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1969 Supreme(Goa) 10

Goa High Court
V.S.JETLEY
Justiniano Augusto da P. Barreto - Appellant
Versus
Antonio Vicente de Fonseca - Respondent
Decided On : 03/17/1969

Advocates:
In C. A. 'Agravo' No. 243/1966 :Bernardo Reis, for Appellant; M. S. Usgaokar, for Respondent. In C. S. A. No. 5/1968:S. K. Kakodkar, for Appellant; U. B. Surlikar, for Respondent. In C. R. A. No. 8 of 1968:S. V. Joshi, for Applicants; M. S. Usgaokar, for Respondents Nos. 1 and 2.

Articles 529 and 535 of the Portuguese Civil Code are special or local laws within the meaning of Section 29(2) of the Limitation Act, 1963, and are not repealed by necessary implication by the corresponding Articles 74, 31, and 65 of the Schedule to the 1963 Act.

Headnote:

LIMITATION ACT, 1963 - S. 29(2) - PORTUGUESE CIVIL CODE - ARTS. 529, 535 - SPECIAL OR LOCAL LAW - REPEAL - IMPLIED REPEAL - DOCTRINE OF IMPLIED REPEAL - RETROSPECTIVE OPERATION - VESTED RIGHT - SAVING CLAUSE - DISCRIMINATION - CONSTITUTIONAL QUESTIONS - S. 100, C. P. C. - APPLICABILITY - COSTS.

Fact of the Case:

Three consolidated appeals and a revision application were filed challenging the lower court's decision that suits instituted by the respondents were not barred by limitation. The suits were governed by Articles 529 and 535 of the Portuguese Civil Code, which provided longer limitation periods than the corresponding Articles 74, 31, and 65 of the Limitation Act, 1963. The appellants argued that the Portuguese Civil Code was repealed by necessary implication by the 1963 Act, while the respondents contended that the Portuguese Civil Code was a special or local law saved under Section 29(2) of the 1963 Act.

Finding of the Court:

The Court held that Articles 529 and 535 of the Portuguese Civil Code were special or local laws within the meaning of Section 29(2) of the 1963 Act and were not repealed by necessary implication. The Court found that the 1963 Act did not contain a provision repealing the Portuguese Civil Code and that Parliament intended to allow the two sets of provisions to co-exist. The Court also held that the doctrine of implied repeal was not attracted as there was no identity of subject matter between the two Acts and no conflict, repugnancy, or inconsistency between the two sets of Articles.

Issues: 1. Whether Articles 529 and 535 of the Portuguese Civil Code are 'special or local law' within the meaning of Section 29(2) of the Limitation Act, 1963? 2. Whether these Articles are repealed by the corresponding Articles 74, 31, and 65 of the Schedule to the 1963 Act?

Ratio Decidendi: 1. The Court held that Articles 529 and 535 of the Portuguese Civil Code are special or local laws within the meaning of Section 29(2) of the Limitation Act, 1963, as they deal with special subjects or special class of objects in special circumstances in contradistinction to the general subjects and class of subjects dealt with in the 1963 Act. 2. The Court held that Articles 529 and 535 of the Portuguese Civil Code are not repealed by the corresponding Articles 74, 31, and 65 of the Schedule to the 1963 Act, as there is no identity of subject matter between the two Acts and no conflict, repugnancy, or inconsistency between the two sets of Articles.

Final Decision: The Court dismissed the appeals and the revision application, holding that the suits instituted by the respondents were not barred by limitation.

ORDER :- These consolidated appeals and revision application raise sharply the only question whether the suits instituted by the respondents are barred by limitation. They would be disposed of by a common judgment. To reach a conclusion on this question involves the Court in wading through the relevant laws.

2. The material facts may be stated : the respondent - Antonio Vicente de Fonseca - instituted a suit in terms of Article 2390 of the Portuguese Civil Code on 25th November, 1965 - against the appellant Justiniano Augusto da P. Barreto, claiming damages for malicious prosecution launched against him. This Article furnishes cause of action when the accusation or the charge preferred is false and malicious. The respondent was prosecuted for having been a party to the defalcations of money on the part of his clerk. He was a Notary Public at the material time. He was convicted by the lower court but, on appeal, ultimately he was acquitted by the Supreme Court in Lisbon on 6th April, 1960. The suit was resisted by the appellant on several grounds; one of the grounds was that it was barred by limitation under Article 74 of the Schedule to the Limitation Act, 1963 (hereinafter referred to as 'the 1963 Act'). The learned Judge did not accept this preliminary objection. According to him the suit was governed by Article 543(3) of the Portuguese Civil Code and, therefore, the suit was not barred by time (Article 543(3) is erroneously applied. Article 535 was intended). The appellant felt aggrieved by this decision and preferred the present 'agravo' appeal, on 18th September, 1966, under Article 483(2) of the Portuguese Civil Procedure Code.

In the Second Appeal No. 5 of 1968, the respondent Vassudeva Pundolica Salcar instituted a declaratory suit against the appellant Narain Ramcrisna Poi for recovery of Rs. 5000/- due on the pronote dated 24th November, 1962, executed by the appellant. This amount under the pronote was payable after 6 months from its execution. The cause of action arose on 24th May, 1963, when the appellant failed to pay the money due. The respondent then instituted the present suit on 2nd January, 1967. This suit also was resisted on the ground that it was barred by Article 31 of the Schedule to the 1963 Act. It was further resisted on the additional ground that the appellant had paid the amount due under the pronote. The learned Subordinate Judge after considering the evidence came to the conclusion that the appellant had not paid the amount due. He also held that the suit was governed by Article 535 of the Portuguese Civil Code and not Article 31 of the Schedule to the 1963 Act and, consequently, it was not barred by limitation. The appellant did not accept this decision and accordingly he moved the learned District Judge by way of first appeal. The learned District Judge concurred with the conclusions reached by the learned Subordinate Judge and dismissed the appeal. According to him, Section 30 of the 1963 Act, as adapted by Section 8 of the Goa, Daman and Diu (Administration) Act, 1962, could also be invoked so as to save the suit instituted from being barred by limitation. The appellant then preferred the present second appeal under Section 100 of the Civil Procedure Code, 1908.

In civil revision application No. 8 of 1968, a suit was instituted by Jose Miguel Carmelino do R. Pires and his wife against Jose Paulo S. D. L. Teles and his wife and other respondents under Article 2356 of the Portuguese Civil Procedure Code; In that suit a declaration was sought by the respondents Jose Miguel Carmelino do R. Pires and his wife that premises No. 8568 belonging to them was sold by the applicants Jose Paulo S. D. L. Teles and his wife by deed dated 20th February, 1954 to the other respondents, and that this sale should be declared null and void. A further relief was sought that possession of the premises be also given to them. This suit was instituted on 30th November, 1966. The applicants contested the suit on various g










































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