KSEB v. PARVATHI AMMA — 1973 DIGILAW 237 (KER)

Judgment :- 1. This Civil Revision Petition has been referred to the Division Bench, as it raises a question of limitation under Art.137 of the Limitation Act, 1963. In respect of telegraph lines taken by the petitioner, the Kerala State Electricity Board, over the property of the respondent, a sum of Rs. 1708-55 was paid on 30-4-68 as compensation for the damages caused, under S.10(d) of the Indian Telegraph Act. 1885 read with S.Si of the Indian Electricity Act. The Respondent applied on 11-6-71 to the District Judge, claiming enhanced compensation. This was under S.16(3) of the Telegraph Act which provides that any dispute concerning the sufficiency of the compensation to be paid under S.10(d) shall, on application for that purpose, by either of the disputing parties, to the District Judge within whose jurisdiction the property is situate, be determined by him. Objection was raised that the application having been filed more than three years from the payment of the amount, was barred by limitation under Art.137 of the Limitation Act, 1963 which reads: The objection was disallowed by the District Judge by the order sought to be revised. 2. It was conceded before us that the District Judge acting under S.16 (3) of the Telegraph Act, acts as a Court. To that effect is also the decision of Viswanatha Iyer, J. in 1973 KLT. 968. 3.Art.181 of the Indian Limitation Act, 1908 is the pre-cursor of Art.137 of the 1963 Act. That Article read: With respect to this Article, there was fair consensus of judicial opinion that it contemplated only applications made under the Civil Procedure Code to a court. This is referred to, although the point was not decided, by the Privy Council in Hansraj Gupta v. Official Liquidator, Dehra Dun Mussoorie Electric Tramway Co. (AIR. 1933 PC. 63). The reason for this view was that all the applications provided under the Third Division of the First Schedule of the 1908 Act, viz. from Art.158 to 183 dealt with applications under the Civil Procedure Code and, therefore, on the principle of ejusdem generis, Art.181 should also have a similar content and bear a similar interpretation. In 1940, after the passing of the Indian Arbitration Act of that year, Art.158 and 178 were amended providing for periods of limitation even in respect of applications under the Arbitration Act, 1940. In 1940, after the passing of the Indian Arbitration Act of that year, Art.158 and 178 were amended providing for periods of limitation even in respect of applications under the Arbitration Act, 1940. Consequent on the amendments so introduced, it was felt that the reason for giving a restricted content to Art.181 of the Act was no longer available. The argument was advanced before the Supreme Court in Sha Mulchandand Co. Ltd. v. Jawahar Mills Ltd (AIR. 1953 SC. 98) and was with thus: "It does not appear to us quite convincing, without further argument, that the mere amendment of Art.158 and 178 can'ipso facto' alter the meaning which, as a result of a long series of judicial decisions of the different High Courts in India, came to be attached to the language used in Art.181. This long catena of decisions may well be said to have, as it were, added the words "under the Code" in the first column of that Article. If those words bad actually been used in that column then a subsequent amendment of Art.158 and 178 certainly would not have affected the meaning of that Article. If, however, as a result of judicial construction, those words have come to be read into the first column as if those words actually occurred therein, we are not of opinion, as at present advised, that the subsequent amendment of Art.158 and 178 must necessarily and automatically have the effect of altering the long acquired meaning of Art.181 on the sole and simple ground that after the amendment the reason on which the old construction was founded is no longer available." No final opinion was, however, expressed by the Court, as it was found that even if Art.181 was attracted, the application was still within time. In Bombay Gas Co Ltd. v. Gopal Bhiva (AIR. 1964 SC. 752) the Supreme Court stated that it is well settled that Art.181 applied only to applications made under the Civil Procedure Code. Next, we shall refer to Prativa Bose v. Kumar Rupendra Deb Raikat & Others AIR. 1965 SC. 540). The argument that Art.181 is not restricted only to applications under the Code of Civil Procedure and the principle of ejusdem generis cannot avail after the amendments to Art.158 and 178 in 1940 was again repeated before the Supreme Court. Next, we shall refer to Prativa Bose v. Kumar Rupendra Deb Raikat & Others AIR. 1965 SC. 540). The argument that Art.181 is not restricted only to applications under the Code of Civil Procedure and the principle of ejusdem generis cannot avail after the amendments to Art.158 and 178 in 1940 was again repeated before the Supreme Court. This was rejected after noticing the observations of the Supreme Court in Sha Mulchand & Co Ltd. v. Jawahar Mills. Ltd. (AIR. 1953 SC. 98), extracted supra, recording agreement with the same and stating that Their Lordships felt no doubt that even now Art.181 has to be read as confined to applications under the Code. In this case, therefore, the Supreme Court expressed a categoric and definite opinion that even after the amendments