Sec.5 of Limitation Act - Sec.19 Of Revision powers of High court - Apex court held that we are of the opinion that the case of Nagar Palika Parishad, Morena (supra) was decided erroneously. Section 5 of the Limitation Act is applicable to Section 19 of the Act of 1983 =
“Whether Provision of Section 5 of the
Limitation Act is applicable to revision
filed under Section 19 in the High
Court?”
“19. High Court’s power of revision –
(1)-
The High Court may suo motu at any time
or on an application made to it within
three months of the award by an aggrieved
party, call for the record of any case in
which an award has been made under this
Act by issuing a requisition to the
Tribunal, and upon receipt of such
requisition the Tribunal shall send or
cause to be sent to that Court the
concerned award and record thereof.
(2) If it appears to the High Court
that the Tribunal –
(a) has exercised a jurisdiction
not vested in it by law; or
(b) has failed to exercise a
jurisdiction so vested; or
(c) has acted in exercise of its
jurisdiction illegally, or
with material irregularity;
or
(d) has misconducted itself or
the proceedings; or
(e) has made an award which is
invalid or has been
improperly procured by any
party to the proceedings,
the High Court may make such order in the
case as it thinks fit.
(3) The High Court shall in deciding
any revision under this sectionPage 8
8
exercise the same powers and
follow the same procedure as far
as may be, as it does in deciding
a revision under Section 115 of
the Code of Civil Procedure,
1908(No.5 of 1908).
(4) The High Court shall cause a copy
of its order in revision to be
certified to the Tribunal.
Explanation.-For the purposes of this
section, an award shall include an
“interim” award.”
Section 5 of the Limitation Act
provides that an
appeal may be admitted after the limitation period has
expired, if the appellant satisfies the court that
there was sufficient cause for delay.
26. Section 29 of the Limitation Act is the saving
section. Sub-section (2) reads as follows:
Page 14
14
“(2) 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.”
Sub section (2) thus, provides that Sections 4 to 24 of
the Limitation Act shall be applicable to any Act which
prescribes a special period of limitation, unless they
are expressly excluded by that special law.
Section 19 of the Act of 1983, does not contain any
express rider on the power of the High Court toPage 23
23
entertain an application for revision after the expiry
of the prescribed period of three months. On the
contrary, the High Court is conferred with suo moto
power, to call for the record of an award at any time.
It cannot, therefore, be said that the legislative
intent was to exclude the applicability of Section 5 of
the Limitation Act to Section 19 of the Act of 1983.
38. In our opinion, it is unnecessary to delve into the
question of whether the Arbitral Tribunal constituted
under the Act is a Court or not for answering the issue
in the present case, as the delay in filing the
revision has occurred before the High Court, and not
the Arbitral Tribunal.
Answer to Point No.2
39. In light of the reasons recorded above, we are of
the opinion that the case of Nagar Palika Parishad,
Morena (supra) was decided erroneously. Section 5 of
the Limitation Act is applicable to Section 19 of the
Act of 1983. No express exclusion has been incorporatedPage 24
24
therein, and there is neither any evidence to suggest
that the legislative intent was to bar the application
of Section 5 of the Limitation Act on Section 19 of the
Act of 1983. The cases which were relied upon to
dismiss the Special Leave Petition, namely Nasiruddin
(supra) and Popular Construction (supra) can be
distinguished both in terms of the facts as well as the
law applicable, and thus, have no bearing on the facts
of the present case.
40. For the reasons stated supra, we answer the points
framed by us in the affirmative in favour of the
appellants. The impugned judgments and orders are set
aside and both the appeals are allowed. The delay in
filing revision petitions is condoned and the cases are
remanded to the High Court to examine the same on
merits. We request the High Court to dispose of the
cases as expeditiously as possible.
2014 Aug. Part - http://judis.nic.in/supremecourt/filename=41818
T.S. THAKUR, V. GOPALA GOWDA, C. NAGAPPAN
Page 1
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3498 OF 2008
STATE OF M.P. & ANR. ……APPELLANTS
Vs.
ANSHUMAN SHUKLA ……RESPONDENT
WITH
CIVIL APPEAL NO. 1145 OF 2009
J U D G M E N T
V.GOPALA GOWDA, J.
