# Vltlyac/raran Sltukla v. Xhubchand Baghel

- **Citation:** [1964] 6 S.C.R. 129
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Case number:** Civil Appeal No. 815 of 1963
- **Bench:** B. P. Sinha, K. Subba Rao, Raghubar Dayal, N. Rajagopala Ayyangar, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/vltlyac-raran-sltukla-v-xhubchand-baghel-3061
- **Pages:** 43

## Headnote

Election-Appeal ta
High
Court
under
s.
116·A-Whether in
computing period of limitation for filing an appeal to High Court, time
provided by s. 12 of Limitation Act for getting a copy of the order CIJll
be excluded-Whether s. 29(2)(a) applied to cases of appeal preferre4
under s. 116-A-Relationship between the two limbs of •· 29(2) of Limi·
tation Act-Limitation Act.
1908
(9 of 1908), ss. 12, 29(2), Fir/II
Schedule, Art, 156-Representation of the People Act, 1951 (43 of 1951),
•· 116-A.
The appellant was elected to the House of the People from a con·
•tituency in the State of Madhya Pradesh. The respondents were tho
other contesting candidates' Respondent No. 1 filed an election petition
challenging the election of the appellant. That election petition was
dismissed by the Election Tribunal. Against the order of the Tribunal.
the first respondent preferred an appeal to the High Court under s. 116-A
134-159 S.C.-9.
1963
Decunber, 20
1963
Vltlyac/raran
Sltukla
v.
Xhubchand
Baghel
SUPREME COURT REPORTS
of the Representation of the People Act, 1951. Admittedly, the appeal
was filed more than 30 days after the order of the Election Tribunal.
If the time requisite for obtaining a copy o(. the order of the Tribunal
was excluded. the appeal was filed within 30 days. However, if that
was not tlone, the appeal was
out of time. The contention of theappellant before the High Court was that the respondent No. I was not
entitled in law to exclude the time taken by him i'l obtaining the copy
of the order of the Tribunal. That contention was rejected by the High
Court. The High Court also found that the appellant was guilty of two
corrupt practices and hence his election was set aside.
The appellant
came to this Court by special leave.
The only question raised before this Court was whether for thepurpose of computing the period of 30 days prescribed under s. 116-A(3)
of tho Act, the provisions of s. 12 of the Limitation Act could be invoked
or not. Dismissing the appeal.
Held: (per B. P. Sinha, C.J., K. Subba Rao, Raghubar Dayal and
N. Rajagopala Ayyangar JI.) (i) The exclusion of time provided for
by s. 12 is permissible in computing the period of limitation for filing
the appeal in the High Court.
Per B. p. Sinha, C.J., K. Sobba Rao and N. Rajagopala Ayyangar
JI.) (ii) Though the right of appeal is conferred by s. 116-A of the
Representation of the People Act, 1951, and it is by virtue thereof that
the appeal was filed by respondent in the High Court, it is still an appeal
"under the Code of Civil Procedure, 1908, tO the High Court".
To
attract Art. 156 of the First Schedule to the Limitation Act. it is not
necessary for an appeal to be an "appeal under the Code of Civil Procedure" that tho right to prefer the appeal should be conferred by the
Code of Civil Procedure. It is sufficient if the proccaure for the filing.
of the appeal and the power of the Court for dealing With the ippeal,
when filed, are &overned by the Code.
Per Raghubar Dayal and Mudholkar JJ.-There is no warrant fer
holding that an appeal which is not given by the Code of Civil Procedure is still an appeal under the Code merely because its procedural
provisions govern its course. Where a right of appeal is given by some·
other law, the appeal must be regarded as one untler that law and not
under the Code of Civil Procedure. There is no reason for constr.llng
the words "under the Code of Civil Procedure" as meaning ••governed
in the matter of procedure by the Code of Civil Procedure".
Held: liii) (per B. P. Sinha, C.J., N. Rajagopala Ayyangar and
Raghubar Dayal JJ.) The entire sub-s. (2) of s. 29 of the LimitatioP
Act has to be read as an integrated provision ana the conjunction ."and ..
connects the iwo parts and makes it necessary for attracting cl. (a) that
-
the conditions laid down by the opening words of sub-s. (2) should be
~
satisfied.
-·
-
6 S.C.R.
SUPREME COURT REPORTS
131
Per Subba Rao and Mudholkar JJ.-The second limb of sub-s. \2)
of s. 29 is __ wide enough to i

## Text

_Characters 0–39,927 of 96,388. This is a partial read: ask again with offset=39927 for what follows._

•
6 S.C.R.
SUPREME COURT REPORTS
129
umbrella fllld soap which never paid tax under the Act of
1961
1918 could be dealt with by the partners as they liked Sail Nagi•• p,,,.
without affecting 'the question of relief under s. 25 in respect shottam &: Co.
.of the head business.
Commi.s:~,,.,. ot
lncome·ta>:.
·
In my judgment, these appeals must be allowed ano the Madr.,
question answered in favour of the assessee firm but only in Hidayatul/IJh
1.;
respect of the business in piece-goods, yarn and banking
which alone had paid tax under the Income-tax Act of 1918.
