{"id":143961,"date":"1963-12-20T00:00:00","date_gmt":"1963-12-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vidyacharan-shukla-vs-khubchand-baghel-and-others-on-20-december-1963"},"modified":"2016-12-09T00:54:38","modified_gmt":"2016-12-08T19:24:38","slug":"vidyacharan-shukla-vs-khubchand-baghel-and-others-on-20-december-1963","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vidyacharan-shukla-vs-khubchand-baghel-and-others-on-20-december-1963","title":{"rendered":"Vidyacharan Shukla vs Khubchand Baghel And Others on 20 December, 1963"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Vidyacharan Shukla vs Khubchand Baghel And Others on 20 December, 1963<\/div>\n
Equivalent citations: 1964 AIR 1099, \t\t 1964 SCR (6) 129<\/div>\n
Author: N R Ayyangar<\/div>\n
Bench: Sinha, Bhuvneshwar P.(Cj), Subbarao, K., Dayal, Raghubar, Ayyangar, N. Rajagopala, Mudholkar, J.R.<\/div>\n
           PETITIONER:\nVIDYACHARAN SHUKLA\n\n\tVs.\n\nRESPONDENT:\nKHUBCHAND BAGHEL AND OTHERS\n\nDATE OF JUDGMENT:\n20\/12\/1963\n\nBENCH:\nAYYANGAR, N. RAJAGOPALA\nBENCH:\nAYYANGAR, N. RAJAGOPALA\nSINHA, BHUVNESHWAR P.(CJ)\nSUBBARAO, K.\nDAYAL, RAGHUBAR\nMUDHOLKAR, J.R.\n\nCITATION:\n 1964 AIR 1099\t\t  1964 SCR  (6) 129\n CITATOR INFO :\n E\t    1969 SC 872\t (17)\n R\t    1970 SC1477\t (6)\n F\t    1974 SC 480\t (11,3,14,16)\n RF\t    1977 SC  56\t (6)\n RF\t    1989 SC1477\t (12)\n\n\nACT:\nElection-Appeal\t to  High Court under  s.  116-A-Whether  in\ncomputing period of limitation for filing an appeal to\tHigh\nCourt, time provided by s. 12 of Limitation Act for  getting\na  copy\t of the order can be  excluded-Whether\ts.  29(2)(a)\napplied\t to  cases  of\tappeal\tpreferred  under  s.  116-A-\nRelationship between the two limbs of s. 29(2) of Limitation\nAct-Limitation\tAct, 1908 (9 of 1908), ss. 12, 29(2),  First\nSchedule,  Art, 156-Representation of the People  Act,\t1951\n(43 of 1951), v. 116-A.\n\n\n\nHEADNOTE:\nThe appellant was elected to the House of the People from  a\nconstituency   in   the\t State\tof  Madhya   Pradesh.\t The\nrespondents   were   the   ,other   contesting\t candidates.\nRespondent No. 1 filed an election petition challenging\t the\nelection  of  the  appellant.  That  election  petition\t was\ndismissed  by the Election Tribunal.  Against the  order  of\nthe TribunaL the first respondent preferred an appeal to the\nHigh Court under s. 116-A\n134-159 S.C.-9.\n130\nof the Representation of the People Act, 1951.\t Admittedly,\nthe  appeal was filed more than 30 days after the  order  of\nthe Election Tribunal.. If the time requisite for  obtaining\na copy of the order of the Tribunal was excluded, the appeal\nwas  filed within 30 days.  However, if that was not  'done,\nthe appeal was out of time.  The contention of the appellant\nbefore the High Court was that the respondent No. 1 was\t not\nentitled  in  law  to  exclude the  time  taken\t by  him  in\nobtaining  the\tcopy  of the order of  the  Tribunal.\tThat\ncontention  was rejected by the High Court.  The High  Court\nalso  found  that the appellant was guilty of  two,  corrupt\npractices  and\thence  his  election  was  set\taside.\t The\nappellant came to this Court by special leave.\nThe  only question raised before this Court was whether\t for\n'the  purpose of computing the period of 30 days  prescribed\nunder s. 116-A(3) of the Act, the provisions of s. 12 of the\nLimitation  Act\t could be invoked or  not.   Dismissing\t the\nappeal,\nHeld:  (per B. P. Sinha, C.J., K. Subba Rao, Raghubar  Dayal\nand N.\t  Rajagopala Ayyangar JJ.) (i) The exclusion of time\nprovided for by s. 12 is permissible in computing the period\nof limitation for filing.the  appeal in the High Court.\nPer  B.\t P.  Sinha, C.J., K. Subba  Rao\t and  N.  Rajagopala\nAyyangar  JJ.) (ii) Though the right of appeal is  conferred\nby  s. 116-A of the Representation of the People Act,  1951,\nand  it\t is by virtue thereof that the appeal was  filed  by\nrespondent in the High Court, it is still an appeal \"  under\nthe  Code of Civil Procedure, 1908, to the High Court\".\t  To\nattract\t Art.  156 of the First Schedule to  the  Limitation\nAct,  it  is not necessary for an appeal to  be\t an  \"appeal\nunder the Code of Civil Procedure\" that the right to  prefer\nthe  appeal  should  be\t conferred  by\tthe  Code  of  Civil\nProcedure.  It is sufficient if the procedure for the filing\nof  the appeal and the power of the Court for  dealing\twith\nthe appeal, when filed, are governed by the Code.\nPer  Raghubar Dayal and Mudholkar JJ.--There is\t no  warrant\nfor holding that an appeal which is not given by the Code of\nCivil  Procedure  is still an appeal under the\tCode  merely\nbecause its procedural provisions govern its course.   Where\na  right  of appeal is given by some other law,\t the  appeal\nmust  be  regarded as one udder that law and not  under\t the\nCode of Civil Procedure.  There is no reason for  construing\nthe  words  \"under the Code of Civil Procedure\"\t as  meaning\n\"governed  in the matter of procedure by the Code  of  Civil\nProcedure\".\nHeld:(iii)  (per B. P. Sinha, C.J., N.\tRajagopala  Ayyangar\nand  Raghubar Dayal JJ.) The entire sub-s. (2) of s.  29  of\nthe  Limitation.  Act  has  to\tbe  read  as  an  integrated\nprovision  and the conjunction \"and\" connects the two  parts\nand  makes  it\tnecessary for attracting cl.  (a)  that\t the\nconditions  laid  down by the opening words  of\t sub-s.\t (2)\nshould be satisfied.\n131\nPer  Subba Rao and Mudholkar JJ.-The second limb  of  sub-s.\n(2) of s. 29 is wide enough to include a suit, appeal or  an\napplication under a special or local law which is of a\ttype\nfor which no period of limitation is prescribed in the First\nSchedule.\nPer  Subba  Rao J.-The use of the word \"any\"  clearly  shows\nthat the second part of sub-s. (2) of s. 29 does not  depend\non the first part or vice versa.  The second part of  sub-s.\n(2) is an independent provision providing for that  category\nof proceedings to which the first part does not apply.\nHeld:  (i) that s. 116-A does not provide an exhaustive\t and\nexclusive  code\t of limitation for the\tpurpose\t of  appeals\nagainst\t orders of Tribunals and also does not\texclude\t the\ngeneral provisions of the Limitation Act.  Section  29(2)(a)\nof the Limitation Act speaks of express exclusion and  there\nis no express exclusion in s. 116-A(3) of the Representation\nof  the People Act, 1951.  Moreover, the proviso to s.\t116-\nA(3)  from which an implied exclusion is sought to be  drawn\ndoes  not  lead\t to any\t such  necessary  implication.\t The\nproviso only restores the power denied to the Court under s.\n29(2)(b)  of  the Limitation Act.  If this proviso  had\t not\nbeen there, s. 29(2)(b) would have excluded the operation of\ns.  5 of the Limitation Act with the result that even  if  a\nsufficient cause for the delay existed, the High Court would\nhave been helpless to excuse the delay.\n(ii)S. 12(2) of the Limitation Act applies to an appeal\t to\nthe High Court against the order of the Tribunal.  An  order\nmade  under s. 98 of the Representation of the\tPeople\tAct,\n1951, if it contains also the reasons for it, is a composite\ndocument satisfying the definition of a judgment as well  as\nthat  of  an  order  and  thereby  attracting  the  relevant\nprovisions  of s. 12 of the Limitation Act.   Section  12(2)\ndoes not say that the order mentioned therein shall be\tonly\nsuch order as is defined in the Civil Procedure Code.  If  a\nstatute\t provides for the making of an order and  confers  a\nright  of  appeal to an aggrieved party against\t that  order\nwithin a prescribed time, the time requisite for obtaining a\ncopy of the order can be excluded.  The Act of 1951 empowers\nthe  Tribunal to make an order and gives a right  of  appeal\nagainst that order to the High Court and therefore s.  12(2)\nis directly attracted without any recourse to the definition\nof an order in the Code of Civil Procedure.\nPer  Mudholkar\tJ.-The first limb of s. 29(2)  is  concerned\nonly  with  the proceedings under special or local  law\t for\nwhich  a  period of limitation is prescribed  in  the  First\nSchedule  to the Limitation Act.  If for such  a  proceeding\nthe  period to be found in the First Schedule  is  different\nfrom  that prescribed under a special or local law,  certain\nconsequences   will   follow  under   the   provision.\t  No\ninconvenience  is  to  be caused by  giving  a\tliteral\t and\nnatural\t interpretation\t to  the  expression  used  by\t the\nlegislature  in\t the first portion of sub-s. (2)  of  s.  29\nbecause cases of other kind can easily come under the second\nportion thereof.  Case Law referred to.\n132\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION:, Civil Appeal No. 815 of 1963.
\nAppeal by special leave from judgment and order dated  April
\n23, 1963, of the Madhya Pradesh High Court in 1st Appeal No.
\n23 of 1963.\n<\/p>\n
G.S.  Pathak, B. A. Musodkar, S. N. Andley and\tRameshwar
\nNath, for the appellant.\n<\/p>\n
M. S. Gupta, for respondent No. 1.\n<\/p>\n
December 20, 1963.\n<\/p>\n
The following Judgments were delivered:\n<\/p>\n
AYYANGAR  J.-On behalf of the Chief Justice and himself)  We
\nhave  had  the\tadvantage of perusing the  judgment  of\t our
\nbrother\t Subba Rao J. and we agree with him that the  appeal
\nshould be dismissed.\n<\/p>\n
The  justification for this separate judgment,\thowever,  is
\nbecause of our inability to agree with him in his  construc-
\ntion  of the relative scope of the two limbs of s. 29(2)  of
\nthe Indian Limitation Act.\n<\/p>\n
The  facts  of the case have been set out in detail  in\t the
\njudgment of Subba Rao J. and it is therefore unnecessary  to
\nrepeat\tthem.  There were three principal points  that\twere
\nurged  before  us  on  either  side  which  require  to\t  be
\nconsidered  and all of them turn on the proper\tconstruction
\nof s. 29(2) of the Indian Limitation Act which we shall\t for
\nconvenience set out here:\n<\/p>\n
\t      “29(2)   Where  any  special  or\t local\t law
\n\t      prescribes for any suit, appeal or application
\n\t      a\t period\t of limitation\tdifferent  from\t the
\n\t      period   prescribed  therefor  by\t the   first
\n\t      schedule,\t the provisions of section  3  shall
\n\t      apply,  as  if  such  period  were  prescribed
\n\t      therefor in that schedule, and for the purpose
\n\t      of   determining\tany  period  of\t  limitation
\n\t      prescribed for any suit, appeal or application
\n\t      by any special or local law-\n<\/p><\/blockquote>\n
\t      (a)   the\t provisions contained in section  4,
\n\t      sections\t9 to 18, and section 22 shall  apply
\n\t      only in so far as, and to the extent to which,
\n\t      they  are\t not  expressly\t excluded  by\tsuch
\n\t      special or local law; and
\n\t      133<\/span>\n<\/p><\/blockquote>\n
\t      (b)   the\t remaining  provisions of  this\t Act
\n\t      shall not apply.”\n<\/p><\/blockquote>\n
The  learned Judges of the High Court have proceeded on\t the
\nbasis  that  s.\t 29(2)(a) applies to  the  case\t of  appeals
\npreferred under s. 116 A of the Representation of the People
\nAct,  1951  and on that footing have held  that\t the  appeal
\npresented  to  them  by the respondent was  within  time  if
\ncomputed  after making the deductions permitted by s. 12  of
\nthe Limitation Act. It is the correctness of this view\tthat
\nis challenged before…..us.\n<\/p>\n
Proceeding now to  deal with the question whether the  terms
\nof  s.\t29(2)  are  apt to take in  appeals  under  the\t Re-
\npresentation of the People Act, the first matter to be\tcon-
\nsidered\t necessarily  is whether that Act is a\t“special  or
\nlocal law” within the opening words of the sub-section.\t  As
\nto  this, however, Mr. Pathak raised no dispute and he\tcon-
\nceded  that s. 116A was such a “special or local law.”\tThat
\nthis  “special\tor local law” prescribes “for  an  appeal  a
\nperiod\tof limitation” is also evident.\t The first point  of
\ncontroversy,  however, has arisen as to whether “the  period
\nof  limitation\tprescribed by the special or  local  Law  is
\ndifferent  from the period prescribed therefor by the  first
\nschedule.” The contention urged strenuously before us by Mr.
\nPathak,\t the  learned counsel for the  appellant,  was\tthat
\nthere  would  be  “a different period” only  where  for\t the
\nidentical  appeal  (to refer only to  that  proceeding\twith
\nwhich  we are immediately concerned) for which a  period  of
\nlimitation has been prescribed by the special or local\tLaw,
\na  period  is  prescribed  by  first  column  of  the  first
\nschedule. and there is a difference between the two periods.
