KERALA HIGH COURT
Erala State Electricity Board
Vs
Illippadical Parvathi Amma
(Ansari, C.J.)
27.09.1973
JUDGEMENT
Ansari, C.J
- ( 1. ) THIS Civil Revision Petition has been referred to the Division Bench, as it raises a question of limitation under Article 137 of the Limitation Act, 1963. In respect of telegraph lines taken by the petitioner, the Kerala State Electricity Board, over the property of the respondent, a sum of Rs. 1708-55 was paid on 30-4-68 as compensation for the damages caused, under Section 10 (d) of the Indian telegraph Act, 1885 read with Section 51 of the Indian Electricity Act. The respondent applied on 11-6-71 to the District Judge, claiming enhanced compensation. This was under Section 16 (3) of the Telegraph Act which provides that any dispute concerning the sufficiency of the compensation to be paid under section 10 (d) shall, on application for that purpose, by either of the disputing parties, to the District Judge within whose jurisdiction the property is situate, be determined by him. Objection was raised that the application having been filed more than three years from the payment of the amount, was barred by limitation under Article 137 of the Limitation Act, 1963 which reads: "137. Any other application for which no Three When the right to period of limitation is provided years. apply accrues. " elsewhere in this Division. The objection was disallowed by the District Judge by the order sought to be revised.
( 2. ) IT was conceded before us that the District Judge acting under S. 16 (3)
of the telegraph Act, acts as a Court. To that effect is also the decision of
Viswanatha iyer. J. in C. R. Ps. 732 of 1972 Article 181 of the Indian
Limitation Act, 1908 is the pre-cursor of Article 137 of th3 1963 Act. That
Article read: "applications for which no Three When the period of
limitation is years. right to apply provided elsewhere in this accrues. " schedule
or by section 48 of the Code of Civil procedure, 1908. With respect to this
Article, there was a fair consensus of judicial opinion that it contemplated
only to applications made under the Civil Procedure Code to a court. This is
referred to. although the point was not decided by the Privy Council in hansraj
Gupta v. Official Liquidator Dehra Dun Mussoorie Electric Tramway Co. (AIR 1933
PC 63 ). The reason for this view was that all the applications provided under
the Third Division of the First Schedule of the 1908 Act, viz. from Articles
158 to 183 dealt with applications under the Civil Procedure Code and, there
fore, on the principle of ejusdem generis, Article 181 should also have a
similar content and bear a similar interpretation. In 1940, after the passing
of the Indian arbitration Act of that year, Articles 158 and 178 were amended
providing for periods of limitation even in respect of applications under the
Arbitration Act, 1940. Consequent on the amendments so introduced, it was felt
that the reason for giving a restricted content to Article 181 of the Act was
no longer available. The argument was advanced before the Supreme Court in Sha
Mulchand and Co. Ltd. v. Jawahar Mills Ltd1. and was dealt with
thus: "it does not appear to us quite convincing, without further
argument, that the mere amendment of Articles 158 and -178 can 'ipso facto'
alter the meaning which, as a result of a long series of judicial decisions of
the different High Courts in India, came to be attached to the language used in
Article 181. This long catena of decisions may well be said to have, as it
were, added the words "under the Code" in the first column of that
article. If those words had actually been used in that column then a subsequent
amendment of Articles 158 and 178 certainly would not have affected the meaning
of that Article. If, however, as a result of judicial construction, those words
have come to be read into the first column as if those words actually occurred
therein, We are not of opinion, as at present advised, that the subsequent
amendment of Articles 158 and 178 must necessarily and automatically have the
effect of altering the long acquired meaning of Article 181 on the sole and
simple ground that after the amendment the reason on which the old construction
was founded is no longer available. " no final opinion was, however,
expressed by the Court, as it was found that even if Article 181 was attracted,
the application was still within time. In Bombay Gas co. Ltd. v. Gopal Bhiva2
the Supreme Court stated that it is well settled that Article 18l applied
only to applications made under the Civil Procedure code. Next, we shall refer
to Prativa Bose v. Rupendra Deb3, The argument that Article
181 is not restricted only to applications under the Code of Civil Procedure
and the principle of ejusdem generis cannot avail after the amendment to
Articles 158 and 178 in 1940 was again repeated before the supreme Court. This
was rejected after noticing the observations of the Supreme court in (AIR 1953
SC 98 ). extracted supra, recording agreement with the same, and stating that
their Lordships felt no doubt that even now Article 181 has to be read as
confined to applications under the Code. In this case, therefore, the supreme
Court expressed a categoric and definite opinion that even after the amendments
to Articles 158 and 178 of the Limitation Act, the content of Article i8l as
judicially inter-preted that it applies only to applications under the Code
remained unshaken. In Wazir Chand v. Union of India4 the
argument was again advanced before the Supreme Court and was dealt with thus:
"the reason which persuaded the Courts to hold that the expression
"under the Code" was deemed added to Article 181 has now disappeared,
but on that account the expression "applications for which no period of
limitation is provided elsewhere in this Schedule" in Article 181, cannot
be given a connotation different from the one which prevailed for nearly 60
years before 1940". Next in sequence comes the decision in Mohd. Usman
v. Union of India5. The question there was whether an
application under Section 8 or 20 of the Arbitration Act is not governed by
Article 181 of the Indian. Limitation Act, 1908. It was held that it was not.
