# HUKUMDEV NARAIN YADA V v. LALIT NARAIN MISHRA

- **Citation:** [1974] 3 S.C.R. 31
- **Court:** Supreme Court of India
- **Decided:** 1973-12-21
- **Bench:** P. Jaganmohan Reddy, S. N. Dwivedi, P. K. GosWAMF
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hukumdev-narain-yada-v-v-lalit-narain-mishra-6053
- **Pages:** 19

## Headnote

Representation of the People Act (43 of 1951} Ss. 81 and 86-Presemation
of election petition beyond prescrib~d period of limitation- Wlu!IIJer court lias powe~:
10 condo11e delay.
Limitation Act, (36 of 1963), Ss. 4, 5 and 29 (2) Whether delay in filillg election
petition cat/ be comloned under s. 5-Applicahility of sectio11 to electimt pelitionsSamrday
last day of limitation-Filing 011 next ll.fonday-If within limitation.
Under s. 80A of the Representation of the People Act, 1951, the High Court
is given jurisdiction to try election petitions. Section 81 prescribes the period of
45 days from the d11te of the election of a returned candidate as the period within
which an election petition calling in question any election on one or more of the
grounds specified in s. JOO (I} or s. 101 has to be presented. If the provisions of
s. 81 are not complied with, s. 86 requires that the High Court shall dismiss tile
petition. Rules 6 and 7 of the Election Rules framed by the Patna High Court
pr,~ vided, (i) that the petition must, first, be presented to the Stamp Reporter·
(ii) The Stamp Reporter has to certify thereon whether it is in time and in con:
formity with the requirements of the Act and .the rules in that behalf or is defective·
(iii) the petition should be returned to the petitioner for removing the defects if any
and for formal presontation to the judge in open Court after removing the defects;
(iv) if the judge who is designated to entertain and try dection petitions is absent
the petition shall be presented before the Bench hearing civil applications and
motions; and (v) the date of presentatiol'! before the Judge or Bench, as the case
may be, shall be deemed to be the date of the filing of the election petition for purposes of limitation.
In the present case, the election petition was filed on Monday instead of on the
previous Saturday which was the last day of limitation, and the High Court dismissed the petition as time-barred.
In appeal to this Court, on the questions: (I) Is the Court closed on Saturday
because Judges do not sit, and (2) by virtue of s. 29 (2) of the Limitation Act, 1963
are the provisions of ss. 4 to 24 and especially s. 5 of the Limitation Act applicabl~
to election petitions, so that, the petitioner could show sufficient cause for not filing
tile petition within time,
-
HELD: (I) (a) Under s. 4 of the Limitation Act, it is provided that where the
prescribed period for. any suit,
appe~l l!' app/icafio~t e~pires on a day when the
court is closed, the suJt, appeal or apphcatwn may be mstrtuted, preferred or made
on the day when the court reopens. Even if s. 4 of the f.-imitation Act docs not
apply to election petitions s. 10 of the General Clauses Act, 1897, would certainly
apply to election .Petitions. Under both the pr~visions where th~ prescribed period
of limitation exp1res on a day when the Court 1s closed the petJtJon could be tiled
on a day when the court next reopens. But a court is not closed notwithstanding
the fact that judges do not sit on any day if otherwise the court is open on that day.
£34H; 35C-F]
H. H. Raja Harindu Singh v. S. Karn.ail Singh [1957] S.C.R., 208, Laclnnl'slnrar
Prasad Shukul v. Gird/1ari La! Cllaudlwry, I. L. R. 19 Pat. 123, Naclz~vappa Mudaii
and others v. Ayyasami Ayyar, I. L. R. (1882) 5 Mad, 189 at 192, In r~ Thokklldubivya11u Immaniyelu and Others, (1948) I M. L. J. 49, Dwarka Prasutl a11d anotlter
v. Union of India, A. I. R. 1954 Pat. 384 and Sajjau Sintll muf another v. Bhogilal
Pandya A. I. R. 1958 Raj. 307, referred to.
(b) Rules 6 and 7 of the Elections Rules of the Patna High Court should be read
subject tor. 24 of the same Rules; and so read, in s0 far as they are not inconsistent
with the election ~ules, tile Patna High Court Rules shall upply mutatis mutandis
::-::::
SUPREME coURT REPOR !S
[ 19741 3 s.c.n.
32
·
26 of the Patna High Court Rules provides for th
A
to all el~tion petitions. R~~~m of appeal or ~pplicatioo to t!te Registrar whc~
resentauon of

## Text

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31
HUKUMDEV NARAIN YADA V
v.
LALIT NARAIN MISHRA
December 21, 1973
[P. JAGANMOHAN REDDY, S. N. DWIVEDI AND P. K. GosWAMF, JJ.J
Representation of the People Act (43 of 1951} Ss. 81 and 86-Presemation
of election petition beyond prescrib~d period of limitation- Wlu!IIJer court lias powe~:
10 condo11e delay.
Limitation Act, (36 of 1963), Ss. 4, 5 and 29 (2) Whether delay in filillg election
petition cat/ be comloned under s. 5-Applicahility of sectio11 to electimt pelitionsSamrday
last day of limitation-Filing 011 next ll.fonday-If within limitation.