\nIt  was\t his  further  contention  that\t where\tthe   Indian
\nLimitation  Act\t made no provision for such  an\t appeal,  s.
\n29(2)  and the provision contained in its (a) and  (b)\twere
\ninapplicable.\tThere  have been several decisions  on\tthis
\npoint  but it is sufficient to refer to the decision of\t the
\nBombay High Court in Canara Bank Ltd., Bombay v. The  Warden
\nInsurance  Co. Ltd., Bombay (1) where Chagla  C.J.  repelled
\nthis  construction  and held that even where  there  was  no
\nprovision in the first schedule for an
\n(1)  I. L. R. 1952 Bom. 1083.\n<\/p>\n
134<\/span><\/p>\n
appeal in a situation identical with that for which the spe-
\ncial  law provides, the test of “a prescription of a  period
\nof  limitation different from the period prescribed  by\t the
\nFirst Schedule is satisfied.  This Court in State of U.P. v.
\nSmt.   Kaushaliya<\/a>  etc.(1)  upheld  this  construction\t and
\napproved  ,the\tjudgment of Chagla C.J. in the\tCanara\tBank
\ncase.\tApart from the decision of this Court,\twe  consider
\nthe  reasoning of Chagla C.J. to be unexceptionable  and  we
\nagree with Subba Rao J. in holding that the requirement of a
\nprescription by the special law “of a period different” from
\nthat  prescribed by the First Schedule is satisfied  in\t the
\npresent case.\n<\/p>\n
The  next  point  was one that arose on\t the  submission  of
\ncounsel for the respondent and it was this.  Assume that the
\nconstruction  of  the words “different from”  urged  by\t the
\nappellant  were\t accepted,  and this  requirement  would  be
\nsatisfied  only if the First Schedule made provision for  an
\nidentical appeal as that under the special law, still it was
\nsubmitted by the respondent that even this was satisfied  in
\nthis  case.  For this purpose he relied on Art. 156  of\t the
\nfirst schedule which runs:\n<\/p>\n
———————————————————–\n<\/p>\n
\t\t\t\t\t    Time from which
\n“Description of\t    Period of\t\t   period begins to
\n     appeal\t    limitation\t\t       run\n<\/p>\n
————————————————————\n<\/p>\n
156.-Under the Code of Civil  Ninety days    The date of
\n     Procedure, 1908, to a High\t\tdecree or order
\n     Court, except in the cases\t\tappealed from.”
\n     provided for by article 51
\n     and article 153.\n<\/p>\n
The argument was that though the right of appeal in the case
\nbefore us was conferred by s. 116A of the Representation  of
\nthe People Act and it was by virtue thereof that the  appeal
\nwas filed by the respondent to the High Court, it was  still
\nan  appeal  “under the Code of Civil Procedure, 1908,  to  a
\nHigh  Court.”  For this submission  learned  Counsel  relied
\nprincipally on two decisions–one of the Calcutta and the
\n(1)  A. 1. R. 1964 S. C. 416.\n<\/p>\n
135<\/span><\/p>\n
other of the Madras High Court, and they undoubtedly support
\nhim.  In Aga Mohd.  Hamdani v. Cohen and Ors.(1) -as well as
\nin  Ramasami Pillai v. Deputy Collector of, Madura(1)  which
\nfollowed  it-the Court held that to attract this article  it
\nwas  not necessary in order to be an “appeal under the\tCode
\nof  Civil  Procedure” within the meaning of those  words  in
\nArt.  156,  that the right to prefer the  appeal  should  be
\nconferred  by  the Code of Civil Procedure but that  it\t was
\nsufficient if the procedure for the filing of the appeal and
\nthe  powers  of the court for dealing with the\tappeal\twere
\ngoverned  by that Code.\t For adopting this construction\t the
\nCourt  relied  on  the reference in Art. 156  to  Art.\t151.
\nArticle\t 151  dealt  with appeals to  the  High\t Court\tfrom
\njudgment  rendered on the original side of that Court.\t The
\nright  to prefer these appeals was conferred by the  Letters
\nPatent\tconstituting the respective High Courts and  not  by
\nthe  Code  of  Civil Procedure, though\tthe  Code  of  Civil
\nProcedure governed the procedure, jurisdiction and powers of
\nthe Court in dealing with the appeals so filed.\t There would
\nhave been need therefore to except cases covered by Art. 151
\nonly  if the words “under the Code of Civil Procedure”\twere
\nunderstood as meaning appeals for the disposal of which\t the
\nprovisions   of\t the  Code  of\tCivil  Procedure  was\tmade
\napplicable.  We might mention that besides the Calcutta\t and
\nthe  Madras High Courts a Full Bench of the  Allahabad\tHigh
\nCourt  also  has  in Daropadi v. Hira Lal  (3  )  adopted  a
\nsimilar\t construction  of the Article,\tthe  learned  Judges
\npointing out that several Indian enactments, among them\t the
\nIndian -Succession Act, the Probate and Administration\tAct,
\nthe Land Acquisition Act and the Provincial Insolvency\tAct,
\nproceeded  on  the basis of a legislative practice  of\tcon-
\nferring\t rights\t of  appeal under  the\trespective  statutes
\nwithout\t prescribing any period of limitation  within  which
\nthe   appeal   should  be  preferred,  but   directing\t the
\napplication,  of the provisions of the Civil Procedure\tCode
\nto such appeals, the intention obviously being that Art. 156
\nwould furnish the period of limitation for such appeals.  We
\nconsider that these deci-\n<\/p>\n
(1)  1. L. R. 13 Cal. 221.\n<\/p>\n
(3)  1. L. R. 34 Allahabad 496.\n<\/p>\n
(2) 1. L. R. 43 Mad. 51.\n<\/p>\n
136<\/span><\/p>\n
sions correctly interpret Art. 156 and, in any event, we are
\nnot  prepared to disturb the decisions which have stood\t for
\nso long and on the basis of the correctness of which  Indian
\nlegislation has proceeded.\n<\/p>\n
Mr.  Pathak drew our attention to some decisions in which  a
\ndifferent  construction\t was adopted of the word  “under”  a
\nparticular  enactment  occurring in other  Articles  of\t the
\nLimitation  Act and in particular some dealing with  appeals
\nin  certain criminal matters.  In them the word ‘under’\t was
\nunderstood  as\tmeaning “by virtue of”.\t  He  was,  however,
\nunable\tto  bring to our notice any decision  in  which\t the
\nconstruction  adopted of Art. 156 which we have set out\t has
\nbeen  departed\tfrom.  In the cases dealing with  the  words
\n“under\tthe Criminal Procedure Code” which he placed  before
\nus,  the situation would obviously be different,  since\t the
\nindication  afforded by the mention of Art. 151 in Art.\t 156
\ndoes not figure in the Articles dealt with.  Therefore\tthat
\nwould be a circumstance pointing to a different result.
\nIf the construction adopted of Art. 156 in the Calcutta\t and
\nMadras\tdecisions  to which we have  referred  were  upheld,
\nthere  could be no controversy that an appeal under s.\t116A
\nof the Representation of the People Act would be “under\t the
\nCode of Civil Procedure”, for s. 116A(2) enacts, to read the
\nmaterial portion:\n<\/p>\n
\t      “116A.  (2) The High Court shall,\t subject  to
\n\t      the  provisions  of this Act,  have  the\tsame
\n\t      powers, jurisdiction and authority, and follow
\n\t      the same procedure, with respect to an  appeal
\n\t      under  this Chapter as if the appeal  were  an
\n\t      appeal  from  an original decree passed  by  a
\n\t      civil  court situated within the local  limits
\n\t      of     its     civil     appellate      juris-\n<\/p><\/blockquote>\n
\t      diction…………………………\n<\/p><\/blockquote>\n
In this view even on the narrowest construction of the words
\n“different from those prescribed therefor in first schedule”
\noccurring  the\topening part of s. 29(2), the  exclusion  of
\ntime provided for by Art. 12 of the Limitation Act would  be
\npermissible in computing the period of limitation for filing
\nthe appeal to the High Court in the case before us.\n<\/p>\n
137<\/span><\/p>\n
The last point which remains for consideration is one  which
\nwould  be  material only in the event of the two  points  we
\nhave  already  dealt with being decided\t differently.\tThis
\nrelates to the relationship or inter-connection between\t the
\nfirst  and  the second limbs of s. 29(2) of  the  Limitation
\nAct.   The reason why we are dealing with it is\t because  of
\nour  inability\tto  agree with the  construction  which\t our
\nlearned\t brothers Subba Rao & Mudholkar JJ. have  placed  on
\nthis feature of the sub-section.  Sub-section (2), it  would
\nbe  seen,  consists of two parts.  The first  sets  out\t the
\nconditions to which the special law should conform in  order
\nto  attract section 3 and that part ends with the words\t ‘as
\nif  such period were prescribed therefor in that  schedule”.
\nThis  is followed by the conjunction ‘and’ that word by\t the
\nsecond\tpart  reading “for the purpose\tof  determining\t any
\nperiod\tof  limitation prescribed for any  suit,  appeal  or
\napplication by any special or local law-\n<\/p>\n
\t      (a)   the\t provisions contained in section  4,
\n\t      sections\t9 to 18, and section 22 shall  apply
\n\t      only in so far as, and to the extent to which,
\n\t      they  are\t not  expressly\t excluded  by\tsuch
\n\t      special or local law; and\n<\/p><\/blockquote>\n
\t      (b)   the\t remaining  provisions of  this\t Act
\n\t\t\t    shall not apply.”\n<\/p><\/blockquote>\n
The question that has been debated before us is whether\t the
\ncondition  postulated by the first limb, namely the  special
\nor  local law prescribing a period of limitation for a\tsuit
\nappeal etc. different from the period prescribed therefor by
\nthe  first schedule has to be satisfied in order  to  render
\nthe  provisions of cl. (a) applicable.\tIf  the\t conjunction
\n‘and’  was used for the purpose of indicating that  the\t two
\nparts were cumulative, that is, if the two parts operated in
\nrespect\t of the same set of circumstances, then\t unless\t the
\nopening\t words of sub-s. (2) were satisfied, there would  be
\nno  basis  for\tthe application of cl.\t(a)  to\t the  period
\nprescribed  for a suit, appeal or application applicable  by
\nthe  special  or local law.  If on the other hand,  the\t two
\nparts  of the sub-section could be read independently as  if
\nthey made provision for two separate situations, the  result
\nwould be that the words starting from “for the purpose
\n138<\/span>
\nof  determining any period of limitation prescribed for\t any
\nsuit,  appeal  or application by any special or\t local\tlaw”
\nfollowed by clauses (a) & (b) would be an independent provi-
\nsion unrelated to the first part and therefore could operate
\nunhampered  by the condition set out in the first part.\t  In
\nother  words,  if the latter construction were\tadopted\t for
\nevery  suit,  appeal or application for which  a  period  of
\nlimitation  was\t prescribed by a special or local  law,\t the
\nprovisions  in\tss.  4,\t 9 to 18 &  22\twould  apply  unless
\nexcluded.  Mr, Pathak urged that the conjunction ‘and’ could
\nin  the\t context be construed only as rendering\t the  second
\nlimb  a\t part and parcel of the first, so  that\t unless\t the
\nconditions laid down by the opening words of the sub-section
\nwere satisfied, the provisions of the Limitation Act set out
\nin  cl. (a) would not be attracted to “determine the  period
\nof limitation’ prescribed by the special or local law.\t The
\nquestion of the import and function of the conjunction ‘and’
\nwas  the subject of elaborate consideration by a Full  Bench
\nof the Allahabad High Court in a decision in Sehat Ali\tKhan
\nv.  Abdul Qavi Khan(1).\t The majority of the learned  Judges
\nheld that the two parts of the sub-section were\t independent
\nand  that  “for\t the purpose of determining  any  period  of
\nlimitation prescribed for any suit, appeal or application by
\nany  special  or  local law”. cl.  (a)\twould  apply  unless
\nexcluded.   Raghubar  Dayal J. then a judge of\tthat  Court,
\nhowever,  dissented from this view and held that the  entire
\nsub-s.\t(2)  had to be read as an integrated  provision\t and
\nthat the conjunction ‘and’ connected the two parts and\tmade
\nit necessary for attracting cl. (a) that the conditions laid
\ndown by the opening words of sub-s. (2) should be satisfied.
