# SUPERINTENDING ENGINEER/ DEHAR POWER HOUSE CIRCLE BHAKRA BEAS MANAGEMENT BOARD (PW) SLAPPER & ANOTHER v. EXCISE AND TAXATION OFFICER, SUNDER NAGAR/ ASSESSING AUTHORITY

- **Citation:** [2019] 13 S.C.R. 534
- **Court:** Supreme Court of India
- **Decided:** 2019-10-25
- **Case number:** Civil Appeal No. 8276-8277 of 2019
- **Bench:** Arun Mishra, M. R. Shah, B. R. Gavai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/superintending-engineer-dehar-power-house-circle-bhakra-beas-management-board-33301
- **Pages:** 31

## Headnote

Himachal Pradesh Value Added Tax Act, 2005: s. 48 - Exercise of
revisional power u/s. 48 by the High Court - Condonation of delay
in case a revision is filed beyond 90 days from the date of
communication of the order - Applicability of ss. 5, 29 of the
Limitation Act - Division Bench held that provision of s. 5 of the
Limitation Act cannot be applied and the High Court cannot condone
the delay - Sustainability of - Held: Held: Not sustainable - As the
revision under the Act of 2005 lies to the High Court, the provisions
of s. 5 of the Limitation Act are applicable, and there is no express
exclusion of the provisions of s. 5 and as per s. 29(2), unless a
special law expressly excludes the provision, ss. 4 to 24 of the
Limitation Act are applicable - Thus, provisions of s. 5 are applicable
to revisional provision u/s. 48 as they are not expressly excluded by
the provisions under the Act of 2005 - Delay in filing of revision
condoned - Limitation Act, 1963 - ss. 5, 29.
Remitting the matter to the High Court, the Court
HELD: 1.1 The provisions contained in Section 29 of the
Limitation Act deals with savings. The provisions in respect to
the limitation prescribed for any suit, appeal or application by
any special or local law, is different from the period prescribed by
the Schedule, the provisions of Section 3 shall apply if the Schedule
prescribed such period. The provisions contained in Sections 4
to 24 shall apply only in so far as and to the extent to which they
are not expressly excluded. Section 5 of the Limitation Act deals
with the extension of the prescribed period in particular
exigencies. The provision applies to the Court and is excluded
 [2019] 13 S.C.R. 534
534
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in the application to the provisions of Order XXI of the Code of
Civil Procedure, 1908 (5 of 1908). It provides that if the Court is
satisfied that the appellant/applicant had sufficient cause for not
preferring the appeal or making the application within limitation,
the Court may admit the same after the prescribed period.
Explanation attached to Section 5 makes it clear that in case the
appellant or the applicant was misled by any order, practice, or
judgment of the High Court in ascertaining or computing the
prescribed period, may be sufficient cause within the meaning of
Section 5. [Para 5, 6] [540-E; 541-A-B]
1.2 The provisions contained in section 45 of the Himachal
Pradesh Value Added Tax Act, 2005 provides for an appeal from
every original order passed under the Act or the Rules made
thereunder. Sub-section (4) of section 45 provides appeal to be
filed within 60 days, or such more extended period as the appellate
authority may allow, for reasons to be recorded in writing. Thus,
because of the provisions contained in section 45(4), the principles
of section 5 would apply to an appeal before the appellate authority,
which otherwise in the absence of specific provision would not
have applied to authority. The revision is provided to the
Commissioner suo motu under the provisions of section 46(1),
and the period provided is 5 years for suo motu exercise of
revisional power. However, the tribunal has the power to entertain
application within 60 days from the date of communication of the
order. When the provisions of section 48 are considered, revision
is provided to the High Court, and an aggrieved person may within
90 days of the communication of such order, file a revision. Section
48(1) nowhere expressly excludes the applicability of provisions
of the Limitation Act. The provisions of section 5 are applicable
to Section 48 as they are not expressly excluded by the provisions
under the Act of 2005. More so, in view of the provisions in
section 45(4), which makes provisions to condone the delay like
the Limitation Act, conferring power upon an authority also to
condone delay. Further, suo motu revision has also been provided
under section 46. In section 48, there is no express exclusion.
Because of the scheme of the Act, it cannot

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SUPERINTENDING ENGINEER/ DEHAR POWER HOUSE
CIRCLE BHAKRA BEAS MANAGEMENT BOARD (PW)
SLAPPER & ANOTHER
v.
EXCISE AND TAXATION OFFICER, SUNDER NAGAR/
ASSESSING AUTHORITY
(Civil Appeal No. 8276-8277 of 2019)
OCTOBER 25, 2019
[ARUN MISHRA, M. R. SHAH AND B. R. GAVAI, JJ.]