Under s. 80A of the Representation of the People Act, 1951, the High Court
is given jurisdiction to try election petitions. Section 81 prescribes the period of
45 days from the d11te of the election of a returned candidate as the period within
which an election petition calling in question any election on one or more of the
grounds specified in s. JOO (I} or s. 101 has to be presented. If the provisions of
s. 81 are not complied with, s. 86 requires that the High Court shall dismiss tile
petition. Rules 6 and 7 of the Election Rules framed by the Patna High Court
pr,~ vided, (i) that the petition must, first, be presented to the Stamp Reporter·
(ii) The Stamp Reporter has to certify thereon whether it is in time and in con:
formity with the requirements of the Act and .the rules in that behalf or is defective·
(iii) the petition should be returned to the petitioner for removing the defects if any
and for formal presontation to the judge in open Court after removing the defects;
(iv) if the judge who is designated to entertain and try dection petitions is absent
the petition shall be presented before the Bench hearing civil applications and
motions; and (v) the date of presentatiol'! before the Judge or Bench, as the case
may be, shall be deemed to be the date of the filing of the election petition for purposes of limitation.
In the present case, the election petition was filed on Monday instead of on the
previous Saturday which was the last day of limitation, and the High Court dismissed the petition as time-barred.
In appeal to this Court, on the questions: (I) Is the Court closed on Saturday
because Judges do not sit, and (2) by virtue of s. 29 (2) of the Limitation Act, 1963
are the provisions of ss. 4 to 24 and especially s. 5 of the Limitation Act applicabl~
to election petitions, so that, the petitioner could show sufficient cause for not filing
tile petition within time,
-
HELD: (I) (a) Under s. 4 of the Limitation Act, it is provided that where the
prescribed period for. any suit,
appe~l l!' app/icafio~t e~pires on a day when the
court is closed, the suJt, appeal or apphcatwn may be mstrtuted, preferred or made
on the day when the court reopens. Even if s. 4 of the f.-imitation Act docs not
apply to election petitions s. 10 of the General Clauses Act, 1897, would certainly
apply to election .Petitions. Under both the pr~visions where th~ prescribed period
of limitation exp1res on a day when the Court 1s closed the petJtJon could be tiled
on a day when the court next reopens. But a court is not closed notwithstanding
the fact that judges do not sit on any day if otherwise the court is open on that day.
£34H; 35C-F]
H. H. Raja Harindu Singh v. S. Karn.ail Singh [1957] S.C.R., 208, Laclnnl'slnrar
Prasad Shukul v. Gird/1ari La! Cllaudlwry, I. L. R. 19 Pat. 123, Naclz~vappa Mudaii
and others v. Ayyasami Ayyar, I. L. R. (1882) 5 Mad, 189 at 192, In r~ Thokklldubivya11u Immaniyelu and Others, (1948) I M. L. J. 49, Dwarka Prasutl a11d anotlter
v. Union of India, A. I. R. 1954 Pat. 384 and Sajjau Sintll muf another v. Bhogilal
Pandya A. I. R. 1958 Raj. 307, referred to.
(b) Rules 6 and 7 of the Elections Rules of the Patna High Court should be read
subject tor. 24 of the same Rules; and so read, in s0 far as they are not inconsistent
with the election ~ules, tile Patna High Court Rules shall upply mutatis mutandis
::-::::
SUPREME coURT REPOR !S
[ 19741 3 s.c.n.
32
·
26 of the Patna High Court Rules provides for th
A
to all el~tion petitions. R~~~m of appeal or ~pplicatioo to t!te Registrar whc~
resentauon of the memo~ certificatton by fum for presentation to a Bench 00
~0 Bench is sitting, aodo~ ~~hich the Den~~ is sitting.
~ule 26 applies to an etC(:.
the ned subsequent ~3
'1' not incOnsistent with r. 7, EIC:ChOn .R\IIes.
Rule 7 does,
tioD petition also an _Is en
where a Judge or: Bench IS ~ot !ltllng on a day when
not provi~e for a congnsThc;?' practice of the H1gh Court IS t.h~t Judg~s do not sil
the court 1s not close 5• 1 days and thcro nrc no Benches Slttmg on that day anu
ror judicial work on v~i~~ ~ad~ to deal with such a co~tingcn~ could _not be said
conseq_uently_ any P~th the Election Rules. That co~tmgcncy IS provtdcd for by . B
to be tnconmtcnt WI uri Rules
Further, it would be mcongruous that a Court is
r. 26 of the ~hgh C:: rcsentation of appc.1ls, applications, plaints or deer~ etc . .
open .on Sa~urdaj3f of ;he High Court Rules even though Judges arc not sitting on
mcntJoned 10 r. Court is closed on the same day for pre.~cntat1on of cl.xtion pcti.
