Cooppousamy vs Alamelu and Others

Sathiadev, J.—Plaintiff in O.S. No. 135 of 1979 on the file of First Additional Sub Judge, Pondicherry is the petitioner herein. An Ex Parte

decree was passed on 27.1.1981 and defendants filed I.A. No. 824 of 1981 to condone the delay of 46 days u/s 5 of the Limitation Act in filing

the petition to set aside the Ex Parte decree; and I.A. No. 825 of 1981 was filed to set aside the ex parte decree dated 27.1.1981.

The trial Court set aside the Ex Parte decree and thereupon, plaintiff preferred C.R.P. No. 4555 of 1981, and it was contended that as

defendants had withdrawn I.A. No. 824 of 1981; I.A. No. 825 of 1981 should have been automatically dismissed; whereas it was contended by

defendants that I.A. No. 824 of 1981 was withdrawn on a suggestion made by the Court that such an application was not necessary in accord

with the law of limitation applicable to Union Territory of Pondicherry.

The learned Judge by remitting the matter to the trial Court, had restored to it''s file I.A. No. 824 of 1981, and directed the matter to be

considered a fresh on all aspects.

The Court below held that in view of the decisions rendered in Chockalinga Mudaliar v. Manivanna P1llai (1978) 2 M.L.J. 544; and Justiniano

Augusto De Piedade Barreto Vs. Antonio Vicente Da Fonseca and Others, , u/s 29(2) of the Limitation Act, 1963, the French Law in

Pondicherry is the ''local law'' and saved by the said Act, and therefore, other provisions of the Limitation Act are not applicable to Pondicherry

and that time limit to set aside the Ex Parte decree being 30 years, there was no need to file an application u/s 5 of the Limitation Act. During the

pendency of the proceedings, the legal representatives of first defendant having been brought on record, they are referred to as defendants in the

suit.

Mr. R.S. Venkatachari, learned Counsel for the plaintiff, submits that the said decisions referred to by the Court below are unsound and do not

take into account the legal concept of applicability of laws made in India to the Union Territory of Pondicherry from the time of it''s defects merger;

and the suit having been filed in 1979, after C.P.C. having been made applicable, no provision of the French Code Civil could be operative, and

that the Indian Limitation Act, 1963 being a procedural enactment, a Civil Court adopting the procedures laid down in the C.P.C. cannot, but

implement the provisions of Indian Limitation Act, 1963. To substantiate these contentions, he would first refer to De Facto Agreement dated 21st

October, 1954, which states.

Judicial proceedings instituted prior to the De Facto transfer shall be continued, until a final decision has been reached, in conformity with the laws

and regulations in force at the time of institution of such proceedings.

During the earlier part of his arguments, he took considerable pain to refer to ''Dicery a Morris on''. ''The Conflict of Laws'' for understanding

the concept of the ''LeX Fori'', but in the concluding stages, having come across two decisions in Muthukkanni Mudaliar v. Andappa Pillai (1954)

2 M.L.J. 731 : 67 L.W. 1083 and Cadar Constructions Vs. Tara Tiles, , he would submit that these decisions bring about the principles which he

had attempted to bring about by relying upon the materials he had earlier argued out.

Muthukkanni Mudaliar v. Andappa Pillai (1954)2 M.L.J. 731 : 67 L.W. 1083 , holds that a suit could be instituted in a Court within whose

local jurisdiction defendant resides and the cause of action had arisen; and in such a suit, the provisions of Statutes of Limitation in force in the

country of that forum, that is, the ''Lex Fori'' would apply. By referring to Dicery''s Conflict of Laws, it was pointed out that it is well settled general

principle that when actions are initiated in a Court, all matters of procedure applicable by law made by that Country in which action is brought will

have to be applied. It was then held:

... So, the statute of Limitation in force in the country in which the action is brought, will be applicable and not the statute of limitation which might

obtain in the place where the cause of action arose, or the contract was made....