\nMr.  Pathak  recommended for our acceptance  the  dissenting
\njudgment of Dayal J. We consider that the view expressed  by
\nRaghubar Dayal J. as to the inter-relation of the two  parts
\nof  the sub-section reflects correctly our own\tconstruction
\nof  the\t provision.  Raghubar Dayal J. has  approached\tthis
\nquestion  of construction from several angles including\t the
\ngrammar of the passage.\t Without going into any of them,  we
\nwould rest our decision on a shorter ground.  In order\tthat
\nthe  second  part might be held to be  independent  ,of\t the
\nfirst, the first part should itself be complete and be\n<\/p>\n
1.   L. R. [1956]2 Allahabad 252.\n<\/p>\n
139<\/span><\/p>\n
capable\t of operating independently.  Unless this test\twere\n<\/p>\n
-satisfied,  the conjunction ‘and’ would have to be read  as
\nimporting   into   what\t follows  it,  the   conditions\t  or
\nconsideration  set out earlier as otherwise even  the  first
\npart would be incomplete.  Let us now see whether the  first
\npart  could  function without the second.   The\t first\tpart
\nreads  “where  any special or local law prescribes  for\t any
\nsuit, appeal or application a period of limitation different
\nfrom  the  period  prescribed  by  the\tfirst  schedule\t the
\nprovision  of  s.  3  shall apply  as  if  that\t period\t was
\nprescribed therefor in that schedule.” The question is\twhat
\nthis, standing by itself, would signify.  If the  conditions
\nprescribed by the opening words were satisfied, s. 3 of\t the
\nLimitation Act would be attracted Section 3 reads:\n<\/p>\n
\t      “Subject\t to  the  provisions  contained\t  in
\n\t      sections\t4  to  25  (inclusive),\t every\tsuit
\n\t      instituted, appeal preferred, and\t application
\n\t      made,   after   the   period   of\t  limitation
\n\t      prescribed  therefor  by\tthe  first  schedule
\n\t      shall  be dismissed, although  limitation\t has
\n\t      not      been\t set\t  up\t  as\t   a
\n\t      defence………………..\n<\/p><\/blockquote>\n
In  other  words, if the special or local law  prescribed  a
\nperiod\tof limitation different from that prescribed by\t the
\nfirst schedule by the application of the first part of\tsub-
\ns.  (2), the court is enabled to dismiss suits, appeals\t and
\napplications filed beyond time.\t If this is the only  effect
\nit would be seen that the provision is inane and  redundant,
\nbecause\t even  without\tit, by the very\t prescription  of  a
\nperiod\tof  limitation\tthe jurisdiction  of  the  court  to
\nentertain  the suit, appeal etc. would be dependent  on\t the
\nsame being filed in time.\n<\/p>\n
It  is possible, however, to construe the reference to s.  3
\nin  s.\t29(2) to mean that the power to\t dismiss  the  suit,
\nappeal etc. if filed beyond the time prescribed, is  subject
\nto  the modes of computation etc. of the time prescribed  by
\napplying the provisions of ss. 4 to 25 which are referred to
\nin  the opening words of s. 3. On this construction where  a
\ncase  satisfies\t the opening words of s.  29(2)\t the  entire
\ngroup  of  ss. 3 to 25 would be attracted to  determine\t the
\nperiod of limitation prescribed by the special or local law.
\nNow let us test this with reference to the second limb of s.
\n29(2) treating the latter as
\n140<\/span>
\na separate and independent provision.  That part starts with
\nthe  words “for determining any period of  limitation  pres-
\ncribed for any suit, appeal or application by any special or
\nlocal  law”  (italics  ours).  The  words  italicised  being
\nperfectly  general,  would manifestly  be  comprehensive  to
\ninclude\t every\tspecial or local law, and among\t these\tmust
\nnecessarily  be\t included such special or local\t laws  which
\nsatisfy\t the  conditions specified by the first limb  of  s.
\n29(2).\t We  then  have\t this strange  result  that  by\t the
\noperation  of the first part ss. 3 to 25 of  the  Limitation
\nAct  are made applicable to that class of special and  local
\nlaws  which  satisfy the conditions specified by  the  first
\nlimb,  whereas\tby  the operation of  the  second  limb\t the
\nprovisions  of\tsection 3, 5, 6 to 8 & 19 to 21 & 23  to  25
\nwould not apply to the same class of cases.  A\tconstruction
\nwhich would lead to this anomalous result cannot be accepted
\nand we, therefore, hold that subject to the construction  we
\nhave  put upon sub-s. (2) of s. 29 both the parts are to  be
\nread  as  one  whole  and  that\t the  words  following\t the
\nconjunction ‘and’ “for the purpose of determining any period
\nof limitation” etc. attract the conditions laid down by\t the
\nopening words of the sub-section.\n<\/p>\n
As  we\thave pointed out earlier this does  not\t affect\t the
\nresult.\t  We agree that the appeal fails and we direct\tthat
\nit be dismissed with costs.\n<\/p>\n
SUBBA  RAo  J.-This  appeal  by\t special  leave\t raises\t the
\nquestion of true construction of the provisions of s.  29(2)
\nof  the\t Indian\t Limitation Act, 1908 (9 of  1908),  in\t the
\ncontext of its application to s. 116-A of the Representation
\nof the People Act, 1951 (43 of 1951), hereinafter called the
\nAct.\n<\/p>\n
The  facts  relevant to the question raised lie in  a  small
\ncompass\t and  they  are not  disputed.\t The  appellant\t was
\nelected\t to  the  House of the People  from  the  Mahasamund
\nparliamentary  constituency in the State of- Madhya  Pradesh
\nin  the third general elections.  The respondents  were\t the
\nother contesting candidates.  Respondent 1 filed an election
\npetition before the Election Commissioner of India under ss.
\n80  and 81 of the Act for setting aside the election of\t the
\nappellant and it was duly referred to the Election Tribunal.
\nThe
\n141<\/span>
\nElection Tribunal, by its order dated January 5, 1963,\tdis-
\nmissed\tthe  election petition.\t On February 11,  1963,\t the
\nfirst respondent preferred an appeal against the said  order
\nof the Election Tribunal to the High Court of Madhya Pradesh
\nat Jabalpur.  Under sub-s. (3) of s. 116-A of the Act  every
\nappeal under Ch.  IVA of the Act shall be preferred within a
\nperiod of thirty days from the date of the order of the Tri-
\nbunal under s. 98 or s. 99 thereof.  Admittedly, the  appeal
\nwas  filed  more than 30 days from the said order.   If\t the
\ntime  requisite\t for obtaining a copy of the  order  of\t the
\nTribunal was excluded, the appeal was filed within 30  days;
\nbut  if\t in law it could not be excluded, the  appeal  would
\ncertainly  be out of time.  The appellant  contended  before
\nthe High Court that respondent I was not entitled in law  to
\nexclude the time so taken by him in obtaining a copy of\t the
\norder  of  the Tribunal, but that plea was rejected  by\t the
\nHigh  Court.   On  merits,  the High  Court  held  that\t the
\nappellant  had\tcommitted two acts of  corrupt\tpractice  as
\ndefined\t by  s.\t 123(4) of the Act and on  that\t finding  it
\ndeclared  the  election\t of the appellant void.\t It  is\t not
\nnecessary to go into the details of the\t    judgment ofthe
\nHigh Court given on the merits of the case,as nothingturns
\nupon  them in this appeal, for the learned,counsel  confined
\nhis  argument  only  to the  question  of  limitation.\t The
\npresent\t appeal has been preferred by the appellant  against
\nthe  said  order  of  the  High\t Court\tsetting\t aside\t his
\n,election.\n<\/p>\n
The only question, therefore, is whether for the purpose  of
\ncomputing the period of 30 days prescribed under s. 116A (3)
\nof the Act the provisions of s. 12 of the Limitation Act can
\nbe invoked.\n<\/p>\n
Mr.  Pathak, learned counsel for the appellant, in  an\tela-
\nborate\targument placed before us the different\t aspects  of
\nthe  question raised, and I shall deal with his argument  in
\nthe  appropriate context in the course of my  judgment.\t  It
\nwould  be  ,convenient at the outset to\t read  the  relevant
\nprovisions of the Act and those of the Limitation Act.\n<\/p>\n
142<\/span><\/p>\n
The Representation of the People Act, 1951.
\nDecision of the Tribunal
\nSection\t 98.  At the conclusion of the trial of an  election
\npetition the Tribunal shall make an order:-\n<\/p>\n
\t      (a)   dismissing the election petition; or\n<\/p><\/blockquote>\n
\t      (b)   declaring the election of all or any  of
\n\t      the returned
\n\t      candidates to be void; or
\nSection 116-A. (1) An appeal shall lie from every order made
\nby  a  Tribunal under section 98 or section 99 to  the\tHigh
\nCourt of the State in which the Tribunal is situated.\n<\/p><\/blockquote>\n
(2)The High Court shall, subject to the provisions of this
\nAct,  have the same powers, jurisdiction and authority,\t and
\nfollow\tthe same procedure, with respect to an appeal  under
\nthis  Chapter  as  if  the appeal were\tan  appeal  from  an
\noriginal decree passed by a civil court situated within\t the
\nlocal limits of its civil appellate jurisdiction.
\n(3)Every  appeal  under this Chapter  shall  be\t preferred
\nwithin a period of thirty days from the date of the order of
\nthe Tribunal under section 98 or section 99:
\nProvided  that the High Court may entertain an appeal  after
\nthe expiry of the said period of thirty days if it is satis-
\nfied  that  the\t appellant  had\t sufficient  cause  for\t not
\npreferring the appeal within such period.
\nThe Indian Limitation Act, 1908
\nSection\t 29.-(2) Where any special or local  law  prescribes
\nfor  any suit, appeal or application a period of  limitation
\ndifferent  from the period prescribed therefor by the  First
\nSchedule,  the\tprovisions of section 3 shall apply,  as  if
\nsuch  period were prescribed therefor in that Schedule,\t and
\nfor the
\n143<\/span>
\npurpose\t of determining any period of limitation  prescribed
\nfor any suit, appeal or application by any special or  local
\nlaw-\n<\/p>\n
\t      (a)   the\t provisions contained in section  4,
\n\t      section  9 to 18, and section 22\tshall  apply
\n\t      only in so far as, and to the extent to which,
\n\t      they  are\t not  expressly\t excluded  by\tsuch
\n\t      special or local law; and\n<\/p><\/blockquote>\n
\t      (b)   the\t remaining  provisions of  this\t Act
\n\t      shall not apply.\n<\/p><\/blockquote>\n
Section\t 12.-(2)  In  computing\t the  period  of  limitation
\nprescribed for an appeal, an application for leave to appeal
\nand  an\t application for a review of judgment,\tthe  day  on
\nwhich  the judgment complained of was pronounced,  and\ttime
\nrequisite  for obtaining a copy of the decree,\tsentence  or
\norder  appealed\t from  or sought to be\treviewed,  shall  be
\nexcluded.\n<\/p>\n
(3)Where  a  decree  is\t appealed from\tor  sought  to\tbe
\nreviewed,  the\ttime requisite for obtaining a copy  of\t the
\njudgment on which it is founded shall also be excluded.
\nSection\t 116-A of the Act confers a right of appeal  against
\nan order of the Tribunal under s. 98 or s. 99 thereof;\tsub-
\ns.(3)\t  thereof  prescribes a period of limitation  of  30
\ndays for  preferring  such  an appeal.\tSection 29  of\t(the
\nLimitation Act attracts, by fiction, the provisions of s.  3
\nthereof\t to  an appeal described in s. 29 of the  said\tAct;
\nwith the result, the provisions of sub-ss. (2) and (3) of s.
\n12 of the Limitation Act are attracted thereto; and if those
\nsub-sections  were  attracted  in computing  the  period  of
\nlimitation  prescribed for an appeal the time requisite\t for
\nobtaining a copy of the decree or order or judgment on which
\nit  is founded shall be excluded.  Learned counsel  for\t the
\nappellant, therefore, contends that s. 29 of the  Limitation
\nAct  does not apply to an appeal under s. 116-A of the\tAct.
\nThe  first argument of learned counsel is that for  invoking
\nsub-s.(2)  of  s.  29 of the Limitation\t Act  the  necessary
\ncondition is that the First Schedule thereto shall prescribe
\na period of limitation for an appeal and that a special\t law
\nshall  prescribe  for the same type of\tappeal\ta  different
\nperiod of limitation and that, as in the
\n144<\/span>
\npresent\t case  the  First Schedule has\tnot  prescribed\t any
\nperiod of limitation to an appeal under s. 116-A of the\t Act
\nagainst an order of the Tribunal, sub-s. (2) of s. 29 of the
\nAct  -is  not attracted.  This argument is  met\t by  learned
\ncounsel\t for the respondents in two ways, namely,  (i)\tthat
\nthe  First Schedule to the Limitation Act has  prescribed  a
\nperiod of limitation for such an appeal, and (ii) that\tsub-
\ns. (2) will apply even to a case where the First Schedule to
\nthe  Limitation\t Act  has  not\tprescribed  any\t period\t  of
\nlimitation  for\t an appeal, but a special law  prescribed  a
\nperiod of limitation for such an appeal.  I shall proceed to
\nconsider the two limbs of the argument separately.
\nHas  the First Schedule to the Limitation Act  prescribed  a
\nperiod\tof limitation for an appeal against an order  of  an
\nElection Tribunal under s. 98 or s. 99 of the Act?   Article
\n156 of the First Schedule to the Limitation Act says that to
\nan appeal under the Code of Civil Procedure, 1908, to a High
\nCourt,\texcept in the cases provided for by article 151\t and
\narticle\t 153, the period of limitation is 90 days  from\t the
\ndate  of the decree or order appealed from; and article\t 151
\nreferred to in article 156 provides for an appeal against  a
\ndecree\tor order of any of the High Courts of Judicature  at
\nFort  William, Madras, and Bombay, or of the High  Court  of
\nPunjab\tin the exercise of its original jurisdiction.\tWhat
\ndoes  the expression “under the Code of Civil Procedure”  in
\nart.  156  of  the  First Schedule  to\tthe  Limitation\t Act
\nconnote?   Does\t it  mean that a right of  appeal  shall  be
\nconferred under the Code of Civil Procedure, or does it mean
\nthat  the procedure prescribed by the said Code shall  apply
\nto  such an appeal?  A comparison of the terms of  art.\t 156
\nand  art. 151 indicates that the emphasis is more  upon\t the
\nprocedure  applicable  to an appeal than on  ‘the  right  of
\nappeal\tconferred  under an Act.  The heading of  the  first
\ncolumn\tin  the\t First Schedule to  the\t Limitation  Act  is
\n“Description  of appeal”.  The phraseology used in art.\t 156
\ndescribes  the\tnature of the appeal in respect of  which  a
\nparticular period of limitation is prescribed.\tIt does\t not
\nrefer  to  a  right  conferred\tunder  the  Code  of   Civil
\nProcedure,  but only describes the appeal with reference  to
\nthe  procedure applicable thereto.  Though the word  “under”
\nmay support the contrary view, the reference to
\n145<\/span>\n<\/p>\n
-art.  151  therein  detracts from it.\tArticle\t 151  is  an
\nexception to art. 156, indicating thereby that, but for\t the
\nexception  art. 156 will apply to an appeal covered by\tart.
