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Judgment
Koshi, C.J.—This revision is directed against an order of the learned District Munsiff of Ernakulam holding that O.S. 757 of 1953 on his file is not barred by limitation. The suit is to enforce registration of a sale deed which the Defendant to the action, Petitioner herein, is alleged to have executed in favour of the Plaintiff, the opposite party. The document bears date 14-8-1950 and it was presented for registration before the Sub-Registrar of Mulanthuruthy by the Plaintiff on 18-8-1950.
The Defendant did not appear to admit the execution and at the Plaintiff's instance the Sub-Registrar issued notice to the Defendant to appear before him and admit the document. On 19-8-1950, the Defendant appeared and gave a sworn statement before the Sub-Registrar to the effect that he had not executed the sale deed. Thereupon the Sub-Registrar passed an order refusing registration. Against that order an application (Application 11 (sic) of 1950) was made before the District Registrar u/s 63 of the Cochin Registration Act (5 of 1084) to establish the Plaintiff's right to have the document registered.
After due enquiry the District Registrar dismissed that application on 5-9-1952. Thereupon the Plaintiff brought the present suit for a decree directing the document to be registered ac cording to law. It was instituted on 13-10-1952.
The Defendant, besides disputing the execution of the sale deed, also contended that the suit was barred by time. The issue raised in the suit with reference to the plea of limitation was, at the instance of the Defendant, heard preliminarily and the learned District Munsiff negatived the plea. Hence the revision by the Defendant.
The disputed document relates to a property situate in Kanayannore, within the jurisdiction of the Sub-Registrar of Mulanthuruthy. The property and the office of the Sub-Registrar are both within the Cochin area of the State. Until 1-4-1951 when the Indian. Registration Act, 1908 (16 of 1908) was extended to this State by the Part B States (Laws) Act, 1951 (3 of 1951) the Registration Act applicable to the Cochin area was Act 5 of 1084 (Cochin).
Section 67 of that Act provided that when a District Registrar refuses to order a document to be registered u/s 62 or Section 63, any person claiming under such document, or his representative, assignee or agent, may within 30 days after the making of the order of refusal exclusive of the time occupied in obtaining a copy of such order, institute in the Civil Court, within the local limits of whose jurisdiction is situate the office in which the document is sought to be registered, a suit for a decree directing the document to be registered in such office, if it be duly presented for registration within 30 days after the passing of such a decree.
The Plaintiff brought the suit after the lapse of one month and seven days (13-10-1952) from the date of the order of the District Registrar (5-9-1952). On 12-9-1952 he had however applied for a copy of the order and that was made available co him only on 4-10-1952. The suit was therefore instituted in time if the period occupied in obtaining a copy of the District Registrar's order is excluded in computing'' the "30 days after making the order of refusal" within which the suit has to be brought.
Section 67 of the Cochin Registration Act, 1084, as we have noticed, permits such computation. The Defendant's contention however is that it is not the Cochin Registration Act, 1084, that applies to the case, but the Indian Registration Act, 1908, under which the provision corresponding to Section 67 of the Cochin Act, viz., Section 77, does not contemplate the exclusion, of time occupied in obtaining a copy of the District Registrar's order in computing the 30 days'' period within which the suit has to be brought.
So far as relevant for our present purpose Section 77 of the Indian Registration Act, 1908, is word for word the same as Section 67 of the Cochin Registration Act, 1084, except for the difference above noticed. According to the Defendant when the cause of action for the suit arose, that is when the District Registrar refused co direct the document to be registered (5-9-1952) the Indian Registration Act, 1908, had replaced the Cochin Registration Act and the Plaintiff was, therefore, not entitled to have the period occupied in obtaining a copy of the District Registrar's order excluded in computing the period of limitation.
Before the lower Court the Plaintiff's answer to this contention was that his suit is only a continuation of the proceedings he had initiated before the District Registrar, that that proceeding was instituted under the Cochin Registration Act, 1084, that Section 67 of that Act gave him the right to have the time occupied in obtaining a copy of the District Registrar's order excluded in computing the 30 days'' period and that no supervening legislation can deprive him of that right.
This view found favour with the learned District Munsiff who understood the exclusion of the time occupied in obtaining a copy of the order as a vested right which no subsequent legislation can take away. Before us the Petitioner's learned Counsel impugned the correctness of this view. Other arguments urged on behalf of the opposite party to support the lower Court's order have also been challenged on the Petitioner's behalf as unsustainable.