I would therefore allow the appeals with costs here and in
the High Court
ORDER BY COURT .
In accordance with the opinion of the majority the
appeals are dismissed with costs.
VIDY ACHARAN SHUKLA
11.
KHUBCHAND BAGHEL AND OTHERS
(B. P. SINHA, C.J., K. SUBBA RAO, RAGHUBAR DAYAL,
N. RAJAGOPALA AYYANGAR AND J. R. MUDHOLKAR JJ.)
Election-Appeal ta
High
Court
under
s.
116·A-Whether in
computing period of limitation for filing an appeal to High Court, time
provided by s. 12 of Limitation Act for getting a copy of the order CIJll
be excluded-Whether s. 29(2)(a) applied to cases of appeal preferre4
under s. 116-A-Relationship between the two limbs of •· 29(2) of Limi·
tation Act-Limitation Act.
1908
(9 of 1908), ss. 12, 29(2), Fir/II
Schedule, Art, 156-Representation of the People Act, 1951 (43 of 1951),
•· 116-A.
The appellant was elected to the House of the People from a con·
•tituency in the State of Madhya Pradesh. The respondents were tho
other contesting candidates' Respondent No. 1 filed an election petition
challenging the election of the appellant. That election petition was
dismissed by the Election Tribunal. Against the order of the Tribunal.
the first respondent preferred an appeal to the High Court under s. 116-A
134-159 S.C.-9.
1963
Decunber, 20
1963
Vltlyac/raran
Sltukla
v.
Xhubchand
Baghel
SUPREME COURT REPORTS
of the Representation of the People Act, 1951. Admittedly, the appeal
was filed more than 30 days after the order of the Election Tribunal.
If the time requisite for obtaining a copy o(. the order of the Tribunal
was excluded. the appeal was filed within 30 days. However, if that
was not tlone, the appeal was
out of time. The contention of theappellant before the High Court was that the respondent No. I was not
entitled in law to exclude the time taken by him i'l obtaining the copy
of the order of the Tribunal. That contention was rejected by the High
Court. The High Court also found that the appellant was guilty of two
corrupt practices and hence his election was set aside.
The appellant
came to this Court by special leave.
The only question raised before this Court was whether for thepurpose of computing the period of 30 days prescribed under s. 116-A(3)
of tho Act, the provisions of s. 12 of the Limitation Act could be invoked
or not. Dismissing the appeal.
Held: (per B. P. Sinha, C.J., K. Subba Rao, Raghubar Dayal and
N. Rajagopala Ayyangar JI.) (i) The exclusion of time provided for
by s. 12 is permissible in computing the period of limitation for filing
the appeal in the High Court.
Per B. p. Sinha, C.J., K. Sobba Rao and N. Rajagopala Ayyangar
JI.) (ii) Though the right of appeal is conferred by s. 116-A of the
Representation of the People Act, 1951, and it is by virtue thereof that
the appeal was filed by respondent in the High Court, it is still an appeal
"under the Code of Civil Procedure, 1908, tO the High Court".
To
attract Art. 156 of the First Schedule to the Limitation Act. it is not
necessary for an appeal to be an "appeal under the Code of Civil Procedure" that tho right to prefer the appeal should be conferred by the
Code of Civil Procedure. It is sufficient if the proccaure for the filing.
of the appeal and the power of the Court for dealing With the ippeal,
when filed, are &overned by the Code.
Per Raghubar Dayal and Mudholkar JJ.-There is no warrant fer
holding that an appeal which is not given by the Code of Civil Procedure is still an appeal under the Code merely because its procedural
provisions govern its course. Where a right of appeal is given by some·
other law, the appeal must be regarded as one untler that law and not
under the Code of Civil Procedure. There is no reason for constr.llng
the words "under the Code of Civil Procedure" as meaning ••governed
in the matter of procedure by the Code of Civil Procedure".
Held: liii) (per B. P. Sinha, C.J., N. Rajagopala Ayyangar and
Raghubar Dayal JJ.) The entire sub-s. (2) of s. 29 of the LimitatioP
Act has to be read as an integrated provision ana the conjunction ."and ..
connects the iwo parts and makes it necessary for attracting cl. (a) that
-
the conditions laid down by the opening words of sub-s. (2) should be
~
satisfied.
-·
-
6 S.C.R.
SUPREME COURT REPORTS
131
Per Subba Rao and Mudholkar JJ.-The second limb of sub-s. \2)
of s. 29 is __ wide enough 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 prescribed in the First SchetluJe.
Per Subba Rao J.-The use of the word "any" clearly shows that
the second part of sub-s. (2) of s. 29 does not depend on the first part
or vice versa. The second part of sub-s. (2) is an independent provision
providing for that category of proceedings to which the first part- does
not apply.
Held: (i) that s. 116-A does not provide an exhaustive and exclusive
code of limitation for the purpose of appeals against orders of Tribunals
and also does not exclude the general provisions of the Limitation Act.