\n151:  that is to say, an appeal under art. 151 is deemed  to
\nbe  an appeal under the Code of Civil Procedure.   Though  a
\nright of appeal is conferred under the Letters Patent, it is
\ndeemed\tto be an appeal under the Code of  Civil  Procedure,
\nbecause the Code of Civil Procedure governs the said appeal.
\nAs  Rajamannar,\t C.J.,\tobserved  in  Kandaswami  Pillai  v.
\nKannappa Chetty(1),
\n\t      “It  is well established that  the  Limitation
\n\t      Act  and\tthe Code are to\t be  read  together,
\n\t      because\tboth   are  statutes   relating\t  to
\n\t      procedure\t and they are in pari  materia\tand,
\n\t      therefore, to be taken and construed  together
\n\t      as one system as explanatory of each other.”
\nSo  construed  it  may\treasonably be  held  that  art.\t 156
\nprovides for an appeal governed by the procedure  prescribed
\nby  the Code of Civil Procedure.  This view was accepted  by
\nthe  Calcutta  High Court as early as 1886  in\tAga  Mahomed
\nHamadani  v.  Cohen(1).\t  There, under s. 49  of  the  Burma
\nCourts\tAct (XVII of 1875), where the amount or value  of  a
\nsuit  or  proceeding in the Recorder’s\tCourt  exceeded\t Rs.
\n3,000,\tand was less than Rs. 10,000, an appeal lay  to\t the
\nHigh Court.  Under s. 97 of the said Act, “save as otherwise
\nprovided by this Act, the Code of Civil Procedure shall\t be,
\nand shall, on and from the 15th day of April 1872, be deemed
\nto  have been in force throughout British  Burma”.   Section
\n540 of the Civil Procedure Code of 1882, which was in  force
\nat that time, read:\n<\/p>\n
\t      “Unless  when otherwise expressly provided  by
\n\t      this  Code  or by any other law for  the\ttime
\n\t      being  in force, an appeal shall lie from\t the
\n\t      decrees or from any part of the decrees of the
\n\t      Courts exercising original jurisdiction to the
\n\t      Courts  authorized  to hear appeals  from\t the
\n\t      decisions of those Courts.”\n<\/p><\/blockquote>\n
\t      (1) A. T. R. 1952 Mad. 186.\n<\/p><\/blockquote>\n
\t      134-159 S.C.-10.\n<\/p><\/blockquote>\n
\t      (2) (1886) I. L. R. 13 Cal. 221.\n<\/p><\/blockquote>\n
\t      146<\/span><\/p>\n
\t      The  effect of this provision of the  Code  on
\n\t      the Burma Courts Act was that where an  appeal
\n\t      was not expressly excluded by any special Act,
\n\t      an  appeal lay to whatever court\twhich  under
\n\t      the  enactment  in force was  the\t appropriate
\n\t      court.  But this section was overborne by\t the
\n\t      Burma Courts Act to the extent it conferred  a
\n\t      right  of appeal from the Recorder’s Court  to
\n\t      the High Court subject to certain\t conditions,
\n\t      for  s. 49 of the Burma Courts Act  had  taken
\n\t      away  the\t right of appeal of  value  under  a
\n\t      prescribed amount and conferred such a  right,
\n\t      when  the\t subject-matter of  the\t appeal\t was
\n\t      between  two  prescribed\tamounts,  from\t the
\n\t      decree  of  the Recorder’s Court to  the\tHigh
\n\t      Court.  It is, therefore, not correct to\tsay,
\n\t      as  contended by the learned counsel,  that  a
\n\t      right of appeal was conferred under s. 540  of
\n\t      the Code of Civil Procedure, 1882.  After\t the
\n\t      passing  of the Burma Courts Act, a  right  of
\n\t      appeal was, conferred under s. 49 of that\t Act
\n\t      and  not\tunder s. 540 of the  Code.   It\t was
\n\t      contended\t before the Calcutta High Court,  as
\n\t      it  is now contended before us, that art.\t 156
\n\t      of  Schedule 11 of the Limitation Act did\t not
\n\t      apply to an appeal under the Burma Courts Act,
\n\t      on the ground that the said appeal was not  an
\n\t      appeal under the Code of Civil Procedure.\t The
\n\t      learned Judges observed thus, at p. 224:
\n\t      “Now,  what  is meant by an appeal  under\t the
\n\t      Civil Procedure Code?  A particular appeal was
\n\t      given  by the Burma Courts Act and  the  Burma
\n\t      Courts  Act  is  still  the  only\t Act   which
\n\t      prescribes  to  what Court this  appeal  shall
\n\t      lie.   If it had not been given by  the  Burma
\n\t      Courts Act then s. 540 of the Civil  Procedure
\n\t      Code  would have been sufficient to  give\t it,
\n\t      provided that some Court was by some enactment
\n\t      provided\tas  the\t proper Court  to  hear\t the
\n\t      appeal.\tThe  procedure in appeals  in  every
\n\t      respect  is  governed  by the  Code  of  Civil
\n\t      Procedure,  The Limitation Act,  Schedule\t 11.
\n\t      Art.  156,  when it speaks of the\t Civil\tPro-<\/p><\/blockquote>\n
\t      cedure Code is, on the face of it, speaking of
\n\t      a\t Code which relates to procedure,  and\tdoes
\n\t\t\t    not\t ordinarily deal with  substantive
\n  rights:\n<\/p>\n
\t      and the
\n\t      147<\/span>
\n\t      natural  meaning of an appeal under the  Civil
\n\t      Procedure\t Code appears to us to be an  appeal
\n\t      governed by the Code of Civil Procedure so far
\n\t      as procedure is concerned.”\n<\/p><\/blockquote>\n
It is manifest from this passage that the learned Judges did
\nnot  repel  the contention on the ground that the  right  of
\nappeal\twas conferred by s. 540 of the Code of Civil  Proce-
\ndure, but expressly for the reason that the natural  meaning
\nof  the\t relevant expression in art. 156 of Sch. 11  of\t the
\nLimitation Act was that the appeal mentioned therein was one
\ngoverned by the Code of Civil Procedure.  This decision\t was
\nfollowed  by  a Division Bench of the Madras High  Court  in
\nRamaswami  Pilai v. The Deputy Collector of Madura(1).\t The
\nlearned\t Judges,  Abdur Rahim and Oldfield, JJ.,  held\tthat
\nart.  156  of  the Limitation Act (IX of  1908)\t applied  to
\nappeals filed under s. 54 of the Land Acquisition Act (1  of
\n1894).\t The  right of appeal was conferred under  the\tLand
\nAcquisition Act, but the procedure prescribed by the Code of
\nCivil Procedure governed that appeal.  The same argument now
\nraised before us was raised, but was repelled.\tAfter citing
\nthe  relevant part of the passage from the judgment  of\t the
\nCalcutta  High\tCourt extracted above,\tthe  learned  Judges
\nstated at p. 55 thus:\n<\/p>\n
\t      “It  seems  to  us that this  is\tthe  correct
\n\t      interpretation of article 156.  There seems to
\n\t      be  no good reason for saying that  an  appeal
\n\t      under  the Civil Procedure Code means only  an
\n\t      appeal the right to prefer which is  conferred
\n\t      by  the  Code itself.  On the  other  hand  it
\n\t      would  not  be straining the language  of\t the
\n\t      article  too much to hold that an appeal,\t the
\n\t      procedure\t with  respect to  which,  from\t its
\n\t      inception to its disposal, is governed by\t the
\n\t      Civil Procedure Code, may rightly be spoken of
\n\t      as an appeal under the Code.”\n<\/p><\/blockquote>\n
Then the learned Judges referred to art. 151 of the  Limita-
\ntion Act and concluded thus:\n<\/p>\n
(1)  (1919) 1 L. R. 43 Mad. 51.\n<\/p>\n
148<\/span><\/p>\n
\t      “That also tends to show that what is meant by
\n\t      the  legislature is appeals, the\thearing\t and
\n\t      disposal of which is governed by the rules  of
\n\t      procedure\t laid  down in the  Civil  Procedure
\n\t      Code.”\n<\/p><\/blockquote>\n
Though\tabout 77 years have passed by since the decision  of
\nthe  Calcutta High Court and though the Limitation  Act\t was
\namended a number of times, the Legislature did not think fit
\nto  express  its  dissent from this  view  by  amendment  or
\notherwise.   No\t direct\t decision has been  brought  to\t our
\nnotice\twhich  has  differed from, or  even  questioned\t the
\ncorrectness of, this decision.\tIn this context we may\talso
\nrefer to the decision of the Allahabad High Court in Dropadi
\nv. Hira Lal(1) where it is pointed out) that several  Indian
\nenactments,  for instance, the Succession Act,\tthe  Probate
\nand  Administration  Act, the Land Acquisition Act  and\t the
\nProvincial  Insolvency\tAct,  confer rights  of\t appeal\t and
\ndirect\tthe  application of the provisions of  the  Code  of
\nCivil  Procedure to such appeals, but prescribed  no  period
\nwithin\twhich  such appeals might be filed, the\t idea  being
\nthat art. 156 of the Limitation Act would furnish the period
\nof  limitation for the filing of such appeals.\tMr,  Pathak,
\nlearned\t counsel for the appellant, brought to our notice  a
\nnumber\tof decisions which considered the forum to which  an
\nappeal\tshall lie against an order under s. 476 of the\tCode
\nof  Criminal  Procedure\t and the procedure  to\tbe  followed
\ntherein.\n<\/p>\n
In  Nasaruddin Khan v. Emperor(1), where an appeal under  s.
\n476-B  of the Code of Criminal Procedure from the  Court  of
\nthe  Munsif was heard in part by the District Judge, and  on
\nthe  next  date of hearing the appellant’s pleader  was\t not
\npresent\t in Court, it was held that the District  Judge\t was
\nentitled to consider that the appeal had been abandoned\t and
\nto dismiss it under the provisions of Order XLI of the\tCode
\nof Civil Procedure.  In Mt.  Abida Khatoon v. Chote Khan(1),
\nthe Allahabad High Court held, under similar  circumstances,
\nthat an appellate court could set aside an order  dismissing
\nan appeal for default.\tThe Nagpur High Court in
\n(1) (1912) I. L. R. 34 All. 496.\n<\/p>\n
(2) (1926) I. L. R. 53 Cal. 827.\n<\/p>\n
(3)A. I. R. 1956 All. 155.\n<\/p>\n
149<\/span><\/p>\n
Bholanath  Balbhadra Sahai v. Achheram Puran Kurmi(1),\theld
\nthat  in such an appeal the appellate Court  could  exercise
\nits  power  under 0. XLI, r. 27 of the Code  of\t Civil\tPro-
\ncedure.\t  In Chandra Kumar Sen v. Mathuria Debya (2 ) ,\t the
\nCalcutta High Court applied to such an appeal the period  of
\nlimitation prescribed under art. 154 of the Limitation Act.
\nIt  is said that the combined effect of these  decisions  is
\nthat the procedure applicable in an appeal against an  order
\nmade  by a civil court under s. 476 of the Code of  Criminal
\nProcedure is that prescribed by the Code of Civil  Procedure
\nwhereas\t the period of limitation is that prescribed for  an
\nappeal under the Code of Criminal Procedure.  But the  lear-
\nned  counsel  himself conceded that there is a\tconflict  of
\ndecisions  on the question whether to an appeal against\t the
\norder  of  a  civil  court under s. 476-B  of  the  Code  of
\nCriminal  Procedure,  the  civil procedure  applies  or\t the
\ncriminal procedure applies and, therefore, the only decision
\nwhich  may have some bearing on the question now  raised  is
\nthat  in Chandra Kumar Sen v. Mathuria Debya(2).  There,  an
\napplication  was  filed\t before the  Subordinate  Judge\t for
\nfiling of a complaint against the petitioner under s. 476 of
\nthe  Code  of Criminal Procedure.  That was  rejected.\t The
\ncomplainant  preferred an appeal to the District Judge\tmore
\nthan  30  days prescribed under art. 154 of  the  Limitation
\nAct.   The learned District Judge held that no\tquestion  of
\nlimitation  arose,  for the District Judge  suo\t motu  could
\nlodge  a complaint in the criminal court when an offence  in
\nconnection with the administration of civil justice came  to
\nhis  notice.  On that reasoning he instituted  a  complaint.
\nThe  High  Court held that the appeal was  filed  before  he
\nDistrict  Judge\t under\ts. 476-B of  the  Code\tof  Criminal
\nProcedure  and that under art. 154 of the Limitation Act  it
\nshould\thave been filed within 30 days from the date of\t the
\norder of the Subordinate court.\t It will be noticed that  no
\nargument  was  raised  in  that case  that  the\t appeal\t was
\ngoverned by the Code of Civil Procedure and, therefore,\t the
\nappropriate article of the Limitation Act was not art. 154,
\n(1) A. 1. R. 1937 Nag. 91.\n<\/p>\n
(2) (1925) I. L. R. 52 Cal. 1009.\n<\/p>\n
150<\/span><\/p>\n
but  art. 156 thereof, for the simple reason that  whichever
\narticle applied the apPeal was clearly barred by limitation.