The court observed: "in amending Articles 158 and 178 the legislature
acted upon the view that the references to the Code of Civil Procedure, 1908 in
the second schedule to the Limitation Act could not in the absence of the
amendment be construed as references to the Arbitration Act, 1940. At the sane
time the legislature refrained from amending Article 181 and providing that the
Article will apply to other applications under the arbitration Act, 1940. It is
manifest that the legislature intended that save as provided in Articles 158
and 178 there would not be any limitation for other applications under the Act.
Take the case of an application under Section 28 of the Act for enlargement of
the time for making the award. A similar application under paragraph 8 of the
second schedule to the Code was governed by Article 181 but a like application
under Section 12 of the Indian Arbitration Act, 1899 was not subject to any
period of limitation. There is nothing to indicate that for the purpose of
limitation Section 20 of the new Act should be regarded as a reenactment of the
corresponding provision of the Code and not of the indian Arbitration Act.
1899. An application under Section 8 of the new act corresponding to paragraph
5 of the second schedule to the Code and Section 8 of the Indian Arbitration
Act, 1899 stand on the same footing. In the circumstances, it is not possible
to construe the implied reference in Article 181 to the Code of Civil Procedure
as a reference to the Arbitration Act, 1940, or to hold that Article 181
applies to applications under that Act. The rule of construction given in
Section 8 (1) of the General Clauses Act cannot be applied, as it appears that
the legislature had a different, intention. It, follows that an application
under sections 8 and 20 of the Arbitration Act, 1940 is not governed by Article
181" Athani Municipality v. Labour Court, Hubli6 was
a pronouncement under the Limitation Act. 1963. It was ruled that Article 137
of the schedule of the 1963 Act does not apply to applications under Section 33
(C1 (21 of the Industrial Disputes Act. The two grounds for the decision were
that the article applies only to courts, and that it applies only to
applications under the Civil procedure Code. It was pointed out that in
considering the scope of the parallel provision contained in Article 181 of the
1908 Act, it has been held by the supreme Court that a long catena of decisions
had confined the Article to applications under the Civil Procedure Code; and
there was no reason to hold that the subsequent amendments to Articles 158 and
178 of the Act had the effect of altering the long acquired meaning of Article
181 on the sole and simple ground that after the amendment, the reason on which
the old construction was found was no longer available. It was further held
that the view expressed by the Court must be held to be applicable even when
considering the scope and applicability of article 137 of the new Limitation
Act. This is a direct pronouncement in regard to article 137 of the 1963 Act.
The pronouncement took note of the fact that under the 1963 Act, limitation had
been prescribed not only in regard to applications under the Arbitration Act,
but in two cases, even in respect of applications under the Code of Criminal Procedure.
