AYYANGAR - (1.) THE following Judgments of the court were delivered by
(2.) ON behalf of the chief justice and himself) We have had the advantage of perusing the judgment of our brother Subba Rao J. and we agree with him that the appeal should be dismissed. The justification for this separate judgment, however, is because of our inability to agree with him in his construction of the relative scope of the two limbs of s. 29(2) of the Indian Limitation Act. The facts of the case have been set out in detail in the judgment of Subba Rao J. and it is therefore unnecessary to repeat them. There were three principal points that were urged before us on either side which require to be considered and all of them turn on the proper construction of s. 29(2) of the Indian Limitation Act which we shall for convenience set out here: '29(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law(a) the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and (b) the remaining provisions of this Act shall not apply.' The learned Judges of the High court have proceeded on the basis that s. 29(2)(a) applies to the case of appeals preferred under s. 116 A of the Representation of the People Act, 1951 and on that footing have held that the appeal presented to them by the respondent was within time if computed after making the deductions permitted by s. 12 of the Limitation Act. It is the correctness of this view that is challenged before.....us. Proceeding now to deal with the question whether the terms of s. 29(2) are apt to take in appeals under the Representation of the People Act, the first matter to be considered necessarily is whether that Act is a 'special or local law' within the opening words of the subsection. As to this, however, Mr. Pathak raised no dispute and he conceded that s. 116A was such a 'special or local law.' That this 'special or local law' prescribes 'for an appeal a period of limitation' is also evident. The first point of controversy, however, has arisen as to whether 'the period of limitation prescribed by the special or local Law is different from the period prescribed therefor by the first schedule.' The contention urged strenuously before us by Mr. Pathak, the learned counsel for the appellant, was that there would be 'a different period' only where for the identical appeal (to refer only to that proceeding with which we are immediately concerned) for which a period of limitation has been prescribed by the special or local Law, a period is prescribed by first column of the first schedule. and there is a difference between the two periods. It was his further contention that where the Indian Limitation Act made no provision for such an appeal, s. 29(2) and the provision contained in its (a) and (b) were inapplicable. There have been several decisions on this point but it is sufficient to refer to the decision of the Bombay High court in Canara Bank Ltd., Bombay v. The Warden Insurance Co. Ltd., Bombay (1) where Chagla C.J. repelled this construction and held that even where there was no provision in the first schedule for an appeal in a situation identical with that for which the special law provides, the test of 'a prescription of a period of limitation different from the period prescribed by the First Schedule is satisfied. This court in State of U.P. v. Smt. Kaushaliya etc.(1) upheld this construction and approved ,the judgment of Chagla C.J. in the Canara Bank case. Apart from the decision of this court, we consider the reasoning of Chagla C.J. to be unexceptionable and we agree with Subba Rao J. in holding that the requirement of a prescription by the special law 'of a period different' from that prescribed by the First Schedule is satisfied in the present case.
(3.) THE next point was one that arose on the submission of counsel for the respondent and it was this. Assume that the construction of the words 'different from' urged by the appellant were accepted, and this requirement would be satisfied only if the First Schedule made provision for an identical appeal as that under the special law, still it was submitted by the respondent that even this was satisfied in this case. For this purpose he relied on Art. 156 of the first schedule which runs: JUDGEMENT_1099_AIR(SC)_1964Html1.htm THE argument was that though the right of appeal in the case before us was conferred by s. 116A of the Representation of the People Act and it was by virtue thereof that the appeal was filed by the respondent to the High court, it was still an appeal 'under the Code of Civil Procedure, 1908, to a High court.' For this submission learned Counsel relied principally on two decisions one of the Calcutta and the other of the Madras High court, and they undoubtedly support him. In Aga Mohd. Hamdani v. Cohen and Ors.(1) as well as in Ramasami Pillai v. Deputy Collector of, Madura(1) which followed it the court held that to attract this article it was not necessary in order to be an 'appeal under the Code of Civil Procedure' within the meaning of those words in Art. 156, that the right to prefer the appeal should be conferred by the Code of Civil Procedure but that it was sufficient if the procedure for the filing of the appeal and the powers of the court for dealing with the appeal were governed by that Code. For adopting this construction the court relied on the reference in Art. 156 to Art. 151. Article 151 dealt with appeals to the High court from judgment rendered on the original side of that court. THE right to prefer these appeals was conferred by the Letters Patent constituting the respective High courts and not by the Code of Civil Procedure, though the Code of Civil Procedure governed the procedure, jurisdiction and powers of the court in dealing with the appeals so filed. THEre would have been need therefore to except cases covered by Art. 151 only if the words 'under the Code of Civil Procedure' were understood as meaning appeals for the disposal of which the provisions of the Code of Civil Procedure was made applicable. We might mention that besides the Calcutta and the Madras High courts a full bench of the Allahabad High court also has in Daropadi v. Hira Lal (3 ) adopted a similar construction of the Article, the learned Judges pointing out that several Indian enactments, among them the Indian Succession Act, the Probate and Administration Act, the Land Acquisition Act and the Provincial Insolvency Act, proceeded on the basis of a legislative practice of conferring rights of appeal under the respective statutes without prescribing any period of limitation within which the appeal should be preferred, but directing the application, of the provisions of the Civil Procedure Code to such appeals, the intention obviously being that Art. 156 would furnish the period of limitation for such appeals. We consider that these decisions correctly interpret Art. 156 and, in any event, we are not prepared to disturb the decisions which have stoodfor so long and on the basis of the correctness of which Indian legislation has proceeded. Mr. Pathak drew our attention to some decisions in which a different construction was adopted of the word 'under' a particular enactment occurring in other Articles of the Limitation Act and in particular some dealing with appeals in certain criminal matters. In them the word 'under' was understood as meaning 'by virtue of'. He was, however, unable to bring to our notice any decision in which the construction adopted of Art. 156 which we have set out has been departed from. In the cases dealing with the words 'under the Criminal Procedure Code' which he placed before us, the situation would obviously be different, since the indication afforded by the mention of Art. 151 in Art. 156 does not figure in the Articles dealt with. Therefore that would be a circumstance pointing to a different result. If the construction adopted of Art. 156 in the Calcutta and Madras decisions to which we have referred were upheld, there could be no controversy that an appeal under s. 116A of the Representation of the People Act would be 'under the Code of Civil Procedure', for s. 116A(2) enacts, to read the material portion: '116A. (2) The High court shall, subject to the provisions of this Act, have the same powers, jurisdiction and authority, and follow the same procedure, with respect to an appeal under this Ch. as if the appeal were an appeal from an original decree passed by a civil court situated within the local limits of its civil appellate jurisdiction.............................. In this view even on the narrowest construction of the words 'different from those prescribed therefor in first schedule' occurring the opening part of s. 29(2), the exclusion of time provided for by Art. 12 of the Limitation Act would be permissible in computing the period of limitation for filing the appeal to the High court in the case before us. ;