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The Limitation Act, 1963
Section 5 in The Limitation Act, 1963
Section 25 in The Limitation Act, 1963
Section 23 in The Limitation Act, 1963
Section 29 in The Limitation Act, 1963

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Madras High Court
M.M. Handalappa, A.G. ... vs H.G. Krishna Reddy And Company on 9 August, 1983
Equivalent citations: (1984) 1 MLJ 85
Author: T Sathiadev

ORDER

T. Sathiadev, J.

1. In C.M.P. No. 2618 of 1983, petitioner prays for condonation of the delay of 128 days in the filing of the revision petition against an order passed by the Appellate Authority constituted under Tamil Act XVIII of 1960.

2. C.M.P. No. 2619 of 1983 is for grant of stay of the proceedings in E.P. No. 144 of 1983 and any other proceedings in H.R.C. No. 3251 of 1974 pending disposal of petition filed in C.M.P. No. 2618 of 1983.

3. Petitioner would state that he could not prefer the revision petition within the time-limit as prescribed under Section 25 (2) of Act XVIII of 1960, due to illness for four months.

4. Respondent herein submits that in view of the special period provided under Section 25 (2) and as Section 5 of Limitation Act, will have no application and the affidavit filed in support of the petition being devoid of any particulars about illness and no proof having been adduced about the truth of the claim that petitioner was ill for four months, this petition deserves to be dismissed.

5. Mr. Govind Swaminathan, learned Counsel for petitioner, submits that when there is no express exclusion of the applicability of the provisions of the Limitation Act, in Act XVIII of 1960 and in the light of the decisions under-mentioned and relied upon by him, Section 5 of Limitation Act would be applicable, when revision petitions are filed in this Court under Section 25 of Act XVIII of 1960.

6. In Humumdev v. Lalit Narain , it was held that, even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act, by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of the provisions -of the special law or the nature of the subject-matter and scheme of the special law, excludes their operation. What the Court has to see is whether the scheme of the special law and the nature of remedy provided therein are such that the Legislature intended, it to be a complete code. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the special Act. The point which arose for consideration in that case was whether in respect of an election petition filed under Representation of the People Act, 1951, Section 5 of the Limitation Act could be invoked. It was held, on what has been stated above, that Section 5 of the Limitation Act provides that a suit instituted, appeal preferred, an application made after the prescribed period shall be dismissed and in Section 86 of the Representation of the People Act, it also gives a peremptory command that the High Court shall dismiss an election petition which does not comply with Sections 81, 82 or 117 and Sections 82 and 117 being mandatory, election petition has to be dismissed under Section 86 (1). Hence, when the intention of the Parliament had been thus made clear that there should not be unnecessary delay in the disposal of election petitions, Section 5 of Limitation Act cannot be invoked.

7. When Special Leave to appeal to High Court under Section 417 (3) of the Code of Criminal Procedure was; sought, by filing an application beyond the period of limitation, it was held in Mangu Ram v. Municipal Corporation , that Section 5 of the Limitation Act would be available to the applicant, provided he can show sufficient cause. The contention that the period of 60 days prescribed under Section 417 (4) for making an application for special leave was mandatory and an inexorable time-limit which could not be relieved against or relaxed was repelled; and it was held that the said rule, only prescribes in the special law, a period of limitation, and that as provided under Section 29 (2) of the Limitation Act, there being no express exclusion made in the special law, Section 5 could be invoked.

8. On the question arising as to whether; Section 5 would be applicable, when an application is made for renewal of permits under the Motor Vehicles Act, it was, held in Mohammed Ashfaq v. S.T.A.T., U.P. , that Section 5 cannot be applied because Sub-section (3) of Section 58 being an express provision providing for an outer limit within which a delay could be condoned by the authority on sufficient cause shown, such provision expressly excludes applicability of Section 5. The proviso to Section 58(2) contemplates that an application for renewal of a permit should be made not less than 120 days before the expiry of the permit, but Sub-section (3) vests a discretion in the Regional Transport Authority to entertain an application for renewal of permit even if it is beyond time but in that case the delay should not be of more than 15 days.