Himachal Pradesh Value Added Tax Act, 2005: s. 48 - Exercise of
revisional power u/s. 48 by the High Court - Condonation of delay
in case a revision is filed beyond 90 days from the date of
communication of the order - Applicability of ss. 5, 29 of the
Limitation Act - Division Bench held that provision of s. 5 of the
Limitation Act cannot be applied and the High Court cannot condone
the delay - Sustainability of - Held: Held: Not sustainable - As the
revision under the Act of 2005 lies to the High Court, the provisions
of s. 5 of the Limitation Act are applicable, and there is no express
exclusion of the provisions of s. 5 and as per s. 29(2), unless a
special law expressly excludes the provision, ss. 4 to 24 of the
Limitation Act are applicable - Thus, provisions of s. 5 are applicable
to revisional provision u/s. 48 as they are not expressly excluded by
the provisions under the Act of 2005 - Delay in filing of revision
condoned - Limitation Act, 1963 - ss. 5, 29.
Remitting the matter to the High Court, the Court
HELD: 1.1 The provisions contained in Section 29 of the
Limitation Act deals with savings. The provisions in respect to
the limitation prescribed for any suit, appeal or application by
any special or local law, is different from the period prescribed by
the Schedule, the provisions of Section 3 shall apply if the Schedule
prescribed such period. The provisions contained in Sections 4
to 24 shall apply only in so far as and to the extent to which they
are not expressly excluded. Section 5 of the Limitation Act deals
with the extension of the prescribed period in particular
exigencies. The provision applies to the Court and is excluded
 [2019] 13 S.C.R. 534
534
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in the application to the provisions of Order XXI of the Code of
Civil Procedure, 1908 (5 of 1908). It provides that if the Court is
satisfied that the appellant/applicant had sufficient cause for not
preferring the appeal or making the application within limitation,
the Court may admit the same after the prescribed period.
Explanation attached to Section 5 makes it clear that in case the
appellant or the applicant was misled by any order, practice, or
judgment of the High Court in ascertaining or computing the
prescribed period, may be sufficient cause within the meaning of
Section 5. [Para 5, 6] [540-E; 541-A-B]
1.2 The provisions contained in section 45 of the Himachal
Pradesh Value Added Tax Act, 2005 provides for an appeal from
every original order passed under the Act or the Rules made
thereunder. Sub-section (4) of section 45 provides appeal to be
filed within 60 days, or such more extended period as the appellate
authority may allow, for reasons to be recorded in writing. Thus,
because of the provisions contained in section 45(4), the principles
of section 5 would apply to an appeal before the appellate authority,
which otherwise in the absence of specific provision would not
have applied to authority. The revision is provided to the
Commissioner suo motu under the provisions of section 46(1),
and the period provided is 5 years for suo motu exercise of
revisional power. However, the tribunal has the power to entertain
application within 60 days from the date of communication of the
order. When the provisions of section 48 are considered, revision
is provided to the High Court, and an aggrieved person may within
90 days of the communication of such order, file a revision. Section
48(1) nowhere expressly excludes the applicability of provisions
of the Limitation Act. The provisions of section 5 are applicable
to Section 48 as they are not expressly excluded by the provisions
under the Act of 2005. More so, in view of the provisions in
section 45(4), which makes provisions to condone the delay like
the Limitation Act, conferring power upon an authority also to
condone delay. Further, suo motu revision has also been provided
under section 46. In section 48, there is no express exclusion.
Because of the scheme of the Act, it cannot be inferred that by
implication, the provisions of section 5 of the Limitation Act are
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excluded. Provisions contained in section 29(2) would be attracted
as there is no express exclusion or by implication, in view of the
provisions of the Act of 2005. By virtue of the provisions contained
in section 29(2), provisions of section 5 of the Limitation Act
would apply to proceedings under Section 48 of the Act of 2005.
[Para 21] [562-F-H; 563-A-C]
1.3 As the revision under the Act of 2005 lies to the High
Court, the provisions of section 5 of the Limitation Act are
applicable, and there is no express exclusion of the provisions of
section 5 and as per section 29(2), unless a special law expressly
excludes the provision, sections 4 to 24 of the Limitation Act are
applicable. On consideraton of the scheme of the Himachal
Pradesh VAT Act, 2005, it is apparent that its scheme is not
ousting the provisions of the Limitation Act from its ken which
makes principles of section 5 applicable even to an authority in
the matter of filing an appeal but for the said provision the authority
would not have the power to condone the delay. By implication
also, it is apparent that the provisions of Section 5 of the Limitation
Act have not been ousted; they have the play for condoning the
limitation under Section 48 of the Act of 2005. Suo motu provision
of revisional power is also provided to the Commissioner within
5 years. Thus, the intendment is not to exclude the Limitation
Act. The delay in filing of revision is condoned. [Para 22]
[563-E-H; 564-A]
1.4 The decision of the High Court cannot be said to be
sustainable. The provisions of Section 5 of the Limitation Act are
held applicable to the revisional provision under Section 48 of
the Act of 2005. The impugned judgments and orders are set
aside. [Para 23] [564-B]
Patel Brothers v. State of Assam & Ors. (2017) 2 SCC
350 ; Commissioner of Customs and Central Excise v.
