Shaban Sheikh vs Ama Naiku and others

S. Murtaza Fazl Ali, C.J.—This is a revision application against an order of the D.J. Anantnag, dated 11-11-71 by which he has remanded

the case de novo to the learned Sub-Judge. Shopian for retrial of the case on merits. The petition arises in the following circumstances.

One Mst. Khitji D/o. Shaban Sheikh sold the land in dispute to the plaintiff respondent Ama Naiku by a sale deed dated 15-12-65 for a sum of

Rs. 2,000/-. The plaintiff was already a tenant of the land and by virtue of the proposed sale deed he was to acquire the right of ownership. The

plaintiff, however, after having executed the sale deed failed to appear for registration before the Sub-Registrar as a result of which the Sub-

Registrar refused registration of the sale deed. Against this order the plaintiff respondent filed an appeal before the Registrar. The Registrar, who is

the D.J., by his order dated 18-5-1966 upheld the order of the Sub-Registrar and held that as the vendor had sold the land to somebody else, he

referred the plaintiff to seek remedy through a properly constituted suit in the Civil Court. The plaintiff then filed the present suit u/s 77 of the

Registration Act for setting aside the order of the Sub-Registrar. The trial Court of the Sub-Registrar Shopian held that as the suit was filed beyond

30 days as required by the provisions of Section 77 of the Registration Act. it was barred by limitation and he accordingly dismissed the suit,

without entering into the merits of the case of the plaintiff. The plaintiff then went up in appeal to the court of the D.J., which took a different view

and found that as the copy of the order of the D.J. was given to the petitioner on 23-5-1966, that day had to be excluded and the plaintiff was

entitled to brine the suit till 23-6-1966 and since the suit had been filed on 23-6-1966 it was within time. The learned Judge was obviously of the

view that the provisions of Section 12(2) of the Limitation Act were applicable and the plaintiff was entitled to the extension of time for the copy of

the order of the Registrar against which the suit was filed. The D.J. accordingly set aside the order of the Sub-Registrar and sent the suit for retrial

on merits. Hence this revision.

Counsel for both parties have argued at great length and have confined their arguments to the question of limitation. The learned Counsel for the

petitioner defendant submitted that the provisions of Section 12(2) were not at all attracted and the plaintiff was not entitled to the time spent in

taking a copy of the judgment of the D.J. Counsel for the respondents, however, submitted that as the suit was directed against the order of the

Registrar, unless the copy of his order was taken, the suit could not proceed and hence the plaintiff was entitled to the benefit of Section 12(2) of

the Limitation Act.

In order to understand the implication of the arguments put forward before me, it may be necessary to consider the scope and ambit of certain

provisions of the Limitation Act and that of Section 77 of the Registration Act. Section 77 (1) runs thus:

Where the Registrar refuses to order the document to be registered, u/s 72 or Section 76, any person claiming under such document, or his

representative. assign or agent, may, within thirty days after the making of the order of refusal, institute in the Civil Court, within the local limits of

whose original jurisdiction is situate the office in which the document is sought to be registered, a suit for a decree directing the document to be

registered in such office if it be duly presented for registration within thirty days after the passing of such decree.

It will be seen that the Registration Act is undoubtedly a Special Act and this provision provides a specific period of limitation for bringing a suit in

a Civil Court, against the order of the Registrar. The object in providing a small period of thirty days for bringing the suit is that the suit is of a

summary nature and should be disposed of quickly. In these circumstances, therefore, it is manifest that this provision will prevail over the

provisions of the Limitation Act which is a general Act. In fact the provisions of Section 29 of the Limitation Act also lead to the same conclusion.

Section 29 (2) of the Limitation Act runs as follows:

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.

It is therefore clear that where a special or local law prescribes a particular period for any suit, appeal or application which is different from that

provided in the Limitation Act then the period prescribed by the special law will undoubtedly prevail. Where, however, the special law is silent then

the provisions of the Limitation Act would naturally apply. In Section 77 of the Registration Act while the period of Limitation has been given as

thirty days, there is absolutely no mention of any extension of time on the ground that copies of the order impugned would have to be obtained.

The learned Counsel for the respondents has however, relied on Section 12 (2) of the Limitation Act which runs thus:

In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment the day on

which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or

sought to be revised or reviewed shall be excluded.

An analysis of this sub-section would show that it applies only to special categories mentioned in this sub-section namely, an appeal, application for

leave to appeal, revision and review of a judgment. If a case does not fall within any of the categories mentioned in this sub-section, then the

provisions of this sub-section would not be attracted. It will be pertinent to note that the word 'Suit' is conspicuously absent from this provision and

the reason appears to be two-fold. In the first place if a party institutes a suit it is not necessary to file a copy of the order which is against it

because the party is fully aware of the facts and makes the necessary averments in the plaint. Secondly, the categories mentioned in Section 12 (2)

make allowance for condonation of the time spent in obtaining a copy of the judgment, decree or order as the case may be, because the statute

requires the filing of these documents along with the appeal or application as the case may be. The provisions of the CPC are quite clear on this

point. On the other hand Section 77 of the Registration Act or for that matter any other provision of that Act does not contain any provision which

requires the aggrieved party to file a copy of the judgment of the Registrar or the Sub-Registrar refusing registration at the time of filing of a suit u/s

77 of the Act. In these circumstances the inference is irresistible that as a suit instituted u/s 77 of the Registration Act does not fall within the four

corners of Section 12 (2) of the Limitation Act, the plaintiff will not be entitled to the benefit of this section and the suit would have) to be filed

within thirty days of the order of the Registrar, or at least from the date when the order of the Registrar is communicated to the party.