Civil Appeal No.3498 of 2008 arises out of order
dated 30.6.2005 in C.R.No.1330 of 2003 passed by thePage 2
2
Division Bench of the Madhya Pradesh High Court at
Jabalpur relying on the judgment and order dated
13.4.2005 passed by the Full Bench of the Madhya
Pradesh High Court in C.R.No.633 of 2003 etc. The
connected Civil Appeal No.1145 of 2009 arises out of
judgment and order dated 4.7.2006 passed by the
Division Bench of the Madhya Pradesh High Court at
Jabalpur in C.R.No.1 of 2006.
2. Civil Appeal No.3498 of 2008 was heard by a
Division Bench of this Court, wherein by way of
judgment dated 12.05.2008, it was opined that the case
of Nagar Palika Parishad, Morena v. Agrawal
Construction Company1 was not correctly decided and,
thus, the matter required consideration by a larger
bench. It was further opined that the record of the
case be placed before the Hon’ble the Chief Justice of
India for constituting an appropriate Bench. That is
1
2004 (II) MPJR SN 55Page 3
3
how this matter has come up for consideration before
us.
3. As both the appeals are identical, for the sake of
convenience, we would refer to the necessary facts of
C.A.No.3498 of 2008 which are stated hereunder:
The respondent filed a petition under Section 7 of
the Madhya Pradesh Madhyastham Adhikaran Adhiniyam,
1983 (hereinafter referred to as “the Act of 1983”)
raising certain claims about the works contract
executed between the parties. The petition was partly
allowed by the Madhya Pradesh Arbitration Tribunal vide
its award dated 18.6.2003. An amount of Rs.6,05,624/-
with interest @12% per annum was awarded from
24.04.1998 till the date of realisation.
4. Being aggrieved, the appellants filed a Civil
Revision No.1330 of 2003 before the High Court of
Madhya Pradesh under Section 19 of the Act of 1983,
along with an application under Section 5 of thePage 4
4
Limitation Act, 1963 (hereinafter referred to as the
“Limitation Act”) to condone the delay in filing the
revision.
5. The High Court observed in its order dated
07.05.2004 in the Revision that the view expressed by
the Division Bench of the High Court in Nagar Palika
Parishad, Morena v. Agrawal Construction Company2
required consideration by a larger Bench on the
question of:
“Whether Provision of Section 5 of the
Limitation Act is applicable to revision
filed under Section 19 in the High
Court?”
6. After the reference was made, the matter in
Nagarpalika Parishad, Morena (supra) came up for
consideration before a division bench of this Court.
While dismissing the petition at the threshold, it was
observed in an order dated 27.08.20043:
2
2004 MLJ 374
3Page 5
5
“……In our view there is no infirmity in
the impugned judgment. The authority in
the case of Nasiruddin and Ors. v. Sita
Ram Agarwal (2003) 2 SCC 577 has been
correctly followed. Same view has also
been taken by this Court in the case of
Union of India v. Popular Construction
Co. (2001) 8 SCC 470.
The Special Leave Petition stands
dismissed with no order as to costs.”
7. The full bench of the High Court in the order dated
13.04.2005, held that the dismissal of a special leave
petition at the threshold stage by the Supreme Court is
a binding precedent, and must be followed by the courts
below. It was however also observed that no specific
time limit can be fixed for exercising the suo motu
revisional power under Section 19 of the Act of 1983.
It was further held that the power has to be exercised
within reasonable time which depends upon the nature of
the order to be revised and other facts and
circumstances of the case. The full bench of the High
Court directed to place the revision petition before
2004(II) MPJR SN 374Page 6
6
the appropriate bench for consideration in accordance
with law.
8. The Civil Revision No. 1330 of 2003 which was
barred by time of 80 days was dismissed by the High
Court for the reasons given by the Full Bench in its
order dated 13.04.2005.
9. Being aggrieved by the order of the High Court, the
appellants filed a special leave petition before this
Court against the dismissal of revision. The Division
Bench of this court vide order dated 12.05.2008 was of
the opinion that the case of Nagar Palika Parishad,
Morena (supra) had been incorrectly dismissed at the
threshold and that the same requires consideration by a
larger Bench and further directed that the records of
the case be placed before the Hon’ble the Chief Justice
of India for constituting an appropriate Bench. Thus,
the matter came before us for consideration.
