2004 Supreme(SC) 149

2004(1) Supreme 1051
SUPREME COURT OF INDIA
(From Karnataka High Court)
V.N. Khare, CJI., S.B. Sinha & S.H. Kapadia, JJ.
Union of India and Ors. -Appellants
versus
West Coast Paper Mills Ltd. and Anr. -Respondents
Civil Appeal Nos. 1061-62 of 1998
Decided on 5-2-2004
Counsel for the Parties :
For the Appellants : P.P. Malhotra, Sr. Advocate, S.A. Matoo, S. Wasim A Qadri, S.N. Terdol, Arvind Kumar Sharma, Advocate (NP)/Advocates.
For the Respondents : Harish N. Salve, Kailash Vasdev, Sr. Advocates, Prateek Kumar, Ms. Gayatri Goswami and Ms. V.D. Khanna, Advocates.

IMPORTANT POINT
Once an appeal is filed before the Supreme Court and the same is entertained, the judgment of the High Court or the Tribunal is in jeopardy and grant of stay of operation of the judgment may not be of much relevance once this Court grants special leave and decides to hear the matter on merit.

Headnote:(i) Limitation Act, 1963-Articles 58 and 113-Suit for recovery-Limitation period for filing of-Date of commencement-Once an appeal is filed before the Supreme Court and the same is entertained-Judgment of the High Court or the Tribunal is in jeopardy-Subject matter of the lis unless determined by the last Court, cannot be said to have attained finality-Grant of stay of operation of the judgment may not be of much relevance once the Supreme Court grants special leave and decides to hear the matter on merit. (Para 40)

       (ii) Limitation Act, 1963-Articles 58 and 113-Railways Act-Section 46A-Constitution of India-Article 136-Respondents transporting their goods through Railways-Common rate fixed in respect of all commodities on basis of weight was being levied as freight-Revision in rate freight w.e.f. 1-2-1964-Complaint filed before Railway Rates Tribunal challenging the increase as unjust unreasonable and discriminatory-Tribunal by judgment dated 18-4-1966 declared the levy as unreasonable-Appellants filed application for grant of special leave-Supreme Court passed a limited interim order-Dismissal of SLP on 14-10-1970-Suits filed by respondents on 12-12-1973 and 18-4-1974 for recovery of excess freight charged-Whether suits were barred by limitation-(No)-Starting point of limitation for filing the suit would begin from the date of order passed by the Supreme Court-Respondents were also entitled to get the period during which writ petition pending, excluded for computing period of limitation-Civil suit was filed within the prescribed period of limitation.

       Held : The plaintiff in this case has filed a suit for refund of the excess amount collected by the defendant-Railways for the period 24.6.1963 to 1.2.1964 and 1.2.1964 to 18.4.1966 with interest accrued thereupon. It is not in dispute that in terms of the provisions of the Indian Railways Act, as thence existing The Tribunal was only entitled to make a declaration to the effect that the freight charged was unreasonable or excessive. It did not have any jurisdiction to execute its own order. It may be true that by reason of Section 46A of Indian Railway Act the judgment of the Tribunal was final but by reason thereof the jurisdiction of this Court to exercise its power under Article 136 of the Constitution of India was not and could not have been excluded. Article 136 of the Constitution of India confers a special power upon this Court in terms whereof an appeal shall lie against any order passed by a Court or Tribunal. Once a Special Leave is granted and the appeal is admitted the correctness or otherwise of the judgment of the Tribunal becomes wide open. In such an appeal, the court is entitled to go into both questions of fact as well as law. In such an event the correctness of the judgment is in jeopardy. Even in relation to a civil dispute, an appeal is considered to be a continuation of the suit and a decree becomes executable only when the same is finally disposed of by the Court of Appeal. The starting point of limitation for filing a suit for the purpose of recovery of the excess amount of freight illegally realised would, thus, begin from the date of the order passed by this Court. It is also not in dispute that the respondent herein filed a writ petition which was not entertained on the ground stated hereinbefore. The respondents were, thus, also entitled to get the period during which the writ petition pending, excluded for computing the period of limitation. In that view of the matter, the civil suit was filed within the prescribed period of limitation. The Trial Judge as also the High Court have recorded a concurrent opinion that the respondents were entitled to the benefits of Sections 14 and 15 of the Limitation Act, 1963. We have no reason to take a different view. (Paras 12 to 17)

       It was not a case where the respondents prayed for a declaration of their rights. The declaration sought for by them as regard unreasonableness in the levy of freight was granted by the Tribunal. A distinction furthermore, which is required to be noticed is that whereas in terms of Article 58 the period of three years is to be counted from the date when the right to sue first accrues ; in terms of Article 113 thereof, the period of limitation would be counted from the date when the right to sue accrues . The distinction between Article 58 and Article 113 is, thus, apparent inasmuch as the right to sue may accrue to a suitor in a given case at different points of time and, thus, whereas in terms of Article 58 the period of limitation would be reckoned from the date on which the case of action arose first whereas, in the latter the period of limitation would be differently computed depending upon the last day when the cause of action therefor arose. (Paras 20 & 21)

       It has not been and could not be contended that even under the ordinary civil law the judgment of the appellate court alone can be put to execution. Having regard to the doctrine of merger as also the principle that an appeal is in continuation of suit, we are of the opinion that the decision of the Constitution Bench in S.S. Rathore (supra) was to be followed in the instant case. (Para 41)