Hongo India Private Limited (2009) 5 SCC 791 ;
Hukumdev Narain Yadav v. Lalit Narain Mishra (1974)
2 SCC 133 ; Sakuru v. Tanaji AIR 1985 SC 1279 ;
Lata Kamat v. Vilas (1989) 2 SCC 613 ; State of W.B. &
Ors. v. Kartick Chandra Das & Ors. (1996) 5 SCC
342 ; Mukri Gopalan v. Cheppilat Puthanpurayil
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Aboobacker (1995) 5 SCC 5 ; Mangu Ram v. Municipal
Corporation of Delhi (1976) 1 SCC 392 ; Union of
India v. Popular Construction Co. (2001) 8 SCC 470 ;
Consolidated Engineering Enterprises v. Principal
Secretary, Irrigation Department & Ors. (2008) 7 SCC
169 ; Commissioner of Customs & Central Excise v.
Hongo India Pvt. Ltd. & Anr., (2009) 5 SCC 791 ; State
of Madhya Pradesh & Anr. v. Anshuman Shukla (2014)
10 SCC 814 ; Patel Brothers v. State of Assam & Ors.
(2017) 2 SCC 350 ; M. P. Steel Corporation v.
Commissioner of Central Excise (2015) 7 SCC 58 ;
Commissioner of Customs, Central Excise, Noida v.
Punjab Fibres Ltd., Noida (2008) 3 SCC 73 ; Singh
Enterprises v. Commissioner of Central Excise,
Jamshedpur & Ors. (2008) 3 SCC 70 ; Chaudharana
Steels Private Ltd. v. Commissioner of Central Excise,
Allahabad (2009) 15 SCC 183 - referred to.
Case Law Reference
[2017] 1 SCR 95
referred to
Para 4
(2009) 5 SCC 791
referred to
Para 4
[1974] 3 SCR 31
referred to
Para 7
AIR 1985 SC 1279
referred to
Para 8
[1989] 2 SCR 137
referred to
Para 9
[1996] 2 Suppl. SCR 373
referred to
Para 10
[1995] 2 Suppl. SCR 1
referred to
Para 11
[1976] 2 SCR 260
referred to
Para 12
[2001] 3 Suppl. SCR 619
referred to
Para 13
[2008] 5 SCR 1108
referred to
Para 14
(2009) 5 SCC 791
referred to
Para 15
[2014] 11 SCR 361
referred to
Para 16
[2017] 1 SCR 95
referred to
Para 17
(2015) 7 SCC 58
referred to
Para 18
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(2008) 3 SCC 73
referred to
Para 19
[2007] 13 SCR 952
referred to
Para 19
(2009) 15 SCC 183
referred to
Para 20
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 82768277 of 2019.
From the Judgment and Order 19.11.2018 of the High Court of
Himachal Pradesh at Shimla in CR Nos. 224 and 225 of 2018.
With
Civil Appeal Nos. 8278, 8279, 8280, 8281 of 2019.
Dhruv Mehta, Ajay Vohra, Sr. Advs., Yashraj Singh Deora, Shyam
Agarwal, Ms. Sonal Mashankar, Anmol Mehta, Abhimanyu Jhamba,
Ms. Hemlata Ranga, Ashish Jhamba, Samir Ali Khan, Ms. Kavita Jha,
Shammi Kapoor, Ms. Swati Agarwal, T. Ramesh, Ms. L. Maheswari,
A. Lakshminarayanan, Sandeep Goyal, Ms. A. Anamika, Pawanshree
Agrawal, Advs. for the appearing parties.
The Judgment of the Court was delivered by
ARUN MISHRA, J.
1. The question involved is whether the High Court while
exercising revisional power under Section 48 of the Himachal Pradesh
Value Added Tax Act, 2005 ('the Act of 2005'), condone the delay in
case a revision under Section 48 of the Act of 2005, is filed beyond 90
days from the date of communication of the order or it excludes the
applicability of Section 29 of the Limitation Act, 1963, and in consequence
of Section 5 of the Limitation Act.
2. The High Court vide impugned judgment and order dated
19.11.2018, has refused to condone the delay in the revision filed under
Section 48 read with Section 64(5) of the Act of 2005, against the order
passed by Himachal Pradesh Tax Tribunal. The Division Bench of the
High Court relying upon the decision of a Coordinate Bench in CMP(M)
No.1371 of 2017 titled State of Himachal Pradesh & others v.