9. In dealing with the period of limitation provided under! Uttar Pradesh Act XV or 1948, in S.T. Commissioner, Uttar Pradesh v. M. D. and Sons , it was held that there was nothing in the said Act to expressly exclude the application of Section 12(2) of the Limitation Act. Again the Supreme Court in R. N. Kar v. Gangadas , dealing with the provisions of West Bengal Premises Tenancy Act, 1956, took the view that the true meaning and effect of Section 29 was that, if any special period of limitation is prescribed by the Act, that period will govern the proceedings under the Act, in preference of the period, if any, prescribed by the Limitation Act; and when apart from such an overriding effect, the other provisions of the Limitation Act do not stand excluded or superseded but they are expressly made applicable by Section 29 itself, Section 5 would also apply.

10. Taking note of three significant features of the scheme of the provisions of Section 10(3) (i) and Section 10(3-B) of Uttar Pradesh Sales Tax Act, 1948, they being that, no limitation was prescribed for 'suo motu' exercise of jurisdiction by Revising Authority, and secondly the period of one year prescribed as limitation was unduly long, and thirdly that Revising Authority has no discretion to extend this period beyond the further six months, even on sufficient cause shown, it was held in Commissioner of Sales Tax v. Parson Tools , that these three stark features : of scheme and language used in those provisions, unmistakably show that the legislature has deliberately excluded the application of Sections 5 and 14 of the Limitation Act, except to the extent and in the truncated form embodied in Sub-section (3-B) of Section 10 of the Act.

11. Apart from these decisions of the Supreme Court reliance is also placed on Cochin Port Trust v. Associated Cotton Traders Limited , which, in dealing with Major Port Trusts Act, came to the conclusion that Section 120 of that Act, by implication, excluded the operation of the provisions of the Limitation Act. But, such an implied exclusion is not sufficient for the purposes of Section 29 (2) and hence Sections 4 to 24 of the Limitation Act would apply. The decision in Rajarathnam v. Rajammal , is relied upon to contend that even though there is no express provision in Section 25 of Act XVHI of I960', providing for exclusion of time taken for obtaining a certified copy, Rule 24 framed thereunder governs the procedure for furnishing certified copies, and taking note that there is no express provision made in the Scheme of the Act to exclude applicability of Section 12(3) of the Limitation Act, it was held that Section 12 of the Limitation Act must be applied to petitions for revisions filed under Section 25(2) of the Act.

12. A Division Bench of this Court in Rethinasamy v. Komalavalli (1982) 95 L.W. 552, in dealing with the scope of Section 23 of the Act, held that Section 5 would apply, there being no specific exclusion of its applicability in the Act. In this decision, in paragraph 18 it was held that since there is a specific exclusion in Section 25 and in Section 23 only a special period of limitation being provided there was no specific exclusion of Section 5, when appeals are filed under Section 23 to the Appellate Authority. Mr. Govind Swaminathan would rightly point out that, in this decision, no arguments had been advanced nor a finding was called for, as to whether Section 5 would apply when a revision is filed under Section 25, since the one and only question that arose for consideration was whether in filing an appeal under Section 23, Section 5 could be invoked or not. He states that whatever had been said by this Division Bench regarding revision petitions cannot be treated as a binding decision on this Court.

13. Counsel for respondent refers to the decision of this Court in Ramanatha Rao T. E. v. K. Janardhanan (1982) 95 L.W. 742, wherein it has been held that a revision petition filed beyond the time contemplated under Section 25 (2) can not be entertained, as there is no discretion left in the Court other than to reject it. He also refers to T. V. Annapalippu Nidhi, Tiruppanandal v. State , which dealt with the period of limitation arising under Tamil Nadu Act LVIII of 1961, but it does not take note of any of the earlier decisions, on either Section 29 (2) or Section 5 of the Limitation Act.

