BHAG MAL (ALIAS) RAM BUX AND ORS. v. MUNSHI (D) BY LRS. AND ORS

Citation: [2007] 1 S.C.R. 1114

Court: Supreme Court of India

Bench: S.B. SINHA, MARKANDEY KATJU

Case summary

BHAG MAL (ALIAS) RAM BUX AND ORS. v. MUNSHI (D) BY LRS. AND ORS.pdf

Judgment text

i- BHAG MAL (ALIAS) RAM BUX AND ORS. ~ v. ' ~ MUNSHI (D) BY LRS. AND ORS. JANUARY 17, 2007 [S. B. SINHA AND MARKANDEY KATJU, JJ. ] Punjab Limitation (Custom) Act, 1920 : 18. Mr. Gupta, learned counsel appearing on behalfof the respondents himself has relied upon a decision in Abdulla Asghar Alia and Ors. v. Ganesh Das Vig, AIR (1933) PC 68, wherein the judicial Committee:, in no uncertain terms stated the law as under: "In the case now before their Lordships it is manifest that there was an ·order of the appellate Court, and that it did deal judicially with the matters before it. The Judicial Commissioner considered the judgment debtor's contention that his appeal had not abated and held that it had. He considered the prayer for revival of the arbitration and refused it. He rejected the· application to set aside the abatement. Whether the order made was right or wrong is immaterial, there was no appeal against it and it was in the circumstances clearly final.

Their Lordships think that when an order is judicially made by an appellate Court, which has the effect offinally disposing ofan appeal, such an order gives a new starting point for the period of limitation prescribed by Article 182(2) of the Act of 1908... " [Emphasis supplied] 19. InAjudhia Prasadv. The UP. Government, AIR (1947) Allahabad 390, a Division Bench of the Allahabad High Court opined as follows: "... I take up first the question of limitation. The argument on behalf of the appellant is that there was an automatic abatement of the proceedings on the death of the defendant on 4. 6. 1939 and, as the application for execution was made more than three years from that date, it is time barred. No doubt as the law is, there was. an automatic abatement on 4. 6. 1939, but where there has been an order 1 of the Court decla! "ing an appeal to have abated, the period of limitation under Article 182, Limitation Act should be reckoned from that date... " 20.

The question came up for consideration in a different context before a three-Judge Bench of this Court in Shyam Sundar Sarma V. Pannalal Jaiswal and Ors. , [2005] 1 SCC 436 wherein P. K. Balasubramanyan, J. speaking for the Bench opined that although an appeal was found to be barred by limitation for the purpose ofreckoning the period oflimitation, the date on which the appeal was dismissed by the Court, the same being ,_.. barred, shall be the relevant date stating : " "9. The specific question involved came to be considered by this Court in Mela Ram and Sons v. CIT This Court held that an appeal presented out of time is an appeal and an order dismissing it as time-barred is one passed in an appeal. This Court referred to and followed the view taken by the Privy Council and by this Court in the two respective decisions above-referred to. This Court quoted With approval the observations of Chagla, C. J. ln K. K. Porbunderwalla v. CIT, (ITR p. 66) to the following effect: (SCR P.

176) ~ ) "Although the Appellate Assistant Commissioner did not hear the appeal on merits and held that the appeal was barred by limitation his order was under Section 31 and the effect of that order was to confirm the assessment which had been made by the Income Tax Officer. " 9. 1 In Sheodan Singh v. Daryao Kunwar rendered by four learned ' Judges of this Court, one of the questions that arose was whether " the dismissal of an appeal from a decree on the ground that the appeal was barred by limitation was a decision in the appeal. This Court held:(SCR pp.

308 H-309 B) " We are therefore of opinion that where a decision is given on the merits by the trial court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial Court on the merits itself amounts to the appeal being heard ·"' and finally decided on the merits whatever may be the ground for dismissal of the appeal. " 21. Yet again in Union ofIndia and Others v. West Coast Paper Mills Ltd And Anr. , [2004] 2 SCC 747, this Court had occasion to consider the provisions oflimitation contained in Section 46-A ofthe Railways Act, 1890. Therein this Court was considering the applicability of Article 113 vis-a-vis Article 58 of the Limitation Act, 1963. In that case the plaintiff had filed a suit for refund. A claim was also preferred by the defendant before the Railway Tribunal. The Tribunal was only entitled to make a declaration that _..

)' freight charges are unreasonable or excessive. It did not have the jurisdiction to execute its own order. Although the power of the tribunal in tenns of Section 46-A of the Railways Act was ·final, this Court held that the jurisdiction of the Court under Article 136 thereby was not taken away. In relation to the subsequent suit filed by the plaintiff for recovery of the amount after disposal of the appeal preferred by the plaintiff therefrom, it was held that the period of limitation would start running from the date on which this Court had delivered its judgment inter alia stating: ....... ) " 21. A distinction furthermore, which is required to be noticed is that whereas in terms of Article 58 the period of three years is r- "' to be counted from the date when "the right to sue first ·accrues", in terms of Article 113 thereof, the period of limitation would be ' counted from the date "when the right to sue accrues.