\nIt is not, therefore, permissible to read into the  decision
\nthe  entire  argument now advanced before us.\tThe  present
\nquestion  was  neither raised nor argued in that  case.\t  It
\nmay,  therefore, be safely held that for over 75  years\t the
\ndecision  of the Calcutta High Court on the construction  of
\nart. 156 of the Limitation Act stood the ground.  Though  it
\nmust be conceded that the point is not free from difficulty,
\nwe are not prepared to depart from the construction put upon
\nthe  article  as early as 1886 and which was  not  dissented
\nfrom all these years. 1, therefore, hold that the expression
\n“appeal\t under the Code of Civil Procedure” in art.  156  of
\nthe  Limitation Act means an appeal governed by the Code  of
\nCivil Procedure.\n<\/p>\n
Even  so, it is contended that under s. 116-A(2) of the\t Act
\nthe High Court, though it has the same powers,\tjurisdiction
\nand authority of an appellate court governed by the Code  of
\nCivil  Procedure, is not empowered to follow  the  procedure
\nprescribed  under  the\tCode in\t respect  of  receiving\t the
\nappeals.  This argument is contrary to the express terms  of
\nsub-s. (2) of s. 116-A of the Act.  Under that\tsub-section,
\n“The  High  Court shall, subject to the provisions  of\tthis
\nAct,  have the same powers, jurisdiction and  authority\t and
\nfollow\tthe same procedure, with respect to an appeal  under
\nthis  Chapter  as  if  the appeal were\tan  appeal  from  an
\noriginal decree passed by a civil court situated within\t the
\nlocal  limits of its civil appellate  jurisdiction”.   Under
\nthe  second  part of sub-s. (2) of s. 11 6-A of the  Act,  a
\nfiction is created, namely, that though a right of appeal is
\nconferred  by s. 116-A(1) of the Act, the appeal  thereunder
\nfor the purpose of sub-s. (2) will be deemed to be an appeal
\nfrom  an  original decree passed by a civil  court  situated
\nwithin the local limits of its civil apPellate jurisdiction.
\nThe first part of the sub-section describes the purposes for
\nwhich  the fiction is invoked, namely, the exercise  of\t the
\npowers, jurisdiction and authority and the following of\t the
\nprocedure  with\t respect  to such an  appeal.\tThe  powers,
\njurisdiction and authority take in the powers,\tjurisdiction
\nand authority exercisable by an appellate tribunal in regard
\nto various matters prescribed in the Code of Civil
\n151<\/span>
\nProcedure.   What  does\t the  word  “procedure”\t mean?\t The
\nprocedure  must necessarily be the procedure governing\tsuch\n<\/p>\n
-an  appeal.  It means, inter alia, the manner of  receiving
\nan  -appeal in the court, the preparation of records of\t the
\nappeal,\t the  posting of the appeal and the  manner  of\t its
\ndisposal.   We find it impossible to exclude from  the\tword
\n“procedure”  the  filing and receiving of an appeal  in\t the
\ncourt.\t If that part was excluded, how could the appeal  be
\nreceived  in the High Court?  The answer given is  that\t the
\nGovernment  might  make rules under s. 169(1)  of  the\tAct.
\nWhen  s. 168(2) confers a statutory power on the High  Court
\nto  follow  the procedure prescribed by the  Code  of  Civil
\nProcedure,  we\t,cannot\t invoke the  general  power  of\t the
\nCentral Government to make rules under s. 169(1) of the Act.
\nIf  so,\t the procedure prescribed by 0. XLI of the  Code  of
\nCivil Procedure, along with the other relevant provisions of
\nthe  said Code, equally applies to an appeal filed under  s.
\n116-A (2) of the Act.  The result is that under s.  116-A(2)
\nof  the\t Act,  the appeal, by fiction, is  equated  with  an
\nappeal\tfiled  under  the ,Code of Civil  Procedure  in\t the
\nmatter of not only the exercise ,of the powers, jurisdiction
\nand  authority\tbut also in the matter ,of procedure  to  be
\nfollowed  from\tthe date of receipt of the  :appeal  to\t its
\nfinal disposal.\t For the aforesaid reasons, I hold that\t the
\nspecial\t law,  namely,\tthe  Act,  prescribes  a  period  of
\nlimitation different from the period prescribed therefor  by
\nthe First Schedule to the Limitation Act within the  meaning
\nof  art. 29 (2) of the Limitation Act.\tIf so, s. 12 of\t the
\nLimitation  Act\t is attracted, and the\t1st  respondent\t was
\nentitled to exclude the time taken by him for obtaining\t the
\ncopy of -the order.\n<\/p>\n
Even assuming that art. 156 of Schedule 1 to the  Limitation
\nAct did not prescribe a period of limitation for the kind of
\nappeal under consideration, the question arises whether sub-
\ns.  (2) of s. 29 of the Limitation Act would not  be  appli-
\ncable if no period was prescribed by the First Schedule\t for
\nan appeal created by a special law but the special law pres-
\ncribed a period of limitation for the same.  The history  of
\nthis  provision\t throws some light on  this  question.\t The
\nfirst Limitation Act was passed in the year 1859 (Act XIV of
\n1859).\tSection 3 of that act provided:\n<\/p>\n
152<\/span><\/p>\n
\t      “When,  by any law now or hereafter to  be  in
\n\t      force,  a\t shorter period of  limitation\tthan
\n\t      that  prescribed\tby  this  Act  is  specially
\n\t      prescribed for the institution of a particular
\n\t      suit, such shorter period of limitation  shall
\n\t      be applied notwithstanding this Act.”\n<\/p><\/blockquote>\n
The provisions of the Act of 1859 were repealed by the Limi-
\ntation\tAct  IX of 1871.  Section 6 of that  Act,  which  is
\nrelevant to the present inquiry, read:\n<\/p>\n
\t      “When,  by  any  law  not\t mentioned  in\t the
\n\t\t\t    schedule  hereto annexed, and now or
\nhereafter
\n\t      to be in force in any part of British India, a
\n\t      period  of  limitation  differing\t from\tthat
\n\t      prescribed   by\tthis   Act   is\t  especially
\n\t      prescribed   for\t any   suits,\tappeals\t  or
\n\t      applications,  nothing herein contained  shall
\n\t      affect such law.”\n<\/p>\n
The Limitation Act of 1871 was replaced by Act XV of 1877.
\nSection 6 of this Act read:\n<\/p>\n
\t      “When,  by  any special or local\tlaw  now  or
\n\t      hereafter in force in British India, a  period
\n\t      of limitation is especially prescribed for any
\n\t      suit,  appeal or application,  nothing  herein
\n\t      contained shall affect or alter the period  so
\n\t      prescribed.”\n<\/p><\/blockquote>\n
The same provision was retained in the Limitation Act IX  of
\n1908,  but  it was amended in the year 1922 in\tthe  present
\nform.  Before the amendment of 1922, there was a  difference
\nof view on the following questions, namely, (1) whether\t the
\ngeneral\t provisions  of the Limitation Act, where  the\tword
\n“prescribed” alone without reference to any Act, was used or
\neven  where that word was not used, would be  applicable  to
\nspecial\t  or  local  laws,  and\t (2)  whether  the   general
\nprovisions of the Limitation Act did not apply at all to the
\nperiods\t of limitation prescribed by special or local  laws.
\nDecisions  holding  that  the  general\tprovisions  of\t the
\nLimitation  Act\t did  not apply to  periods  of\t limitations
\nprescribed by other laws relied upon the expression  “affect
\nor alter” used in the section as it then stood.\t Section  29
\nof  the\t Limitation Act was amended to remove  the  conflict
\nwith a view to make the
\n153<\/span>
\ngeneral\t provisions applicable to the period  of  limitation
\nprescribed  by special or local laws.  A comparison  of\t the
\nphraseology of the earlier sections shows that while s. 3 of
\nthe Limitation Act of 1859 used the words “shorter period”,
\ns.   6\tof the Act of 1871 used the expression\t“differing”,
\nand s.\t  6  of the Acts of 1877 and 1908 removed  both\t the
\nexpressions.   The result was that s. 6 of the Act  of\t1871
\nsaved  all  the\t special or local laws\twhich  prescribed  a
\nspecial\t period\t of  limitation from the  operation  of\t the
\nprovisions  of\tthe  Limitation Act.  As  the  section\tthen
\nstood, it applied to all special or local laws prescribing a\n<\/p>\n
-,period of limitation whether the Limitation Act prescribed
\nany period of limitation or not for suits or appeals similar
\nto  those  governed by special or local laws, or  where\t the
\nperiod of limitation so prescribed by special or local\tlaws
\nwas shorter or longer than that prescribed in the Limitation
\nAct.   Can  it be said that by the Amending Act of  1922,  a
\nconscious departure was made by the Legislature to impose  a
\ncondition  for\tthe  application of sub-s.  (2)\t of  s.\t 29,
\nnamely,\t that  a  period  of  limitation  should  have\tbeen
\nexpressly prescribed by the First Schedule to the Limitation
\nAct  in respect of a suit or appeal governed by the  special
\nor  local law?\tThere was no occasion for such a  departure.
\nTo put it in other words, apart from resolving the conflict,
\ndid the Legislature intend to exclude a particular  category
\nof  proceedings governed by special or local laws  from\t the
\noperation  of the benefit conferred by sub-s. (2) of s.\t 29?
\nNo  justification was suggested for such a departure and  we
\nfind none.\n<\/p>\n
The problem may be approached from a different\tperspective.
\nThe scheme of the Limitation Act may be briefly stated thus:
\nThe  preamble  to  the\tAct shows  that\t it  was  passed  to
\nconsolidate  and  amend\t the laws relating  to\tthe  law  of
\nlimitation  in respect of the proceedings mentioned  in\t the
\nAct.  It applies to the whole of India.\t Part 11  comprising
\nss.  3\tto 11 deals with limitation of\tsuits,\tappeals\t and
\napplications; Part III comprising ss. 12 to 25 provides\t for
\ncomputation of periods of limitation; and Part V deals\twith
\nsavings and repeals.  We are not concerned with Schedules II
\nand  III  for they have been repealed.\tThe  First  Schedule
\nconsists of three divisions: the first division provides for
\nthe period
\n154<\/span>
\nof  limitation for suits; the second division, for  appeals;
\nand the third division, for applications.  Article 120 found
\nin  the\t first division prescribes for a suit for  which  no
\nperiod\t of  limitation\t is  prescribed\t elsewhere  in\t the
\nSchedule;  art.\t 181 in the third  division  prescribes\t for
\napplication for which no period of limitation is  prescribed
\nelsewhere  in the Schedule or by s. 48 of the Code of  Civil
\nProcedure.   But no such residuary article is found  in\t the
\nsecond\tdivision dealing with appeals.\tThe  Limitation\t Act
\nwas conceived to be an exhaustive code prescribing for every
\nconceivable proceeding, whether suit, appeal or application,
\nsubject\t to  the saving in Part V thereof. It  follows\tthat
\nthere is no period of limitation for an appeal not  provided
\nfor  in the second division unless the special or local\t law
\nprescribes  for it.  If so, it may reasonably be said  that,
\nas  the First Schedule of the Limitation Act  prescribes  no
\nlimitation  for\t an appeal not covered by arts. 150  to\t 157
\nthereof, under the Limitation Act such a suit or appeal\t can
\nbe filed irrespective of any time limit.\n<\/p>\n
With this background let us revert to the construction of s.
\n29(2) of the Limitation Act.  When the First Schedule of the
\nLimitation  Act\t prescribes no time limit for  a  particular
\nappeal,\t but the special law prescribes a time limit to\t it,
\ncan  it\t not be said that under the First  Schedule  of\t the
\nLimitation  Act an appeal can be filed at any time, but\t the
\nspecial law by limiting it provides for a different  period?
\nWhile  the  former permits the filing of an  appeal  at\t any
\ntime, the latter limits it to the prescribed period.  It is,
\ntherefore,  different  from that prescribed in\tthe  former.
\n‘This problem was considered by a Division Bench of the Bom-
\nbay  High  Court, consisting of Chagla C.J.,  and  Gajendra-
\ngadkar\tJ.,  in Canara Bank Limited, Bombay  v.\t The  Warden
\nInsurance  Company, Ltd., Bombay(1).  Therein, Chagla  C.J.,
\nspeaking for the Court, observed at p. 1086 thus:\n<\/p>\n
\t      “The  period  of limitation may  be  different
\n\t      under two different circumstances.  It may  be
\n\t      different if it modifies or alters a period of
\n\t      limitation fixed by the first Schedule to\t the
\n\t      Limitation  Act.\tIt may also be different  in
\n\t      the
\n\t      (1)   I. L. R. [1952] Bom. 1083.\n<\/p><\/blockquote>\n
\t      155<\/span><\/p>\n
\t      sense  that  it  departs from  the  period  of
\n\t      limitation fixed for various appeals under the
\n\t      Limitation Act.  If the first Schedule to\t the
\n\t      Limitation Act omits laying down any period of
\n\t      limitation  for  a particular appeal  and\t the
\n\t      special  law provides a period of\t limitation,
\n\t      then  to\tthat  extent  the  special  law\t  is
\n\t      different\t from  the Limitation Act.   We\t are
\n\t      conscious\t of the fact that the language\tused
\n\t      by the Legislature is perhaps not very  happy,
\n\t      but  we must put upon it a construction  which
\n\t      will reconcile the various difficulties caused
\n\t      by  the other sections of the  Limitation\t Act
\n\t      and which will give effect to the object which
\n\t      obviously the Legislature had in mind, because
\n\t      if  we were to give to s. 29 (2)\tthe  meaning
\n\t      which  Mr.  Adarkar contends  for,  ‘then\t the
\n\t      result  would  be\t that  even  s.\t 3  of\t the
\n\t      Limitation Act would not apply to this special
\n\t      law.   The  result would be that\talthough  an
\n\t      appeal  may be barred by limitation, it  would
\n\t      not be liable to be dismissed under s. 3″.\n<\/p><\/blockquote>\n
A Full Bench of the Allahabad High Court, in Sehat Ali\tKhan
\nv.  Abdul Qavi Khan(1) also dealt with this  question.\t The
\nlearned\t Judges expressed conflicting views.  Mootham  C.J.,
\nassumed\t that  the first limb of the  sub-section  ,did\t not
\napply to a case where the schedule omitted to provide for  a
\nperiod\tof limitation.\tOn that assumption he  proceeded  to
\nconsider the second limb of the sub-section.  DayalJ.. took
\nthe  view  that\t for the application of the  first  part  of
\ns.29(2) the period of limitation should have been prescribed
\nby the First Schedule.\tAgarwala J., agreed with the view of
\nthe  Bombay High Court.\t Bhargava J., agreed with  the\tview
\nexpressed  by  Mootham C.J., and Upadhya J., did  not  agree
\nwith the view of the Bombay High Court.\t A Division Bench of
\nthe  Madhya  Pradesh High Court in Beharilal  Chaurasiya  v.