Section 29(2)(a) of the Limitation Act speaks of express e.:clusion and
there is no express exclusion in s. 116-A(3) of the Representation of the
People Act, 1951. Moreover, the proviso to s. 116-A(3) from which
an implied exclusion is sought to be drawn does not lead to any such
necessary implication. The proviso only restores the power denied to
the Court under s. 29(2)(b) of the Limitation Act. If this proviso haJ
not been there, s. 29(2)(b) would have excluded the operation of s. S
of the Limitation Act with the result that even if a sufficient cause for
the delay existe'd. the High Court would have been helpless to excuse
the delay.
(ii) S. 12(2) of the Limitation Act applies to an appeal to the High
Court against the order of the Tribunal.
An order made under s. 98
of the Representation of the People Act, 19Sl, if it contains also tho
./ reasons for it, is a composite document satisfying the definition of a judgment as well as that of an order and thereby attracting the relevant
provisions of s. 12 of the Limitation Act.
Section 12(2) does not say
that the order mentioned therein shall be only such order as is defined
in the Civil Proce'dure Code.
If a statute provides for the making of
an order and confers a right of appeal to an aggrieved party against that
order within a prescribed time, the time requisite for obtaining a copy
of the order can be excluded. The Act of 1951 empowers the Tribunal
to make an order and gives a right of appeal against that order to the
High Court and therefore s. 12(2) is directly attracted without any
recourse to the definition of an order in the Code of Civil Proce'durc.
Per Mudholkar J.--The first limb of s. 29(2) is concerned only with
the proceedings under special or local law for which a perjod of limitation is prescribed in the First Schedule to the Limitation Act. If for
such a proceeding the period to be found in the First Schedule is different from that prescribed under" a spCcial or local law. certain consequences will follow unaer the provision. No inconvenience is to be
caused by giving a literal and natural interpretation to the expression
used by the legislature in the first portion of sub-s. (2) of s. 29 because
cases of other kind can easily come under the second portion thereof.
Case Law referred to.
1963
Yidyacharan
Shukla
"·
Khubchand
Barh41
1963
V idyacharan
Shukla
v.
Khu be hand
Bag he I
Ayyangar J.
132
SUPREME COURT REPORTS
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 815 of
1963.
Appeal by special.leave from judgment and order dated
April 23, 1963, of the Madhya Pradesh High Court in 1st
Ap;ieal No. 23 of 1963.
G. S. Pathak, B. A. Musodkar, S.
N.
Andley and
Rameshwar Nath, for the appellant.
M. S. Gupta, for res;iondent No. 1.
December 20, 1963.
The following Judgments were delivered:
AYYANGAR J.-On behalf of
the Chlef Justice
and
hlmself) We have had the advantage of perusing the judgment of our brother Subba Rao J. and we agree with rum
that the appeal should be dismissed.
The justification for this separate judgment,
however,
is because of our inability to agree with him in his construction of the relative scope of the two limbs of s. 29(2) of the
Indian Limitation Act.
The facts of the case have been set out in detail in the
judgment of Subba Rao J. and it is therefore unnecessary
to repeat them.
There were three principal points that were
urged before us on either side which require to be considered
and all of them turn on the proper construction of s. 29(2)
of the Inaian Limitation Act which we shall for convenience
set out here:
"29(2) Where any special or local law prescribes for
any suit, appeal or application a period of liinitation different from the period prescribed
therefor by the first schedule, the provisions of
section 3 shall apply, as if such period were
prescribed therefor in that schedule, and
for
the purpose of determining any period of limitation prescribed fot any suit, appeal or application by any special or local law-
(a) the provisions contained in section 4, sections 9
to 18, and section 22 shall apply only in so far
as, and to the extent to which, they are not expressly excluded by such special or local Jaw;
and
-·
6 S.C.R.
SUPREME COURT REPORTS
133
\b) the remaining provisions of this Act shall not
apply."
The learned Judges of the High Court have proceeded
on the basis that s. 29(2)(a) applies to the case of appeals
preferred under s. 116 A of the Representation of the People
Act, 1951 and on that footing have held that the appeal
presented to them by the respondent was within tinie if
computed after making the deductions permitted by s. 12 of
the Limitation Act.
It is the correctness of this vi~w that
is challenged before us.
Proceeding now to deal with the question whether the
terms of s. 29(2) are apt to take in appeals under the Representation of the People Act, the first matter to be considered necessarily is whether that Act is a "special or
local law" within the opening words of the sub-section. As
to this, however, Mr. Pathak raised no dispute and he conceded thats. 116A was such a "special or local law." Thal
this "special or local Jaw" prescribes "for an appeal a period
of limitation" is also evident.
The first r,>aint of controversy, however, has arisen as to whether "the period of limitation prescribed by the special or local Law is different
from the period prescribed therefor by the first schedule."
The contention urged strenuously before us by Mr. Pathak,
the learned counsel for the appellant, was tbwt there would
be "a different period" only where for the identical Ropeal
(to refer only to that proceeding with which we arc i:<1mediately concerned) for which a period of limitation bas been
prescribed by the special or local Law, a period is prescribed
by first column of the first schedule. and there is a difference
between the two periods.
It was his further contention that
where the Indian Limitation Act maae no provision for
such an appeal, s. 29(2) and the provision contained in its
(a) and (b) were inapplicable.