that day, bur the reading rr 6 and 7 of tl1c Election Rules with r. 26 of the Hi·•h
lions. RT~~r~~ is no doubt that an election petition .~n be prcsen.ted, on the bst
Court
li 'tation even though the Judges arc not slti:Jng to rcccrvc or entertain
!Yc1%t~~ ~lrion, to the Registrar or, in his abscn~-c, to the other officers specified
C
in r.26. [38H-39DJ
(2) (a) Section Z9 (2) of the Limitation Act, 1963, provides that the provisions
contained in Ss. 4 to 24 shalt apply in so far as and to the extent to which they ar~
1101 expressly excluded by such spct:io/ or loco{ law. The words 'c~p~L'$Sly ncluded'
could not mean that there must be express reference maLic 1n the spcc1aJ or localla·.v
to tne specific provisions of the Limitatioo Act of which th.: operation is to be ~
eluded. lfon no examination of the rcl..,vant provisions it is clear th<~tthe provisi0113
to the Limitation Act arc n=sarily exdutlcd then the bcndits conferred therein
could not be called in aid to suppl.!mcnt the provisions of the SI)\.'Ci:tl Act. E'en
tn a cme where the special law d1X'! not exclude the provisions of s. 4 to 2~ of th~
Limitation Act by an e.tJ'I~'.S n:k~n.:e it would, nonetheless b.: open to the Court
to examine whether and to what cxt~nt the nature of those provision.~ or th~ nature
o! the subje..1 nutt.:r and s.:hem-."3 or the special law exclud.: their op.:ration.[+IC-FJ
. tb) Scctioo 86 of the Representation of the Pc'()pfc Act, which i~ n special law,
gJ'':-' a peremptory comnund that the l-ligh Court s/w/1 clismiu an election Ntition
"'hJCh docs not comply v.rth the provi~ioos to sections 81, 82 or 117.
(c) If the LimiL1tir>n Act w-ere to apply to an election p;:titio)O which doe; n.:tt
comply With •· ~I. 1t ~hould equ:tlty aprly for oon-;:ompliancc with s~. 82 nn~ 117.
But m C:lwrull 1._14 ::014 ... v. ,\attd~i>lwre Bhattund Otht!rl, ( PHJJ 2 S.C.C ~10, lt ...-:IS
hddb tl
1
~:~t the_ Court fhad no dt!i<:l'l:tion to condonu tho: tfd:ry in oon~mpti.Ulce
" 'It t 10 pro""ons o Sr.. lP anJ 117
Jl' r .
·
·
· ··
of S.i, 82 und 111 ,.h··h -
.
. •
oor no~-ct>mp~l~ncc wrth the prov1~rons
un<.Ier 1 ~r, (l) th'
IC arc mam1.1tory, the cl."<:th'n p~tnwn has to be dwru~·'\1
in 1. si woutd be" ~~;J,ntauoo ~fan clc.:ti~n p.:ti~ion within the p.:riod pres-"Tibed
compJi.ln.;c with it. {140·[ mantl.ltory rcqutnng dtsmi;o;af of the petition for O.:lll-
(J) On the terms c>f 5 ~? (') f 1 L' . .
24 of the Limitation Act has t; 0 .t
1~ UllllatJon A<:t, til~ applicability of S;. 4 t<l
but by the provision, or the R. b-:. -~~~~~".'' not from th~ t~rms of th~ Limit:ttion ~·'t
of ~h,;ctio~ p.:tition unu lhdr t 'Pf"'
1~1at!OI'l of thll Pcorle A<:t ~l.ltin!: to the fihng
~xpre,sly c~duu<\l but th•y c ru ·
S•.x:tmn~ 6 to 24 of t.h~ Umit:ltioo Act an: EtJt
tnl(l u~tl<:r the tt~prc.-cnwiinna~lr<~ 0~ .that account be m:1Jc arpli<:nhh: to pr<x~·
can.!~. fhcrdore, t:1: R:;>r.:-<ut~ti~ e lf,npte :''t· !oe.:,\>J::C, they an.-, in t'rms,IDJf'~~
.,.ht,h dou not
a~uJ.it of 11 •
" u
t~1c I c•lplc 1\.:t 1~ n comrl"t..: .:oole 10 !r;.; ·
•tion /let IMOtiOotd in 1 2~\'~Pi;ll<::lltllll uf UI\Y t>f th~ pruvi<ions of the (jr:UI·
·
- '' that A~t, in:luJin~ '· .S. ( 150)
(c) Under L £6 (5) or the Rc
• .
.
~lluw the an«n· !tn~r.t of th<
artf~'<:cllhttlon of U"' l'copl~ Act the lli)!h C••urt _ouY
;ut the 11,~ 11 C(>Urt ' hall n.ft . ll ul;rr• of any wrrupt rr•lctkc a!l~t·eJ in th~ r~uttQn
1 "'1t 1cct . ~>f iutr.•lu<:illg f):\11·~ 't any ummll.rncnt to the petition' whi.:l\ \\ill h~;1
~
10
1
~'-lHk>ll. This is uot r:,culr! of n Corrupt pr,retkc no>t prc\'iousiY nli<-?
caon~ lf.:\1 Ufkr the: T"'rio•l of fT"'.IItctl b.'\:oiU'<l it \loOllhj UmOtllll tO U n~W pt'IIUOO
DJt 1:1,: ~tlro~elcd . (41)G)
'.flut.uroo, tn<lrc;uin~; that$. 5 of th~ L!mit~I10n Act
D
£: .
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H. N. YADAV V, L. N. Ml5HRA (Jaganmohan Reddy,/.)
33
(f ) It is also significant that the delay in presentation of the election petition
und_er the repealed s. 81 could be condoned by the Election Commission in its discretiOn; but when the Act was amended in 1966 and jurisdiction was given to the
. Hig!J. Court to entertain and try the election petitions a similar provisions for condomng delay was nat enacted, .showing Parliament's intention not to confer such
a power. The whole object of t'he amendment was to provide a procedure for more
expeditious disposal.of the ~ection disputes by ~he High Court. [47A]
.
Therefore, the :Provisions of s. 5 of the Limitation Act do not govern the filin"'
of an election petiti0n or their triaL [49D]
.
