Justiniano Augusto De Piedade Barreto: Narain Ramchandra Poi vs Antonio Vicente Da Fonseca: Vassudeva Pundolica Salcar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1979 Supreme(SC) 189

SUPREME COURT OF INDIA
D.A. DESAI AND O. CHINNAPPA REDDY, JJ.
Justiniano Augusto De Piedade Barreto, Appellant
Versus
Antonio Vicente Da Fonseca and others, Respondents.
Civil Appeals Nos. 1818 and 2038 of 1969, D/- 6-3-1979.
AND
Narain Ramchandra Poi (dead) by L. Rs., Appellants
Versus
Vassudeva Pundolica Salcar, Respondent.
Advocates appeared
Mr. V. M. Tarkunde, Sr. Advocate (Mr. Naunit Lal and Dr. Bernardo Das Rais, Advocates with him), (in C. A. No. 1818 of 1969) and Mr. Naunit Lal, Advocate and Dr. Bernardo Das Rais, Advocate (in C. A. No. 2038 of 1969), for Appellants; Mr. Eduardo Falliro, Adv., M/s. O. C. Mathur, D. N. Misra, Advocates of M/s. J. B. D. and Co. Advocates (in C. A. No. 1818 of 1969) and Mr. S. V. Tambwekar, Advocate (in C. A. No. 2038 of 1969), for Respondents.

Advocates:
Bernardo Das Rais, D.N.Mishra, EDVARD FALRIRE, NAUNIT LAL, O.C.MATHUR, S.V.TAMBWEKAR, V.M.TARKUNDE

Headnote:
Code of Criminal Procedure of 1898 – Section 417 – Potuguese Civil Code – Art. 535 – Indian Limitation Act, 1908 – Articles 240, 74 – Goa, Daman and Diu (Administration) Act, 1962 – Sections 5, 6, 29 – Malicious Prosecution – Limitation – Whether provisions of Portuguese Civil Code relating to Limitation stand repealed by the Limitation Act, 1963, by necessary implication, or whether they are saved by S. 29 (2) of that Act – Civil Appeal arises out of a suit filed by respondent-plaintiff against appellant-defendant claiming damages for malicious prosecution. – Prosecution which was alleged to have been maliciously launched against the plaintiff ended in an acquittal by the decision of SC, Lisbon – Plaintiff claimed that suit was within time under Art. 535 of Potuguese Civil Code which provides a period of limitation of 20 years. – On other hand defendant claimed that suit was governed by Art. 74 of Limitation Act, 1963, which provides a period of limitation of one year only. – Trial Court decided point of limitation, as a preliminary issue, in favour of plaintiff. – An Agravo appeal to District Judge and a further appeal to Judicial Commissioner not having borne fruit defendant has preferred this appeal after obtaining special leave from this Court – Held, Court do not see how court can escape from conclusion that Portuguese Civil Code is a local law within meaning of S. 29 (2). – Obviously the word special has reference to subject and the word local has reference to area to territory. – A special law is a law relating to a particular subject while a local law is a law confined to a particular area or territory. Used in an Act made by Parliament the word local may refer to a part or the whole of one of the many States constituting the Union. – Though a law dealing with a particular subject may be a general law in the sense that it is a law of general applicability, laying down general rules, yet, it may contain special provisions relating to bar of time, in specified cases, different from the general law of limitation. Such a law would be special law for the purpose of S. 29 (2). – Rule of limitation contained in S. 417 (4) of Code of Criminal Procedure of 1898 was accordingly held to be a special law in Kaushalya Rani v. Gopal Singh, (1964) 4 SCR 982 at pp. 987-988 – There is only one general law of limitation for the entire country and it is the Limitation Act, 1963. All other laws prescribing periods of limitation are either special or local laws. – They are special laws if they prescribe periods of limitation for specified cases. – They are local laws if their applicability is confined to specified areas. – If Sec. 32 and S. 29 (2) of the Limitation Act, 1963 are read together, it becomes clear that the only law of limitation that is repealed is the Limitation Act, 1908, and all other laws dealing with limitation, special or local are saved and are to be read into the Limitation Act. 1963. – Court, therefore, arrive at the conclusion that the body of provosions in the Portuguese Civil Code dealing with the subject of Limitation of suits etc. and in force in the Union Territory of Goa, Daman and Diu only is "local law" within the meaning of S. 29 (2) of the Limitation Act, 1963. As stated earlier these provisions have to be read into the Limitation Act, 1963, as if the Schedule to the Limitation Act is amended mutatis mutandis. – No question of repugnancy arises. – Court agree with the Judicial Commissioner that the provisions of the Portuguese Civil Code relating to Limitation continue to be in force in the Union Territory of Goa, Daman and Diu. – Appeals Dismissed