\nRegional Transport Authority (2)
\n(1) I. L.R. (1956) 2 All. 252.\n<\/p>\n
(2) A. 1. R. 1961 M. P. 75,77.\n<\/p>\n
156<\/span><\/p>\n
agreed with the view expressed by the Division Bench of\t the
\nBombay\tHigh  Court.  Dixit C.P., speaking for\t(the  Court,
\nstated thus:\n<\/p>\n
\t      “A  special  law\tmay  provide  a\t period\t  of
\n\t      limitation  and schedule I may omit to do\t so.<\/p><\/blockquote>\n
\t      None  the\t less  the  special  law  would\t  be
\n\t      different from the Limitation Act.  Section 29
\n\t      (2) of -the Limitation Act is not very happily
\n\t      worded.\tIt must be construed so as to  avoid
\n\t      absurdity.   The,\t expression  ‘a\t period\t  of
\n\t      limitation   different.\tfrom   the    period
\n\t\t\t    prescribed\ttherefor  by  the  first
\nschedule’
\n\t      occurring in s. 29 (2) cannot be construed  as
\n\t      meaning  that schedule 1 must also  positively
\n\t      prescribe\t the period of limitation..  Such  a
\n\t      construction  would not be in accordance\twith
\n\t      the  intention  of the Legislature  and  would
\n\t      lead to an absurdity.”\n<\/p>\n
The  learned  Chief Justice proceeded to consider  the\tano-
\nmalous\tposition that would arise if a literal\tconstruction
\nwas  given  to\tthe  provisions of the\tfirst  part  of\t the
\nsection.  This Court, in Kaushalya Rani v. Gopal Singh<\/a>\t(1),
\nhad  to. consider this question incidentally in the  context
\nof  the application of s. 29(2) of the Limitation Act to  an
\napplication for special leave to appeal against an order  of
\nacquittal under sub-s. (3) of s. 417 of the Code of Criminal
\nProcedure.  This Court held that s. 5 of the Limitation\t Act
\nwould  not  apply  to an application for  special  leave  to
\nappeal\tunder sub-s. (3) of s. 417 of the Code\tof  Criminal
\nProcedure.   The Limitation Act does not provide any  period
\nof limitation for an application for special leave to appeal
\nfrom an order of acquittal under the said section.  If\tthat
\nbe so, on the argument of learned counsel for the appellant,
\ns. 29 of the Limitation Act could not be invoked.  But\tthis
\nCourt held that s. 29(2) of the Limitation Act applied,\t but
\nthat  section excluded the application of s. 5 to  the\tsaid
\napplication.  Sinha C.J., speaking for the Court, observed:\n<\/p>\n
\t      “Hence  it  may  be  said\t that  there  is  no
\n\t      limitation
\n\t      prescribed by the Limitation Act for an
\n\t      (1)   A. I. R. 1964 S. C. 260
\n\t      157<\/span>
\n\t      appeal  against an order of acquittal  at\t the
\n\t      instance of a private prosecutor.\t Thus, there
\n\t      is a difference between the Limitation Act and
\n\t      the  rule laid down in s. 417 (4) of the\tCode
\n\t      in  respect  of limitation affecting  such  an
\n\t      application.  Section 29(2) is supplemental in
\n\t      its character in so far as it provides for the
\n\t      application of s. 3 to such cases as would not
\n\t      come   within   its  purview  but\t  for\tthis
\n\t      provision.”\n<\/p><\/blockquote>\n
‘This  observation  clearly supports the  position  that  s.
\n29(2) would apply even to a case where a difference  between
\nthe special law and the Limitation Act arose by the omission
\nto provide for a limitation to a particular proceeding under
\nthe Limitation Act.\n<\/p>\n
1, therefore, hold that in the instant case the Act provides
\na  period  of  limitation  different  from  that  prescribed
\ntherefor  by the First Schedule to the Limitation  Act\tand,
\ntherefore, it is governed by s. 29(2) of the said Act.
\nEven if my view on the construction of the first limb of  s.
\n29  of the Limitation Act were wrong, it would not help\t the
\nappellant,  for his case squarely falls within the scope  of
\nthe  second limb of the section., For convenience I  restate
\nthe relevant part of the section:\n<\/p>\n
\t      “………..   and   for\t the   purpose\t  of
\n\t      determining    any   period   of\t  limitation
\n\t      prescribed for any suit, appeal or application
\n\t      by any special or focal law.”\n<\/p><\/blockquote>\n
Learned\t counsel for the appellant relied upon the  conjunc-
\ntion “and” in support of his contention that the use of that
\nconjunction makes the following sentence a limitation on the
\nfirst part of the section.  He further argues that if it  is
\nnot a limitation but an independent clause, it will lead  to
\nthe -anomaly of ss. 4 to 25 of the Limitation Act applicable
\nto proceedings failing under the first part and only some of
\nthe provisions thereof, namely, ss. 4, 9 to 18 and 22 apply-
\ning  to\t the  second part of the section.   Apart  from\t the
\ngrammatical construction, which I will consider presently, I
\ndo not see any anomaly in ss. 4 to 25 of the Limitation\t Act
\napplying to the first part of the section and only some of
\n158<\/span>
\nthem applying to the second part thereof.  Those proceedings
\nto  which  the\tfirst part applies, by\tfiction\t the  period
\nprescribed  in\tthe  special  or local\tlaw  is\t treated  as
\nprescribed  in\tthe  First Schedule  itself.   There  cannot
\npossibly  be  any reason why s. 3 of the Limitation  Act  in
\ntoto  shall not apply to them.\tBut the same cannot be\tsaid
\nin  the\t case  of the proceedings of a\tdifferent  type\t not
\nprovided for in the First:Schedule. So, the  Legislature
\nspecified the sections applicable tothem  and\texcluded
\nthe general sections which relate tolegal  disabilities,
\nacknowledgements,   part-payments   and\t  others   specified
\ntherein.   The\tLegislature  may_ have\t-thought  that\tsuch
\narticles are not generally appropriate to proceedings  under
\nspecial\t or local laws for reliefs not provided for  in\t the
\nFirst Schedule.\n<\/p>\n
Now, coming to the construction of the section, the relevant
\nrule of construction is well settled.  “A construction which
\nwill  leave  without effect any part of the  language  of  a
\nstatute\t will  normally\t be rejected”; or to  put  it  in  a
\npositive  form, the Court shall ordinarily give\t meaning  to
\nevery word used in the section.\t Does the conjunction  “and”
\nmake the following clause a limitation on the preceding one?
\nNo rule of grammatical construction has been brought to\t our
\nnotice\twhich requires an interpretation that  if  sentences
\ncomplete  by themselves are connected by a conjunction,\t the
\nsecond sentence must be held to limit the scope of the first
\nsentence.   The\t conjunction  “and”  is\t used  in  different
\ncontexts.   It\tmay combine two sentences dealing  with\t the
\nsame subject without one depending upon the other.  But,  if
\nthe  interpretation  suggested\tby the\tlearned\t counsel  be
\naccepted,  we would not be giving any meaning at all to\t the
\nword  “any” used thrice in the second part of  the  section,
\nnamely\t“any period”, “any suit” and “any special  or  local
\nlaw”.  If the second part is a limitation on the first part,
\nthe  sentence should read, “for the purpose  of\t determining
\nthe period of limitation prescribed for such suit, appeal or
\napplication by such special or local law.” Instead of  that,
\nthe  use  of the word “any” clearly  demonstrates  that\t the
\nsecond.\t part  does not depend upon the first part  or\tvice
\nversa.\t There is no reason why we should attribute  such  a
\ngrammatical deficiency to the legislature when every word in
\nthe second part of
\n159<\/span>
\nthe  section can be given full and satisfactory meaning.   I
\nwould,\t therefore,  hold  that\t the  second  part   is\t  an
\nindependent  provision providing for the aforesaid  category
\nof proceedings to which the first part does not apply.\tThis
\nis  the view expressed by the majority of the judges of\t the
\nFull Bench of the Allahabad High Court in Sehat Ali Khan  v.
\nAbdul Qavi Khan(1).  I agree with the same.\n<\/p>\n
It  was\t then  said that s. 116-A of  the  Act\tprovided  an
\nexhaustive and exclusive code of limitation for the  purpose
\nof  appeals  against  orders of tribunals  and\treliance  is
\nplaced\ton the proviso to sub-s. (3) of that section,  which
\nreads:\n<\/p>\n
\t      “Every  appeal  under this  Chapter  shall  be
\n\t      preferred within a period of thirty days\tfrom
\n\t      the  date of the order of the  Tribunal  under
\n\t      section 98 or section 99.\n<\/p><\/blockquote>\n
\t      Provided that the High Court may entertain  an
\n\t      appeal after the expiry of the said period  of
\n\t      thirty  days  if\tit  is\tsatisfied  that\t the
\n\t      appellant\t  had  sufficient  cause   for\t not
\n\t      preferring the appeal within such period.”\n<\/p><\/blockquote>\n
The contention is that sub-s. (3) of s. 116-A of the Act not
\nonly provides a period of limitation for such an appeal. but
\nalso the circumstances under which the delay can be excused,
\nindicating  thereby  that  the\tgeneral\t provisions  of\t the
\nLimitation Act are excluded.  There are two answers to\tthis
\nargument.  Firstly, s. 29(2)(a) of the Limitation Act speaks
\nof  express exclusion but there is no express  exclusion  in
\nsub-s.\t(3)  of s. 116-A of the Act; secondly,\tthe  proviso
\nfrom  which an implied exclusion is sought to be drawn\tdoes
\nnot lead to any such necessary implication.  The proviso has
\nbecome\tnecessary, because, if the proviso was not  enacted.
\ns.  29(2)(b) of the Limitation Act would have  excluded\t the
\noperation  of  s. 5 of the Limitation Act, with\t the  result
\nthat  even if a sufficient cause for the delay existed,\t the
\nHigh Court would have been helpless to excuse the delay.  1,
\ntherefore,  hold that the proviso to sub-s. (3) of s.  116-A
\nof the Act only restores the power denied to the court under
\ns.   29(2)(b) of the Limitation Act.\n<\/p>\n
1) I. L. R. [1956] 2 All. 252.\n<\/p>\n
160<\/span><\/p>\n
Lastly, it is contended that s. 12(2) of the Limitation Act,
\non  its express terms, would not apply to an appeal  to\t the
\nHigh  Court against an order of the Election Tribunal  under
\ns. 98 of the Act.  Elaborating the argument it is said\tthat
\nin  order  to exclude the time for obtaining a copy  of\t the
\norder  appealed against, the original shall be a  decree  or
\norder within the meaning of s. 12(2) or judgment within\t the
\nmeaning\t of  s. 12(3) of the Limitation Act  and  the  order
\nunder s. 98 of the Act is neither a decree nor an order or a
\njudgment  within the meaning of the said sub-sections of  s.
\n12 of the Limitation Act.  Reference is made to the  defini-
\ntions of decree, judgment and order in sub-sections (2), (9)
\nand   (14)  of\ts.  2  of  the\tCode  of  Civil\t  Procedure,
\nrespectively, and it is contended that the order under s. 98
\nof  the\t Act  does  not fall under any\tof  the\t said  three
\nexpressions as defined therein.\t Under sub-s. (9) of s. 2 of
\nthe  Code of Civil Procedure, “judgment” is defined to\tmean
\nthe statement given by the judge of the grounds of a  decree
\nor order.  Sub-section (14) of s. 2 of the said Code defines
\n“order”\t to mean the formal expression of any decision of  a
\ncivil court which is not a decree.  It follows from the said
\ndefinitions  that  judgment is a statement  of\tthe  reasons
\ngiven by the judge and order is the formal expression of his
\ndecision.   Section  104 of the said Code says,\t “An  appeal
\nshall  lie from the following orders, and save as  otherwise
\nexpressly  provided in the body of this Code or by  any\t law
\nfor the time being in force, from no other orders.” Order XX
\nof the Code deals with the manner of pronouncing a  judgment
\nand  decree.   Under 0. XX, r. 20, of the  Code,  “Certified
\ncopies of the judgment and decree shall be furnished to\t the
\nparties on application to the Court, and at their  expense.”
