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HIGH COURT OF CALCUTTA
P. N. MUKHERJEE, D. BASU
RAM PROSAD RAMNARAIN - Appellant
Versus
BEJOY KUMAR SADHUKHAN - Respondent
Civil Rule 3867f Of 1964
Decided On : APRIL 9, 1965
LIMITATION ACT - APPLICATION - NEW ACT - RETROSPECTIVE EFFECT - CITY CIVIL COURT ACT - REFERENCE TO OLD ACT - CONSTRUCTION - SECTION 30 - INTERPRETATION - CONDONATION OF DELAY - JUDICIAL DISCRETION.
Fact of the Case:
The petitioner filed an appeal from a decree of the City Civil Court, which was decreed on December 23, 1963, but the decree was actually signed on January 17, 1964. The petitioner filed an application for copies of the judgment and decree on January 21, 1964, and the copies were made ready and taken delivery of on February 22, 1964. The petitioner saw his Advocate on February 23, 1964, who told him that the last day for filing the appeal would be March 20, 1964. The appeal was actually filed on March 9, 1964. On August 1 following, the Stamp Reporter of the Court reported that the appeal was time-barred, as the new Limitation Act applied and, under the same, after necessary and allowable exclusion or deduction of time for copies for purposes of computation of limitation, the appeal would be out of time by 14 days. The petitioner filed the present application under Section 5 of the Limitation Act, praying for condonation of delay.
Finding of the Court:
The Court held that the new Limitation Act applied to the appeal, as it was filed after the new Act had come into operation, and the decree under appeal was signed after the coming into operation of the new Act. The Court further held that the appeal was covered by Section 30 of the new Act and was thus protected, as it was filed within ninety days from the coming into operation of the new Act and also within limitation under the old Act as computed thereunder. The Court also held that the petitioner was entitled to have its appeal registered, if otherwise in form, under Section 5 of the Limitation Act after condonation of delay, if any, on the uncontroverted statements, made or contained in its petition.
Issues: 1. Whether the new Limitation Act applied to the appeal, which was filed after the new Act had come into operation, and the decree under appeal was signed after the coming into operation of the new Act? 2. Whether the appeal was covered by Section 30 of the new Act and was thus protected? 3. Whether the petitioner was entitled to have its appeal registered, if otherwise in form, under Section 5 of the Limitation Act after condonation of delay, if any, on the uncontroverted statements, made or contained in its petition?
Ratio Decidendi: 1. The new Limitation Act applied to the appeal, as it was filed after the new Act had come into operation, and the decree under appeal was signed after the coming into operation of the new Act. The old Limitation Act was not retrospective and could not affect the right of appeal, which vested in the appellant on the passing of the decree on December 23, 1963, when the old Limitation Act was in force and the new Limitation Act had not yet come into operation. 2. The appeal was covered by Section 30 of the new Act and was thus protected, as it was filed within ninety days from the coming into operation of the new Act and also within limitation under the old Act as computed thereunder. The expression "the period of limitation" in the first part of the section (Section 30) under the definition Section 2 (j) meant the period prescribed by the said Act, that is, as computed thereunder in the light of Section 3 thereof or, in other words, Sections 4 to 25 (inclusive), as mentioned therein. 3. The petitioner was entitled to have its appeal registered, if otherwise in form, under Section 5 of the Limitation Act after condonation of delay, if any, on the uncontroverted statements, made or contained in its petition. Any other view would be unjust and unreasonable and would be opposed to a sound exercise of judicial discretion under the section.
Final Decision: The Court made the Rule absolute and directed that the appeal be registered, if otherwise in form. It will thereafter proceed in accordance with law. There will be no order for costs in this Rule.
( 1 ) THIS Rule, which was obtained inter alia under Section 5 of the Limitation Act, raises some questions of importance. The points, are more or less pf first impression and require careful consideration, depending, inter alia, as they do, on the construction of the relevant statutes.
( 2 ) THE Rule was obtained under the following circumstances: The petitioner was the defendant in Commercial Suit No. 304 of 1961 of the Third Bench of the local City Civil Court, brought by the plaintiff opposite party for recovery of Rs. 2,678-03 np. as price of goods sold and interest. That suit was decreed by the learned trial Judge on December 23, 1963. The decree; however, was actually signed on January 17, 1964. An application for copies of the judgment and the decree appears to have been made oil January 21, 1964, and the copies were made ready and taken delivery of on February 22, 1964. On the next day, which was a Sunday, the petitioner saw the learned Advocate, Sri Asoke Kumar Sengupta, with a view to 6le an appeal from the above decree and he was told by the said learned Advocate that the last day for filing the same would be March 20, 1964. The appeal was actually filed on March 9, 1964. On August 1 following, the learned Stamp Reporter of this Court reported that the said appeal was time-barred, as, to it, the new Limitation Act applied and, under the same, after necessary and allowable exclusion or deduction of time for copies for purposes of computation of limitation, the appeal would be out of time by 14 days. The memorandum of appeal was thereafter returned to the learned Advocate on September 24, 1964, and it was refiled, in this Court, on the 28th following, with the present application, upon which the instant Rule was issued on November 11, 1964.
( 3 ) THREE points were raised by Mr. J. K. Sengupta, the learned Senior Advocate for the petitioner, in support of this Rule, in the first place, he argued that, to the above appeal, although it was filed on March 9, 1964. that is, after the new Limitation Act had come into operation, and although the decree under appeal was signed on January 17, 1964, which was also after the coming into operation of the said new Act, the old Limitation Act would apply as the decree had actually been passed on December 23, 1963, that is, prior to the coming into operation of the new Act and during the continuance of the old, and, under the said old Act, the appeal would be within time on a proper computation of limitation after allowing necessary or allowable deduction of time. Under this head, Mr. Sengupta further argued that, as this was an appeal From the local City Civil Court and would thus be governed by the City Civil Court Act, which, in its relevant section (Section 8 (2) (b) ) refers to the old Limitation Act, which reference has not been amended by the substitution of the new Limitation Act in place of the old, whatever may be the position with regard to other appeals, that is, appeals not governed by the City Civil Court Act, the instant appeal would be governed by the old Limitation Act.
( 4 ) MR. Sengupta next contended that, even if the new Limitation Act applied, the present appeal would come under Section 30 of the said Act and would be protected by it as it would be well within time under the terms of the said section.
( 5 ) LASTLY, Mr. Sengupta urged that, in any event, this was pre-eminently a case for condonation of delay, if any, in the matter of filing of the appeal in question under Section 5, be it of the old Act or of the new.
( 6 ) EACH of the above submissions requires careful consideration. As we have said above, the old Limitation Act was sought to be requisitioned by Mr. Sengupta upon two broad grounds"1. that the new Act is not retrospective and cannot affect the right of appeal, which vested in the appellant on the passing of the decree on December 23, 3963, when the old Limitation Act was in force and the new Limitation Act had not yet
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