We are afraid the lower Court's order is indefeasible. Section 6 of the Part B States'' (Laws) Act, 1951 which deals with repeals and savings provides in the last portion thereof that anything done or any action taken under any law in force to any Part B State immediately before the appointed day, corresponding to any of the Acts or Ordinances extended to that state under the said Act, shall be deemed to have been dine or taken under the corresponding provision of the Act or Ordinance extended to that State, and shall continue to be in force accordingly unless and until superseded by anything done or any action taken under the said Act or Ordinance.
This, in our opinion, is express statutory authority for holding that though the proceeding before the District Registrar was initiated under the provisions of the Cochin Registration Act, 1084, it must be deemed to have continued before him under the Indian. Registration Act 1908, alter the latter Act became law in the State on 1.4-1951.
The order parsed by the District Registration on 5-9-1952 refusing to order the document to t registered is therefore an order passed under the Indian Registration Act, 1908 and Section 77 thereof does not contemplate the exclusion of the time occupied in obtaining a copy of the order of refusal in computing the period of limitation prescribed therein for a suit of the present kind. In our view this conclusion is sufficient to entail the reversal of the lower Court's order.
Nor can the order be supported on general principles. When the learned District Munsiff said that the Plaintiff had a vested right to have the time occupied in obtaining a copy of the order excluded in computing the period of limitation he overlooked the distinction between right of action and the right of an action being brought within a particular time or conducted in a particular way.
No suitor has any vested right in a rule of procedure. - "Narayana Panicker v. Sankara narayana Panicker" AIR 1953 Trav-C 53 (A). The general principle is that the law of limitation that is applicable to a suit is that law in force at the time, when the suit was instituted. To quote from the judgment of Benson and Sunbraya Iyer JJ., in - "Ramakrishna Chetty v. Subraya Iyer" 24 Mad LJ 54 (B):
The period of limitation that the party is entitled to have is that prescribed by the statute then in force, whether it be shorter or longer than that provided in a previous statute repealed by it .....The reason of the rule is that limitation is a branch of the law of procedure and Is only a condition annexed to the enforcement of a substantive right in a Court of law and does not affect the right itself. And there is no injustice in requiring a person having a substantive right to seek the enforcement of it in a Court of law within such time as the legislature may think fit from time to time to prescribe.
The same principle is seen discussed at page 15 of Volume I of the Law of Limitation by Rustomjee (5th Edition, 1938) under the heading "New Statute: Retrospective effect of". A few sentences therefrom may usefully be extracted here:
A statute of limitation, being a law of procedure, is, "as a rule", retrospective in its operation and governs all proceedings from the moment of its enactment ..... Except where a contrary provision is made, a statute of Limitation, like other laws relating to procedure, applies immediately to all steps taken (and to all suits instituted and applications made) "after" it has come into force. Accordingly the new Act must determine the period of limitation as well as the "terminus a quo" even though the cause of action accrued while the repealed Act was in existence....
Accepting therefore the lower Court's view that when the Plaintiff initiated the proceedings. before the District Registrar for an order to register the document, there arose for him a vested right to institute a civil suit for the same relief in the event the District Registrar's decision went against him, it did not follow that the law relating to the procedure applicable to that suit will continue for all time to be that obtaining when the proceedings started.
The decision in - "Rex v. Chandra Dharma" 1905 2 KB 335 (C) relied upon in 24 Mad LJ 54 (B) may usefully be cited in this context. There the prisoner was convicted u/s 5, Sub Section 1, of the Criminal Law Amendment Act, 1855, of an offence committed on 15-7-1904. The prosecution was not commenced until December 27, more than 3 months but less than 6'' months after the commission of the offences. On October 1, the Prevention of Cruelty to Children Act;, 1904, came into operation, by Section 27 of which the time for commencing a prosecution for an offences u/s 5, Sub-section (1) of, the earlier Act was extended from 3 months to 6 months.
It was contended that as the prosecution was commenced after the time prescribed by the law in force at the time of the commission of the offence had expired the conviction was invalid and therefore, unsustainable; the Court however held that Section 27 of the Prevention of Cruelty to Children Act, 1904, related to procedure, only, and was therefore retrospective and the conviction must be upheld. In delivering the leading judgment in the case Lord Alverstone C. J. (with whom Lawrence, Kennedy and Phillimore JJ. concurred) said:
The rule is clearly established that, apart from any special cireujnstances appearing on the face of the statute in question, statutes which make alterations in procedure are retrospective. It has been held that a statute shortening tho time within which the proceedings can be taken is retrospective - "The Young" (1898) P. 236 (D). and it seems to me that it is impossible to. give any good reason why a minute extending the time within which proceedings may be taken should not also held to be retrospective.
