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Case Number

Civil Revision Application No. 1677 of 1985

Advocates

Shri B. K. Damani
Shri V. J. Desai

Judges

Hon'ble Mr. Justice Jagdish Madhurlal Panchal

Acts

SECTION 38 PRESIDENCY SMALL CAUSE COURTS ACT 1882
SECTION 16 A PREVENTION OF FOOD ADULTERATION ACT 1954
provisions contained in Sections 4 to 24 of the Limitation Act, 1963
Section 29, sub-section(2) and S. 5 of the Limitation Act, 1963.
Section 38 of the Presidency Small Cause Court Act, 1882
provisions of S. 29, sub-section (2) of the Limitation Act
Limitation Act, 1908, Section 29, sub-section (2), clause (b)
S. 38 of the Presidency Small Causes Court Act, 1882
Section 29(2) and S. 5 of the "Limitation Act, 19.63
S. 417 of sub-section (3) of the Criminal P. C. 1898.
provisions of the Code and the Limitation Act
provisions of S. 5 of the Limitation Act, 1963
provisions of the Code and Limitation Act
sub-section (4) of Section 417 of the Code,
Presidency Small Cause Court Act, 1882
Section 417, subsection (3) of the Code
SECTION 5 LIMITATION ACT
SECTION 5 LIMITATION ACT 1963
SECTION 29 LIMITATION ACT
S. 417, sub-section (3) of the Code.
LIMITATION ACT 1963
sub-section (4) of Section 417
sub-section (3) of Section 417,
Section 417, sub section (4)
Section 29, sub-section(2)
LIMITATION ACT 1908

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The respondent (original plaintiff) filed Summary Suit No. 4757/82 in the Small Cause Court at Ahmedabad to recover Rs. 1,726.50 from the petitioner (original defendant). The learned Judge decreed the suit by judgment and order dated 19 June 1984. The petitioner filed an application for a new trial under Section 38 of the Presidency Small Cause Courts Act, 1882, before the Appellate Bench of the Small Cause Court on 3 July 1984 (registered as New Trial Application No. 23/84). The Appellate Bench, relying on E. C. Pareira v. Somani & Co. Ltd., 1958 (60) Bom LR 1369, held that the period of limitation for filing an application under Section 38 is governed by Section 38 itself and that neither the Limitation Act nor the Court's rules permit extension; it dismissed the application as time-barred by order dated 28 March 1985. The petitioner filed the present revision application under Section 115 (interference by the revisional court) challenging that order.

Legal Issues Presented

Whether the eight-day time limit prescribed by Section 38 of the Presidency Small Cause Courts Act, 1882 is a special rule of limitation that excludes the operation of Section 5 of the Limitation Act, 1963.
Whether the Appellate Bench was correct in dismissing the new-trial application as barred by limitation, or whether the Appellate Bench ought to have entertained an application to condone delay under Section 5 of the Limitation Act, 1963 and decided the new-trial application on merits.

Arguments of the Parties

Petitioner's Arguments (as presented through Shri B. K. Damani)

The Appellate Bench's reliance on E. C. Pareira v. Somani & Co. Ltd. (1958) was not justified because that decision was given under the Limitation Act, 1908 (the old Limitation Act).
Under the Limitation Act, 1963, Section 5 should apply to the present case, and therefore the Appellate Bench had power to condone delay in filing the new-trial application under Section 38 if sufficient cause was shown.
The Appellate Bench should have entertained the new-trial application on its merits because the petitioner had made out sufficient cause for the delay.

Respondent's / Opposing Arguments (as presented through Shri V. J. Desai)

The eight-day limit in Section 38 of the Presidency Small Cause Courts Act, 1882 is a special law of limitation and, accordingly, Section 5 of the Limitation Act, 1963 is not applicable.
The Appellate Bench was justified in relying on E. C. Pareira v. Somani & Co. Ltd. and in rejecting the application as time-barred.
Support was placed on Kausalya Rani v. Gopalsingh (AIR 1964 SC 260) to show that a time bar prescribed by a special law (there, Section 417(4) of the Code) may be a self-contained rule of limitation excluding the benefit of Section 5 of the Limitation Act.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
E. C. Pareira v. Somani & Co. Ltd., 1958 (60) Bom LR 1369	Used by the Appellate Bench to support the proposition that the period of limitation under Section 38 is governed by Section 38 itself and that extension under the Limitation Act or court rules was not available (decision was given under Limitation Act, 1908).	The Appellate Bench relied on this decision to dismiss the new-trial application as time-barred. The revisional court noted that the precedent was decided under the old Limitation Act and treated its applicability as questionable in the light of developments under the Limitation Act, 1963.
Kausalya Rani v. Gopalsingh, AIR 1964 SC 260 (1964) 1 Cri LJ 152	Established that a time bar provided by a special statutory provision (there, Section 417(4) of the Code) can be a special law of limitation, excluding Section 5 of the Limitation Act, depending on the statutory scheme.	The opposing counsel invoked this case to argue that Section 38's time bar is a special law excluding Section 5. The Court acknowledged the case as authority on the concept of a "special law" but proceeded to examine later authority concerning the Limitation Act, 1963.
Manguram v. Municipal Corporation of Delhi, AIR 1976 SC 105 (1976 Cri LJ 179)	Interpreted Section 29(2) of the Limitation Act, 1963 and Section 5 of that Act: the 1963 Act makes Section 5 applicable to special or local laws unless the special or local law expressly excludes Section 5.	The Court relied on this decision to conclude that, although Section 38 is a special law (a rule of limitation), it does not expressly exclude the operation of Section 5 of the Limitation Act, 1963; consequently Section 5 is available to condone delay in applications under Section 38.