10. First of all, in order to appreciate rival legal
submissions, it would be necessary to consider SectionPage 7
7
19 of the Act of 1983, which relates to revision and
its limitation, which reads as under :-
“19. High Court’s power of revision –(1)-
The High Court may suo motu at any time
or on an application made to it within
three months of the award by an aggrieved
party, call for the record of any case in
which an award has been made under this
Act by issuing a requisition to the
Tribunal, and upon receipt of such
requisition the Tribunal shall send or
cause to be sent to that Court the
concerned award and record thereof.
(2) If it appears to the High Court
that the Tribunal –
(a) has exercised a jurisdiction
not vested in it by law; or
(b) has failed to exercise a
jurisdiction so vested; or
(c) has acted in exercise of its
jurisdiction illegally, or
with material irregularity;
or
(d) has misconducted itself or
the proceedings; or
(e) has made an award which is
invalid or has been
improperly procured by any
party to the proceedings,
the High Court may make such order in the
case as it thinks fit.
(3) The High Court shall in deciding
any revision under this sectionPage 8
8
exercise the same powers and
follow the same procedure as far
as may be, as it does in deciding
a revision under Section 115 of
the Code of Civil Procedure,
1908(No.5 of 1908).
(4) The High Court shall cause a copy
of its order in revision to be
certified to the Tribunal.
Explanation.-For the purposes of this
section, an award shall include an
“interim” award.”
11. Following submissions were made by the learned
counsel for the parties in support of their claim.
12. Learned counsel on behalf of the appellants
contended that the High Court failed to consider that
the revision petition has been preferred under Section
19 of the Act of 1983 and the delay of 80 days should
have been condoned by it.
13. It was further contended by the learned counsel on
behalf of the appellants that the High Court should
have considered that provision of Section 5 of the
Limitation Act, would be applicable while entertaining
a revision petition under Section 19 of the Act ofPage 9
9
1983. There was also failure on the part of the High
Court for having not exercised the suo motu revisionary
powers under the Act in the circumstances of the case.
14. It was further contended that the judgments
referred in the Full Bench order before the High Court
are not applicable in the circumstance of the case.
15. Regarding Section 19 of the Act of 1983, it was
contended by the learned counsel that the proviso to
Section 19 was added only in the year 2005 though the
issue is concerned with the pre-amendment provision,
when such proviso, specifically conferring power to
condone delay was not there.
16. It was also contended that the question - whether
the Arbitral Tribunal constituted under the Act is a
“Court” or not, need not be decided as Section 19(3) of
the Act of 1983 provides that while exercising the
power of revision, the High Court will exercise the
same powers and will follow the same procedures as itPage 10
10
does in deciding a revision under Section 115 of the
Civil Procedure Code.
17. It was further contended by the learned counsel
appearing on behalf of the appellants that the order in
the case of Nagarpalika Parishad, Morena (supra) does
not lay down the correct legal position. The order was
passed sub-silentio and is per incurium as it neither
considers the aforesaid legal issues and submissions
nor does it take into account the relevant legal
provisions and the Scheme of the Act or various case
laws on the point. The judgments relied on by this
Court in the case of Nagarpalika Parishad, Morena
(supra) are not applicable to the issues arising here
and are distinguishable on facts.
18. On the other side, in the counter affidavit filed
by the respondents in the connected C.A. No. 1145 of
2009, it is stated that the appellants have been trying
to mislead this Hon’ble Court by stating that the
Application was preferred under Section 5 of the
Limitation Act. However, by a bare perusal of thePage 11
11
application for the condonation of delay, it can be
seen that the application was preferred under the
amended provisions of Section 19 of the Act. The
benefit of the amended Section 19 of the Act could not
be given to the appellants as the provisions were not
made with retrospective effect. The amendment came into
effect on 29.08.2005, much after the expiry period to
prefer an application under Section 19 of the Act. The
High Court has very rightly held that the Revision was
time barred. Since no such provision existed on the
date of filing of application for condonation of delay,
the appellants were not entitled to get the delay
condoned.
19. We have heard the learned counsel for the parties
and with reference to the above factual and rival legal
contentions urged on behalf of the parties the
following points would arise for our consideration:
1)Whether the provisions of Limitation Act are
applicable to the provisions of Madhya Pradesh
Madhyastham Adhikaran Adhiniyam, 1983?Page 12
12
2)What Order?
