Shaban Sheikh vs Ama Naiku and others

(1) This is a revision application against an order of the District Judge Anantnag dated 11111971 by which he has remanded the case denovo to

the learned SubJudge Shopian for retrial of the case on merits The petition arises in the following circumstances.

(2) One Mst. Khitji D/o Shaban Sheikh sold the land in dispute to the plaintiff respondent Ama Naiku by a sals .deed dated 151265 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 SubRegistrar as a result of which the SubRegistrar

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

District Judge, by his order dated 18566 upheld the order of the SubRegistrar 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 under Section 77 of

the Registration Act for setting aside the order of the SubRegistrar. The trial court of the SubRegistrar 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 23566, that day had to be excluded and the plaintiff was

entitled to bring the suit till 23665 and since the suit had been filed on 23666 it was within time. The learned judge was obviously of the vi/w 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 SubRegistrar and sent the suit for retrial on

merits. Hence the revision,

(3) 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 Ac.:.

(4) 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 Sec. 77 of the Registration Ace. Section 77 (1) runs thus :

Where the Registrar refuses to order the document to be registered, under sec. 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.

(5) 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 the 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 a? 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 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.

(6) 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 reviewed shall be excluded

(7) An analysis of this Subsection would show that it applies only to special categories mentioned in this Subsection 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 Subsection then the

provisions of this Subsection 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 twofold. In the first place it a party institutes a suit it is not necessity 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 Sec. 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 alongwith the appeal or application as the case may be. The provisions of the Civil PC 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 SubRegistrar refusing registration at the time of filing of a suit

under Sec. 77 of the Act. In these circumstances the inference is irresistible that as a suit instituted under Sec. 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.

(8) In the instance case the finding of the District Judge is that the order of the Registrar was announced on t8566 in the presence of the parties and

therefore it is obvious that the plaintiff should have brought the suit by 18666 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.

(9) In Uduppu Pyhe V, Varki Matbia, AIR 1956 TravC 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 Subsections (2) (3) and (4) but those

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

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

recorded applies alike to suits, appeals and to applications. The omission to refer to suits in the subsequent subsections is therefore significant. The

invocation of the aid of S. 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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(11) As pointed out in the Manipur case cited earlier there is no provision enjoining a plaintiff suing under Section 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.

(12) This decision relied on the judgment of the Judicial Commr. of Manipur in AIR 1953 Manipur 4.

(13) In Kashi Parshad Vs. Notified Area, Mahoba, AIR 1932 All, 598 it was clearly pointed out that S. 12 (2) only applied to cases which fall

within its ambit. In this case Mukerji J. observed a* follows :

On this Agarwala relies on Section 29 (2) Limitation Act and says that by portion (a), cl (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 application for review of judgment and to no other

application.

(14) We can read an application for reference under Section 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 under

Section J§, Land Acquisition Act and therefore the time of six weeks could not be extended.

(15) Mukerji J. relied on a decision of the Lahore High Court in Nafisuddin Vs. Secy, of State, AIR 1927 Lahore 858

(16) The matter was considered by a Full Bench of the Madras High Court in Veeranma Vs. Abbias, 18 Madras 99, wherein three eminent judges

held that a suit under Section 77 must be filed within thirty days and tBe Limitation Act being a general Act would not apply In this connection

Collins CJ observed as follows :

Act III of 1877 appears to be a Special Act complete in itself and according to a wellestablished 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 Vicechancellor, in Fitazgerald Vs.

Champneys 50 IJ (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

cerogate 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 1959 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 limitation.''

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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

SubRegistrar'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.

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

registrar.

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

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

(18) 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 Vs. Howard, 18 All, 216, 219 while explaining the scope and ambit of

Sec. 12 a Division Bench of the Allahabad High Court observed as follows :

''The learned counsel felt this difficulty and asked us to apply Sec. 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 for proceedings in which this lection was applied were papers or proceeding 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 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.

(19) In Lakshmi Narayan Vs. State of Rajasthan, AIR 1966 Rajasthan 113, 121, Jagat Narayan J. observed as follows :

The only applications referred to in Sec. 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 under Section 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.

(20) 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,

(21) To the same effect is a decision in Jankibai Vs. Nagpur Improvement Trust, AIR 1960 Bombay 449, 502 wherein Raju J observed as

follows :

But in my opinion Subsection (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 under Section 18 of the Land Acquisition Act does not therefore attract the application of Section 12 (2) of the

Limitation Act.''

(22) A similar view was taken by the Kerala High Court in Kunhibi Vs. Land Acquisition Officer, AIR 1960 Kerala 80 wherein Menon J held that

an application under Section 18 does not fall under Section 12 of the Limitation Act and therefore the time required for obtaining the copy of the

Collector's award can not be excluded.

(23) The Punjab High Court in a latter case in Hari Krishan Vs. State of Pepsu, AIR 1958 Punjab 490, 496, while approving the earlier decisions

observed as follows:

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

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

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

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

(25) Thus on a consideration of a 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 Special period of limitation for bringing a suit under Section 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 Sec. 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.

(26) In this view of the matter it is manifest that the ground on which the learned District Judge has set aside the judgment of the trial court is legally

erroneous I am, therefore, clearly of the opinion that the learned Subjudge had rightly held that the suit of the plaintiff was barred by limitation and

he was fully justified in dismissing the same.

(27) The petition is accordingly allowed, the order of the District Judge remanding the case to the Subjudge 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.