There have been several
decidons on this point but it is sufficient to refer to the decision of the Bombay High Court in Canara Bank Ltd., Bombay v. The Warden Insurance Co. Ltd., Bombay (') where
Chagla C.J. rer,ielled this construction and held that even
where there was no provision in the first schedule for an
(I) I. L. R. 1952 Born. 1083.
1963
Vidyacharan
Shukla
v.
Khubchand
Bag he I
Ayyangar 1-
1963
Yl"111Clwvm
$ulk1"
v.
Khubchand
Bogh1l
A.yyangnr
/.
134
SUPREME COURT REPORTS
appeal in a situation identical with that for which the special law provides, the test of "a prescription of a period of
limitation different from the period prescribed by the First
Schedule is satisfied.
This Court in State of U.P. v. Smt.
Kaushaliya etc. ( 1) upheld this construction and awroved
0the judgment of Chagla C.J. in the Canara Bank case. ·
Apart from the decision of this Court, we consider the
reasoning of Chagla c.r. to be unexceptionable and we agree
with Subba Rao J. in holding that the requirement of a
prescription by the special law "of a period different" from
that prescribed by the First Schedule' is satisfied in the present case.
The next point was one that arose on the submission of
counsel for the respondent and it was this.
Assume that
the construction of the words "different from" urged by the
appellant were accepted, and this requirement would
be
satisfied only if the First Schedule made provision for an
identical appeal as that under the special law, still it was
submitted by the respondent that even this was satisfied in
this case.
For this purpose he relied on Art.
156 of the
first schedule which runs:
"Description of
appeal
Period of
]imitation
Time from which
period begins to
run
-------- ---------------
156.-Under the Code of Civil
Procedure, 1908, to a High
Court, except in the cases
provided for by article I 5 I
and article 153.
Ninety days
The date of the
decree or order
appealed from.''
The argument was that though.the right of appeal in the case
before us was conferred by s. I 16A c;>f the Representation of
the People Act and it was by virtue thereof that the appeal
was filed by the respondent to the High Court, it was still
an appeal "under the Code of Civil Procedure, 1908, to a
High Court." For this submission learned Counsel relid
principally on two decisions-one of the Calcutta and the
(1) A. I. R. 1964 S. C. 416.
·-
I
-
t
.,
6 S.C.R.
SUPREME COURT REPORTS
135
other of the Madras High Court, and they undoubtedly
support him. In Aga Mohd. Hamdan! v. Cohen and Ors.(')
-as well as in Ramasami Pillai v. Deputy Collector of,
Madura( 2 ) which followed it-the Court held that to a~tract
this article it was not necessary in order to be an "appeal
under the Code of Civil Procedure" within the meaning of
those words in Art. 156, that the right to prefer the appeal
should be conferred by the Code of Civil Procedure but that
it was sufficient if the procedure for the filing of the ap:;ieal
and the powers of the court for dealing with the ai;>peal were
governed by that Code.
For adopting this construction the
Court relied on the reference in Art. 156 to Art. 151.
Artide 151 dealt with appeals to the High Court from judgment
rendered on the original side of that Court.
The right to
prefer these appeals was conferred by the Letters
P~. tent
constituting the respective High Courts and not by the Code
of Civil Procedure, though the Code of Civil
Procedure
governed the procedure, jurisdiction and powers of the
Court in dealing with the appeals so filed.
There would
have been need therefore to except cases covered by Art. 151
only if the words "under the Code of Civil Procedure" were
understood as meaning appeals for the disposal of which
the provisions of the Code of Civil Procedure was made
applicable.
We might mention that besides the Calcutta
and the Madras High Courts a Full Bench of the Allahabad
High Court also has in Daropadi v. Hira Lal(') adopted a
similar construction of the Article, the learned Judges pointing out that several Indian enactments, among them the
Indian Succession Act, the Probate and
Administration
Act, the Land Acquisition Act and the Provincial Insolvency
Act, proceeded on the basis of a legislative praotice of conferring rights of appeal under the respective statutes without
prescribing any period of limitation within which the appeal
should be preferred, but directing the application of the provisions of the Civil Procedure Code to such appeals, the intention obviously being that Art. 156 would furnish the period
of limitation for such appeais.
We consider that these deci-
(1) I. L. R. 13 Cal, 221.
(2) I. L, R. 43 Mad. SJ.
(3) I. L. R. 34 Allahabad 496.
196J
Vldyaclumm
Slulkt.
v.
Khubchilnd
B1111Ml
Ayyangar /, •
1963
YidJ,.°:Ci,.ran
.v.
Klwbchand
Boghel
A1Yangar
J.
SUPREME COURT REPORTS
[196
sions correctly interpret Art. 156 and, in any event, we arec
not prepared to disturb the decisions which have stood for
so long and on the basis of the correctness of which Indian
legislation has proceeded.
Mr. Pathak drew our attention to some decisions in which
a different construction was adopted of tl)e word "under" a
particular enactment occurring in other Articles of the Limitation Act and in particular some dealing with appeals in certain criminal matters.