If the case could have been brought within the principle that unless the language is clear, a statute ought not to be construed so as to create disabilities or obligations, or impose new duties in respect of'' transactions, which were complete at the time when the Act came into force, Mr. Cornpton Smith (prisoner's counsel) woild have been entitled to succeed; but when no new disability or omigation has been created by the statute, but it only alters the time within which proceedings may be taken, it may be held to apply t.o offences completed before the statute was passed.
That is the case here. This statute does not alter the character of the offence or take away any defense which was formerly open to the prisoner. It is a mere matter of procedures, and according all the authorities it is, therefore, Retrospective.
Channell J. in a concurring judgment supported the view of the Lord''Chief Justice and pointed out that at the time the new Act came into operation the prisoner was liable to prosecution under the old law, and an alteration of the time within which he might be prosecuted only.
Reference may usefully be made here to the case in (1899) P. 236 (D) cited with approval by Lord Alverstone C. J. There, that is, in "the Ydun (D)'', the cause of action for an action against a public authority for damages sustained by the grounding of the Plaintiff's vessel arose on 13-9-1893 and the Act which arose for consideration in the case viz., the Public Authorities Protection Act, was passed on 5-12-1893, to come into force on 1-1-1894.
The Plaintiffs'' brought the action for damages only on 14-11-1898. By the Public Authorities Protection Act any action against any person in respites of any alleged neglect or default in the execution of any Act of Parliament or of any public duty or authority, had to be commenced within 6 months next after the act, neglect or default complained of.
The Plaintiffs'' action was for damages sustained by the grounding of their vessel on 13-9-1893, through the alleged negligence of the Defendants in inviting the vessel to come up when there was not sufficient water in the channel leading to the docks. It was contended that a retrospective operation should not be given to the period of limitation prescribed by the Set so as to make it applicable to a cause of action that arose before the Act was enacted or came into force.
The President (Sir T. H. Jcwne) of the Admiralty Division where the action was brought observed in repelling the contention that the interference with vested rights suggested in the case was hardly appreciable and added that:
it is clear that what must be taken to be an improvement in procedure is not to be considered as interference with a vested right of those who would have preferred the procedure tc remain In its unreformed condition....
This decision of the Admiralty Division was confirmed by the Court of Appeal (A. L Smith, Vaughan Williams and Romer L. JJ.) In agreeing with tho judgments of his learnec colleagues Romer L.J. said:
I agree that the Act of 1893 (the Public Authorities Protection Act) is retrospective in the sense that it includes an action commencet after the Act, though the action is in respect of a right accrued before the commencement of the Act.
On principle and authorities the lower Court's view that Section 77 of the Indian Registration Act, 1908, is not the appllcatory provision to decide whether the suit was brought within the time cannot therefore be sustained. Mr. P. Sreedhara Menon, the learned Counsel for the opposite party contended that even if Section If 77 of the Indian Registration Act, 1908, applies to the case, on general principles or by the application of the general sections of the Indian Limitation Act, 1908, the time occupied in obtaining a copy of the order of the District Registrar, refusing to order the document to be registered, should be excluded in computing the period of limitation prescribed by the section.
Before Section 29 of the Indian Limitation Act, 1908, was amended by Act X of 1922 there was conflict of judicial opinion whether the aid of the general sections of the Limitation Act could be invoked with reference to legal proceedings brought under special or local Acts. Vide the discussion on page 528 of Vol. I of Rustomjee's Law of Limitation, (5th Edition, 1938) under the heading ''Registration Act; and that at pp. 281 and 282 of Mulla's Indian Registration Act (5th Edition, 1950) under the heading "Limitation". Before Section 29 of the Indian Limitation 110 Travancore-Coohln [Pus, 11-16] Uduh Act, 1908, was amended by Act X of 1922, sub-Section (1)(b) thereof read:
Nothing in this Act shall affect or alter any period of limitation specially prescribed for any suit, appeal or application by any special or local law now or hereafter in force in India.
