Gunvantlal Manekchand vs Atulkumar and Company

The respondent who is original plaintiff had filed summary suit No. 4757/82 in the Small Cause Court at Ahmedabad for the purpose of recovering an amount of Rs. 1,726.50 from the petitioner who was original defendant in that suit. The learned Judge decreed the suit by judgment and order dt. 19th June, 1984. Therefore, an application for new trial under S.. 38 of the Presidency Small Cause Court Adt, 1882 was filed by the present petitioner before the Appellate Bench of the Small Cause Court with a prayer to set aside the, judgment and decree passed by the learned Judge and to hold a fresh trial. The said application was filed on 3rd July, 1984 and was registered as New Trial Appln. No. 23/84. The appellate Bench relied on the case of E. C. Pareira v. Somani & Co. Ltd., 1958 (60) Bom LR 1369, and came to the conclusion that a period of limitation for filing an application under S. 38 is governed by S. 38 itself and no power is given either under the Limitation Act or under the Rules of Small Cause Court for extending the period and in that view of the matter the appellate Bench dismissed the said application as barred by provisions of the Limitation Act, by order dt. 28-3-85. Being aggrieved by the said order, the petitioner who is original defendant has filed the present revision application. At the time of hearing of this revision application, it was contended by Shri B. K. Damani, the learned counsel for the petitioner that reliance placed by the Appellate Bench of Small Cause Court, Ahmedabad on the case of E.C. Pereira Vs. Somani and Co., Ltd., , was not justified at all inasmuch as the said judgment was delivered under the provisions of old Limitation Act namely the Limitation Act, 1908. According to the learned counsel the provisions of S. 5 of the Limitation Act, 1963 would apply to the present case and the Appellate Bench ought to have entertained new trial application, on merits as sufficient cause was made out by the petitioner for not filing the said application within the time prescribed under the law.

As against this, it was contended by Shri V.J. Desai that the time limit of 8 days laid down in S. 38 of the Presidency Small Causes Court Act, 1882 is a special law of limitation and, therefore, provision of S. 5 would not be applicable and the Appellate Bench was justified in placing reliance upon the case of E. C. Pareira v. Somani & Co. (supra) and in rejecting the application filed by the petitioner. In support of his contention that the Presidency Small Cause Court Act, 1882 is a special law, the learned counsel placed reliance on the case of Kaushalya Rani Vs. Gopal Singh, . In the said case before the Supreme Court, the respondent therein was committed to the Court of Sessions to stand his trial under S. 493 or in the alternative under S. 495, of the I.P.C. The prosecution was launched by a petitioner on complaint filed by the appellant before the Magistrate. The respondent was tried by the Addl. Sessions Judge, Gurdaspur, who acquitted him. The appellant before the Supreme Court therefore filed an application on April 22, 1960 - very much later than 60 days from the date of the order of acquittal for special leave to appeal from that order under S. 417, sub-section (3) of the Code. While it was admitted on behalf of the appellant the appeal was filed long after the period prescribed by sub-section (4) of Section 417 of the Code, it was argued that the delay could be condoned u/s 5 of the Limitation Act. The Supreme Court on an elaborate examination of the provisions of the Code and the Limitation Act came to the conclusion that the bar of time prescribed by sub-section (4) of Section 417 was a special law within the meaning of Section 29 of the Limitation Act and that, therefore, Section 5 of the Limitation Act would not be available to the appellant for condoning the admitted delay in filing the application for special leave. The Supreme Court after considering the provisions of the Code and Limitation Act ruled that as far as appeal by a private prosecutor is concerned, the legislature was astute to specifically lay down in Section 417 itself that the foundation for such an appeal should be laid within 60 days from the date of the order of acquittal. In that sense this rule of 60 days bar is a special law i.e. to say a rule of limitation, which is specially provided for in the Code itself, which does not ordinarily provide for a period of limitation for appeals or applications and the provisions of the Code supplemented by the provisions of S. 29, sub-section (2) of the Limitation Act made it clear that Section 5 of the Limitation Act would not apply for an application for special leave to appeal, u/s 417, subsection (3) of the Code and in that view of the matter the Supreme Court dismissed the appeal.