Court's Reasoning and Analysis

The Court proceeded in stages consistent with the evidence and authorities placed before it:

Recognition that Section 38 of the Presidency Small Cause Courts Act, 1882 prescribes an eight-day time limit and qualifies as a "special law" in the sense that it is a rule of limitation contained in the special statute itself. The Court explicitly held that Section 38 is a special law of limitation (paragraph 3 and 5 of the opinion).
Assessment of precedents: the Appellate Bench had relied on E. C. Pareira (decision under the Limitation Act, 1908). The petitioner argued that developments in the Limitation Act (the 1963 Act) altered the analysis.
Consideration of Kausalya Rani v. Gopalsingh, where the Supreme Court treated a statutory time bar (Section 417(4) of the Code) as a special rule of limitation, and as such excluded Section 5 in that case. This case was relied upon by the respondent's counsel to support non-applicability of Section 5.
Examination of Manguram v. Municipal Corporation of Delhi where the Supreme Court interpreted Section 29(2) of the Limitation Act, 1963 and Section 5. The Court in Manguram concluded that the Limitation Act, 1963 made an important departure from the 1908 Act: Section 29(2) renders Section 5 applicable to special or local laws except where the special or local law expressly excludes it.
Application of Manguram to the present matter: since Section 38 does not expressly exclude the applicability of Sections 4 to 24 (including Section 5) of the Limitation Act, 1963, Section 5 is available to condone delay in applications under Section 38. Consequently, the Appellate Bench erred in treating the new-trial application as automatically barred and in failing to exercise the jurisdiction conferred by Section 5 to condone delay where sufficient cause is shown.
Conclusion drawn: the impugned order of the Appellate Bench must be set aside for failure to exercise its jurisdiction; the matter must be remitted so that the Appellate Bench disposes of the condonation application on merits and according to law.

Holding and Implications

Core Ruling: The petition is allowed; the impugned order of the Appellate Bench is set aside and the Appellate Bench is directed to consider the application for condonation of delay under Section 5 of the Limitation Act, 1963 and the new-trial application on merits.

Direct consequences for the parties:

The order of the Appellate Bench dated 28-3-85 dismissing the new-trial application as barred by limitation is set aside.
The Appellate Bench of the Small Causes Court at Ahmedabad is directed to dispose of the petitioner's application for condonation of delay on merits and in accordance with law.
The rule is made absolute and no order as to costs was awarded in this opinion.

Broader implications:

The opinion applies the principle from Manguram that Section 29(2) of the Limitation Act, 1963 renders Section 5 of the Limitation Act applicable to special or local laws unless those laws expressly exclude Section 5. The opinion does not include an explicit statement that it establishes a wider precedent beyond the immediate order; it confines relief to setting aside the impugned order and remitting the matter for reconsideration on merits.

Disposition: Petition allowed.

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Gunvantlal Manekchand v. Atulkumar & Company .

1. 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. Pareira v. Somani & Co. Ltd., reported-in 1958 (60) Bom LR 1369, 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.

2. 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 Kausalya Rani v. Gopalsingh, reported in AIR 1964 SC 260: (1964) 1 Cri LJ 152. 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 under Section 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, under Section 417, subsection (3) of the Code and in that view of the matter the Supreme Court dismissed the appeal.

3. 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.

4. However, Mr. Damani for the petitioner placed reliance on the case of Manguram v. Municipal corporation Delhi, reported in AIR 1976 SC 105 : (1976 Cri LJ 179), 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 under Section 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 under Section 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.

5. 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 under Section 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 under Section 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.

6. Petition allowed.

Gunvantlal Manekchand v. Atulkumar & Company .

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments (as presented through Shri B. K. Damani)

Respondent's / Opposing Arguments (as presented through Shri V. J. Desai)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Gunvantlal Manekchand v. Atulkumar & Company .

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