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2013 DIGILAW 196 (CAL)

Utpal Kumar Saha v. Sujan Bhowani

2013-04-11

HARISH TANDON

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JUDGMENT HARISH TANDON, J.: A short but interesting point is raised in this revisional application as to whether Section 5 of the Limitation Act would apply to an appeal filed under Section 9 (6) of the West Bengal Land Reforms Act, 1955 filed before the District Judge. 2. Having inspired from the judgment of the Apex Court rendered in case of Gopal Sardar -Vs- Karuna Sardar reported in (2004) 4 SCC 252 , the learned advocate appearing for the petitioner submits that in absence of any express provision relating to the applicability of the Limitation Act under Section 9 of the said Act. It would be deemed that the legislature has consciously excluded the applicability of the Limitation Act. 3. In the above report the sheet anchor of the dispute relates to the applicability of Section 5 of the Limitation Act in respect of a proceeding under Section 8 of the West Bengal Land Reforms Act, 1955. 4. Their Lordships took note of various provisions of West Bengal Reforms Act, 1955 wherein express applicability of the provisions of Section 5 of the Limitation Act was made which did not find place under Section 8 of the said Act and held that the applicability of the Limitation Act was impliedly barred. Their Lordships also took into consideration the provision contained under Section 29 (2) of the Limitation Act providing the applicability of Sections 4 to 24 of the said Act unless expressly excluded by the special or local law. 5. While deciding the said issue an ancillary point crops up in relation to the nature of an application under Section 8 of the West Bengal Land Reforms Act, 1955 to be a original proceeding akin to the suit. The Apex Court noticed the Division Bench judgment of this Court rendered in this case of Serish Maji -Vs- Nishit Kumar Dolui reported in 1999 (1) CHN 365 wherein it is held that Section 5 of the Limitation Act does not apply to suits and a proceeding under Section 8 of the said Act being an original proceeding being akin to the suit in these words:- “46. In this background and coming more specifically to proceedings under Section 8 of the WBLRA, it is not in dispute that it is an original and independent proceeding initiated before the Munsif which culminates finally in his order. In this background and coming more specifically to proceedings under Section 8 of the WBLRA, it is not in dispute that it is an original and independent proceeding initiated before the Munsif which culminates finally in his order. It does not matter that this final order is not called a decree. Merely because civil proceedings before Courts are normally conducted according to the Civil Procedure Code does not mean all civil proceedings must be so conducted or that the terminology of the Code should be seen as defining the nature of proceedings under other statutes. In any event a “decree” according to the Code means: “the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit.” 47. The decision of the Munsif on the right of the applicant to claim preemption subject to appeal under Section 9, is final and in that sense is a decree.” 6. The Apex Court in case of Gopal Sardar -Vs- Karuna Sardar (Supra) endorses the view of the Division Bench in case of Serish Maji -Vs- Nishit Kumar Dolui (Supra) as correct and acceptable. 7. If the proceeding has originated on the basis of an application or petition independently for final determination of issue or issues of fact or law between the parties, it would still be considered to be original and culminates finally into the order. The order finally determining and/or adjudicating the rights of the parties to set at rest the matters in controversy which pertakes a character of decree be it termed as an order or otherwise it reaches the finality in all respect unless set aside and/or upset by the appellate Court or the higher authorities. The distinction between the suit and application becomes obliterated because of the nature of the proceedings where the rights of the parties are finally determined. 8. Section 2 (1) of the Limitation Act defines the suit negativing the inclusion of the appeal or an application. Therefore, Section 5 has no manner of applicability to the suit but applies to an appeal or an application. 9. Ordinarily a preemptive right is enforced by way of a suit. 8. Section 2 (1) of the Limitation Act defines the suit negativing the inclusion of the appeal or an application. Therefore, Section 5 has no manner of applicability to the suit but applies to an appeal or an application. 9. Ordinarily a preemptive right is enforced by way of a suit. In the event the said right is to be exercised by filing an application under a special or the local law, the same cannot be treated as an application within the meaning of the Limitation Act as it finally determines the issues or the cause of action. 10. The appeal is a creature of a stature. It has been held in case of Samarendra Jana -Vs- Basanta Kumar Shit reported in 1978 (1) CLJ 299 that the Munsif dealing with an application for preemption under Section 8 of the Act is a Civil Court and not a persona designata which has been reiterated in case of Tarapada Shome -Vs- Parbati Charan Sarkar reported in 1983 (2) CLJ 44 and Pashupati Mondal -Vs- Debabrata Jana reported in 1999 (2) CLT 403. 11. The District Judge having a trapping of Court is dealing an appeal though under special Act but such appeal is regulated by the procedural law applicable to the said Court. Applicability of Order 41 of the Code cannot be said to have been excluded as the District Judge can entertain an application under Order 41 Rule 5 so also retains the power to allow the parties to adduce additional evidence under Order 41 Rule 27 of the Code and can also remand the matter to the munsif. Therefore, all the powers incidental to an appeal under The Code can be exercised by the District Judge. The provision contained under Section 5 of the Limitation Act has no manner of applicability to the suit but certainly applies to an appeal or an application. Therefore, the exclusion of Section 5 cannot be readily inferred as has been found in case of a proceeding under Section 8 of the said Act which is in nature of original proceeding similar to suit. 12. The judgment of the Apex Court in case of Gopal Sardar -Vs- Karuna Sardar (Supra) is not pointer to an issue whether the applicability of Section 5 of the Limitation Act is expressly excluded in an appeal filed under Section 9 (6) of the West Bengal Land Reforms Act. 12. The judgment of the Apex Court in case of Gopal Sardar -Vs- Karuna Sardar (Supra) is not pointer to an issue whether the applicability of Section 5 of the Limitation Act is expressly excluded in an appeal filed under Section 9 (6) of the West Bengal Land Reforms Act. 13. Even if at one moment one can think of exclusion of the Limitation Act but because of the non exclusion of the Code of Civil Procedure regulating the said appeal before the District Court which has a trapping of the Court, Order 41 Rule 3A of the Code can be pressed for the purpose of the condonation of delay and/or extension of time to file an appeal. 14. This Court, therefore, held that the District Judge has power to condone the delay in preferring an appeal beyond the statutory period. 15. By order impugned the District Judge condoned delay in preferring an appeal and the same cannot be said to have been passed without jurisdiction because of the exclusion of the applicability of the Limitation Act. 16. The revisional application is devoid of any merit. The same is hereby dismissed. 17. There shall be no order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.