In view of what has been laid down by the Supreme Court in the above referred case, it will have to be held that the time prescribed of 8 days in Section 38 of the Presidency Small Cause Court Act, 1882 is a special law i.e. to say a rule of limitation, which is specially provided for in the said Act itself, which does not ordinarily provide for a period of limitation for appeals or applications.

However, Mr. Damani for the petitioner placed reliance on the case of Mangu Ram Vs. Municipal Corporation of Delhi, : Mangu Ram Vs. Municipal Corporation of Delhi, , where the supreme Court has construed Section 29, sub-section(2) and S. 5 of the Limitation Act, 1963. In the said case before the Supreme Court the petitioner was prosecuted for the offence punishable u/s 7, read with Section 16 of the Prevention of Food Adulteration Act, 1954. The learned Judicial Magistrate acquitted the petitioner by an order dt. 18-3-1971 and, therefore, Municipal Corporation of Delhi. Being aggrieved by the order of acquittal made an application to the High Court under S. 417 of sub-section (3) of the Criminal P. C. 1898. for special leave to appeal from the order of acquittal. Sub-section (4) of Section 417 required that the application for special leave should be made before the expiry of sixty days p from the date of the order of acquittal. Therefore, after excluding -the time taken for obtaining certified copy -of the order of acquittal, the application for special leave should have been filed on August 25, 1971, but it came to be filed two days later, namely -on August 27, 1971. The Municipal Corporation of Delhi, therefore, made an application for condonation of delay by invoking Section 5 of the Limitation Act, 1969 and pleaded that there was sufficient cause, which prevented it from making the application for special leave within time. The High Court, by an order dt. Nov. 3, 1971, condoned the delay, as there was in its opinion sufficient cause for not making the application for special leave within the time prescribed by sub-section (4) of Section 417 and taking the view that this was a fit case which deserved the exercise of discretion under sub-section (3) of Section 417, the High Court granted special leave to the Municipal Corporation of Delhi to appeal against the order of acquittal. The appeal was, thereafter, heard by the Division Bench of the High Court and the High Court set aside the acquittal order and convicted. the petitioner and another for the, offence u/s 7, read with Section 16 of the Act. The appeal was carried to the Supreme. Court and on interpretation of Section 29(2) and S. 5 of the "Limitation Act, 19.63 the Supreme Court held that there is an important departure made by the Limitation Act, 1963 in so far as the provision contained in Section 29, sub-section(2) is concerned. The Supreme Court observed that under the Limitation Act, 1908, Section 29, sub-section (2), clause (b) provided that for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the application of Section 5 was in clear and specific term excluded,, but under Sec tion 29, sub-section (2) of the Act of 1963, the provisions of Section 5 shall apply in a case, of special or local law to the extent to which they'' are not expressly excluded by such appeal or local law. In view of this; the Supreme Court held that since under the Limitation Act, 1963, Section 5 is specifically mad applicable by Section 29, sub-section (2), it is only if the special or local law expressly excludes the applicability of Section 5 that it would stand displaced. The Supreme Court further held that there is nothing in Section 417, sub section (4) which excludes the application of Section 5 of the Limitation Act, 1963. In that view of the matter it was held by the Supreme Court that the application preferred by the Municipal Corporation of Delhi was not barred by the time limit of 60 days laid down in sub-section (4) of Section 417, since the Municipal Corporation of Delhi had sufficient cause for not preferring the application within such time limit and after appreciating the merits of the case dismissed the petition.

I am of the view that provisions contained in Section 38 of the Presidency Small Cause Courts Act, 1882 is a special law of limitation, it does not expressly exclude the application of the provisions contained in Sections 4 to 24 of the Limitation Act, 1963 and, therefore, Section 5 would be applicable to the applications which are being mad u/s 38 of the Presidency Small Cause Courts Act, 1882 and, therefore, the Court will have power and jurisdiction to condone the delay if sufficient cause is made out-for not filing the application within 8 day as prescribed by Section 38 of the Presidency Small Cause Courts Act, 1882. In this view o the matter, the impugned order will have to be set aside because the Appellate Bench ha failed to exercise jurisdiction vested in it and a clear case of interference u/s 115 is made out by t I he petitioner and -therefore, the said order is hereby'' set aside. The appellate Bench of the Small Causes Court at Ahmedabad is directed to dispose of the application for condonation of delay on merits and according to law. Rule is made absolute accordingly with no order as to costs.

Petition allowed.