Decided on February 09,1970



K. VEERASWAMI J. - (1.) T. C. M. P. No. 21 of 1970. The order of the court was made by VEERASWAMI, C. J.- The question before us is whether notwithstanding the fact that section 37 of the Madras General Sales Tax Act, 1959, provides for limitation of sixty days from the date of the order of the Board of Revenue for preferring an appeal, this court can, by invoking section 5 of the Limitation act, 1963, excuse the delay in filing the appeal provided it finds there is sufficient cause for not preferring the appeal in time.
(2.) THE answer to the question will depend on the applicability of section 29 (2) of the Limitation Act, 1963. If it does, section 5 of the Act does enable this court, if it is satisfied about sufficient cause for the delay, to excuse it. Had it not been for Vidyacharan v. Khubchand it would have been necessary to consider the question in some detail. But, in our view, the decision in that case seems to govern and dispose of the question in favour of the appellant. In that case an appeal from the Election Tribunal to the High court would have been in time if under section 12 of the old Limitation Act the time taken for getting a certified copy of the Tribunal's order could be excluded. THE High Court of Madhya Pradesh was of the view that it could be excluded. In other words, in its view section 29 (2) permitted the court to invoke section 12 and allow the exclusion. The point before us is very analogous, the only difference being whether instead of section 12 in that case section 5 is applicable. We have been taken through Vidyacharan v. Khubchand and particularly the shades of differences in the views held both as to the construction of the first and second parts of section 29 (2) and whether they should be read as an integrated whole or whether the second part could be read independently of the first and also on the question whether the construction placed by Subba Rao , J. , as he then was, that even as omission to provide for limitation in the Schedule to the Limitation Act could be as a kind of a prescription for invoking section 29 (2 ). But, it seems to us that all the learned Judges of the Supreme Court agreed that the appeal should be dismissed which clearly shows that High Court was right in applying section 29 (2) and invoking section 12 of the Limitation Act which enabled the appeal to the treated as within time. The facts in this case are very similar. The appeal was disposed of by the Board. To quash that order the appellant filed a writ petition which was eventually disposed of with the observation that since an appeal lay that remedy should have been resorted to and in view of this no rule of mandamus could be issued. Thereafter the appeal was filed, but beyond the time prescribed by section 37 of the Madras General sales Tax Act, 1959. Apart from the question of sufficient cause in view of the decision in Vidyacharan v. Khubchand we are satisfied that section 5 can be invoked. If it was the old Limitation act there was specific exclusion in section 29 (2) of the applicability of a similar provision. But that is not the case now. As to the sufficient cause, it cannot be said that the appellant, in prosecuting the writ appeal, was not bona fide. All that can be said is that he should not have by-passed the statutory remedy and resorted to article 226 of the Constitution straightaway. But, in prosecuting the petition in this court surely the appellant thought that it was perhaps possible for him to get the remedy straightaway which was a mistaken impression, as it turned out to be. In the circumstances, therefore, we consider that there was sufficient cause for the delay and we excuse. The petition is allowed. No costs.;

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