Tritronics India Private Limited, has held that provision of Section 5 of
the Limitation Act, cannot be applied and the High Court cannot condone
the delay. The revision has to be filed within 90 days, as provided in
Section 48 of the Act of 2005.
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3. The provisions contained in Section 48 of the Act of 2005,
relating to the revisional power of the High Court, read as under:
"48. Revision to High Court. - (1) Any person aggrieved by an
order made by the tribunal under sub-section (2) of section 45 or
under sub-section (3) of section 46, may, within 90 days of the
communication of such order, apply to the High Court of Himachal
Pradesh for revision of such order if it involves any question of
law arising out of erroneous decision of law or failure to decide a
question of law.
(2) The application for revision under sub-section (1) shall precisely
state the question of law involved in the order, and it shall be
competent for the High Court to formulate the question of law.
(3) Where an application under this section is pending, the High
Court may, or on application, in this behalf, stay recovery of any
disputed amount of tax, penalty or interest payable or refund of
any amount due under the order sought to be revised:
Provided that no order for stay of recovery of such disputed
amount shall remain in force for more than 30 days unless the
applicant furnishes adequate security to the satisfaction of the
Assessing Authority concerned.
(4) The application for revision under sub-section (1) or the
application for stay under sub-section (3) shall be heard and decided
by a bench consisting of not less than two judges.
(5) No order shall be passed under this section which adversely
affects any person unless such person has been given a reasonable
opportunity of being heard."
4. The Division Bench of the High Court of Himachal Pradesh
held that considering the expression used in the provisions contained in
Section 48(1), the High Court could not condone the delay in filing
revision. The language contained therein excludes the applicability of
Section 5 of the Limitation Act. The Court cannot also exercise the
inherent powers to condone the delay. The High Court has taken into
consideration the provisions contained in Assam Value Added Tax, 2003.
The provisions contained in Section 81 of the Assam Value Added Tax,
2003, is held to be pari materia with the provisions of Section 48 of the
Act of 2005. The High Court has also referred to Section 84 of the
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Assam Value Added Tax, 2003, which provides that provisions of Sections
4 and 12 of the Limitation Act, shall apply in computing the period of
limitation in relation to the provisions contained in the chapter. It was
further observed that in the Act of 2005, there is no provision to infer
that any provisions of the Limitation Act apply. The decision in Patel
Brothers v. State of Assam & Ors., (2017) 2 SCC 350, has been relied
on, in which while considering the provisions contained in Section 81 of
the Assam Value Added Tax, 2003, it was held that provisions contained
in Section 5 of the Limitation Act, stand excluded by necessary implication
by the language employed in Section 84. The High Court has also referred
to the decision of this Court in Commissioner of Customs and Central
Excise v. Hongo India Private Limited, (2009) 5 SCC 791, rendered in
the context of the provisions contained in Section 35 of the Central Excise
Act, 1944, in which it has been held that reference has to be made to the
High Court within 180 days, and there is no power of the High Court to
condone the delay after the expiry of the prescribed period of 180 days.
Thus, the High Court has held that provisions of Section 5 of the Limitation
Act, are not applicable and stand excluded in the matter of revision filed
under Section 48 of the Act of 2005.
5. The provisions contained in Section 29 of the Limitation Act
deals with savings. The provisions in respect to the limitation prescribed
for any suit, appeal or application by any special or local law, is different
from the period prescribed by the Schedule, the provisions of Section 3
shall apply if the Schedule prescribed such period. The provisions
contained in Sections 4 to 24 shall apply only in so far as and to the
extent to which they are not expressly excluded. Section 29(2) is extracted
hereunder:
"29. Savings.-
(2) Where any special or local law prescribes for any suit, appeal
or application a period of limitation different from the period
prescribed by the Schedule, the provisions of section 3 shall apply
as if such period were the period prescribed by the Schedule and
for the purpose of determining any period of limitation prescribed
for any suit, appeal or application by any special or local law, the
provisions contained in sections 4 to 24 (inclusive) shall apply only
in so far as, and to the extent to which, they are not expressly
excluded by such special or local law."
(emphasis added)
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6. Section 5 of the Limitation Act deals with the extension of the
prescribed period in particular exigencies. The provision applies to the
Court and is excluded in the application to the provisions of Order XXI
of the Code of Civil Procedure, 1908 (5 of 1908). It provides that if the
Court is satisfied that the appellant/applicant had sufficient cause for not
preferring the appeal or making the application within limitation, the Court
may admit the same after the prescribed period. Explanation attached
to Section 5 makes it clear that in case the appellant or the applicant was
misled by any order, practice, or judgment of the High Court in ascertaining
or computing the prescribed period, may be sufficient cause within the
meaning of Section 5.
