Saturday, 9 March 2019

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

 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.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
WRIT PETITION NO. 4977 OF 2009

Vasant Govind Tilak, Vs   Smt. Anusuya Dattaram Ghatge, 

CORAM
: ABHAY.S. OKA, J


DATED: 9TH FEBRUARY, 2010.
Citation: 2010(2) MHLJ 710

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

Article 137 of the Limitation Act, 1963 reads thus:Article
Description of application Period of
limitation
Time from which
period begins to
run
137 Any other application for
which no period of
limitation is provided
elsewhere in this division.
Three years When the right
to apply accrues.
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.
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 Subsection
(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 Subsection
(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. Subsection
(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 116A
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 appellant
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. Respondent
1 filed an election petition before the Election
Commissioner of India under Sections 80 and 81
of the Act for setting aside the election of the appellant
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 subsection
3 of Section 116A.
of the Act every appeal, under
Chapter IVA
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. Admittedly,
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 appeal
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 order
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.
14. The only question, therefore, is whether for
the purpose of computing the period of 30 days
prescribed under Section 116A(
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 Procedure”
in Article 156 of the First Schedule to the Limitation
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 comparison
of the terms of Article 156 and Article 151 indicates
that the emphasis is more upon the procedure applicable
to an appeal than on the right of appeal conferred
under an Act. The heading of the first column
in the First Schedule to the Limitation Act is “Description
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 reference
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, because
the Code of Civil Procedure governs the said appeal.
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, therefore,
hold that the expression “appeal under the
Code of Civil Procedure” in Article 156 of the Limitation
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 116A
of
the Representation of the People Act and it was by virtue
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 sufficient
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 appeals
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 constituting
the respective High Courts, and not by the
Code of Civil Procedure, though the Code of Civil Procedure
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 provisions
of the Code of Civil Procedure was made applicable.
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 Administration
Act, the Land Acquisition Act and the Provincial
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 intention
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.”
(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.
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)

Print Page

No comments:

Post a comment