\nUnder  s. 141 of the Code, “The procedure provided  in\tthis
\nCode  in regard to suits shall be followed as far as it\t can
\nbe made applicable, in all proceedings in any court of civil
\njurisdiction”.\t The  effect of these provisions is  that  a
\ndecree\tis a formal expression of adjudication\tconclusively
\ndetermining the rights of parties with regard to all or\t any
\nof  the controversies in a suit, whereas order is  a  formal
\nexpression of any ,decision of a civil court which is not  a
\ndecree.\t  Judgment is a statement given by the judge of\t his
\ngrounds\t in  respect  of ,a  decree  or\t order.\t  Ordinarily
\njudgment and order are en-\n<\/p>\n
161<\/span><\/p>\n
grossed\t in two separate documents.  But the fact that\tboth
\nare  engrossed\tin the same document does  not\tdeprive\t the
\nstatement of reasons and the formal expression of a decision
\nof   their  character as judgment or order, as the case\t may
\nbe.\n<\/p>\n
With this background let me look at the provisions of s.116-
\nA of the Act.  Under sub-s. (1) thereof, an appeal shall lie
\nfrom every order made by a Tribunal under s. 98 or s. 99  to
\nthe  High  Court  of  the State in  which  the\tTribunal  is
\nsituated.  Under s. 98 of the Act,
\n\t      “At the conclusion of the trial of an election
\n\t      petition the Tribunal shall make an order-\n<\/p>\n
\t      (a) dismissing the election petition;or\n<\/p>\n
\t      (b)   declaring the election of all or any  of
\n\t      the returned candidates to be void; or\n<\/p>\n
\t      (c)declaring the election of all or any  of
\n\t      the  returned  candidates to be void  and\t the
\n\t\t\t    petitioner or any other candidate to h
\nave  been
\n\t      duly elected.  ”\n<\/p>\n
Part   VI  of  the  Act\t provides  for\tdisputes   regarding
\nelections-, Ch. III thereof prescribes the procedure for the
\ntrial of election petitions, and s. 90 therein says:\n<\/p>\n
\t      “(1)Subject to the provisions of this Act\t and
\n\t      of  any rules made thereunder, every  election
\n\t      petition\tshall be tried by the  Tribunal,  as
\n\t      nearly  as  may  be, in  accordance  with\t the
\n\t      procedure\t applicable under the Code of  Civil
\n\t      Procedure, 1908, to the trial of suits.”\n<\/p><\/blockquote>\n
There is noprovision   in  the\tAct  defining  how   the
\ndecision  should  be  given.  It could\tnot  have  been\t the
\nintention of the Legislature that the Tribunal need not give
\nthe  statement of reasons for its decision.  As under s.  90
\nof the Act the Election Tribunal is directed to try election
\npetitions  as nearly as may be in accordance with  the\tpro-
\ncedure\tapplicable under the Code of Civil Procedure, it  is
\nthe  duty  of the Election Tribunal to give a  statement  of
\nreasons\t for  its decision.  It is open to it to  issue\t two
\ndocuments–one\tembodying the reasons for the  decision\t and
\nthe
\n134-159 S.C.-11.\n<\/p>\n
162<\/span><\/p>\n
other,\tthe  formal expression of its decision:\t the  former
\nwill  be  its judgment and the latter, its  order.   It\t may
\nissue  both in the same document in which case the  judgment
\nas  well as the order is embodied in the same document.\t  If
\nso it is manifest that an order made under s. 98 of the Act,
\nif  it\tcontains  also the reasons for it,  is\ta  composite
\ndocument ,satisfying the definition of a judgment as well as
\nthat  of  an  ,order and  thereby  attracting  the  relevant
\nprovisions  of s. 12 of the Limitation Act.  That  apart,  a
\ndifferent approach to the question raised leads to the\tsame
\nconclusion.   Section 12(2) of the Limitation Act  does\t not
\nsay  that  the order mentioned therein shall  be  only\tsuch
\norder as defined in the Civil Procedure Code.  If a  statute
\nprovides for the making of can order and confers a right  of
\nappeal\tto an aggrieved party -against that order  within  a
\nprescribed  time, sub-s. (2) of s. 12 of the Limitation\t Act
\nsays  that the time requisite for obtaining a copy  of\tsuch
\norder shall be excluded.  The Act em-powers the Tribunal  to
\nmake  an  order and gives a right of  -appeal  against\tthat
\norder  to the High Court.  Section 12(2) of  the  Limitation
\nAct  is, therefore, directly attracted without any  recourse
\nto  the\t definition  of\t an  order  in\tthe  Code  of  Civil
\nProcedure.   In\t either view, s. 12 of\tthe  Limitation\t Act\n<\/p>\n
-applies and, therefore, the time taken for obtaining a copy
\n,of the said order shall be excluded in computing the period
\n,of limitation.\n<\/p>\n
In the result, the appeal fails and is dismissed with costs.
\nRAGHUBAR DAYAL J.-I agree that the appeal be dismissed,\t but
\nfor different reasons.\n<\/p>\n
I am of opinion that the first part of s. 29(2) of the Limi-
\ntation\tAct  applies  only  when  a  special  or  local\t law
\nprescribes  -a period of limitation for an appeal  and\twhen
\nfor  that  particular  appeal  a  period  of  limitation  is
\nprescribed  in the First Schedule to the Limitation Act,  as
\nomission  to  prescribe\t a period of  limitation  cannot  be
\nequated\t with  the prescribing ,of any\tpositive  period  of
\nlimitation within which the appeal should be filed, and that
\nthe second part of s. 29(2) of the Act is independent of the
\nfirst  part and can apply to cases to which the\t first\tpart
\ndoes not apply.\t I am also of ,opinion that art. 156 of\t the
\nFirst Schedule applies to appeals
\n163<\/span>
\n which\tare  instituted\t in  view of  the  right  of  appeal
\nconferred  by any special or local law and not in  pursuance
\nof  the\t provisions of s. 96 C.P.C. I do  not  elaborate  my
\nviews as I agree with what my learned brother Mudholkar\t J.,
\nhas  said in construing the first part of s. 29 (2)  of\t the
\nLimitation Act and art. 156 of the First Schedule and  agree
\nwith  my  learned brother Ayyangar J., with respect  to\t his
\nconstruction of the second part of s. 29(2).
\nThe proviso to s. 116(a) of the Representation of the People
\nAct  gives  discretion\tto the High Court  to  entertain  an
\nappeal\tpresented after the expiry of 30 days from the\tdate
\nof  the order of the Tribunal in case it is  satisfied\tthat
\nthere  is sufficient cause for the late presentation of\t the
\nmemorandum  of appeal.\tThe respondent has applied  in\tthis
\nCourt for the condonation of the delay in filing the  appeal
\nin  the\t High Court.  In the circumstances of  the  case,  I
\nconsider it a fit case for condoning the delay.\t There was a
\ndifference  of\topinion\t in the High  Courts  regarding\t the
\napplicability  of  s.  12  of the  Limitation  Act  to\tsuch
\nappeals.   The\tdelay  was  of a  few  days.   The  Election
\nTribunal passed the order on January 5, 1963 and the  appeal
\nwas filed on February 11, 1963.\n<\/p>\n
A  party  can  reasonably desire to obtain  a  copy  of\t the
\njudgment  for  deciding, after studying it,  whether  it  is
\nworthwhile appealing against it, and if so. on what grounds.
\nI  am  satisfied  that there was sufficient  cause  for\t the
\nrespondent’s not presenting the appeal within the period  of
\nlimitation.   I therefore condone the delay and confirm\t the
\norder of the High Court.\n<\/p>\n
MUDHOLKAR J.-While I agree with my brother Subba Rao J. that
\nthe  appeal  should be dismissed, I regret my  inability  to
\nagree with all the reasons which he has given.
\nI  need not recapitulate the facts which have been  set\t out\n<\/p>\n
-fully in the judgment prepared by my learned brother but  I
\nwould only state the point which we have to consider in this
\nappeal.\t  The point is whether for the purpose of  computing
\nthe period of 30 days prescribed by s. 116A(3) of
\n164<\/span>
\nthe  Representation of the People Act, 1951 under  which  an
\nappeal\tcan be preferred from the decision of  the  Election
\nTribunal, the provisions of s. 12, sub-s. (2) of the Limita-
\ntion Act, whereunder the time requisite for obtaining a copy
\nof  the decree and the day on which the judgment  complained
\nof was pronounced can be excluded can be pressed in aid.  It
\nwas contended before us that the appeal should be deemed  to
\nbe  one under the Code of Civil Procedure, in which case  it
\nwould fall under art. 156 of the First Schedule to the Limi-
\ntation\tAct, and that though a shorter period of  limitation
\nis prescribed for it by the Representation of the People Act
\nthe  provisions of s. 12(2) of the Limitation Act  would  be
\nattracted  by  reason  of the provisions of cl.\t (a)  of  s.
\n29(2).\tReliance was ;)laced in this connection on the first
\nlimb  of  s. 29(2).  Alternatively it was  argued  that\t the
\nfirst limb of s. 29, sub-s. (2) of the Limitation Act  would
\nalso  apply  to an appeal under the  Representation  of\t the
\nPeople\tAct even though it does not fall under art.  156  of
\nthe  Limitation Act since a different period  of  limitation
\nwas prescribed for it from that prescribed for an appeal  in
\nthe   First  Schedule  of  the\tLimitation  Act\t and   that,
\ntherefore,  cl.\t (a) thereof would attract s. 12(2)  of\t the
\nLimitation  Act.   Finally it was argued that  even  if\t the
\nappeal\tcannot be regarded as one falling within  the  first
\nlimb  of  s.  29(2) sub-s. (2) of s. 12\t would\tstill  apply
\nbecause\t the  second  limb of sub-s. (2) of s.\t29  is\twide
\nenough in its ambit to include a suit, appeal or application
\nfor which no period of limitation is prescribed in the first
\nschedule but a period of limitation has been prescribed by a
\nspecial\t or local law.\tMy learned brother has held in\this:
\njudgment  that\tan  appeal provided for by s.  116A  of\t the
\nRepresentation of the People Act would be an appeal underthe
\nCode of Civil Procedure and thus fall under the first column
\nof art. 156 of the First Schedule of the Limitation Act.  He
\nhas also held that the words “where any special or local law
\nprescribes  for any suit, appeal or application a period  of
\nlimitation different from the period prescribed therefor  by
\nthe  first schedule” occurring in the first limb  of  sub-s.
\n(2) of s. 29 would include a suit or an appeal’ even  though
\nit  is\tnot of a type for which a period  of  limitation  is
\nprescribed in the First Schedule because it is enough if the
\nspecial law prescribes for such an appeal a period
\n165<\/span>
\nwhich  is different from any period prescribed in the  First
\nSchedule.   I  regret I am unable to agree  with  either  of
\nthese  views.\tFinally,  however, my  learned\tbrother\t has
\nconstrued the second limb of sub-s. 2 of s. 29 “and for\t the
\npurpose of ,determining any period of limitation  prescribed
\nfor any suit, appeal or application by any special or  local
\nlaw”  as being wide enough to include a suit, appeal  or  an
\napplication under a special or local law which is of a\ttype
\nfor which no period of limitation is prescribed in the First
\nSchedule.   With  this\tlast  conclusion  I  agree.   In  my
\njudgment  what he has said on the last point is\t enough\t for
\nthe  purpose of disposing of the appeal in the way  proposed
\nby  him.  As, however, I do not agree with what he has\tsaid
\non  the first two points I must briefly indicate my  reasons
\nfor coming to different conclusions.\n<\/p>\n
In  support  of\t the conclusion that art.  156\tapplies,  my
\nlearned brother has relied upon the decision in Aga  Mahomed
\nHamadani v. Cohen (1) which was followed by the Madras\tHigh
\nCourt  in  Ramasami  Pillai  v.\t the  Deputy  Collector\t  of
\nMadura(1).   The first of these two cases was one from\twhat
\nwas  then  British Burma.  Under s. 49 of the  Burma  Courts
\nAct,  1875  (XVII of 1875) an appeal Jay to the\t High  Court
\nfrom  the  decision  in\t a suit\t or  proceeding\t before\t the
\nRecorder’s  Court in which the amount or value was not\tless
\nthan Rs. 3,000 and was not more than Rs. 10,000.  Section 97
\nof  that Act said: “save as otherwise provided by this\tAct,
\nthe Code of Civil Procedure shall be, and shall, on and from
\nthe 15th day of April, 1872, be deemed to have been in force
\nthroughout British Burma.” Section 540 of the Code of  Civil
\nProcedure, 1882 which was in force at that time read thus:\n<\/p>\n
\t      “Unless  when otherwise expressly provided  by
\n\t      this  Code  or by any other law for  the\ttime
\n\t      being  in force, an appeal shall lie from\t the
\n\t      decrees or from any part of the decrees of the
\n\t      Courts exercising original jurisdiction to the
\n\t      Courts  authorised  to hear appeals  from\t the
\n\t      decisions of those courts.”\n<\/p><\/blockquote>\n
(1) (1886) 1. L. R. 13 Cal. 221
\n(2) (1919) 1. L. R. 43 Mad. 51
\n166<\/span>
\nThe  question which the High Court had to consider  in\tthat
\ncase  was whether the appeal could be said to be in time  as
\nit fell to be governed by art. 156 of the First Schedule  to
\nthe Limitation Act.  For deciding this matter the High Court
\nproceeded to consider what was-meant by an appeal under\t the
\nCode of Civil Procedure.  While dealing with the matter\t the
\nHigh Court observed:\n<\/p>\n
\t      “A  particular appeal was given by  the  Burma
\n\t      Courts.  Act and the Burma Courts Act is still
\n\t      the  only Act which prescribes to\t what  Court
\n\t      this  appeal  shall lie.\tIf it had  not\tbeen
\n\t      given  by the Burma Courts Act then s. 540  of
\n\t      the  Civil  Procedure  Code  would  have\tbeen
\n\t      sufficient  to  give it.\tprovided  that\tsome
\n\t      Court  was by some enactment provided  as\t the
\n\t      proper   Court  to  hear\tthe   appeal.\t The
\n\t      procedure\t in  appeals  in  every\t respect  is
\n\t      governed by the Code of Civil Procedure.\t The
\n\t      Limitation  Act,\tSch. 1, Art..  156  when  it
\n\t      speaks of the Civil Procedure Code is, on\t the
\n\t      face  of it, speaking of a Code which  relates
\n\t      to  procedure,  and does not  ordinarily\tdeal
\n\t      with  substantive\t rights:  and  the   natural
\n\t      meaning of an appeal under the Civil Procedure
\n\t      Code appears to us to be an appeal governed by
\n\t      the   Code  of  Civil  Procedure\tso  far\t  as
\n\t      procedure, is concerned.”\n<\/p><\/blockquote>\n
\t      Referring\t to  this, my  learned\tbrother\t has
\n\t      observed:<\/p><\/blockquote>\n
\t      “It  is  manifest from this passage  that\t the
\n\t      learned judges did not repel the contention on
\n\t      the  ground  that\t the  right  of\t appeal\t was
\n\t      conferred\t by  s.\t 540 of the  Code  of  Civil
\n\t      Procedure, but expressely for the reason\tthat
\n\t      the natural meaning of the relevant expression
\n\t      in  art. 156 of Sch.  1 of the Limitation\t Act
\n\t      was that the appeal mentioned therein was\t one
\n\t\t\t    governed by the Code of Civil Procedur
\ne.”\n<\/p>\n
That  is true.\tIt is, however, not material for my  purpose
\nto consider whether or not the High Court was right in hold-
\ning that the appeal before it was under the Burma Courts
\n167<\/span>
\nAct.  I would assume that the High Court was right but it is
\nnecessary  to point out that the provisions of s. 29 of\t the
\nLimitation Act as then in force did not come for  considera-
\ntion  in that case.  The question would then be whether\t its
\nview  that  an appeal, though not provided by  the  Code  of\n<\/p>\n
-Civil Procedure, would yet be deemed to be an appeal  under
\nthe  Code  for\tthe purpose of art. 156\t of  the  Limitation
\nAct,,,\twas right.  With respect I do not think\t that  there
\nwas  any  warrant for holding that an appeal which  was\t not
\ngiven by, the Code would still be one under the Code  merely
\nbecause\t the procedural provisions thereof would govern\t its
\ncourse-.   Where the right of appeal is given by some  other
\nlaw,  the appeal must be regarded as one under that law\t and
\nnot  under the Code.  I see no valid reason  for  construing
\nthe  words  ‘under the Code of Civil Procedure’\t as  meaning
\n‘governed  in the matter of procedure by the Code  of  Civil
\nProcedure’.   For, that is, in effect, what the\t High  Court
\nhas done in this case.\tBy reading the article in the way it
\nhas  done  the High Court has virtually construed  the\tonly
\nprovision  in the Limitation Act dealing with  normal  civil
\nappeals;  to  the High Court as a  residuary  article  which
\nwould  take  in\t all appeals by whatever  law  they  may  be
\nprovided,  merely because the procedure relating to  appeals
\ncontained  in the Code of Civil Procedure was applicable  to
\nthem.\tThis  would  in my judgment  go\t against  the  plain
\nintended  of  the  Legislature.\t Indeed, while\ta  right  to
\ninstitute  a suit or make an application is a wider kind  of
\nright.\tthere can be no right of appeal unless some  statute
\nconfers\t it.   That  is why the\t Legislature  has  expressly
\nenacted\t residuary provisions, Arts. 120 and 180, for  suits
\nand  applications respectively in the Limitation  Act.\t The
\nFirst Schedule is divided into three divisions.\t Article 156
\nis  one\t of  the  eight article&  contained  in\t the  second
\ndivision  which deals with appeals.  The first\tdivision  of
\nthat  schedule deals with suits.  There, provision  is\tmade
\nfor  a variety of suits including some under  special  laws.