7. Learned counsel appearing on behalf of appellants has placed
reliance on Hukumdev Narain Yadav v. Lalit Narain Mishra, (1974)
2 SCC 133, in which it has been observed that in a case where the
special law does not exclude the provisions of Sections 4 to 24 of the
Limitation Act by an express reference, it would nonetheless be open to
the Court to examine to what extent the scheme of special law exclude
the operation of Limitation Act. If, on an examination of the relevant
provisions, it is clear that the provisions of the Limitation Act are
necessarily excluded, then the benefits conferred therein cannot be called
in aid to condone the delay under the Special Act. In the context of
Section 86 of Representation of People Act, it has been held that the
High Court is bound to dismiss an election petition, which does not comply
with the provisions of Section 81, 82 or 117. The election petition has to
be preferred within the period prescribed in Section 81. Thus, the
provision was held to be mandatory. The non-compliance with which
visits the penalty of the petition being dismissed. Following observations
have been made:
"17. Though Section 29(2) of the Limitation Act has been made
applicable to appeals both under the Act as well as under the
Code of Criminal Procedure, no case has been brought to our
notice where Section 29(2) has been made applicable to an election
petition filed under Section 81 of the Act by virtue of which either
Sections 4, 5 or 12 of the Limitation Act has been attracted. Even
assuming that where a period of limitation has not been fixed for
election petitions in the Schedule to the Limitation Act which is
different from that fixed under Section 81 of the Act, Section
29(2) would be attracted, and what we have to determine is
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whether the provisions of this Section are expressly excluded in
the case of an election petition. It is contended before us that the
words "expressly excluded" would mean that there must be an
express reference made in the special or local law to the specific
provisions of the Limitation Act of which the operation is to be
excluded. As usual the meaning given in the Dictionary has been
relied upon, but what we have to see is whether the scheme of
the special law, that is, in this case, the Act, and the nature of the
remedy provided therein are such that the Legislature intended it
to be a complete code by itself which alone should govern the
several matters provided by it. If, on an examination of the relevant
provisions, it is clear that the provisions of the Limitation Act are
necessarily excluded, then the benefits conferred therein cannot
be called in aid to supplement the provisions of the Act. In our
view, even in a case where the special law does not exclude the
provisions of Sections 4 to 24 of the Limitation Act by an express
reference, it would nonetheless be open to the Court to examine
whether and to what extent the nature of those provisions or the
nature of the subject matter and scheme of the special law exclude
their operation. The provisions of Section 3 of the Limitation Act
that a suit instituted, appeal preferred and application made after
the prescribed period shall be dismissed are provided for in Section
86 of the Act which gives a peremptory command that the High
Court shall dismiss an election petition which does not comply
with the provisions of Sections 81, 82 or 117. It will be seen that
Section 81 is not the only Section mentioned in Section 86, and if
the Limitation Act were to apply to an election petition under
Section 81 it should equally apply to Sections 82 and 117 because
under Section 86 the High Court cannot say that by an application
of Section 5 of the Limitation Act, Section 81 is complied with
while no such benefit is available in dismissing an application for
non-compliance with the provisions of Sections 82 and 117 of the
Act, or alternatively if the provisions of the Limitation Act do not
apply to Section 82 and Section 117 of the Act, it cannot be said
that they apply to Section 81. Again Section 6 of the Limitation
Act which provides for the extension of the period of limitation till
after the disability in the case of a person who is either a minor or
insane or an idiot is inapplicable to an election petition. Similarly,
Sections 7 to 24 are in terms inapplicable to the proceedings under
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the Act, particularly in respect of the filing of election petitions
and their trial."
(emphasis added)
8. In Sakuru v. Tanaji, AIR 1985 SC 1279, it has been held that
the provisions of the Limitation Act apply only to proceedings in Courts
and not to appeals or applications of bodies other than Courts such as
quasi-judicial Tribunals or executive authorities. Though the bodies or
authorities may be conferred with the powers under the Codes of Civil
or Criminal Procedure, however, special statute may contain an express
provision conferring on the Appellate Authority the power to extend the
prescribed period of limitation on sufficient cause being shown by laying
down that the provisions of Section 5 of the Limitation Act shall be
applicable to such proceedings. In the absence of such provisions, Section
5 would have no application.
9. In Lata Kamat v. Vilas, (1989) 2 SCC 613, provisions contained
in Section 28(4) of the Hindu Marriage Act, came up for consideration,
wherein it was held that limitation prescribed therein is different from
the Schedule of Limitation Act. Regarding the provisions of Section 29(2)
of the Limitation Act, it was observed that the provisions of the Hindu
Marriage Act do not exclude the operation of the provisions of Sections
4 to 24 of Limitation Act. They have been held to be applicable.