"'
.. K. Venkateswara Rao and Anr. v. Bekkam Narasimha Reddi & Ors., [1969]1 S.C.R.
679, N. P. Ponnuswami v. Returning Officer Namakkal · Constituency ana others,
[1952] S.C.R. 218 and Krishan Chander v. Ram La/ [1973] 2 S.C.C. 759, referred to.
{I tis true that if the election petitions are thus dismissed the allegations of serious
corrupt practice could not be enquired into and the purity of the elections cannot
be maintained but that however is a matter which can be set right only by the legislature.]
CIVIL APPELLATE JURISDICTI?N: Civil Appeal No. 870 of 1973.
From the Judgment and Ordei dated the 26th March 1973 of the
Patna High Court in Election Petition No. 1 of 1972 .
. J. P. Goyal, PralUlb Chatterjee,· Santokh Singh and V. C. Para~har,
for the appellant. · ·
.
..·
·
·
S. V. Gupte, S. N. Misra, C. M. Oberoi, D. Goburdhan, K. P. Verma,
U. 1'. Singh, Virendra Prasad Sinha, D. N. Misra, J. B. Dadachanji,
Ra~·inder Narain, 0. C. Mathur and J. B. Jadtlchanji & Co •• for the
respondent.
· ·
·
. The Judgment of the Court was de1ivered by
JAGANMOJIAN REDDY, J.-In the bye-election to the Lok Sabha
from Darbhanga Parliamentary Constituency held on )anuary 30,
1972, the respondent Lalit Narain Mishra-a candidate of the Indian
National Congress-\Yas declared elected on February 2, 1972, by a
margin of 91,078 votes against his rival Ramsev.ak Yadav-a candidate of the Socialist Party-at that election. The appellant an elector
in tbat constitu.!llcy -presented an election petition on Monday, March
20, 1972, instead of on Saturday. March 18, 1972, which was the last
. day of limitation. The petitloJ;J, however, was dismissed by the High
Court as being · t1me·barred. Against that judgment and 9rder this
· ,. appeal· has been filed under s. 116-A of the Representation of the
PeopJe Act, 1951 '(hereinafter referred to as 'the Act').
It may be mentioned that s. 80-A was added to the ·Act by the.
Amendment Act 47 of 1%6, whereunder the High Court was given
jurisdiction to try eleJ::tion petitions. This jurisdiction has tQ be
exercised ordinar~ly by a .Single Judge of that Court and the Chief
Justice could from time to time assign one or more Judges for that
purpose. Section 8t •prescribes the period of 45. days from the date
of the election of a returned candidate within which an election petiJI
tion calling in que5tion any election on one or more grounds. specified
in sub-s. (l) of s. 100 and s. 101 has to be presented to the Htgh Court.
If the provisions of'· 81 are not complied with. s. 86 requires that the
4-M852Sup.CI{74
34
SUPREME COURT REPORTS
( 1974] 3 S.C.R.
High Court shall dismiss the petition. There is no doubt that election
A
petition in this case has been presented beyond the period of 45 days
and has necessarily to be dismissed.
What w~ have to consider, however, 1s that whether having regard
to the reqUirements of rr. 6 and 7 of the Rules for the Disposal of·
~lectl.on Petitions framed by the Patna High Court, an election peti~
t1on shoul.d only 1x' filed before a Judge of the High Court sitting in
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open Court, and it could not be filed on a Saturday when the Judges
do not sit
and
hence !he filing of that petition on Monday,
March 20, 1972, Sunday bemg a holiday, is in time. Eyen if it be held
that the filing of the petition was beyond the time prescribed in s. 81
it'has further to be considered whether the provisions of .s. 5 of th~
Limitation Act 36 of 1963 are applicable to such petitions and whether
the petitioner has shown sufficient cause in the petition which has
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now been filed before this Court for not filing the petition in time
to enable the Court to admit it after the prescribed period.
Three questions which require determination are-
(1) Is the Court closed on Saturday, when the Judge~ do not sit
for the purposes either of s. 10 of the General Oause& Act,
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or s. 4 of the Limitation Act?
(2) By virtue of s. 29(2) of the Limitation Act, are the provisions
of ss. 4 to 24 of the said Act applicable to election. petitions?
(3) If they are, and s. 5 of the Limitation Act is applicable. do the
facts of the case warrant condonation of delay?
On the question whether the petitioner could have filed the peti·
tion on Saturday, March 18, 1972, what has to be seen is whether the
Court can be said to be closed within the meaning of either s. 4 of the
Limitation Act, 1962, or s. 10 of the Gener-al Clauses Act, J 897, because
under both the provisions where the prescribed period of limitation
expires o,n a day when the· Court is closed the petition could be filed
on a day when the Court re-opens. Where, however, the provisions
of the Limitation Act apply, the proviso to s. 10(1) of the General
Oauses Act in terms makes that provision itself inapplicabl~. Under
s. 4 ofthe Limitation Act it is provided that where the prescribed
period for any suit appeal or application expires on ·a day when the
Court is closed the suit appeal or application may be in!tituted pre·
ferred or made on the day when the Court re-opens. The Expla·
nation thereof states that a Court shall be deemed to be closed on any
day within the myning of that section if during any part of its normal
working hours it remains closed on that day. It was sought to be
contended that even if the limitation Act applies s. 4 would not apply
.because an election petition is neither a suit, nor an apPeal nor an
application, notwithstanding the' definition of "application" contained
ins. 2(b) of the Limitation Act as including a petition.· It is, in our
view unnecessary to examine the subDrission in this context because
even if s. 4 of the Limitation Act doe's not apply, a. 10 of the General
Clauses Act will certainly apply to electio~ petitions to bC filed under
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H. N. YADAV V. L. N. MISHRA (Jaganmohan Reddy,/.)