Judgment

CHINNAPPA REDDY, J.:- It is now a matter of history that the erstwhile Portuguese Colonial Possessions of Goa, Daman and Diu became part of the Territory of India from 20th December, 1961. The territories of Goa, Daman and Diu were incorporated as a Union Territory by the Constitution (Twelfth Amendment) Act, 1962, with effect from 20th December, 1961. The Goa, Daman and Diu (Administration) Act, 1962, repealing and re-enacting the provisions of the Goa, Daman and Diu Administration Ordinance 1962, was enacted by Parliament to provide for the administration of the Union Territory of Goa, Daman and Diu for matters connected therewith. S. 5 (1) of the Act declared that all laws in force immediately before the appointed day (20th Dec., 1961) in Goa, Daman and Diu or any part thereof shall continue to be in force therein until amended or repealed by a competent Legislature or other competent authority. Section 5 (2) enabled the Central Government, within two years from the appointed day, to make such adaptations and modifications, whether by way of repeal or amendment, as may be necessary or expedient for the purpose of facilitating application of any such law in relation to the administration of Goa, Daman and Diu as a Union Territory and for the purpose of bringing the provisions of any such law into accord with the provisions of the Constitution. Sec. 6 of the Act empowered the Central Government, by notification in the official Gazette, to extend with such restrictions or modifications, as it thinks fit, to Goa, Daman and Diu, any enactment which is in force in a State at the date of the notification.

2. Before Goa, Daman and Diu became part of India, certain laws such as the Portuguese Civil Code, the Portuguese Civil Procedure Code etc. were in force in those Territories. Apart from dealing with multiple other matters, the Portuguese Civil Code contained, various provisions dealing with limitation for suits, applications and appeals. It is undisputed that the provisions of the Portuguese Civil Code relating to Limitation were never repealed either by express Legislative enactment or by any order made by the Central Government in exercise of the powers confered upon it under S. 5 (2) of the Goa, Daman and Diu (Administration) Act, 1962. It is also not in dispute that the Central Government did not issue any notification under S. 6 of the Goa, Daman and Diu (Administration) Act extending the Indian Limitation Act, 1908, to Goa, Daman and Diu with or without modification.

3. The Constitution (Twelfth Amendment) Act suitably amended Art. 240 of the Constitution to enable the President to make Regulations for the peace, progress and good Government of the Union Territory of Goa, Daman and Diu until a body was created by Parliamentary Enactment to function as a Legislature for the Union Territory. Pursuant to the powers conferred by Art. 240 of the Constitution, the President promulgated certain Regulations styled as "The Goa, Daman and Diu (Laws) Regulations from time to time. These Regulations extended certain enactments to Goa, Daman and Diu with specified modifications. To the extent that any law in force in Goa, Daman and Diu corresponded to any Act which was so extended to those Territories, such law was declared to stand repealed. The Indian Limitation Act, 1908, was not one of the Acts extended to Goa, Daman and Diu under any of the Goa, Daman and Diu (Laws) Regulations. Nor was any Regulation made by the President repealing any of the provisions of the Portuguese Civil Code relating to Limitation.

4. While so, the Limitation Act, 1963, was enacted by Parliament on 5th October, 1963, to take effect from the date to be appointed by the Central Government by notification in the official Gazette, 1st January, 1964, was later specified as the date from which the Limitation Act was to come into force. Section 1 (2) extends the Limitation Act, 1963, to the whole of India except the State of Jammu and Kashmir. Section 32 of

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1979 Supreme(SC) 189

Cases Referred (4)