" The distinction between Article 58 and Article 113 is, thus, apparent inasmuch as the right to sue may accrue to a suitor in a given case at different points of time and, thus, whereas in terms ofthe Article 58 the period of limitation would be reckoned from the date on . -' which the cause of action arose first, in the latter the period of :A -~ limitation would be differently computed depending upon the last day when the cause of action therefor arose. " ("'; 22. The Court . while laying down the aforementioned principle applied the doctrine of merger as laid dowrt in the dedsion of this Court in Kunhayammed and Ors. v. State ofKera/a & Anr. , [2000] 6 SCC 359. 23. In Mithai/al Dalsangar Singh and Ors. v. Annabai Devram Kini and Ors. , AIR (2003) SC 4244 this court observed the effect of abatement .... in the following terms: i "In as much as the abatement results in denial of hearing on the merits of the case, the provision of abatement has to be construed strictly.

On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be considered liberally, A simple payer for bringing the legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside abatement. " ....... 24. We need to read the liberal trend on setting aside the abatement " and the issue of 'finality of decision on abatement' together. It is to be ~ noted that considerable leeway has been accorded to proceedings to set aside abatement. Thus it follows that only because abatement leads to serious consequences, the emphasis on ample opportunity to set aside abatement has been laid down. 25. In circumstances where no such proceeding is initiated under Order i ~ XII R. 9 (2) the abatement culminates into finally fixing the outcome of the suit.

In that event the decision gains final shape at the precise juncture of successful abatement and that point serves as the closure of suit. Therefore BHAG MAL (ALIAS) RAM BUXv. MUNISH [SINHA, J. ] 1125 the order ofabatement gives a new starting point for the period oflimitation. [See Abdullah Ashgar Alia (supra)] 26. The provisions of statute of limitation cannot be construed in pedantic manner. This is now a well known principle of law. Had the appeal been dismissed on merit, indisputably the period of limitation would have started from the date of dismissal of the Second Appeal. The respondents themselves preferred an appeal. The appeal was a continuation of a suit. Appellants herein could not, thus, have been held to be aware of the fact - that during pendency thereon Bansi would die or the appeal shall abate. Let us consider a hypothetical situation.

An appeal abates after three years of the judgment and decree passed by the first appellate court and in that situation the appellant would have no chance to reap the benefit thereof, if the submission of the learned counsel appearing on behalfofthe respondent is accepted. The law, in our opinion, cannot be construed in a manner which would defeat the ends of justice. 27. In fine, when an appeal/suit abates, the same may not amount to adjudication of a decree on merit but indisputably it would attain finality. Decision on merits is not the only test to determine the finality of decision. Finality gained due to abatement is an illustration of the aforementioned variety. The declaratory decree, in that view of the matter passed in favour ofthe respondents had attained finality only when the order dated 14. 10. 1977 was passed. 28. Our attention was drawn by Mr. Gupta to a decision in Harendra Lal Roy Chowdhuri v. Haridasi Debi and Ors. , AIR (1914) PC 67.

Therein a mortgage suit was filed. The question which arose for consideration therein was as to whether an order directing to amend the description of the parcel which formed part of the decree came within the scope of the suit which was in no respect a suit for rectification. It was in the aforementioned fact situation held : "... The learned Judge accepted this contention and accordingly held that property situate in Calcutta was included in the mortgage and that he had jurisdiction. No such decision, if erroneous, could extend the jurisdiction of a Court of limited territorial jurisdiction, and therefore the validity of this decree is open to challenge by the ··~ present defendants, who were no parties to proceedings. SimiJarJy, the direction of the said Judge that the description of the parcel in ...

question should be amended (even if it was effective between the parties to that suit) cannot affect the present defendants, whose title is of earlier date, or render valid the registration if they can maintain their contentions relating thereto. It is difficult, indeed, to see how the direction to amend the description of the parcel which formed part of the decree came within the scope of the suit, which was in no respect a suit for rectification... " 29. We are not concerned herein with the effect of lack of territorial ;. ( jurisdiction of the Court. The said decision therefore, in our opinion, has no application to the facts of the present case. 30. Reliance has also been placed by Mr. Gupta on Mamuda Khateen and Ors. v. Beniyan Bibi and Ors.

, AIR (l976) Calcutta 415, wherein it was held that an order rejecting the memorandum of appeal following the rejection of an application under Section 5 of the Limitation Act for condonation of the delay in filing the appeal is not a decree but incidental to an order against which an application in revision under Section 115 of the Code may lie but no· appeal under Order 43 Rule l of the Code will be 1 maintainable. If the application under Section 5 is rejected, the order rejecting the said application cannot be a decree and, thus, the order rejecting the memorandum of appeal would merely be an incidental order. 31. We have noticed hereinbefore that the said view has not been accepted by this Court in Sohan Lal v. Raghunath Prasad and Ors. , AIR (l981) Allahabad 235 whereupon Mr. Gupta, learned counsel placed strong reliance.

The question which arose for consideration therein was as to whether an order of abatement would amount to a decree for the purpose of maintainability of an appeal thereagainst although there existed no provision therefor. 32. For the reasons aforementioned, we are ofthe opinion that the High Court was not correct in holding that the suit of the appellants was barred by limitation. The appeal is allowed. There will, however, be no order as to costs. D. G. Appeal allowed.