In them the word 'under' was understood as meaning "by virtue of". He was, however, unable·
to bring to our notice any decision in which the construction
adopted of Art. 156 which we have set out has been departed
from.
In the cases dealing with the words "under the Criminal Procedure Code" which he placed before us, the situation would obviously be different, since the indication afforded
by the mention of Art. 151 in Art. 156 does not figure in the
1 Articles dealt with. Therefore that would be a circumstance
pointing to a different result.
If the construction adopted of Art. 156 in the Calcutta
and Madras decisions to which we have referred were UQheld,
there could be no controversy that an appeal under s. 116A
of the Representation of the People Act would be "under the
Cede of Civil Procedure'', for s. l l 6A(2) enacts, to read the
m"terial portion:
"116A. (2) The High Court shall, subject to the provisions of this Act, have the same powers, jurisdiction and authority, and follow the same procedure, with respect to an appeal under
this
Chapter as if the appeal were an appeal from an
original decree passed by a civil court situated
within the local limits of its civil appellate jurisdiction: ........................... "
In this view even on the narrowest construction of the words
"different from those prescribed therefor in first schedule"
occurring the opening part of s. 29(2). the exclusion of time
provided for by Art. 12 of the Limitation Act would be permissible in computing the period of limitation for filing the
appeal to the High· Court in the case before us.
'
•
)
'
6 S.C.R.
SUPREME COURT REPORTS
137
The last point which remains for consideration is one
which would be material only in the event of the two points
we have already dealt with being decided differently.
This
rebtes to the relationship or inter-connection between the
first and the second limbs of s. 29(2) of the Limitation Act.
The reason why we are dealing with it i~ because of our inability to agree with the construction which our learned brothers Subba Rao & Mudholkar JJ. have placed on this
feature of the sub-section.
Sub-section (2), it would be seen,
consists of two parts.
The first sets out the conditions to
which the special law should conform in order to attract section 3 and that part ends with the words "as if such period
were prescribed therefor in that schedule".
This is followed
by the conjunction 'and' that word by the second part reading "for the purpose of determining any period of limitation
prescribed for any suit, appeal or application by any special
or local law-
( a) the provisions contained in section 4, sections
9 to 18, and section 22 sha!J apply only in so
far as, and to the extent to which, they are not
expressly excluded by such special or local law;
and
(b) the remaining provisions of this Act shall not
apply."
The question that has been debated before us is. whether the
condition postulated by the first limb, namely the special or
local law prescribing a period of limitation for a suit appeal
etc. different from the period prescribed therefor by the first
schedule has to be satisfied in order to render the provisions
of cl. (a) applicable. If the conjunction 'and' was used for
the purpose of indicating that the two parts were cumulative,
that is, if the two parts operated in respect of the same set of
circumstances, then unless the opening words of sub-s. (2)
were satisfied, there would be no basis for the application of
cl. (al to the period prescribed-for a suit, appeal or application
applicable by the special or local law. If on the other hand,
the two parts of the sub-section could be read independently
as if they made provision for two separate situations, the
result would be that the words starting from "for the purpose
J963
Vidyacharan
Shukla
"·
Khubchand
Baghtl
Ayyangar I.
1911,_ -
Vl4Yulraun
$Wla
, Y.
JChubcMnd
B011kl
"'"°""" /.
SUPREME COURT REPORTS
of determining any period of limitation prescribed for any
suit, appeal or application by any special or local law" followed by clauses (a) & (b) would be an independent <;Jrovision unrelated to the first part and therefore could operate
unhampered by the~ condition set out in the first part. In
other words, if the latter construction were adopted for every
suit, appeal or application for which a period of limitation
was prescribed by a special or local law, the provisions in ss.
4, 9 to 18 & 22 would apply unless excluded. Mr. Pathak
urged that the conjunc~ion 'and' could in the context be construed only as rendering the second limb a part and parcel of
the first, so that unless the conditions laid down by the opening words of the sub-section were satisfied, the provisions of
the Limitation Act set out in cl. (a) would not be attracted
to "determine the period of limitation" prescribed by the speciaI or local law. The question of the import and function
1 of the conjunction 'and' was the subject of elaborate consideration by a Full Bench of the Allahabad High Court in a
decision in Sehat Ali Khan v. Abdul Qavi Khan( 1). The
majority of the learned Judges held that the two parts of the
sub-section were independent and that "for the purpose of
determining any period of limitation prescribed for any suit,
appeal or application by any special or local law". cl.
(a)
would apply unless excluded.
Raghubar Dayal J. then a
judge of that Court, however, dissented from this view and
held that the entire sub-s. (2) had to be read as an integrated
provision and that the conjunction 'and' connected the two
parts and made it necessary for attracting cl. (a) that the conditions laid down by the opening words of sub-s. (2) should
be satisfied. Mr. Pat~ak recommended for our acceptance
the dissenting judgment of Dayal J. We consider that the
view expressed by Raghubar Dayal J. as to the inter-relation
· of the two parts of the sub-section reflects correctly our own
construction of the i;_>rovision.
Raghubar Dayal J. has approached this question of construtcion from several angles
including the grammar of the passage.
Without going into
any of them, we would rest our decision on a shorter ground.