35
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the Act as held by this Court in H.H. Raja Harinder Singh v. S. Kamail
Singh(1). In that case an election petition had to be filed under r.
119(a) of the Election Rules not later than fourteen days from the
terminus a quo prescribed therein, but as the day on which it could be
filed was1 a Sunday be filed it on the next daY.· The contention of the
Solicitor-General was that s. 10 of the General Clauses Act "can
apply on its own terms only when the act in question is to be done
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"within a prescribed period", that under r. ll9(a) of the Eection
Rules the petition has to be filed "not later than" fourteen days, that
the two expressions do not mean the same thing, the words of the
Rule being more peremptory, and that accordingly s. 10 of the General
Clauses Act cannot be invoked in aid of a petition presented under r.
119, later than fourteen days". This argument was rejtcted as being
erroneous because "Broadly stated, the object of the section is, to
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enable a person to do what he could have done on a holiday, on the
next working day. Where, therefore, a period is prescribed for the
performance of an act in a Court or office, and that period expires on a
holiday, then according to the section the act should be considered to
have been done within that period, if it is done on the next day on
which the Court or office is open. For that section to apply, therefore, all that is requisite is that there should be a period prescribed,
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and that period should expire on a holiday." Of course s. 10(1) of
the General Clauses Act does not speak of a holiday, but refers to the
Court or office being closed on the last day of the prescribed period to
enable a party to do an act or take any proceedings on a certain day or
within a prescribed period, as the next day on which the Court or office
is open. If the CoUlt is dosed on the day when limitation expired,
s. 10(1) of the General Clauses Act enables the filing on the next
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working day of the Court. But is the Court clost.d on a· Saturday
when the Judge~ do not sit though the office of the High Comt is open?
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A long course of decisions have held that a Cout t is not closed
notwithstanding the fact that Judges do not sit on any day if other~
wise the Court is open on that day. Harries, C.J., during the course
of the arguments in Lacllmeshwar Prasad Shukul v. Girdhari La/ Clraudhuri(2) observed that "Saturday" is a court day although the Judges ·
are not sitting on that day. The learned Chief Justice and Fazl Ali,
J., as he then was, (Agarwala, J., difsenting) went to the extent of
holding that even in the vacations the Court is not closed and
mone} can be deposited. Turner, C.J., speaking for himself, Kernan,
Kindersley and Muttusami Ayyar, JJ., (Innes, J., dissenting) observed
in Nachiyappa
Mudali
and others v. Ayyasami ,Ayyar(3), "The
iudicial sittings of the Court may be adjourned; but the offices of
the Court may still remain open for the presentation of pleadinas.
The Court may be open for this purpose although the Judge is not
engaged in judicial functions or is not present in the Court·house or
in the place where the Court is held.'' A Bench of the Madras
High Court in In re. Thokkudubiyyanu lmmaniye/u and Others(•) dealt
with a similar practice which is followed by all High Courts and this
(1) [1957] S.C.R. 208
(2) I.L.R. 19 Pat. 123.
(3) u ... R. (1882) 5 Mad. 189 at 192.
(4) (1948) 1.' M. L. J. 49.
36
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. '·
SUPRE}.fE COURT REPORTS~
[ 19741 3 S,C.R.
·Court for the summer· vacation when the Courts dose. The notiA
fications in respect thereof specify a period between Monday to Friday -
both days inclusive as the vacation •. The Court reopens on a Saturday. but judicial work starts only on the following Monday. It was
held that the first day of the Court was a Saturday which was the day
for receiving papers though the Judges actually sat for judicial-work
on Monday, as such an app1ication, for which the prescribed period of
limitation expired on Saturday the 5th when the Court was open and
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was not filed on that -day, but on Monday the 7th, was held to be
barred. ·See also Dwarka Prasad and another v. Union of Jndia(l)
and Sajjansingh and another v. Bhogilal Pandya & Anr.(2).
It is, however, contended that having regaid to rr. 6 and ·7 of the
Election Rules made by the Patna High Court ur.der which an election
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petition has to be presented to a Judge or a Bench sitting in open
Court, and since Judges do. not sit on a Saturday there is no Court
on that day to which an election petition could be presented.· We
have to deal with this aspect.
At one stage the power of the High Court-to make election rules
was canvassed, but ultimately the validity of the Election Rules as such
was not seriously chaiienged, and hence it is not necessary for us to
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express our views in this regard. Even on the assumption that the
High Court -could make the Election Rules and they are valid, do iT.
6 and 7 of those Rules warrant the submission that the Court is closed
on the day when the Judges do not sit, though the office of the High
Court is open? Rules 6 & 7 of the Election .ltules ar~ as fo1Jows :
"6. Subject always to the orders of the Judge, before a
formal presentation of the election petition is made to the Judge _
in open Court, it shall be presented to the Stamp Reporter of the
Court, who shall certify thereon if it is in time and in confonrJty
with the requirements of the Act, and the rules in this behalf;
or is defective and shall thereafter ,return_ the petition to the
-petitioner for
making the
formal
presentation
after
removing the defects if any;
Provided that if on any Court day the Judge .is not available
on account of temporary absence or otherwise, the petition may
be presented before the Bench bearing Civil applications and
~~m~
.