He would then refer to S.Y. Yar Khan v. S.M. Yamkhan (1967) 2 S.C.J. 244, which took the view that the normal rule is that the law of

Limitation applicable to the suit is the law in force at the date of the institution of the suit.

Again, in Vidyacharan Shukla Vs. Khubchand Baghel and Others, it was held that it is well established that the Limitation Act and the CPC 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.

Pages 501 and 505 of Halsbury''s laws of England (4th Edition) (Volume 8) are relied upon wherein it is stated that all matters of procedure

are governed by Lex Fori, namely the law of the country in which the action is brought and that generally speaking, it may be said that substantive

rules give or define the right which it is sought to enforce and procedural rules govern the mode of proceeding or machinery by which the right is

enforced. If remedy alone is taken away, then the law of limitation is procedural not only to bar his remedy, but also to extinguish his right is

substantive. It is then stated. ""If the statutes of limitation of the Lex Fori and the lex causes are both procedural, an action brought outside the

period of limitation of the Lex Fori will fail, even if it is within that of the lex causeal and an action brought within the period of limitation of the Lex

Fori will succeed, even if it is outside that of Lex Cause....

Then he would rely upon the following passage at page 585 in Cheshire''s ""Private International Law"" (Seventh Edition).

English law is unfortunately committed to the view that statutes of limitation, if they merely specify a certain time after which rights cannot be

enforced by action, affect procedure, not substance. They concern, it is said, not the merits of the cause, but the manner in which the remedy must

be pursued. They ordain that procedure is available only when set in motion within a certain fixed time after the cause of action arose. In the result,

therefore, any relevant statute of limitation that obtains in the Lex Fori may be pleaded, while a statute of some foreign law, even though it belongs

to the proper law of the transaction, must be disregarded....

Then Barnewall and Cresswell''s English Reports (Volume Cix) at page 909, is also relied upon because it was held therein that ""a party suing

and seeking to avail himself of the law of a particular country must take that law as he finds"".

Reliance is also placed on (Ponttunoda) Ahmedkoya and Others Vs. Kilkkakkad Aisamma and Others, in which a Division Bench of this

Court, in dealing with the applicability of the Limitation Act pertaining to Laccadives Islands which became part of Madras Presidency, and in spite

of it, all the Acts of Government of India having not been extended to them, it was held that as the Limitation Act was not one of the specified

enactments under the Regulations extended to that territory, Order 5 of the said Act could not invoked.

In conclusion, after referring to the provisions of the Pondicherry (Extension of Laws) Act, 1968, and that C.P.C. had come into force on and

from 1.8.1966 in the Union Territory of Pondicherry, and to the repeal and savings as made u/s 4(1) therein; he relies upon the decision in Cadar

Constructions Vs. Tara Tiles, , which held that, if a cause of action had arisen outside the Portuguese Law, that the part of that law dealing with the

period of Limitation will not apply; but on the other hand, a suit filed on the basis of the cause of action arising outside the Portugese Law will be

governed by the provisions of the Limitation Act, 1963.

On the point put forth by Mr. Venkatachari, learned Counsel for the petitioner that it is the local law which will have to be applied, Mr.

Masilamani, learned Counsel for the respondents, would submit that, in view of Section 29(2) of Limitation Act, French Code Civil has become

the local law by the concept of adoption. He submits that, in view of the decisions in Goodman and Company Vs. R.S. Thirunavukarasu, ,

Sendamarai Animalv Vs. Vijaya Rajagopal Chettiar, , and Justiniano Augusto De Piedade Barreto Vs. Antonio Vicente Da Fonseca and Others, ,

this legal fiction having found acceptance, the narathon efforts taken by Mr. Venkatachari as to what is ''Lex Fori'', and how the Limitation Act

could be applied, had not resulted in a different view being taken by this Court. He submits that as for Cadar Constructions Vs. Tara Tiles, , is

concerned, the distinction that was made in the said judgment was that, the cause of action arose after the Portuguese Civil Code has been

repealed whereas in the case which came before the Supreme Court the cause of action arose under the Portugues Code; and this distinction

attempted overlooks the fact that once Section 29(2) of the Limitation Act is made applicable, it is not the French Civil Code which is applied, but

it is the ""Local Law"" made for Pondicherry Territory, and it is very much the Indian Law for the purposes of proceedings which are covered by

C.P.C. in the Union Territory of Pondicherry, unless and until the provisions of the Limitation Act are extended to the territory.