14. Mr. Govind Swaminathan, learned Counsel for petitioner, therefore submits that, in special enactments even though no express exclusion is made out, even then other pro visions of Act have to be looked at to find out whether the scheme of the Act is such that the Legislature has intended not to ex tend the benefits available under Sections 4 to 24 of the Limitation Act. By referring to the decision of this Court in Rethinasamy v. Komalavalli (1982) 95 L.W. 552, it is pleaded that, when this Court had held already, that there is no ex press exclusion of the Limitation Act while dealing with Section 23, it cannot be held that the scheme of the Act is such that there is an express exclusion for other sections. To substantiate this plea, he refers to the following passage in Hukumdev v. Lalit Narairi . It was sought to be contended that only those provisions of the Limitation Act which are applicable to the nature of the proceedings under the Act, unless expressly excluded, would be attracted. But this is not what Section 29 (2) of the Limitation Act says, because it provides that Sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. If none of them are excluded, all of them would become applicable. Whether those sections are applicable is not determined by the terms of those sections, but by their applicability or inapplicability to the proceedings under the special or local law.

15. What is meant is that, if one of Sections 4 to 24 becomes applicable, then all of them would apply. To what extent anyone of them would not apply, would depend on what its applicability is with reference to the particular provision in the special law. If a particular section in the said Act expressly pro vides otherwise, then the related provision in Limitation Act will not apply, even though other sections in the Act might have become applicable. Section 25 having been framed differently from that of Section 23, this contention is not convincing.

16. The Supreme Court has taken the view that if on an examination of the relevant pro visions of the special enactment and by looking into the scheme of the special law and each of the remedies provided therein, it appears that the Legislature has intended it to be a complete Code, then necessarily the provisions of the Limitation Act would be excluded, even in the absence of an express exclusions. There is no section in the Act to the effect that Sections 4 to 24 of the Limitation Act would not apply in respect of matters arising under Act XVIII of 1960. But, when Section 25 (2) not only prescribes a special period of limitation for preferring revision petitions to the High Court but also contains an inbuilt provision of an extended period within which petitions beyond the period of limitation could be instituted by conferring a discretion in the High Court to condone the delay within the prescribed period on sufficient cause shown it being unlike what has been provided under Section 23 of the Act and in the light of the decisions of the Supreme Court in Mohammed Ashfaq v. S.T.A.T., U.P. and S.S.T. v. Parson , it has to be held that Section 25 (2) itself contemplates an express exclusion of Section 5 of the Limitation Act.

17. In Mohammed Ashfaq v. S.T.A.T., U.P. , taking note of the discretion vested in the Regional Transport Authority in Section 58 (3) to entertain an application for renewal of a permit even if it is beyond time fixed but the delay should not be of more than 15 days it was held that it constitutes an express exclusion of Section 5 of the Limitation Act. Equally in C. S. T. v. Parson , taking note of the provisions made that the Revising Authority has no discretion to extend the period beyond a further period of six months even on sufficient cause shown, it was held that this unmistakably shows that Legislature had deliberately excluded the application of Sections 5 to 14 of the Limitation Act.

Section 58 (3) of Motor Vehicles Act. Notwithstanding anything contained in the first proviso to Sub-section (2), the Regional Transport Authority may entertain an application for the renewal of a permit after the last date specified in the said proviso for the making of such an application, if the application is made not more than fifteen days after the said last date and is accompanied by the prescribed fee.

Section 25(2) of Tamil Nadu Act, XVIII of 1960.--Every application to the High Court for the exercise of its power under Sub-section (1) shall be preferred within one month from the date on which the order or proceeding to which the application relates is communicated to the applicant:

Provided that the High Court may, in its discretion, allow further time not exceeding one month for the filing of any such application, if it is satisfied that the applicant had sufficient cause for not preferring the application within the time specified in this sub-section.

Proviso to Section 25 (2) confers a discretion in the High Court to allow further time not exceeding one month for the filing of any such application, if it is satisfied that the applicant has sufficient cause for not preferring the application within the time-limit of one month, as specified in that sub-section. This provision, being similar to what have come up before Supreme Court in Commissioner of Sales Tax v. Parson Tools and Mohd Ashfaq v. S.T.A.T., U.P. , this Court holds that when such express exclusion is inbuilt in the proviso to Section 25 (2), Section 5 of the Limitation Act, would not be applicable, and hence, the petition filed to condone the delay is dismissed, as not maintainable. Consequently C.M.P. No. 2619 of 1983 is also dismissed. No costs.