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2008 DIGILAW 159 (JK)

State Of J. &K. v. Raj & Co.

2008-05-03

SUNIL HALI

body2008
1. An appeal has been preferred against judgment and order of Pr. District Judge, Srinagar, who has made award rule of the Court. The appeal is accompanied by application for condonation of delay. 2. It is reported that the appeal is time barred by 26 days. This appeal has been filed u/s 39 of the Arbitration Act. The limitation provided for filing an appeal under this Act is 90 days from the date of the judgment. This is provided by Article 156 of the Limitation Act. Under the aforementioned Article any appeal to the High Court from the date of decree be filed within a period of 90 days. 3. Since the Arbitration Act does not provide the forum nor limitation for filing an appeal against a decree passed by the District Judge. Re-course has been taken u/s 41 of the Arbitration Act. 4. Section 41 of the Arbitration Act makes Civil Procedure Code applicable to all the proceedings before the court and to all appeals under this Act. So by virtue of application of CPC u/s 41, an appeal can be filed against a decree passed by District Judge while making the award as rule of the Court. 5. The application for condonation of delay is contested by learned counsel for respondents. He states that Section 5 of the Limitation Act does not apply to any appeal having been filed under the Arbitration Act before the Court. 6. I have heard learned counsel for parties and perused the record. Arbitration Act is a Special Act. There are two sets of proceedings contemplated by Arbitration Act. One set of proceedings deals with the matter before an Arbitrator and the other deals with proceeding before the Court. 7. Section 37 of the Arbitration Act makes all the provisions of Limitation Act applicable to arbitration. The application of the Limitation Act under the aforementioned provisions relates to only proceedings before an Arbitrator. This is clearly visible from the reading of sub-section (1) of the aforementioned Act. 8. Mr. Qayoom, appearing on behalf of respondent states that it is settled principle of law that Section 37 applies only to an arbitration proceedings. He relied upon a judgment of this court reported in "JKLR 1971 page 581". 9. This is clearly visible from the reading of sub-section (1) of the aforementioned Act. 8. Mr. Qayoom, appearing on behalf of respondent states that it is settled principle of law that Section 37 applies only to an arbitration proceedings. He relied upon a judgment of this court reported in "JKLR 1971 page 581". 9. While construing the meaning of word "Arbitration" in Section 37 the Court held that the context in which the word occurs should be limited to proceeding before the Arbitrators. An application seeking setting aside of the award or making the award rule of the Court would be a proceedings before a Court and cannot be held to be an arbitration proceedings. 10. Section 37, would apply only to a proceedings before an arbitrator not before the court. So application of Limitation Act as contained by aforementioned section would apply only to proceedings before an arbitrator. 11. Second question arises in this case is whether the provisions of Section 5 of the Limitation Act can be made applicable to appeal filed under the Limitation Act. In order to appreciate this controversy it is important to examine scheme of the Limitation Act. 12. Section 5 of the Limitation Act quoted as under:- "An appeal or an application for a review of a judgment or for leave to appeal or an application to set aside an order of dismissal of a suit for plaintiffs default or an application to set aside a decree passed ex-parte in an original suit or appeal or an application to bring the heirs of a deceased party on the record or an application to set aside an order of abatement of a suit or appeal or any other application to which this section may be made applicable by or under an enactment for the time being in force may be admitted after the period of limitation prescribed therefore, when the appellant or applicant satisfied the Court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation: - The fact that the appellant or applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period of limitation may be sufficient cause within the meaning of this section." 13. Explanation: - The fact that the appellant or applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period of limitation may be sufficient cause within the meaning of this section." 13. A plain reading of Section 5 would reveal that its application cannot be made unless there is an enactment in force seeking its application. This is clearly visible from the reading of Section 5. In order to make application of section 5 of the Limitation Act., it is necessary that there has to be an enactment which makes the said provisions applicable to such appeal, suit, or application. So Section 5 will not ipsofacto apply to any proceedings before the court arising under the Arbitration Act. 14. Section 29 of the Limitation Act is relevant for the present discussion and reads as under:- "29. Savings.- (1) Nothing in this Act shall affect section 25 of the Contract Act (IX of 1977)." (2) Where any Special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefore by the first Schedule the provisions of section 3 shall apply, as if such period were prescribed therefore in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law- (a) the provisions contained in section 4, section, 9 to 18 and section 22 shall apply only in so far as, and to the extent to which they are not expressly excluded by such special or local law, and (b) the remaining provisions of this net shall not apply." 15. On the plain language of sub section (2) once it is shown that the special or local law under which a suit, application or appeal is brought, provides for it a period of limitation different from one provided by the first Schedule, all provisions of limitation Act, except those contained in Sections 3, 4, 9 to 18 and 22 shall have no application to suit, application or appeal. So section 29 makes it abundantly clear that where the special or local law prescribes for any suit, appeal or application, a limitation period which is different from the one provided by the first schedule of the limitation Act, the provisions of the limitation Act more particularly section 5 will not be applicable. 16. Admittedly no limitation has been provided under the Special law i.e Arbitration Act. The appeal is being preferred under CPC, which is made applicable to all the proceedings before the Court. Merely because the appeal has been preferred under CPC would not ipsofacto contemplate that section 5 of the limitation Act is applied to it. Even if, the present case is not covered by Section 29 of Sub Clause (2) of the Limitation Act; but in order to make section 5 applicable to the proceedings before the court, it is necessary that an enactment to the extent has to be issued. The word expression "CPC" on the face of it speaks of "Code" which relates to procedure and does not ordinarily deal with the substantive rights and the natural meaning of an appeal under the CPC is an appeal governed by Code of Civil Procedure so far as the procedure is concerned. 17. Viewed from all sides I hold, that section 37 of the Arbitration Act makes Limitation Act applicable only to the proceedings before an arbitrator and not before the Court arising out of the said Act. I, therefore, hold the section 5 is not applicable to the present appeal filed u/s 39 of the Arbitration Act. 18. I accordingly dismiss the application for condonation of delay and consequently the appeal also stands dismissed.