Therefore, the time required for obtaining the copy of judgment has to
be excluded, as provided in Section 12(2) of Limitation Act. The Court
observed:
 "12. The Schedule in the Limitation Act does not provide for an
appeal under the Hindu Marriage Act, but it is only provided in
sub-section (4) of Section 28 of the Hindu Marriage Act. Thus
the limitation provided, in sub-section (4) of Section 28, is different
from the Schedule of the Limitation Act. According to sub-section
(2) of Section 29, provisions contained in Sections 4 to 24 will be
applicable unless they are not expressly excluded. It is clear that
the provisions of the Act do not exclude the operation of provisions
of Sections 4 to 24 of the Limitation Act, and therefore it could
not be said that these provisions will not be applicable. It is therefore
clear that to an appeal under Section 28 of the Hindu Marriage
Act, provisions contained in Section 12 sub-section (2) will be
applicable; therefore, the time required for obtaining copies of the
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judgment will have to be excluded for computing the period of
limitation for appeal. A Division Bench of Delhi High Court in
Chandra Dev Chadha case1held as under: (AIR pp. 24-25)
"The Hindu Marriage Act is a special law. That this 'special
law' prescribes 'for an appeal a period of limitation' is also-evident.
The period of limitation is 30 days. It is a period different from
that prescribed in the First Schedule to the Limitation Act, 1963.
But when we turn to the First Schedule, we find there is no provision
in the First Schedule for an appeal against the decree or order
passed under the Hindu Marriage Act. Now it has been held that
the test of a 'prescription of a period of limitation different from
the period prescribed by the First Schedule' as laid down in Section
29(2), Limitation Act, 1963 is satisfied even in a case where a
difference between the special law and Limitation Act arose by
omissions to provide for a limitation to a particular proceeding
under the Limitation Act, see, Canara Bank, Bombay v. Warden
Insurance Co. Ltd., Bombay, AIR 1953 Bom 35, approved by
the Supreme Court in Vidyacharan Shukla v. Khubchand
Baghel2.
Once the test is satisfied, the provisions of Sections 3, 4 to 24,
Limitation Act, 1963 would at once apply to the special law. The
result is that the court hearing the appeal from the decree or order
passed under the Hindu Marriage Act would under Section 3 of
the Limitation Act have the power to dismiss the appeal if made
after the period of limitation of 30 days prescribed therefor by the
special law. Similarly, under Section 5 for sufficient cause, it will
have the power to condone the delay. Likewise, under Section
12(2), the time spent in obtaining a certified copy of the decree or
order appealed from will be excluded. If it is so, Section 12(2) of
the Limitation Act is attracted, and the appellants in all three appeals
will be entitled to exclude the time taken by them for obtaining a
certified copy of the decree and order. The appeals are, therefore,
within time."
Similar is the view taken by the Calcutta High Court in Sipra
Dey case3and also the M.P. High Court in Kantibai case4. It is
1 AIR 1979 Del 22
2 AIR 1964 SC 1099
3 AIR 1988 Cal 28
4 AIR 1978 MP 245
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therefore clear that the contention advanced by the learned counsel
for the respondent based on the Limitation Act also is of no
substance."
10. In State of W.B. & Ors. v. Kartick Chandra Das & Ors,
(1996) 5 SCC 342, provisions of Section 29 of the Limitation Act came
up for consideration concerning the letters patent appeal filed in contempt
proceedings. It has been observed that there is no express exclusion of
provisions of Sections 4 to 24 of Limitation Act by a special or local law,
thus, on the strength of Section 29(2), Section 5 of Limitation Act becomes
applicable. The Court held:
4. It is not in dispute that under Section 19 of the Contempt of
Courts Act, 1971, an appeal would lie to the Division Bench, and
limitation of 30 days from the date of the order has been prescribed
subject to the exclusion of the time taken for obtaining the certified
copy thereof. We have seen that the Appellate Side Rules of the
Calcutta High Court applicable to the area other than the city of
Calcutta had not expressly excluded the application of the limitation
under the Limitation Act.
5. The learned counsel for the respondent sought to contend that
by operation of Rule 3 of Chapter 8 of the Appellate Side Rules
under the Letters Patent the memorandum of appeal drawn up
under Order 41 Rule 1 CPC requires to be complied with as
envisaged thereunder since it had not been provided with any
limitation. The Division Bench was, therefore, right in holding that
the Limitation Act was not extended for an appeal filed under
clause 15 of the Letters Patent against the order passed by the
learned Single Judge under the provisions of the Contempt of
Courts Act. It is seen that under the Contempt of Courts Act, the
High Court has framed the Rules. Rule 35 envisages that:
"35. In respect of appeals from the orders of any Judge or
Bench of the original side, the rules of the original side relating
to appeals and in respect of appeals from the order of any
Judge or Bench of the appellate side, the rules of the appellate
side shall apply mutatis mutandis."
Therefore, for the appeals filed under clause 15 of the Letters
Patent against the order of the learned Single Judge for the
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contempt proceedings by necessary consequences, the procedure
prescribed in the appellate side would also be applicable and
followed.