"7. (1) . The date of presentation to the Judge or the Bench
as mentioned in the proviso to ·rule 6 shall be deemed to be tbe
date of the filing of the election petition for the purposes of limita~ion.
.
.
.
. ·
•'(2) linmediately after it is presented. the petition shall
be entered in a special register maintained for the registration
of election petitions."
·
(I) A.l.R. 1954 Pat. 3S4.
(2) A.LR. 1958 Raj. 307~
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A reading of the above rules would show that-( I) the petition must
first be presented to the Stamp Reporter; (2) the Stamp Reporter has
to .certify thereon whether it is in time and in conformity with the re~
qmrements of the Act and the rules in that behalf or is defective; and
;.
thereafter (3) the petition shall be returned to the petitioner for rembving defects if any, and for formal presentation after removing the
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defects; (4) if the Judge who is designated to entertain and try election
petitions is absent, the petition shall be presented before the Bench
hearing Civil applications and motions; and (5) the date of presenta~
tion before the Judge or Bench, as the case may be, as provided in the
proviso to r. (6) shall be deemed to be the date of filing the election
petition f0r the purposes of limitation. It would appear from the
above that the date of formal presentation to the Judge or the
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Bench, as the case may be, is the actual date of filing the
petition.
wh.at happens when on the ·last day of the expiry of limitation for
filing the petition, though a working day for the Court, if peradvento.re
none of the Judges sit? Though in a Court which has a number of
_;
Judges, such a contingency may not occur, but in a High Court which
consists of only one Judge such as is envisaged in the proviso to s.
80-A of the Act and that High Court has rules similar torr. 6 and 7,
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it would, if we accept the contention of the learned Advocate for the
appellant, create an anomaly when the only Judge of the High Court
is absent due to illness or some other cause and the petition cannot
be presented even though the Court has not been closed. The apE
pellant in these c;ircumstanees would have us say that the Court is
closed. But this contention has no validity, because as is submitted
by the learned Advocate for the respondent that rr. 6 and 7 of the
Election Rules should be read subject to r. 24 of the same Rules and if
so read, the Patna High Court Rules, in so far as they are no\ incon~
sistent with the said Election Rules, shall apply mutatis mutandis to
all election petitions. A reference to r. 26 of C:hapter VII Part II of
these Rules which regulate the procedure and practice before admission, would show what provision has been made in cases where appeals
or applications have to be presented to a Bench and no Bench i.s sittF
ing on the day when the limitation is due to expire. Rule 26 provtdes:
"On any Court day on which no Bench is or has been
sitting, any memorandum of appeal or application which might
be barred by time and which is entertainable only by a Bench
may be presented to the Registrar, or, in his absence from
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Court on that day to the Deputy Registrar, or in their absence
to the Assistant Registrar, w.ho shall ce~tify thereon that such
memorandum of appeal or application was on that day presented
I,
to him :
''Provided always that no such presentation to the Registrar, Deputy Registrar, or Assistant Registrar, shall be of any
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effect unless _such memorandum of appeal or applicatio• ·
'
.
be. presented to a Bench on the next subsequent day on which
a Bench is· sitting ."
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£ 1974 I 3 s.c.R.
lt was, however, contended by the learned Advocate for the app~llant, though on a further consideration he did not think that he
could suc;tain it, that r.26 makes a reference to an application and not
to a petition : a5 such that rule is inappplicable to an election petition
Since it has been raised, we can only say that such an argument would
b~ misconcieved because r. 1 of Chapter III Part II states that every
application to the High Court shall be by a petition written in the
E•glish language, rr. 2 to 10 further require what the petition should
state, that it should be verified, how it should be entitled, what it should
be accompained with etc. By these rules which have been made applicable to election petitions by r. 2 of the Election Rules, whenever an
application has to be made to a High Court, it should be made by a
petition, so that there is no warrant for the submission that r. 26 does
not deal with a petition, but only with an application.
It is further submitted that r. 26 has no application as it is inconsistent with r. 7 because under the latter rule the date of presentation
to a Judge or a Bench is deemed to be the date of the filing of the election petition for. the purpose of limitation, but r. 26 provides for the
presentation to the Registrar etc. and after certification it is to be
presented to a Bench on the next subsequent day on which the Bench is
sitting. If that is the day for limitation, the learned advocate submits then no other day on which it is not presented to a Judge can be
conc;idered to be t.b.e day for limitation. If so, the presentation before
the Registrar would be inconsistent with the requirements of r.
7.