In the instant case the finding of the D. J, is that the order of the Registrar was announced on 18-5-66 in the presence of the parties and

therefore it is obvious that the plaintiff should have brought the suit by 13-6-66. and therefore the present suit was barred by time. I am fortified in

my view by two authorities which appear to be directly in point and by several other authorities which also support my view indirectly.

In Uduppu Pylee v. Varki Mathia, AIR 1956 Trav-Co 113 a Division Bench of the Travancore Cochin High Court observed as follows:

Of the general sections of the Limitation Act made applicable to periods of limitation prescribed by any special or local law the provision regarding

exclusion of time occupied in obtaining a copy of the decision in a prior proceeding is contained in sub-sections (2). (3) and (4) but those sub-

sections apply only to appeals, applications for review of judgments and for applications to set aside awards and not to suits.

Sub-section (1) which provides for the exclusion of the day from which the period of limitation prescribed for any legal proceeding is to be

reckoned applies alike to suits, appeals and to applications. The omission to refer to suits in the subsequent sub-sections is therefore significant.

The invocation of the aid of Section 12 of the Limitation Act is therefore of no avail to the plaintiff to save his suit from the rule of limitation

prescribed in Section 77 of the Indian Registration Act, 1908.

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As pointed out in the Manipur case cited earlier there is no provision enjoining a plaintiff suing u/s 77 of the Registration Act to produce a copy of

the order of the District Registrar refusing to register the document in his favour. Nor can we find any need or justification for the plaintiff to delay

the filing of the suit until he obtains a copy of the order.

This decision relied on the judgment of the Judicial Commissioner of Manipur in AIR 1953 Man 4.

In Kashi Parshad Vs. Notified Area it was clearly pointed out that S. 12 (2) only applied to cases which fall within its ambit. In this case

Mukerji. J., observed as follows:

On this Agarwala relies on Section 29 (2) Limitation Act, and says that by portion (a), clause (2), Section 29, Section 12, Limitation Act becomes

applicable to an application under the Land Acquisition Act. and therefore the applicant is entitled to deduction of the time occupied in obtaining a

copy. But Section 12, Limitation Act refers to an application for leave to appeal and an application for review of judgment and to no other

application.

We can read an application for reference u/s 18. Land Acquisition Act, as coming within the purview of Section 12, Limitation Act, only by

materially modifying the language of Section 12. I am of the opinion that Section 29, Limitation Act does not apply to an application u/s 18, Land

Acquisition Act. and therefore the time of six weeks could not be extended.

Mukerji, J., relied on a decision of the Lahore High Court in Nafisuddin v. Secy, of State, AIR 1927 Lah 585(2).

The matter was considered by a Full Bench of the Madras High Court in Veeramma v. Abbiah, ILR (1895) Mad 99 (FB) wherein three

eminent Judges held that a suit u/s 77 must be filed within thirty days and the Limitation Act being a general Act would not apply. In this connection

Collins, C.J., observed as follows:

Act III of 1877 appears to be a Special Act complete in itself, and according to a well established rule for the construction of statutes it should be

presumed that the legislature did not intend by a general enactment to interfere with it. Lord Hatherly, when Vice-Chancellor, in Fitzgerald v.

Champneys, (1861) 30 LJ (Ch) 777 at page 782, thus states the proposition of law."" The reason is that the legislature having had its attention

directed to a special subject and observed all the circumstances of the case and provided for them, does not intend by a general enactment

afterwards to derogate from its own act when it makes no special ""mention of its intention to do so.

Muttusami Ayyar, J., at pp. 106, 107 and 109 observed as follows:

The course of legislation also discloses an intention to limit the operation of special or local laws, as a general rule, to the periods mentioned therein

unless they are Codes complete in themselves, and to restore Act XIV of 1859 which confined their operation to the short periods prescribed and

to repeal Act IX of 1871 which excluded all provisions of the general law of limitations.

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Thus there are detailed rules in the Registration Act showing that the intention is to prescribe a determinate time for registration as of the essence of

the Act and that indefinite extension is likely to defeat the object of registration. I am of opinion that it would be incongruous to import into it the

general provisions of the Limitation Act, and on this ground I hold that the Registration Act is of a special kind, in that it discloses an intention to

prescribe a specific and determinate period for registration, and that it contains rules of limitation complete in themselves. I. therefore, answer the

question in the negative.

Shephard J. at page 110 observed as follows:

It seems clear that the intention of the legislature was in all these cases alike to reduce to the shortest limits the time in which parties aggrieved by a

Sub-Registrar's or Registrar's orders might take action. As is the case with other statutes limiting specially the time in which the act of public

officials may be impugned, no provision is made for the case of disabilities or for the other cases in which according to the Limitation Act time does

not run against the plaintiff or some deduction is made in computing the period of limitation.

