right of appeal conferred by any special or local law and not in pursuance of the provisions of Section 96, Civil Procedure Code. “

11. Thus the majority view of the Constitution Bench is that the expression “appeal under the Code of Civil Procedure” in Article 156 means an appeal governed by the said Code of 1908. The said expression does not refer to a right conferred under the said Code of 1908, but only describes the appeal with reference to the procedure applicable thereto.
Therefore, the expression “powers of revision under the Code of Civil Procedure 1908” in Article 131 of the said Act of 1963 cannot be narrowly construed to mean that a revision contemplated therein is a revision provided under the said Code of 1908. It will have to be held that in view of the law laid down by the Apex Court in its decision in the case of Vidyacharan (supra that the said expression describes a revision with reference to the procedure applicable thereto. The expression does not merely refer to a remedy of revision provided under section 115 of the said Code of 1908.

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12. Under section 49 of the said Act of 1947, a power is conferred on the State Government to make rules as regards the procedure to be followed in hearing suits and proceedings. Accordingly the State Government has made the Bombay Rents, Hotel and Lodging House Rents Control Rules, 1948. None of the said rules specifically deal with a revision under section 29 (3. However, rule 16 provides that in deciding any question relating to procedure not specifically provided for by the rules , the Court shall, as far as possible, be guided by the provisions contained in the said code of 1908. Therefore, in case of revision applications under section 29(3), the Court will have to follow procedure laid down under the said Code of 1908 for dealing with revision applications. The result is that a revision application under section 29(3) of the said act of 1947 will be governed by article 131 which prescribes period of limitation of 90 days.

13. Therefore, the Appeal Bench of the Court of Small Causes was right in rejecting the application for condonation of delay as there was no explanation for long delay of a period of 2 years and 9 months. The case made out by the petitioner was that he received certified copy of the impugned order on 24th March 2005. Paragraph 3 of the application for condonation of delay contains alleged explanation for delay. The explanation offered in the said paragraph is for the period commencing from 18th of January 2008. The only explanation for delay from March 2005 to January 2008 is that the petitioner was under an impression that the period of limitation is of three years. The order under challenge in the revision was passed permitting amendment of the pleadings. The appellate court was justified in rejecting the prayer for condonation of a very long delay the substantial part of which has not at all been explained.

14. Hence, no interference is called for. The Writ Petition is rejected accordingly.

A.S.OKA,J

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