***
7. In consequence, by operation of Section 29(2) read with Section
3 of the Limitation Act, limitation stands prescribed as a special
law under Section 19 of the Contempt of Courts Act, and limitation
in filing Letters Patent appeal stands attracted. In consequence,
Sections 4 to 24 of the Limitation Act stands attracted to Letters
Patent appeal insofar as and to the extent to which they are not
expressly excluded either by special or local law. Since the rules
made on the appellate side, either for entertaining the appeals
under clause 15 of the Letters Patent or appeals arising under the
contempt of courts, had not expressly excluded, Section 5 of the
Limitation Act becomes applicable. We hold that Section 5 of the
Limitation Act does apply to the appeals filed against the order of
the learned Single Judge for the enforcement by way of a contempt.
The High Court, therefore, was not right in holding that Section 5
of the Limitation Act does not apply. The delay stands condoned.
Since the High Court had not dealt with the matter on merits, we
decline to express any opinion on merits. The case stands remitted
to the Division Bench for decision on merits."
11. In Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker,
(1995) 5 SCC 5, the question arose whether Appellate Authority
constituted under Section 18 of Kerala Buildings (Lease and Rent Control)
Act, 1965 has the power to condone the delay in filing of the appeal.
The Appellate Authority dismissed the appeal on the ground that it had
no power to condone the delay. The application for condonation of
delay was not maintainable. This Court held that the Appellate Authority
under Section 18 of Kerala Buildings (Lease and Rent Control) Act,
1965, acts as a Court and not a persona designatum, it can condone
the delay under Section 5 of Limitation Act as the two requirements for
the applicability of Section 29 are satisfied, namely, (i) different periods
of limitation being prescribed under the local law; and (ii) there is no
express exclusion of provisions of Limitation Act. Following are the
relevant observations:
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"9. If the aforesaid two requirements are satisfied, the
consequences contemplated by Section 29(2) would automatically
follow. These consequences are as under:
(i) In such a case, Section 3 of the Limitation Act would apply as
if the period prescribed by the special or local law was the period
prescribed by the Schedule.
(ii) For determining any period of limitation prescribed by such
special or local law for a suit, appeal or application all the provisions
containing Sections 4 to 24 (inclusive) would apply insofar as and
to the extent to which they are not expressly excluded by such
special or local law.
10. In the light of the aforesaid analysis of the relevant clauses of
Section 29(2) of the Limitation Act, let us see whether Section 18
of the Rent Act providing for a statutory appeal to the appellate
authority satisfies the aforesaid twin conditions for attracting the
applicability of Section 29(2) of the Limitation Act. It cannot be
disputed that Kerala Rent Act is a special Act or a local law. It
also cannot be disputed that it prescribes for appeal under Section
18 a period of limitation which is different from the period
prescribed by the Schedule as the Schedule to the Limitation Act
does not contemplate any period of limitation for filing appeal before
the appellate authority under Section 18 of the Rent Act or in
other words it prescribes nil period of limitation for such an appeal.
It is now well settled that a situation wherein a period of limitation
is prescribed by a special or local law for an appeal or application
and for which there is no provision made in the Schedule to the
Act, the second condition for attracting Section 29(2) would get
satisfied. As laid down by a majority decision of the Constitution
Bench of this Court in the case of Vidyacharan Shukla v.
Khubchand Baghel5, when the First Schedule of the Limitation
Act prescribes no time-limit for a particular appeal, but the special
law prescribes a time-limit for it, it can be said that under the First
Schedule of the Limitation Act all appeals can be filed at any
time, but the special law by limiting it provides for a different
period, while the former permits the filing of an appeal at any
time, the latter limits it to be filed within the prescribed period. It
5 AIR 1964 SC 1099
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is, therefore, different from that prescribed in the former, and
thus Section 29(2) would apply even to a case where a difference
between the special law and Limitation Act arose by the omission
to provide for limitation to a particular proceeding under the
Limitation Act.
11. It is also obvious that once the aforesaid two conditions are
satisfied, Section 29(2), on its own force will get attracted to
appeals filed before appellate authority under Section 18 of the
Rent Act. When Section 29(2) applies to appeals under Section
18 of the Rent Act, for computing the period of limitation prescribed
for appeals under that Section, all the provisions of Sections 4 to
24 of the Limitation Act would apply. Section 5, being one of
them, would, therefore, get attracted. It is also obvious that there
is no express exclusion anywhere in the Rent Act, taking out the
applicability of Section 5 of the Limitation Act to appeals filed
before appellate authority under Section 18 of the Act.