It was then observed: "we think that, on the same principle, it must be
held that even the further alteration made in the articles contained in the
third division of the schedule to the new Limitation Act containing references
to applications under the Code of Criminal Procedure cannot be held to have
materially altered the scope of the residuary Article 137 which deals with
other applications. It is not possible to hold that the intention of the
legislature was to drastically alter the scope of this article so as to include
within it all applications, irrespective of the fact whether they had any
reference to the Code of Civil Procedure". We think this decision should
conclude the point against the petitioner. In Nityanand v. L. I. C. of
India7 the question that arose was again, whether an application
under Section 33 (C) (2) of the Industrial Disputes act was governed by the
period of limitation under Article 137 of 1963 Act. The supreme Court noticed
the two reasons given in its earlier pronouncement in (AIR. 1969 SC 1335) to
hold that the Article would not be attracted, viz. , first that irrespective of
the legislative changes introduced in the 1963 Act, no drastic change was
intended in the scope of Article 137 vis-a-vis its predecessor Article 181, so
as to comprehend all applications whether under the Civil Procedure Code or
not; and second that it is only applications to courts that are intended to be
covered by Article 137 of the 1963 Act. The Supreme Court, on this occasion,
endorsed the second of these reasons and on that ground, sustained the
conclusion of the Bombay High Court that the application in question was not
governed by Article 137. Dealing with the first ground, the court observed: "it
is not necessary to express our views on the first ground given by this Court
in Civil Appeals Nos 170 to 173 of 1968, D/- 20-3-1969 = (AIR 1969 SC 1335 ).
It seems to us that it may require serious consideration whether applications
to courts under other provisions, apart from Civil Procedure Code, are included
within Article 137 of the limitation Act, 1963, or not" . Counsel for
the petitioner stressed the above passage and contended that the question as to
whether applications other than those under the Code are covered by Article 137
or not would require serious re-examination. We are afraid, this can only be by
the Supreme Court and not by us. The matter has been concluded by the Supreme
Court decision in (AIR 1969 SC 1335) not to refer to the earlier decisions
under Article 181. In the light of the said decision, which is binding on us,
till the position is reviewed by the Supreme Court, it must be held that
Article 137 applies only to applications under the Civil Procedure Code.
( 3. ) IN the face of the decisions of the Supreme Court, it is unnecessary for
us to deal with the decisions of the High Courts. Counsel for the petitioner
drew our attention to Amarnath v. Union of India, (AIR 1957 All 206) where it
was held that article 181 applies also to applications under the Arbitration.
Act, and that after the amendments effected in 1940 to Articles 158 and 178.
the view that Article 181 applies only to applications under the Code of Civil
Procedure, is no longer tenable. The decision refers to a decision of the
Punjab High Court in Union of india v. Firm Kiroo Mal 8and of
the Calcutta High Court in shah and Co. v. Ishar Singh Kirpal Singh and Co9.
in support of this view. It does not, however, refer to the decision of the
Supreme Court in (AIR 1953 SC 98 ). (The other decisions of the Supreme Court
to which we have referred, were subsequent to the ruling ). The decision of the
Calcutta High Court in (AIR 1954 Cal 164) was by S. R. Das Gupta, J. The
learned Judge delivered the judgment in a later Division Bench ruling in Kalinath
v. Nagendra Nath10 There the learned Judge stated that the
previous decision in (AIR 1954 cal 164) was decided without reference to AIR
1953 SC 98. We think it unnecessary to refer in detail to the other decisions
of the High Courts in view of the clear pronouncements of the Supreme Court
noticed earlier. Counsel for the petitioner contended that by reason of
Section 141 of the Code of Civil Procedure, the application must be deemed to
be one under the Civil procedure Code. The contention is directly answered by
the decision in (AIR 1965 sc 540) where it is observed: "it was then
said that the application which the respondent Rupendra made was under the Code
because in view of Section 141 of the Code the procedure prescribed by the Code
has to be followed in dealing with an application made under Section 4 of the
Regulation. This is obviously fallacious. The question is not whether the
procedure for an application is that prescribed by the Code but whether the
application was under code. The application by the respondent Rupendra was not
under the code in any sense. " ;
Cases Referred.
1(AIR 1953 SC 98)
2(AIR 1964 SC 752)
3(AIR 1965 SC 540 )
4(AIR 1967 SC 990)
5(AIR 1969 sc 474)
6(AIR 1969 SC 1335)
7(AIR 1970 SC 209)
8(AIR 1952 Punj 423)
9(AIR 1954 Cal 164 )
10(AIR 1959 cal 81 )