In our view, there is nothing inconsistent in rr. 6 and 7 of the election Rules and r. 26 of the Patna High Court Rules, becausb r. 7(1)
does not provide for a situation where the Judges do not sit and the period prescribed is deemed to expire on that day. It may be that the
presentation to the Judge will be the date of filing for the purposes of
limitation, but that does not excuse a different procedure for filing
in a case where limitation is about to expire, when the conditions prescribed in the proviso tor. 6 of the Election Rules cannot be complied
with. If r. 7(1) of the Election Rules had stated that the date of presentation to the Judge shall be deemed to be the date of the filing of
the election petition for the purpose of determining whether tlte petition is barred by time, then such a provision could be ~aid to be inconsistent with r. 26 of the High Court Rules. But that is not the case
here. What r. 7(1) provides if that the date of presentation to a Judge
or a Bench as mentioned in the proviso tor. 6 which contemplates the
presentation of a petition before a Bench hearing Civil applications and
motions on a court day, when a Judge is not available on account of
temporary absence or otherwise, but it does not provide for a contigency where a Judge or a Bench sitting on any other day when the
Court is not closed. That contingency is provided for by r. 26. In
our view, there is nothing inconsistent in rr. 6 and 7 of the :E1ection
Rules ~nd r. 26 ofthc High Co_urt R~les: . If as the practice ofthe High
Court JS that Ju~g~s do not sit for JUdtcJal work on a Saturday, there
are no Benches slttmg on that day and consequently any provision made
to deal with such lt contingency could not be said to be inconsistent with
th~ Election Rules. This conclusion is further reinforced by a reference
tor. 13 of Chapter II part I of the Patna High Court Rules wnereunB
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der the Registrar has power to receive an appeal under clause 10 of
the Latters. Patent, to receive an application for probate or Letters of
Administration or for revocation of the same and to issue notices
thereon, to receive a plaint or an appeal from the decree or order of a
Subordinate Civil Court etc. Rule 27 provides for the contigency when
the Registrar is absent on the last day of limitation when such documents have to be filed. These Rules are consistent with the postulate that
the Court is not in fact closed on a Saturday even though the Judges
may not sit on that day. It would, in our view be incongr11ous that a
Court is open on Saturday for presentation of appeals, applications,
plaints or decrees etc. mentioned in r. 13 ofpartl of Chapter II referred
to above even though the Judges are not sitting on that day, and yet
closed on that same day for presentation of election petition. In our view,
therefore, reading rr. 6 and 7 with r. 26, there can be no manner of
doubt that an election petition can be presented on the last day of limitation even when the Judges are not sitting to receive or entertain an
election petition to. the Registrar or in his absence to the other officers
specified in r. 26. In fact the Patna High Court had, on a similar point,
held nearly se\en years ago in Md. Gwais and others v. Phul Bibi and
others, (1) a copy of which ha,s been placed before us, that where under
r. 13. Part D, Chapter VII, it is provided that application for review
must be presented by way of notice in open court to the Bench of whose
judgment a review is sought, it could be filed on a Saturday if it is the
last day of li~itation. An argument simitat to that addressed by the
learned Advocate for the appellant was rejected on the ground that
Saturday was a working day and that r.26 clearly refers to a Saturday
on which no Benches sit.
Now that we have held that the Court is not closed and the petition could have been presented to the Registrar on Saturday, March
18, 1972, the question would be, does s. S of the Limitation Act apply
to enable the petitioner to show sufficient cause for not filing it on the
last day oflimitation, but on a sub~equent day? Whether s. S is applicable to election petitions tiled under s. 81 of the Act will depend
upon the terms of s. 29(2) .of the Limitation A,ct. Whether s. 5 could
be invoked would also depend on the applicability of sub-s. (2) of
s. 29 of the Limitation Act to election petitions. Under this subsection. where a special or local taw provides fot any suit, appeal
or application a period different from the period prescribed therefor
by the Schedule, the provisions specified therein will apPly only in so
far as and to the extent to which they are not expressly excluded by
such special or local law. Under s. 29(2) of the LiiD.ltation Act of
1908 as amended in. 1922, only s. 4, ss. 9 to 18 and s. 22 of th?-t Act
applied ordinarily unless excluded by a special or local law. Th~s
unless s. 5 was made applicable by or under any enactment the i•scretion ofthe Court to extend time thereunder would not be available.
Similarly ss. 6 to 8 would not apply and neither acknowledgement nor
payment (und~r the former ss.l9 and 20) could give. a fr~h starting
point of limitation. Even s. 5 under the old Act was in terms inappli-·
cable to applications unless the section was made applicable by or
under any of the enactment. The new s. 5 is now of wider a pplic abi-
(l) Civil Roview No; 3 of l96S decided on April28, 196S.
40
SUPREME COURT REPORts
11974} 3 S.C.L
lity and as the objects and reasons state "Instead of leaving it to the
different States or the High Courts to extend the application of section
5 to applications other than those enu~erated in that section as now in
force, this clause provides for the automatic application ofthis section
to all applications, other than those arising under Order 21 ofthe Code
of Civil Procedure, 1908, relating to the execution of decrees. ll\ the
case of special or local laws, it will be open to such l'aws to prov:de
that section 5 will not apply.'' The present section incorporates two
changes: (1) a uniform rule making it applicable to all applications
ex:cept those mentioned therein (by defining "application" as including
a "petition" in s. 2(b); and (2) to all special and local enactments, unless excluded by any of them. The difference in the scheme of the
P.rovisions of sub-s. (2) of s. 29 under the two Acts will be discernible
1f they are juxtaposed as under :
s. 29(2) of old Act
.s. 29(2)of 11ew Act
Where any special orlocallaw
Where any special or 'local law
prescribes for any suit, appeal or
prescribes for any suit, .appeal' or
applica1ion a period of limitation
application a period of limitation
different from the period pres- ·
cribed iherefor by the First Schdifferent from the period presedule, 'the provisions of section 3
cribed by the Schedule, the provishall apply, as if such period were
sions of section 3 shalt apply, as
prescribed therefor in that Scheif such period were the period
?~1~. and for the purpose,_ 0~ d~rprescribed by the Schedul'e and
mmmg any penod of hm1tat10n
. .