to Art.158 and 178 of the Limitation Act, the content of Art.181 as judicially interpreted, that it applies only to applications under the Code, remained unshaken. In Wazir Chand v. Union of India (AIR. 1967 SC. 990), the argument was again advanced before the Supreme Court and was dealt with thus: "The reason which persuaded the Courts to hold, that the expression "under the Code" was deemed added to Art.181 has now disappeared, but on that account the expression "applications for which no period of limitation is provided elsewhere in this Schedule" in Art, 181, cannot be given a connotation different from the one which prevailed for nearly 60 years before 1940". Next in sequence comes the decision in Mohd. Usman v. Union of India 1969 SC. 474). The question there was whether an application under S.8 or 20 of the Arbitration Act is not governed by Art.131 of the Indian Limitation Act, 1908. It was held that it was not. The court observed: "In amending Art.158 and 178 the legislature acted upon the view that the references to the Code of Civil Procedure, 1908 in the second schedule to the Limitation Act could not in the absence of the amendment be construed as references to the Arbitration Act, 1940. At the same time the legislature refrained from amending Act, 181 and providing that the article will apply to other applications under the Arbitration Act, 1940. It is manifest that the legislature intended that save as provided in Art.158 and 178 there would not be any limitation for other applications under the Act. At the same time the legislature refrained from amending Act, 181 and providing that the article will apply to other applications under the Arbitration Act, 1940. It is manifest that the legislature intended that save as provided in Art.158 and 178 there would not be any limitation for other applications under the Act. Take the case of an application under S.28 of the Act for enlargement of the time for making the award, A similar application under Para.8 of the second schedule to the Code was governed by Art.81 but a like application under S.12 of the Indian Arbitration Act, 1899 was not subject to any period of limitation. There is nothing to indicate that for the purpose of limitation S.20 of the new Act should be regarded as a re-enactment of the corresponding provision of the Code and not of the Indian Arbitration Act, 1899. An application under S.8 of the new Act corresponding to Para.5 of the second schedule to the Code and S.8 of the Indian Arbitration Act, 1899 stand on the same footing. In the circumstances, it is not possible to construe the implied reference in Art.181 to the Code of Civil Procedure as a reference to the Arbitration Act, 1940, or to hold that Art.181 applies to applications under that Act. The rule of construction given in S.8 (1) of the General Clauses Act cannot be applied, as it appears that the legislature had a different intention. Itfollows that an application under S.8 and 20 of the Arbitration Act, 1940 is not governed by Art.181". Athani Municipality v. Labour Court, Hubll (AIR. 1969 SC. 1335), was a pronouncement under the Limitation Act, 1963. It was ruled that Art.137 of the Schedule of the 1963 Act does not apply to applications under S.33 (C) (2) of the Industrial Disputes Act. The two grounds for the decision were that the Article applies only to courts, and that it applies only to applications under the Civil Procedure Code. It was ruled that Art.137 of the Schedule of the 1963 Act does not apply to applications under S.33 (C) (2) of the Industrial Disputes Act. The two grounds for the decision were that the Article applies only to courts, and that it applies only to applications under the Civil Procedure Code. It was pointed out that in considering the scope of the parallel provision contained in Art.181 of the 1908 Act, it has been held by the Supreme Court that a long catena of decisions had confined the Article to applications under the Civil Procedure Code; and there was no reason to hold that the subsequent amendments to Art.158 and 178 of the Act had the effect of altering the long acquired meaning of Art.181 on the sole and simple ground that after the amendment, the reason on which the old construction was found was no longer available. It was further held that the view expressed by the Court must be held to be applicable even when considering the scope and applicability of Art.137 of the new Limitation Act. This is a direct pronouncement in regard to Art.137 of the 1963 Act. The pronouncement took note of the fact that under the 1963 Act, limitation had been prescribed not only in regard to applications under the Arbitration Act, but in two cases, even in respect of applications under the Code of Criminal Procedure. It was then observed: "We think that, on the same principle, it mast be held that even the further alteration made in the Articles contained in the third division of the schedule to the new Limitation Act containing references to applications under the Code of Criminal Procedure cannot be held to have materially altered the scope of the residuary Art.137 which deals with other applications. It is not possible to hold that the intention of the legislature was to drastically after the scope of this article so as to include within it all applications, irrespective of the fact Whether they had any reference to the Code of Civil Procedure." We think this decision should conclude the point against the petitioner. 