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I cannot find any manifestation of such intention in the Registration Act, nor do I think it can be said that there is any hardship in requiring an

aggrieved person to take action within a month although he may happen to be under a disability. In the transaction which has led up to the

execution of a document, the person interested as purchaser, if himself incapable of action, must have had some representative or agent to act for

him, and Section 77 provides that the representative or agent of any person claiming under the document may institute the suit in case of refusal to

register.

The decision of the Full Bench (Supra) consisting of three eminent judges clinches the issue and fortifies my view that- Section 12 (2) would have

no application in view of the special and peculiar provisions of Section 77 of the Registration Act.

There are a number of decisions wherein it has been held that in a reference made under the Land Acquisition proceedings a party is not entitled

to the time spent for taking the award of the Collector. In R. Wall v. Howard, (1896) ILR 18 All 215 at pp. 216, 219 while explaining the scope

and ambit of Section 12 a Division Bench of the Allahabad High Court observed as follows:

The learned Counsel felt this difficulty and asked us to apply Section 12 of the Indian Limitation Act, 1877, and to exclude from the period of three

weeks the time that was requisite for obtaining a copy of the order appealed against. He cited to us several precedents in which the provisions of

this section of the Limitation Act generally had been applied to periods of limitation prescribed under special laws. In each of these cases,

however, the particular papers or proceedings in which this section was applied were papers or proceedings of the nature distinctly specified in

Section 12....

It is a paper of proceeding distinct from all these, and we are unable to extend the provisions of Section 12 to a paper or proceeding which is not

distinctly named or does not from its nature fall within the distinct terms of that section.

In Lakshmi Narayan Vs. The State of Rajasthan, , 121, Jagat Narayan, J., observed as follows:

The only applications referred to in Section 12 (2) of the Limitation Act however are those for leave to appeal and for review of a judgment. The

section is not applicable to an application for a reference u/s 18 (1) of the Rajasthan Land Acquisition Act. The applicant was therefore not entitled

to exclude the time taken by him in obtaining a copy of the award.

Thus the learned Judge clearly held that in any matter which does not fall within the various categories laid down in Section 12 (2) of the Limitation

Act, the provisions of this section cannot be invoked.

To the same effect is a decision in Jankibai Tukaram Vs. Nagpur Improvement Trust, Nagpur, , 502, wherein Raju, J., observed as follows:

But in my opinion sub-section (2) of Section 12 refers to an appeal, an application for leave to appeal and an application for review of judgment.

An application for reference u/s 18 of the Land Acquisition Act does riot therefore attract the application of Section 12 (2) of the Limitation Act.

A similar view was taken by the Kerala High Court in Kunhibi Vs. Land Acquisition Officer, Kozhikode, wherein Menon, J., held that an

application u/s 18 does not fall u/s 12 of the Limitation Act. and therefore the time required for obtaining the copy of the Collector's award cannot

be excluded.

The Punjab High Court in a later case in Hari Krishan Khosla Vs. State of Pepsu, , while approving the earlier decisions observed as follows:

It is claimed that Section 12 would be applicable inasmuch as it is not expressly excluded by the special or the local law. namely, the Act. In AIR

1927 Lah 858 it was held that Section 12 of the Limitation Act did not apply in computing the period of limitation prescribed for an application u/s

18 (1) of the Land Acquisition Act and, therefore, the time requisite for obtaining a copy of the award could not be deducted.

Counsel for the respondents was unable to lay his hands on any authority taking a contrary view.

Thus, on a consideration of the specific language of Section 12 (2) of the Limitation Act and the authorities discussed above, the following

propositions emerge:

(1) That the Registration Act being a special Act provides a Specific period of limitation for bringing a suit u/s 77 of the Act.

(2) That there is no provision in the Registration Act which requires the party aggrieved to file a copy of the order impugned along with the plaint,

and therefore the question of claiming extension of time on the ground that a few days were spent in obtaining copy of the order is not at all

germane for condoning limitation.

(3) That Section 12 (2) of the Limitation Act is not of a general or universal application but applies only to specific categories mentioned therein,

namely, an appeal an application for leave to appeal, an application for revision or review of a judgment. These provisions therefore relate only to

these kinds of matters : and to no other. A suit contemplated by ' Section 77 of the Registration Act does not fall within any of the categories

mentioned in Section 12 (2) and is beyond the scope of Section 12 (2) and therefore the provisions of this section cannot be invoked to condone

delay caused by the aggrieved party for obtaining copies of the order of the Registrar.

In this view of the matter it is manifest that the ground on which the learned D.J., has set aside the judgment of the trial court is legally erroneous. I

am, therefore, clearly of the opinion that the learned Sub-Judge had rightly held that the suit of the plaintiff was barred by limitation and he was fully

justified in dismissing the same.

The petition is accordingly allowed the order of the D. J. remanding the case to the Sub-Judge is set aside and the suit of the plaintiff is

dismissed. In the circumstances there will be no order as to costs throughout. The rule is accordingly made absolute.