{)rescribed for any suit, appeal or
for the purpose of determm1ng
application by any special or any period of. limitation preslocal law.·
cribed for any suit, appeal or
(a) the provisions contained in
application
by any special or
section 4, sections 9 to 18, and seclocalla:w, the prov:sions contaition 22 shall apply only in so far as
and to the extent to which, they
ned in sections 4 to 24(inclusive)
are not expressly excluded by such
shan apply only in so far a,: ·and
special or local law; and
to the extent to -which, they are
(b) the remaining provisions of not expressly exclucled by such
this Act shall not apply.
special orlocatlaw.
It will be noticed that under the 1908 Act there are two limbs-
(!) that where any special or local law prescribes for any suit, appeal
or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of s. 3 shall apply
as if such period were prescribed therefor in that Schedule; and (2)
for the purpose of determining any period of limitation prescribed
for any suit, appeal or application by any specia~ or local law, the
provisions contained in s. 4, ss. 9 to 18 and s. 22 shall apply only in so
far as, and to the extent t~ 'which, they are not expressly excluded bysuch appeal or local law.
The remaining provisions of that Act,
are by virtue of clause (b) of sub-s. (2) inapplicable. The two limbs
of sub.s (2) are connected with the conjunction .. and'' and the question
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H. N. YADAV v. L. N. MISHRA (Jaganmohan Reddy, I.}
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has beeri debated and there has been a cleavage of opinion as to whetheJ
those two limbs are independent or have to be read cumulatively and
as an integrated whole. The decision of the Supreme Court in Vidyathllran Shukla v. Khuhchand Baghel and others (I) has by a majority held
that both parts of s. 29(2) of the. old Act should be read as one whole
and the conjunction "and" would have to be read as importing into
wbat follows it, the conditions set out earlier and that the words following the conjunction "and" attract the conditions laid down by the orening words of the sub-section. This case was ~onsidering the applicability of s. 12(2) to appeals under s. 116A of the Act. which had provided;
a time limiJ for filing an appeal, but the first Schedule to the limitation
Act had not provided any. Even the absence of a provision prescril,>ing
a time limit in the First Schtdu!e was comidered, by the majorit~ as
prescribing a different period because when the First Schtdule p{e·
scribes no time limit for a particular appeal but the special law prescribes a time limit for it, prescribes a period different from that prescribed in the former. Where once the special or local law has provided'
a period different from that prescribed in the Schedule to the limitation
Act, sub-s. (2) of s. 29 stands directly attracted and s. 3 and other section shall apply in so far as, and to the extent to ,, hich, they are not
elpresSly excluded by such special or local law. Though. Sinha, C.J.,
and Ayyangar, J., agreed with Subba Rao, J. as he then was, that even.
where the First Schedule did not prescribe a period of limitation for an.
appeal which is different from that prescribed in the special or local law
the sub-section applied, and even if it is assumed that for the applica~
tion of s.29(2) a period that is different has to be prescribed for an iden~
tical appeal, then Art. 156 prescribes a different period, they did not
agree with him, that the second limb of sub-s(2) is an independent provision providing for that category of proceedings to which the first
limb does not apply. Sinha, C.J., Rajagopala Ayyangar ar.d Raghubar
Dayal, JJ., by majority held that the entire sub-s {2) of s. 29 of the
Limitation Act has to be read as an integrated provision and the conjunction "an.d" connects the two parts ~nd makes it necessary for attracting cl. (a) that the conditions laid down by the opening word of subs. (2) should be satisfied. Raghubar Dayal and Mudholkar, JJ., also
did not agree with the majority that where a right of appeal is given by
some other law, the appeal must be regarded as the one under the Code
of Civil Procedure, inasmuch . as the words under the Code of
Civil Procedure cannot be read as meaning ''governed in the matter of
procedure by the Code of Civil Procedure". Subba Rao and Mudholkar, JJ., held that the second limb of sub-s. (2) of s. 29 is wide enougfi
to include a suit, appeal or an application under a special or local law
which is of a type for which no period of limitation is prc:scribed in
the First Schedule. In the result, Sinha, C.J., Subba Rao, Raghuber ·
Dayal and Rajagopala Ayyangar, JJ., held that the exclusion of time
provided for by s. 12 of the limitation Act is permissible in computing:
the period of limitation for filing an appeal in the High Court under
s. ll6A of the Act.
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It was contended before us that the majority decision required recons:Jaation by a larger Bench, because a period of limitation which is-
(1) [1964) 6 S.C.R. 129.
SUPREME COURT REPORTS
[ 1974] 3 S.C.R.
·different from that prescribed in any special or local law would me1m
·that the Limitation Act should provide for a definite period which is
-different from that prescribed in the special or local law, a view which
was taken by Mudholkar, J., in that decision. We do not think t'is
would be a proper course, because in our view the matter was fully
argued and considered by this Court, and while a different view can be
·taken, the need for certainty particularly in a matter concerning lillli-·
tation where litigants have to be guided, the legal position should not
be in doubt, when it is consistent with the view taken by this Court in
<>ther cases.
A
II
Sec()ndly, Vidyaclzaran Shukla's case (supra) is one which dealt with
an appeal under the Act while what we have to consider is whether the
Limitation Act is at all applicable to election petitions under the Act.
c
Thirdly, s. 29(2) oft he new Limitation Act does not now give scope for
this controversy whether the two limbs of the old section are independent or integrated. No doubt s. 5 would now apply where- s.