In order that the second part might be held to be independent
of the first, the first part should itself be complete and be
(1) t. L. It. (1956)2 Allahabad 252.
' I
--
6 S.C.R.
SUPREME COURT REPORTS
139
capable of operating independently.
Unless this test were
satisfied, the conjunction 'and' would have to be read as importing into what follows it, the conditions or consideration
set out earlier as otherwise even the first part would be inco1119Icte.
Let us now see whether the first part could
function without the second.
The first part reads "where
any special or local law prescribes for any suit, appeal or
application a period of limitation different from the period
prescribed by the first schedule the provision of s. 3 shall
apply as if that period was prescribed therefor in
that
schedule."
The question is what this, standing by itself,
would signify. If the conditions prescribed by the opening ·
words were satisfied, s. 3 of the Limitation Act would be
attracted
Section 3 reads:
"Subject to the provisions contained in sections 4 to
25 (inclusive), every suit instituted, appeal preferred, and application made, after the period of
limitation prescribed therefor by the first schedule shall be dismissed, although limitation has
not been set up as a defence .................. "
ln other words, if the special or local law prescribed a period
of limitation different from that prescribed by the first schedule by the application of the first part of sub-s. (2), the court
is enabled to dismiss suits, appeals and applications filed beyond time. If this is the only effect it would be seen that the
provision is inane and redundant, because even without it, by
the very prescription of a period of limitation the jurisdiction of the court to entertain the suit, appeal etc. would be
dependent on the same being filed in time.
It is possible, however, to construe the reference to s. 3
in s. 29(2) to mean that the power to dismiss the suit, appeal
etc. if filed beyond the time prescribed, is subject to the modes
of computation etc. of the time prescribed by applying the
provisions of ss. 4 to 25 which are referred to in the opening
words of s. 3.
On this construction where a case satisfies
the opening words of s. 29(2) the entire group of ss. 3 to 25
would be attracted to determine the period of limitation pres-
. cribed by the special or local law. Now let us test this with
refere11ce to the second limb of s. 29(2) treating the latter as
1161
Vidyacharan
Shukla
v.
Khubchand
BaJhel
A.yyangar /,
1963
Vidyacharan
Shukla
v.
Khu be hand
Baghel
Ayyangar J.
Subba Rao].
140
SUPREME COURT REPORTS
a separate and independent provision.
That part starts with
the words "for determining any period of limitation
prescribed for any suit, appeal or application by any special or
local law" (italics ours).
The words italicised being perfectly
general, would manifestly be comprehensive to include every
special or local law, and among these must necessarily be included such special or local laws which satisfy the conditions
~pecified by the first limb of s. 29(2).
We then have this
strange result that by the operation of the first part ss. 3 to 25
of the Limitation Act are made applicable to that class of
special and local laws which satisfy the conditions specified by
the first limb, whereas by the operation of the second limb
the provisions of section 3, 5. 6 to 8 & 19 to 21 & 23 to 25
would not apply to the same class of cases.
A construction
which would lead to this anomalous result cannot be accepted
and we, therefore, hold that subject to the construction we
have put upon sub-s. (2) of s. 29 both the parts are to be read
as one whole and that the words following the conjunction
'and' "for the purpose of determining any period of limitation" etc. attract the conditions laid down by the opening
words of the sub-section.
As we have pointed out earlier this does not affect the
result. We agree that the appeal fails and we direct that it
be dismissed with costs.
SUBBA RAO J.-This appeal by S?ecial leave raises the
question of true construction of the provisions of s. 29(2) of
the Indian Limitation Act, 1908 (9 of 1908), in the context of
its application to s. 116-A of the 'Representation of the
People Act, 1951 (43 of 1951), hereinafter called the Act.
The facts relevant to the question raised lie in a small compass and they are not disputed. The appellant was elected
to the House of the People from the Mahasamund parliamentary constituency in the State of Madhya Pradesh in the
third general election)s.
The respondents were the other
contesting candidates.
Respondent 1 filed an election petition before the Election Commissioner of India under ss. 80
r
and 81 of the Act for setting aside the election of the appel- ·
lant and it was duly referred to the Election Tribunal. The
--
'
6 S.C.k.
SUPREME COURT REPORTS
Election Tribunal, by its order dated January 5, 1963, dismissed the election petition.
On February 11, 1963,
the
first respondent preferred an appeal against the said order of
the Election Tribunal to the High Court of Madhya Pradesh
at Jabalpur. Under sub-s. (3) of s. 116-A of the Act every
appeal under Ch. IV A of the Act shall be preferred within
a period of thirty days from the date of the order of the Tribunal under s. 98 or s. 99 thereof.-
Admittedly, the appeal
was filed more than 30 days from the said order. If the time
requisite for obtaining a copy of the order of the Tribunal
was excluded, the appeal was filed within 30 days; but if in
law it could not be excluded, the appeal would certainly be
out of time.
The appellant contended before the High Court
that respondent l was not entitled in law to exclude the time
so taken by him in obtaining a copy of the order of the Tribunal, but that plea was rejected by the High Court.
On
merits, the High Court held that the appellant had committed
two acts of corrupt practice as defined by s. 123(4) of the
Act and on that finding it declared the election of the appellant void.