4. In Nityanand v. L. I. C. of India (AIR. 1970 SC. 209), the question that arose was again, whether an application under S.33 (C) (2) of the Industrial Disputes Act was governed by the period of limitation under Art.137 of 1963 Act. 4. In Nityanand v. L. I. C. of India (AIR. 1970 SC. 209), the question that arose was again, whether an application under S.33 (C) (2) of the Industrial Disputes Act was governed by the period of limitation under Art.137 of 1963 Act. The Supreme Court noticed the two reasons given in its earlier pro¬uouncement in Athani Municipality v. Labour Court, Hubli (AIR. 1969 SC. 1335) to hold that the Article would not be attracted, viz , first that irrespective of the legislative changes introduced in the 1963 Act, no drastic change was intended is the scope of Art.137 vis-a-vis its predecessor Art.181, so as to comprehend all applications whether under the Civil Procedure Code or not; and second that it is only applications to courts that are intended to be covered by Art.137 of the 1963 Act. The Supreme Court, on this occasion, endorsed the second of these reasons and on that ground, sustained the conclusion of the Bombay High Court that the application in question was not governed by Art.137. Dealing with the first ground, the court observed: "It is not necessary to express our views on the first ground given by this Court in Civil Appeals Nos. 170 to 173 of 1968 D/-20-3-69; (AIR. 1969 SC. 1535). It seems to us that it may require serious consideration whether applications to courts under other provisions, apart from Civil Procedure Code, are included within Art.137 of the Limitation Act, 1963, or not." Counsel for the petitioner stressed the above passage and contended that the question as to whether applications other than those under the Code are covered by Art.137 or not, would require serious re-examination. We are afraid, this can only be by the Supreme Court and not by us. The matter has been concluded by the Supreme Court decision in Athani Municipality v. Labour Court, Hubli (AIR. 1969 SC. 1335). not to refer to the earlier decisions under Art.181. In the light of the said decision, which is binding on us, till the position is reviewed by the Supreme Court, it must be held that Art 137 applies only to applications under the Civil Procedure Code. 5. In the face of the decisions of the Supreme Court, it is unnecessary for us to deal with the decisions of the High Courts. Counsel for the petitioner drew our attention to L. Amarnath v. Union of India (AIR 1957 All. 5. In the face of the decisions of the Supreme Court, it is unnecessary for us to deal with the decisions of the High Courts. Counsel for the petitioner drew our attention to L. Amarnath v. Union of India (AIR 1957 All. 206) where it was held that Art.181 applies also to applications under the Arbitration Act, and that after the amendments effected in 1940 to Art.158 and 178, the view that Art.181 applies only to applications under the Code of Civil Procedure, is no longer tenable. The decision refers to a decision of the Punjab High court in Union of India v. Firm Kiroo Mal (AIR. 1952 Punjab 423) and of the Calcutta High Court in Shah & Co. v. Ishar Singh Kirpal Singh & Co. (AIR. 1954 Calcutta, 164) in support of this view. It does not, however, refer to the decision of the Supreme Court in Sha Mulchand and Co. Ltd. v. Jawahar Mills Ltd. (AIR. 1953 SC. 98). (The other decisions of the Supreme Court to which we have referred, were subsequent to the ruling). The decision of the Calcutta High Court in Shah & Co. v. Ishar Singh Kirpal Singh & Co. (AIR. 1954 Calcutta 164) was by S. R. Das Gupta, J. The learned judge delivered the judgment in a later Division Bench ruling in Kalinath v. Nagendra Nath (AIR. 1959 Calcutta 81). There the learned judge stated that the previous decision in Shah & Co. v. Ishar Singh Kirpal Singh & (AIR. 1954 Calcutta 164) was decided without reference to AIR. 1953 SC.98. We think it unnecessary to refer in detail to the other decisions of the High Courts in view of the clear pronouncements of the Supreme Court noticed earlier, 6. Counsel for the petitioner contended that by reason of S.141 of the Code of Civil Procedure, the application must be deemed to be one under the Civil Procedure Code. The contention is directly answered by the decision in Prativa Bose v. Kumar Rupenpra DebRaikat & Others (AIR. 1965 SC 540) where it is observed; "It was then said that the application which the respondent Rupendra made was under the Code because in view of S.141 of the Code the procedure prescribed by the Code has to be followed in dealing with an application made under S.4 of the Regulation. This is obviously fallacious. 1965 SC 540) where it is observed; "It was then said that the application which the respondent Rupendra made was under the Code because in view of S.141 of the Code the procedure prescribed by the Code has to be followed in dealing with an application made under S.4 of the Regulation. This is obviously fallacious. The question is not whether the procedure for an application is that prescribed by the Code but whether the application was under Code. The application by the respondent Rupendra was not under the Code in any sense. We dismiss this revision petition with costs.