After the decision in Justiniano Augusto De Piedade Barreto Vs. Antonio Vicente Da Fonseca and Others, , the provisions of French Civil

Code dealing with the subject of limitation of suits, etc, in force in the Union Territory of Pondicherry is ""Local law"" and these provisions have to

be read into the 1963 Act, as if the schedule to the said Act is amended Mutatis Mutandis. This Court adopted the same view in the decisions

relied upon by Mr. Masilamani, It is true that the cause of action had arisen subsequent to 1.8.1966, when C.P.C. was extended to the Union

Territory under Act 26 of 1968. As already pointed out, it has become the ''Lex Fori''. In the light of the Full Bench decision in Muthukkanni

Mudaliar v. Andappa Pillai (1954) 2 M.L.J. 731, the provisions of the Statute of Limitation in force in the country of the foram, that is Lex Fori

would apply. Once the Supreme Court has held that such a law will be a ''local law'', u/s 29(2). and get substituted into the schedule to the Act, the

distinction which had been attempted by the Bombay High Court, is not either convincing of impresses this Court, necessitating a different view

being taken from what had been hitherto done. In view of Section 29(2), the French Civil Code has very much become an Indian law, so far as

union territory of Pondicherry is concerned. Under Act 26 of 1968, innumerable Acts made by the Central Government had been extended, being

fully aware that the Limitation Act made by it was existing. Having not chosen to extend the law to the Union Territory of Pondicherry, merely

because C.P.C. had been extended as and from 1.8.1966, it cannot be deemed that Limitation Act being a procedural law also get extended, on

and from that date. It was an attempt made by Mr. Venkatachari by relying upon Art. 10 of the De Facto Agreement dated 21.10.1954, and

plead that consequently once De Facto Transfer had taken place then all the laws which are obtaining in the Country with which the territory had

been merged, become applicable without any distinction existing within it''s entire enlarged territory.

Under the Constitution, when division of Powers exists and when in respect of an Union Territory, different law could be made; his contention

that the same period of limitation as obtaining in other parts of the Country will have to be in force, overlooks the Constitutional provisions. In

making laws for Pondicherry Territory, Several enactments have been made which are different from what are obtaining in other party of the

country Act 26 of 1968 provides only for the enumerated Acts being extended to this Territory. Merely because the law of Limitation is a

procedural law, it cannot be deemed to have been extended, replacing local laws u/s 29(2) of Limitation Act as soon as C.P.C. was extended with

effect from 1.8.1966. The said local law, as held by the Full Bench is the ''Lex Fori'', for suits instituted even after C.P.C. was extended.

Hence, this Court is not inclined to adopt the view expressed in Cadar Constructions Vs. Tara Tiles, .

One other contention put forth is that, no similar provision of Order 9, Rule 13, C.P.C. having been conceived of in French Civil Code, which

has became a ''local law''; the period of 30 years claimed is unavailable. Defendants would rely on Art. 2262, which reads as follows:

All rights of action whether In Rem or In Persona are extinguished by prescription after thirty years. The person who sets up a title by prescription

for thirty years is not obliged to rely on any title, nor can a plea alleging bad faith be set up.

This Article alone would take in the circumstances arising in the instant case, and is a kin to Art. 137 in the schedule to the Limitation Act. Unless

the other provisions of the Limitation Act are extended, French Civil Code being the ''Local law'' as held by the Supreme Court, and such a law

having been applied by the Court below, the Civil revision petition is dismissed with costs.