It is not necessary to go into the details of the
judgment of the High Court given on the merits of the case,
as nothing turns upon them in ~his appeal, for the learned
counsel confined his argument only to the question of limitation.
The present appeal has been preferred by the appellant against the said order of the High Court setting aside his
·election.
The only question, therefore, is whether for the purpose
-0f computing the period of 30 days prescribed under s. 116A (3) of the Act the provisions of s. 12 of the Limitation Act
<:an be invoked.
Mr. Pathak, learned counsel for the appellant, in an elaborate argument placed before us the different aspects of the
question raised, and I shall deal with his argument in the appropriate context in the course of my judgment. It would be
convenient at the outset to read the relevant provisions of the
Act and those of the Limitation Act.
1963
Vidyacharan
Shukla
v.
Khu be hand
Baghel
Subba Rao J,
1961
Vidyacllllran
Shukla
v.
Khubcllllnd
Baghel
Subba Raa J.
142
SUPREME COURT REPORTS
The Representation of the People Act, 1951.
Decision of the Tribunal :
Section. 98. At the conclusion of the trial of an election
petition the Tribunal shall make an order:-
(a) dismissing the election petition; or
(b) declaring the election of all or any of the returned
candidates to be void; or
Secticn l l 6·A. (!) An appeal shall lie from every order
made by a Tribunal under section 98 or section 99 to the
High Court of the State in which the Tribunal is situated.
(2) The High Court shall, subject to the provisions of this
Act, have the same powers, jurisdiction and authority, and
follow the same procedure, with respect to an appeal under
'
this Chapter as if the appeal were an appeal from an original
decree passed by a civil court situated within the local limits.
of its civil appellate jurisd'ction.
(3) Every appeal under this Chapter shall be preferred
within a period of thirty days from the date of the order of
the Tribunal under section 98 or section 99:
Provided that the High Court may entertain an appeal
'
after the expiry of the said period
0of thirty days if it is satisfied that the appellant had sufficient cause for not preferring
the appeal within such period.
The Indian Limitation Act, 1908
Section 29.-(2) Where any special or .local Jaw prescribes for any suit, appeal or ap;ilication a period of limitation different from the period prescribed therefor by the First
Schedule, the provisions of section 3 shall apply, as if such
period were prescribed therefor in that Schedule, and for the
_)
,.
I
Ii S.C.R.
SUPREME COURT REPORTS
143
purpose of determining any period of limitation prescribed
for any suit, appeal or application by any special or local
law-
(a) the provisions contained in section 4, section 9
to 18, and section 22 shalJ apply only in so far
as, and to the extent to which, they are not expressly excluded by such special or local law;
and
(b) the remaining provisions of this Act shall not
apply.
Section 12.-(2) In computing the period of limitation
presc1 ibed f0r an appeal, an application for leave to appeal
and an application for a review of judgment, the day on
which the judgment complained of was pronounced, and
time requisite for obtaining a copy of the decree, sentence
or order appealed from or sought to be reviewed, shall be
excluded.
( 3) Where a decree is appealed from or sought to be
reviewed, the time requisite for obtaining a copy of the
judgment on which it is founded sha!J also be excluded.
Section 116-A of the Act confers a right of appeal against
an order of the Tribunal under s. 98 or s. 99 thereof; sub-s.
( 3) thereof prescribes a period of limitation of 30 days
for preferring such an ai;ipeal. Section 29 of 1the Limitation
Act attracts, by fiction, the provisions of s. 3 thereof to an
appeal described in s. 29 of the said Act; with the result,
the pro\'isit'llS of sub-ss. (2) and (3) of s. 12 of the Limitation Act are attracted thereto; and if those sub-sections
were attracted in computing the period of limitation prescribed
for an appeal the time requisite for obtaining a copy of the
decree or order or judgment on which it is founded shall be
excluded. Learned counsel for the ap;>ellant, therefore, contends that s. 29 of the Limitation Act does not apply to an
appeal under s. 116-A of the Act. The first argument of
learned counsel is that for invoking s,ub-s. (2) of s. 29 of the
Limitation Act the necessary condition is that the First Sche·
dule thereto shall prescribe a period of limitiition for an appeal and that a special law shall prescribe for the same type
of appeal a different period of limitation and that, as in the
1'63
1'illyacharG11
Slt•kl•
...
Kbbchand
Bag he I
Subba Rao I.
1963
Vidyacharan
Shukla
v.
Khu be hand
Baghel
Subba Rao 1.
144
SUPREME COURT REPORTS
present case the First Schedule has not prescribed any period
of limitation to an appeal under s. 116-A of the Act against
an order of the Tribunal, sub-s. (2) of s. 29 of the Act is
not attracted. This argument is met by learned counsel for
the respondents in two ways, namely, (i) that the First Schedule to the Limitation Act has prescribed a period of limitation for such an appea~ and (ii) that sub-s. (2) will apply
even to a case where the First Schedule to the Limitation Act
has not [Jrescribed any period of limitation for an appeal, but
a special law prescribed a period of limitation for such an
appeal.
