1954 Supreme(Raj) 266

Rajasthan High Court, Full Bench
Wanchoo C.J., Dave & Modi, JJ.
Jethmal - Appellant
Versus
Ambsingh - Respondents
Civil Regular First Appeal No. 21 of 1954
Decided On : November 26, 1954

Headnote:(a) Limitation Act—Retrospective operation—Amending Act not to be given suck effect where it comes, into force atonce whether or not saving provision exists— Marwar Limitation (Amendment) Act, 1949, sec. 4—"Would be barred"— Expression means would be barred when instituted and not when Act came into force.(b) Limitation Act—Interpretation—Language not precise — Court to give interpretation in favour of right to sue—Alternative implied clauses—Clause elimination hardship to be preferred.(c) Limitation Act—Marwar Limitation (Amendment) Act, 1949, sec. 4—"Would be barred"—Expression means would be barred when instituted.(d) Limitation—Marwar Limitation (Amendment) Act, 1949, sec. 4—Applicability—"Barred under the provisions of this Act"—Expression not synonymous with barred during the currency of the Act"—Suit affected by provisions of sec. 4 but brought after repeal of Act by new Act—Applicability of sec. 4 to be decided whether the suit would be barred if Act was alive when suit brought.(e) Limitation—Rajasthan Limitation Act (Adoption) Ordinance, 1950,sec.9—Period prescribed—Marwar Limitation(Amendment) Act, sec. 4—Period prescribed includes period prescribed by sec. 4—Sec. 9, Adaptation Ordinance would apply where period prescribed shorter than period available under sec. 4 of Marwar Act.

       Per Modi, J.—Although a law of limitation is primarily a law relating to procedure and as such comes into effect right from the moment it has been enacted and governs all proceedings instituted thereafter and has thus retrospective operation, there is ample authority in favour of the principle that whether or not a saving provision exist,* where a subsequent law curtails the period of limitation previously allowed, and such law comes into force atonce, it should not be allowed to have retrospective effect, which it would otherwise have, so as to destroy pre-existing vested rights of suits, because the giving of such retrospective effect amounts to not merely a change in procedure but a forfeiture of the very right to which the procedure relates. (Paras 20 & 8)

       (Wanchoo C. J. and Dave J. not expressing any view on the wider application of this principle, that is, where a law does not provide a saving clause, whether this principle can still be applied.) (Para 30)

       Where the language of the law of limitation is not precise and of doubtful import, such law may be construed equitably or reasonably, that is, such construction thereof may be adopted which favour the right to sue rather than which bars that right. Thus where it is a question of supplying an implied clause and it is possible to choose out of two implied clauses it would not be wrong for the court to choose that clause which obviates hardship. ] (Paras 23 & 31

       In enacting the Marwar Limitation (Amendment) Act, 1949, the legislature thought it fit to provide a saving section, namely, sec. 4. From this the only reasonable inference is that it wanted to provide a facility to the litigants who would otherwise have been affected by the hardship brought about by the new Act. If we were to interpret this saving provision so as to hold that it applied only to suits to which were barred at the commencement of this Act, then two consequences seem to follow. First, that the saving clause does not more than what would have followed under the general principle as stated above Secondly, on this interpretation the right words to be understood or supplied after the expression "would be barred" being "at the commencement of the Act", the position under the saving section would in fact become worse because in that event all suits which are not barred at the commencement of the Act but must inevitably become barred for reasons entirely outside the control of the parties concerned, will not get any grace under sec. 4 whatever and their vested right of suit would be irrevocably lost. It would not be right to impute such an intention to the legislature, if an alternative reasonable interpretation is possible. Considering (1) that the Marwar Limitation (Amendment) Act, 1949, came into force atonce and (2) that the legislature clearly wanted to afford facilities to the litigants whose rights of suit were going to be affected under the new law, the missing words after the expression "would be barred" are not at the commencement of the Act" , but "at the time of its institution". (Para 21)