Consequently, all the legal requirements for applicability of Section
5 of the Limitation Act to such appeals in the light of Section
29(2) of Limitation Act can be said to have been satisfied. That
was the view taken by the minority decision of the learned Single
Judge of Kerala High Court in Jokkim Fernandez v. Amina Kunhi
Umma6. The majority did not agree on account of its wrong
supposition that appellate authority functioning under Section 18
of the Rent Act is a persona designata. Once that presumption is
found to be erroneous as discussed by us earlier, it becomes at
once clear that minority view in the said decision was the correct
view and the majority view was an erroneous view."
It has been held that if there is no express exclusion in the local or
special law, then the provisions contained in Sections 4 to 24 of the
Limitation Act shall apply by the provisions contained in Section 29(2) of
the Limitation Act.
12. In Mangu Ram v. Municipal Corporation of Delhi, (1976)
1 SCC 392, question came up for consideration when the application of
Section 5 of the Limitation Act is to be excluded and whether peremptory
or imperative language of the special or local law can exclude the
application of Section 5, if not otherwise explicitly excluded. The
6 AIR 1974 Ker 162
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Municipal Corporation of Delhi against the acquittal order, filed an
application in the High Court of Delhi under Section 417, sub-Section (3)
of Code of Criminal Procedure, 1898 for special leave to appeal from
the order of acquittal. Section 417(4) of the Code of Criminal Procedure
required that application for special leave should be filed before the expiry
of sixty days. The application for special leave should have been filed
on 25.8.1971, but it was filed on 27.8.1971. The argument was raised
that time frame is sixty days as prescribed in Section 417(4) for making
an application for special leave under sub-Section (3) of that section
was mandatory and inexorable time limit which could not be relieved
against or relaxed, and it excluded the applicability of Section 5 of the
Limitation Act. It has also been held that the provision of a period of
limitation in a howsoever peremptory or imperative language is not
sufficient to displace the applicability of Section 5. The provisions of
Section 5 of the Limitation Act have been held to be applicable to condone
the delay in applying under Section 417(4), Code of Criminal Procedure.
The Court has observed:
"6. The question which arose for consideration in Kaushalya Rani
case was apparently the same as in the present case, namely,
whether the time limit of sixty days prescribed in sub-section (4)
of Section 417 for making an application for special leave under
sub-section (3) of that section could be extended by invoking
Section 5 of the Indian Limitation Act, 1908. This Court held that
sub-section (4) of Section 417 laid down a special period of
limitation for an application by a complainant for special leave to
appeal against an order of acquittal and
"in that sense, this rule of sixty days bar is a special law, that is to
say, a rule of limitation which is specially provided for in the Code
itself, which does not ordinarily provide for a period of limitation
for appeals or applications.
This Court pointed out that since
"the special rule of limitation laid down in sub-section (4) of Section
417 of the Code is a special law of limitation governing appeals by
private prosecutors, there is no difficulty in coming to the conclusion
that Section 5 of the Limitation Act is wholly out of the way, in
view of Section 29(2)(b) of the Limitation Act."
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The applicability of Section 5 of the Indian Limitation Act, 1908
was thus held to be excluded in determining the period of limitation
of sixty days prescribed in sub-section (4) of Section 417 by reason
of Section 29(2)(b) of that Act, which provided in so many terms
that
"for the purpose of determining any period of limitation prescribed
for any suit, appeal or application by any special or local law, the
remaining provisions of this Act"
that is, sections other than Sections 4, 9 to 18, and 22 "shall not
apply." Now, there can be no doubt that if the present case were
governed by the Indian Limitation Act, 1908, this decision would
wholly apply and the Municipal Corporation of Delhi would not be
entitled to invoke the aid of Section 5 of that Act for the purpose
of extending the period of limitation of sixty days prescribed in
sub-section (4) of Section 417 for an application by a complainant
for special leave to appeal against an order of acquittal. But the
Indian Limitation Act, 1908 has clearly no application in the present
case since that Act is repealed by the Limitation Act, 1963 which
came into force with effect from January 1, 1964, and the present
case must, therefore, be decided by reference to the provisions of
the Limitation Act, 1963.
7. There is an important departure made by the Limitation Act,
1963 insofar as the provision contained in Section 29, sub-section
(2), is concerned. Whereas, under the Indian Limitation Act, 1908,
Section 29, sub-section (2), clause (b) provided that for the purpose
of determining any period of limitation prescribed for any suit,
appeal or application by any special or local law, the provisions of
the Indian Limitation Act, 1908, other than those contained in
Sections 4, 9 to 18 and 22, shall not apply and, therefore, the
applicability of Section 5 was in clear and specific terms excluded,
Section 29, sub-section (2) of the Limitation Act, 1963 enacts in
so many terms that for the purpose of determining the period of
limitation prescribed for any suit, appeal or application by any
special or local law the provisions contained in Sections 4 to 24,
which would include Section 5, shall apply insofar as and to the
extent to which they are not expressly excluded by such special
or local law.