I shall proceed to consider the two limbs of the
argument separately.
Has the First Schedule to the Limitation Act prescribed
a period of limitation for an appeal against an order of an
Election Tribunal under s. 98 or s. 99 of the Act? Article
156 of the First Schedule to the Limitation Act says that t•
an appeal under the Code of Civil Procedure, 1908, to a High
Court, except in the cases provided for by article 151 and
article 153, the period of limitation is 90 days from the date
of the decree or order appealed from; and article 151 referred to in article 156 provides for an appeal against a decree
or order of any of the High Courts of Judicature at Fort
William, Madras, and Bombay, or of the High Court of Punjab in the exercise of its original jurisdiction. What does the
expression "under the Code of Civil Procedure" in art. 156
of the First Schedule to the Limitation Act connote? Does it
mean that a right of appeal shall be conferred under the Code
of Civil Procedure, or does it mean that the procedure prescribed by the said Code shall apply to such an appeal? A
comparison of the terms of art. 156 and art. 151 indicates
that the emphasis is more upon the procedure applicable to
an appeal than on the right of a[Jpeal conferred under an
Act. The heading of the first column in the.First Schedule to
the Limitation Act is "Description of appeal". The r;:ihraseology used in art. 156 describes the nature of the appeal
in respect of which a particular period of limitation is prescribed. It does not refer to a r:ght conferred under the Code
of Civil Procedure, but only describes the aippeal with reference to the procedure applicable thereto. · Though the word
"under" may support the contrary view, the reference to
'
I
-~
6 S.C.R.
SUPREME COURT REPORTS
145
-
art. 151 therein detracts from it. Article 151 is an exce;ition
to alt.
156, indicating thereby that, but for the exception
art. 156 will apply to an appeal covered by art. 151: that is
to say, an appeal under art.
151 is deemed to be an appeal
under the Code of Civil Procedure. Though a right of appeaf
is conferred under the Letters Patent, it is deemed to be -an
appeal under the Code of Civil Procedure, because the Code
of Civil Procedure governs the said appeal. As Rajamannar,
C.J., observed in Kandaswami Pillai v. Kannappa Chetty(' ),
"It is well established that the Limitation Act and
the Code are to be read together, because both
are statutes relating to procedure and they are
in pari materia and,· therefore, to be taken and
construed together as one system as explanatory
of each other."
So construed it may reasonablyibe held that art. 156 provides
for an appeal governed by the procedure prescribed by the
Code of Civil Procedure.
This view was accepted by the
Calcutta High Court as early as 1886 in Aga Mahomed
Hamadani v. Cohen('). There, under s. 49 of the Burma
Courts Act (XVII of 1875), where the amount or value of
a suit or proceeding in the
Recorder's Court exceeded
Rs. 3,000, and was less than Rs. 10,000, an ap;ieal lay to
the High Court. Under s. 97 of the said Act, "save as otherwise provided by this Act, the Code of Civil Procedure shall
be, and shall, on and from the 15th day of April 1872, be
deemed to have been in force throughout British Burma".
Section 540 of the Civil Procedure Code of 1882, which was
in force at that time, read:
"Unless when otherwise expressly provided by this
Code or by any other law for the time being in
force, an appeal shall lie from the decrees or
from any part of the decrees- of the Courts exercising original jurisdiction to the Courts authorized to hear appeals from the decisions of those
Courts."
·
(1) .A. I. R. 1952 Mad. 186.
134-159 S.C.-10.
(2) (1886) I. L. R. 13 Cal. 221.
1963
Vidyacharan
Shukla
v.
Khubchand
Bagh•I
Subba Rao 1.
1963
Vidyacharan
Shukla
v.
Khubchand
Bagh•I
Subba Rao I.
SUPREME COURT REPORTS
The effect of this provision of the Code on the Burma Courts
Act was that where an appeal was not expressly excluded by
any special Act, an appeal lay to whatever court which under
the enactment in force was the appropriate court. But this.
section was overborne by the Burma Courts Act to the extent
it conferred a right of appeal from the Recorder's Court to the
High Court subject to certain conditions, for s.
49 of the
Burma Courts Act had taken away the right of appeal of value
under a prescribed amount and conferred such a right, when
the subject-matter of the appeal was between two prescribed
amounts, from the decree of the Recorder's Court to the High
Court. It is, therefore, not correct to say, as contended by
the learned counsel, that a right of appeal was conferred
under s. 540 of the Code of Civil Procedure, 1882. After
the passing of the Burma Courts Act, a right of appeal was
conferred under s. 49 of that Act and not under s. 540 of the
Code. It was contended before the Calcutta High Court, as
it is now contended before us, that art. 156 of Schedule II of
the Limitation Act did not apply to an appeal under the
Burma Courts Act, on the ground that the said appeal was '
not an appeal under the Code of Civil
Procedure.
The
learned Judges observed thus, at p. 224:
..
"Now, what is meant by an ap;ieal under the Civil
Procedure Code? A particular appeal was given
by the Burma Courts Act and the Burma Courts
Act is still the only Act which prescribes to what
Court this appeal shall lie. If it had not been
given by the Burma Courts Act then s.