By the amendment Sub-section (l)(a) of the original section is retained as Sub-section (1) and sub- Section (1)(b) is replaced by Sub-section (2). The original Sub-section (2) becomes Sub-section (3) of the amended section and the original Sub-section (3) now becomes sub-section (4), We are concerned only with Sub-section (2) which takes the place of the former Sub-section (1) (b) and the new Sub-section (2) reaas thus:
(2) Where any special or local law prescribes for any suit, appeal or application a period ol'' limitation different from the period prescribed therefore by the first schedule, the provisions of Section 3 shall apply, as if such period were prescribed therefore 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, Section 9 to 18, and Section 22 shall apply only in so far as raid to the extent to which, they are not expressly excluded by such special or local law;
(b)the remaining provisions of this Act shall not apply.
Of the general sections of the Limitation Act made applicable to periods of limitation prescribed by any special or local law, the provision regarding exclusion of time occupied in obtaining a copy of the decision In a prior proceeding is contained in ,sub-section (2), (3) and (4) but those Sub-sections apply only to appeals, applications for review of judgments and for applications to set aside awards and not to suits.
Sub-section (1) which provides for the exclusion of the day from which the period of limitation prescribed for any legal proceeding is to be reckoned applies alike to suits, appeals and to applications. The omission to refer to suits in the subsequent Sub-sections is therefore significant. The invocation of the aid on Section 12 of the Limitation Act is therefore of no avail to the Plaintiff to save his suit from the rule of limitation prescribed in Section 77 of the Indian Registration Act, 1908.
The Petitioner's learned Counsel invited, our attention to a recent decision of the Mariipur Judicial Commissioner's Court where the identical question arose for decision. - "Sowgaijan v. Jabar Mia" AIR 1953 Mani 4 (E). Like the case before us that was also a case u/s 77 of the Indian Registration Act, 1908, and the suit would have been in time,. if the time occupied in obtaining a copy of the order of the District Registrar refusing the document to be registered, was excluded in computing the period of limitation.
After referring to Section 29(2) and Section 12(2) of the Indian Limitation Act, 1908, the learned Judicial Commissioner stated that the said period cannot be excluded and that the lower Court's decision that the suit was barred by time was correct. This accords with the view we have taken in the foregoing paragraph.
Mr. P. Sreedhara Menon's arguments bassd on the general sections of the Limitation Act cannot, therefore, prevail. In this connection he invited our attention to the decisions in - "Ramanatha Reddiar v. Commr. of Income- tux" AIR 1928 Rang 152 (P); -"Mohomed Hayat Haji Mohomed v. Commr. of income tax" AIR 1929 170 (G) and - Mohan Lal Hardeo Das Vs. Commr. of Income Tax, In all these cases it, bus been Iraki tliut the time occupied in obtaining copies of the orders of the Income- tax authorities should lie excluded in computing the periods for making applications under Clause 2 or Clause 3, as the case may be, of Section 66 of the Income Tax Act, 1922.
The Rangoon case does not refer to Section 12 or Section 29 of the Limitation Act. The Lahore case refers to Section 29 but does not refer to Section 12 and there is no discussion of the question but a mere "ipse dixit" that the period should bo excluded, The Patna case follows these two decisions and refers to both Sections 12 and 29 of the I,imitation Act, but points out that in the arguments at the bar it was omitted to be noticed that the relevant provisions of Section 12 did not apply to an application under the Income Tax Act.
However Fazal Ali J. (as he then was) excluded the time occupied In obtaining the copy of the order of the Assistant Commissioner in computing the period of limitation for an application u/s 66(2) of the Indian Income Tax Act, 1922. The learned Judge said he thought he was not straining the law laid down in Sections 12 and 29 of the Limitation Act in seeking to apply the provisions thereof'' to cover applications u/s 66(2) and (3) of the Income Tax Act.
The operative portion of the judgment states "on general principles and in view of Section 2, Limitation Act, the Assessee is entitled to have the benefit of the time which was spent in obtaining a copy of the order with which he is dissatisfied." With respect, we venture to observe that Section 29 when read, with Section 12 does not permit such exclusion and that in interpreting a rule of limitation no general principle would justify a Court in going beyond the four corners of the concerned statute.
Here it is instructive to recall the observation of Sir Dinshah Mulla in - AIR 1932 165 (Privy Council) that equitable considerations are out of place in construing a rule of limitation.