\nbut  it\t was  realised\tthat it\t could\tnot  be\t exhaustive.
\nTherefore,  art. 120 was provided therein, which deals\twith
\n“Suits\tfor  which  no\tperiod\tof  limitation\tis  provided
\nelsewhere in this schedule.” The third division of the First
\nSchedule   deals  with\tapplications  of  different   kinds.
\nArticle 181 makes provision for applications for which no
\n168<\/span>
\nperiod\t of  limitation\t is  prescribed\t elsewhere  in\t the
\nSchedule.  In the second division, however, which deals with
\nappeals,  there\t is no provision analogous to art.  120\t and
\nart.  181.   Four of the eight articles\t deal  with  appeals
\nunder  the Code of Criminal Procedure and four with  appeals
\nother  than those under the Code of Criminal Procedure.\t  As
\nalready stated, only one of these articles deals with normal
\ncivil  appeals to the High Court, namely, art. 156.   It  is
\nnot couched in language similar to that used in art. 120 and
\nart.  181.  Would we then be justified in reading the  first
\ncolumn of art. 156 to mean the same thing as is said in\t the
\nfirst column of arts. 120 or 181?  The Legislature knew that
\nappeals\t have been provided by various special laws; but  it
\nmade  no provision for such appeals in this  Schedule  appa-
\nrently\tfor the reason that a law which confers a  right  of
\nappeal\tis expected to provide for the period of  limitation
\nfor  such an appeal.  That seems to be the  explanation\t for
\nthe absence of a residuary provision for appeals.
\nThe first difficulty, therefore, in interpreting art. 156 in
\nthe  way contended for by -the respondents is that  where  a
\ndifferent period of limitation for appeal is expressly\tpro-
\nvided  by  a  special  law art. 156 will  not  in  terms  be
\nattracted.   To bring such an appeal under it would  clearly
\ngo  against the express intention of ‘the Legislature  which
\nwas  to\t confine that article to appeals under the  Code  of
\nCivil  Procedure.   The next difficulty is  that  the  entry
\ndeals  with appeals “under” the Code of Civil Procedure\t and
\nnot appeals arising out of proceedings to which the Code  of
\nCivil  Procedure  applies.  Nor again, does  it\t include  an
\nappeal\twhich is only deemed to be under the Code  of  Civil
\nProcedure.  Be it noted that so far as proceedings under the
\nRepresentation of the People Act are concerned, the whole of
\nthe Code of Civil Procedure does not apply but only so\tmuch
\nof  it as is expressly made applicable by the provisions  of
\nthe  Representation of the People Act.\tIt was said that  if
\nthe  provisions\t of 0. XLI, of the Code of  Civil  Procedure
\nwere not applicable to an appeal under the Representation of
\nthe  People Act there would be no provision  whereunder\t the
\nparty could at all file an appeal.  It seems to me, however,
\nthat  there  can be no difficulty at all in this  matter  as
\nevery
\n169<\/span>\n<\/p>\n
-High  Court  has made rules partly under  the\tConstitution\n<\/p>\n
-and  partly  in  exercise of its  inherent  power  to\tmake
\nsuitable  provisions in regard to this and  allied  matters.
\nThe  Calcutta High Court, however, does not appear  to\thave
\ngiven  ,the  full consideration in Cohen’s  case(1)  to\t the
\nambit  of  art. 156 and that is another reason\twhy  I\tfind
\nmyself\tunable to accept the correctness of the view it\t has
\ntaken in that case.\n<\/p>\n
It  was\t then said that the view should be accepted  on\t the
\nground of stare decisis.  In this connection it was  pointed
\nout thatso  far no court has dissented from that view  and
\nindeed theview\t was   fully   accepted\t  in   Ramasami
\nPillai’s .case(1) bythe\t Madras High Court.  In so  far
\nas the principle of stare decisis is concerned it is nothing
\nmore ‘than,. as observed by Dowrick in Justice According  to
\nthe English ,Common Lawyers (1961 ed. p. 195), a precipitate
\nof  the notion of legal justice.  In other words it  is\t the
\nprinciple that judicial decisions have a binding  character.
\nBut  in India the position is not quite the same.  Here\t the
\ndecision of a High Court is not even always binding upon  it
\nin  the sense that it can be reconsidered by a\tFull  Bench.
\nNo doubt its decision may bind all courts subordinate to  it
\nas also all Judges sitting singly or in division benches  of
\nthe  High  Court.   It is also true that  a  decision  of  a
\nDivision  Bench\t of a High Court is binding on\tevery  other
\nDivision Bench of that High Court but there again there have
\nbeen  cases  where  one\t Full  Bench  has  reconsidered\t the
\ndecision of an earlier Full Bench.  In any case the decision
\nof a High Court has no more than persuasive character in  so
\nfar as this ‘Court is concerned.  In that view the  decision
\nof the Calcutta High Court, even though it may not have been
\ndissented  from since the time it was rendered,\t cannot,  in
\nthe  proper sense of the term be regarded as stare  decisis.
\nWhat  could be stare decisis in this Court would be its\t own
\nprevious  ,decisions.\tBut  even  here\t instances  are\t not
\nwanting\t where, unlike perhaps the House of Lords,  we\thave
\nconsidered ourselves free to go back on previous  decisions.
\n(See  The  Bengal Immunity Company Limited v. The  State  of
\nBihar ors.<\/a>  3\t Finally, even where a decision has not been
\n(1) (1886) I. L. R. 13 Cal. 221
\n(2) (1919) I. L. R. 43 Mad. 51
\n(3)  [1955] 2 S. C. R. 603
\n170<\/span>
\ndissented  from for a long time, but has on the\t other\thand
\nbeen  followed,\t it  is\t not  entitled\tto  be\ttreated\t  as
\nimmutable, particularly where it deals only with a  question
\nappertaining  to  the  adjective law, such  as\tthe  law  of
\nlimitation.  There may be a great deal to be said in  favour
\nof   not  disturbing  even  erroneous  decisions   affecting
\nsubstantive rights to property which have stood\t undisturbed
\nfor  a\tlong  time  on the ground that\tsuch  a\t course\t may
\nunsettle  existing titles to property.\tBut this or  similar
\nconsiderations\twhich would justify leaving  such  decisions
\nundisturbed  would  not stand in the way  of  overruling  an
\nerroneous decision on a matter appertaining to the adjective
\nlaw however ancient the decision may be(1).  Therefore, I do
\nnot  feel myself persuaded to hold that the  present  appeal
\ncan be regarded as of a type falling within the first column
\nof art. 156 of the First Schedule to the Limitation Act.
\nIn order to deal with the second ground given by my  learned
\nbrother\t it is necessary to reproduce the provisions  of  s.
\n29, sub-s. (2) of the Limitation Act.  They run thus:\n<\/p>\n
\t      “Where any special or local law prescribes for
\n\t      any  suit, appeal or application a  period  of
\n\t      limitation    different\tfrom   the    period
\n\t      prescribed therefor by the First Schedule, the
\n\t      provisions  of  section 3 shall apply,  as  if
\n\t      such  period were prescribed therefor in\tthat
\n\t      Schedule,\t and for the purpose of\t determining
\n\t      any  period of limitation prescribed  for\t any
\n\t      suit, appeal or application by any special  or
\n\t      local law-.\n<\/p><\/blockquote>\n
\t      (a)   the Provisions contained in section\t 4.,
\n\t      sections\t9 to 18, and section 22 shall  apply
\n\t      only in so far as, and to the extent to which,
\n\t      they  are\t not  expressly\t excluded  by\tsuch
\n\t      special or local law; and\n<\/p><\/blockquote>\n
\t      (b)   the\t remaining  provisions of  this\t Act
\n\t      shall not apply.”\n<\/p><\/blockquote>\n
(1) See Allen, Law in the, making (5th edn.) p. 209 fn. 3
\n171<\/span>
\nWhile  expressing the view that the legislature has not\t ex-
\npressed itself happily while enacting this provision he\t has
\nagreed with the view taken in Canara Bank Ltd. v. The Warden
\nInsurance  Co., Ltd., Bombay(1), which was followed  by\t the
\nHigh  Court  of Madhya Pradesh in  Beharilal  Chaurasiya  v.
\nRegional  Transport Authority(1).  In that case\t the  Bombay
\nHigh Court has held that art. 156 is attracted on the ground
\nthat  the  period provided by the special law  is  different
\nfrom  that  contained  in the First  Schedule.\t With  great
\nrespect to the learned Judges, I find it difficult to strain
\nthe  language  used in the first limb of s. 29 (2)  in\tthis
\nmanner.\t The legislature has in clear terms spoken of  cases
\nin  which a special or local law has prescribed for a  suit,
\nappeal or an application a period of limitation\t “different”
\nfrom  that  prescribed\tby the\tFirst  Schedule.   Now,\t the
\ngoverning   words   are\t “suit,\t appeal\t  or   application”.
\nTherefore, what has to be seen is whether a suit, appeal  or
\napplication under a particular local or special law is of  a
\nkind  similar  to one for which a period  of  limitation  is
\nprescribed in the First Schedule.  The first limb of  sub-s.
\n(2)  of\t s. 29 is concerned only with  proceedings  of\tthis
\nkind,  that is, proceedings under special or local  law\t for
\nwhich  a  period  of limitation is  provided  in  the  First
\nSchedule.   If for such a proceeding the period to be  found
\nin  the\t First Schedule is different  from  that  prescribed
\nunder  a  special  or local law\t certain  consequences\twill
\nfollow\tunder  the  provision.\t I do  not  think  that\t any
\ninconvenience would be caused by giving literal and  natural
\ninterpretation to the expression used by the legislature  in
\nthe  first portion of sub-s. (2) of s. 29 because  cases  of
\nother kind can easily come under the second portion thereof.
\nSince I agree with my learned brother about what he has said
\nregarding the second limb of sub-s. (2) of s. 29 the  aapeal
\nmust be dismissed with costs as proposed by him.
\n(1) I. L. R. 1952 Bom. 1083.\n<\/p>\n
\t\t\t\t      Appeal dismissed.\n<\/p>\n
(2)  A.I.R. 1961 M. P. 75.\n<\/p>\n
172<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Vidyacharan Shukla vs Khubchand Baghel And Others on 20 December, 1963 Equivalent citations: 1964 AIR 1099, 1964 SCR (6) 129 Author: N R Ayyangar Bench: Sinha, Bhuvneshwar P.(Cj), Subbarao, K., Dayal, Raghubar, Ayyangar, N. Rajagopala, Mudholkar, J.R. PETITIONER: VIDYACHARAN SHUKLA Vs. RESPONDENT: KHUBCHAND BAGHEL AND OTHERS DATE OF JUDGMENT: 20\/12\/1963 BENCH: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-143961","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nVidyacharan Shukla vs Khubchand Baghel And Others on 20 December, 1963 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/vidyacharan-shukla-vs-khubchand-baghel-and-others-on-20-december-1963\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Vidyacharan Shukla vs Khubchand Baghel And Others on 20 December, 1963 - 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