JUSTINIANO AUGUSTO DA P BARRETO, ETC Vs. ANTONIO VICENTE DE FONSECA ETC

JUDGEMENT

(1.) These consolidated appeals and revision application raise sharply the only question whether the suits instituted by the respondents are barred by limitation. They would be disposed of by a common judgment. To reach a conclusion on this question involves the Court in wading through the relevant laws.

(2.) The material facts may be stated : the respondent - Antonio Vicente de Fonseca - instituted a suit in terms of Article 2390 of the Portuguese Civil Code on 25th November, 1965 - against the appellant Justiniano Augusto da P. Barreto, claiming damages for malicious prosecution launched against him. This Article furnishes cause of action when the accusation or the charge preferred is false and malicious. The respondent was prosecuted for having been a party to the defalcations of money on the part of his clerk. He was a Notary Public at the material time. He was convicted by the lower court but, on appeal, ultimately he was acquitted by the Supreme Court in Lisbon on 6th April, 1960. The suit was resisted by the appellant on several grounds; one of the grounds was that it was barred by limitation under Article 74 of the Schedule to the Limitation Act, 1963 (hereinafter referred to as 'the 1963 Act'). The learned Judge did not accept this preliminary objection. According to him the suit was governed by Article 543(3) of the Portuguese Civil Code and, therefore, the suit was not barred by time (Article 543(3) is erroneously applied. Article 535 was intended). The appellant felt aggrieved by this decision and preferred the present 'agravo' appeal, on 18th September, 1966, under Article 483(2) of the Portuguese Civil Procedure Code. In the Second Appeal No. 5 of 1968, the respondent Vassudeva Pundolica Salcar instituted a declaratory suit against the appellant Narain Ramcrisna Poi for recovery of Rs. 5000/- due on the pronote dated 24th November, 1962, executed by the appellant. This amount under the pronote was payable after 6 months from its execution. The cause of action arose on 24th May, 1963, when the appellant failed to pay the money due. The respondent then instituted the present suit on 2nd January, 1967. This suit also was resisted on the ground that it was barred by Article 31 of the Schedule to the 1963 Act. It was further resisted on the additional ground that the appellant had paid the amount due under the pronote. The learned Subordinate Judge after considering the evidence came to the conclusion that the appellant had not paid the amount due. He also held that the suit was governed by Article 535 of the Portuguese Civil Code and not Article 31 of the Schedule to the 1963 Act and, consequently, it was not barred by limitation. The appellant did not accept this decision and accordingly he moved the learned District Judge by way of first appeal. The learned District Judge concurred with the conclusions reached by the learned Subordinate Judge and dismissed the appeal. According to him, Section 30 of the 1963 Act, as adapted by Section 8 of the Goa, Daman and Diu (Administration) Act, 1962, could also be invoked so as to save the suit instituted from being barred by limitation. The appellant then preferred the present second appeal under Section 100 of the Civil Procedure Code, 1908. In civil revision application No. 8 of 1968, a suit was instituted by Jose Miguel Carmelino do R. Pires and his wife against Jose Paulo S. D. L. Teles and his wife and other respondents under Article 2356 of the Portuguese Civil Procedure Code; In that suit a declaration was sought by the respondents Jose Miguel Carmelino do R. Pires and his wife that premises No. 8568 belonging to them was sold by the applicants Jose Paulo S. D. L. Teles and his wife by deed dated 20th February, 1954 to the other respondents and that this sale should be declared null and void. A further relief was sought that possession of the premises be also given to them. This suit was instituted on 30th November, 1966. The applicants contested the suit on various grounds, one of the grounds, as in the other two suits, was that it was barred by limitation under Article 65 of the Schedule to the 1963 Act. The learned Judge overruled this preliminary objection. He came to the conclusion that the suit was governed by Article 529 of the Portuguese Civil Code and not by Article 65 of the Schedule to the 1963 Act and further the operation of this Code was saved under Section 29(2) of the 1963 Act. The applicants felt aggrieved by this decision and preferred the present revision application under Section 115 of the Code of Civil Procedure, 1908. This, in short, is the background of the consolidated appeals and revision.

(3.) The Goa, Daman and Diu (Administration) Act, 1962, was enacted by Parliament to provide for the administration of the Union Territory of Goa, Daman and Diu and for matters connected therewith (hereafter referred to as 'the territory'). It was brought into force with effect from the 5th of March, 1962. Section 2(b) defines "appointed day" as meaning the 20th day of December, 1961. Section 5(1) provides that all laws in force immediately before the appointed day in the territory or any part thereof shall continue to be in force therein until amended or repealed by a competent legislature or other competent authority. The Portuguese Civil Code, the Portguese Civil Procedure Code and other Portuguese laws in force, in the territory immediately before the appointed day, were continued in force. Section 3 of the Goa, Daman and Diu (Extension of the Code of Civil Procedure and the Arbitration Act) Act 1965 extended the Civil Procedure Code, 1908 and the Arbitration Act, 1940, as in force in other territories, to the territory. The Act was enacted on 25th September, 1965 and it was brought into force on 15th June, 1966, in pursuance of Section 1(2) thereof, vide notification dated 24th May, 1966. Section 4 of this Act had the effect of repealing so much of any law in force in the territory as corresponds to the Code of Civil Procedure, 1908 or the Arbitration Act 1940, as from 15th June, 1966. The proviso to this section contains a saving clause on the lines of Section 6 of the General Clauses Act. The provision of the Portuguese Civil Code operate and have effect in regard to matters which are not groverned by the corresponding Indian laws in force in the territory. The 1963 Act enacted by Parliament was published on 5th October, 1963 and was brought into force in the territory on 1st January, 1964, vide Notification published in Government Gazette dated 9th November, 1963. With the coming into force of this Act, the question arose in these consolidated matters whether the Articles on limitation of the Portuguese Civil Code cited stood repealed by the corresponding Articles cited in the Schedule to the 1963 Act. The learned Judges in these suits repelled the arguments at the Bar that they were repealed by necessary implication.