The Patna case also followed -"Drowpadi v. Hira Lal" 34 All 496 (PB) (J) where it was held that while the Provincial Insolvency Act Is a special law within the meaning of Section 29 of the Indian Limitation Act, in as much as it is not in itself a complete Code there is nothing to prevent the application thereto of the general principles of the Indian Limitation Act.
This decision was rendered long before Section 29 (Limitation Act) was amended by Act X of 1922 by which the general provisions in Sections 4, 9 to 18 and 22 were made applicable so far as they are not expressly excluded, in view of this amendment it is not, in. our opinion, open to a Court to take into account any period not covered by the express. terms of the sections mentioned in the amended Section 29 to compute the period of limitation, prescribed by any special or local law.
Even before the amendment to Section 2) of the Limitation Act the balance of judicial opinion was to the effect that the Indian Registration Act is a special Code and complete in itself, and therefore suits instituted u/s 77 of the Act are not affected by the general provisions of the Limitation Act. ''Veeramma v. Abbayyah (sic) Mad 99(PB) (K) and ''Kalimuddln Molla v. Sahibuddin Molla'' AIR 1920 Cal 14 (2) (PB) (L). This frn of these cases raised the question whether Section 7 of the Limitation Act, XV of .1877, applied to a suit u/s 77 of the Registration Act, III of 1877; and the second case as to the applicability of Section 14 of the Limitation Act, 1908, to a suit under 0rder 77 of the Registration Act, 1903.
The question was answered in the negative in both the cases. In view of these authorities, cases under the Income Tax Act brought to our notice by the Respondent's counsel and referred to earlier or the Allahabad case relating to the Provincial Insolvency Act, cited in Mohan Lal Hardeo Das Vs. Commr. of Income Tax, have not much relevance to the case before us.
In repelling the argument that on general principles or by an extension of the principle underlying Section 12 of the Limitation Act, the following quotation from the judgment of Chatterjee J. in AIR 1920 Cal 14 (2) (FB) (L) incorporating extracts from two Privy Council decisions and a decision of the High Court of Chancery would appear to us to be helpful.
In the case of - "Unnoda Persuad Mookerjee v. Kristo Coomar Moitro" 15 Beng LR 60 n (PC) (M) the Judicial Committee in considering the question whether the provision of Section 14 of Act XIV of 1859, the Limitation Act then in force, was applicable to suits under Bengal Rent Act, X of 1859, observed that according to a well established rule. for the construction of statutes it should be presumed that the Legislature did not intend by the general enactment to interfere with a special legislation.
Their Lordships referred to the rule of construction exwjessed by Lord Hatherley in - "Fitzgerald v. Chamoneys" 1861 2 John and H 31 (N). "The reason is that the Legislature having, had its attention directed to a special subject and observed all circumstances of the case and provided for tljem does not intend by a general enactment afterwards to derogate from its own Act, where it makes no special mention of its Intention to do so." In - "Mohamed Bhadur Khan v. Collector of Bareilly" 13 Beng LR 202 (PC) (O) which was a, case, relating to a claim to recover confiscated property for which special provision was made by Act IX of 1859, the Judicial Committee referring to the contention which had been urged before the High Court, viz., that'' saving with respect to parties under disabilities must be taken to be by equitable construction implied In the clause, observed "Their Lordships, however, think it is impossible that any Court can add to the statute that which the Legislature has not done.
The limitation is enacted in "plain and absolute terms. The Legislature has not thought fit to extend tha period which it has prosaribed to persons under disability. Where such enlargements have been intended, they are found in the Acts, containing the limitation, as in the General Act. This Act contains no such saving, (sic)nd their Lordships would be legislating, and (sic)Ot interpreting, the Statute if they were to introduce it.
It was said that the Clauseg in the General Statute, Act XIV of 1859, relating to disabilities, might be imported into this Act; but this cannot properly be done. Act XIV is a Code of Limitation for general application. This Act is of a, special kind, and does not admit of those (sic)nactments being annexed to it.
As pointed out in the Manlpur case ilted earlier .there la no provision enjoining a Plaintiff suing u/s 77 of the Registration Act to produce a copy of the order of the District Registrar refusing to register the document in his favour. Nor can we find any need or Justification. for the Plaintiff to delay the filing of the suit until he obtains a copy of the order.
In the result the revision succeeds. We allow it, and in setting aside the lower Court's order we direct that the Plaintiff's suit (O. S. 757 of 1953) be dismissed as barred by time. In the circumstances of the case we make no order for costs here or in the Court beiow.