Answer to Point No.1
20. The Madhya Pradesh Madhyastham Adhikaran Adhiniyam,
1983 came into force with effect from 01.03.1985. It
was enacted to provide for the establishment of a
Tribunal to arbitrate on disputes to which the State
Government or a Public Undertaking (wholly or
substantially owned or controlled by the State
Government), is a party and for matters incidental
thereto or connected therewith.
21. The Arbitral Tribunal is constituted in terms of
Section 3 of the Act of 1983, for resolving all
disputes and differences pertaining to works contract
or arising out of or connected with execution,
discharge or satisfaction of any such works contract.
22. Section 7 of the Act provides for reference to
Tribunal. Such reference may be made irrespective of
whether the agreement contains an arbitration clause or
not. Section 7-A of the Act provides for thePage 13
13
particulars on the basis whereof the reference petition
is to be filed.
23. Section 19 of the Act confers the power of revision
on the High Court. It provides that the aggrieved party
may make an application for revision before the High
Court within three months of the date of the award.
This Section was amended in 2005, to confer the power
on the High Court to condone the delay. Since this
dispute pertains prior to 2005, thus, the provision of
the unamended Act shall apply in the present case.
24. The Limitation Act, 1963 is the general legislation
on the law of limitation.
25. Section 5 of the Limitation Act provides that an
appeal may be admitted after the limitation period has
expired, if the appellant satisfies the court that
there was sufficient cause for delay.
26. Section 29 of the Limitation Act is the saving
section. Sub-section (2) reads as follows: Page 14
14
“(2) 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.”
Sub section (2) thus, provides that Sections 4 to 24 of
the Limitation Act shall be applicable to any Act which
prescribes a special period of limitation, unless they
are expressly excluded by that special law.
27. This Court in the case of Mukri Gopalan v.
Cheppilat Puthanpuravil Aboobacker4 examined the
question of whether the Limitation Act will apply to
the Kerala Buildings (Lease and Rent) Control Act,
1965. While holding that the appellate authority under
4
(1995) 5 SCC 5Page 15
15
the Kerala Act acts as a Court, it was held that since
the Act prescribes a period of limitation, which is
different from the period of limitation prescribed
under the Limitation Act, and there is no express
exclusion of Sections 4 to 24 of the Limitation Act, in
the above (Lease & Rent) Control Act, thus, those
Sections shall be applicable to the Kerala Act.
While examining the provisions of Section 29(2) of
the Limitation Act, it was observed:
“8. A mere look at the aforesaid provision
shows for its applicability to the facts of
a given case and for importing the machinery of
the provisions containing Sections 4 to 24 of
the Limitation Act the following two
requirements have to be satisfied by the
authority invoking the said provision:
(i) There must be a provision for period of
limitation under any special or local law in
connection with any suit, appeal or
application.
(ii) The said prescription of period of
limitation under such special or local law
should be different from the period prescribed
by the schedule to the Limitation Act.”Page 16
16
28. It was further held that if the two above
conditions are satisfied, then the following
implications would follow:
“9. If the aforesaid two requirements are
satisfied the consequences contemplated by
Section 29(2) would automatically follow.
These consequences are as under:
(i) In such a case Section 3 of the
Limitation Act would apply as if the period
prescribed by the special or local law was
the period prescribed by the schedule.
(ii) For determining any period of limitation
prescribed by such special or local law for
a suit, appeal or application all the
provisions containing Sections 4 to
24(inclusive) would apply insofar as and to
the extent to which they are not expressly
excluded by such special or local law.”
[emphasis laid by this Court]
29. Further, in the case of Hukumdev Narain Yadav v.
Lalit Narain Mishra5, a three judge Bench of this
court, while examining whether the Limitation Act would
be applicable to the provisions of Representation of
People Act, observed as under:
5
(1974)2 SCC 133Page 17
17
“17. ....but what we have to see is whether
the scheme of the special law, that is in
this case the Act, and the nature of the
remedy provided therein are such that the
Legislature intended it to be a complete code
by itself which alone should govern the
several matters provided by it. If on an
examination of the relevant provisions it is
clear that the provisions of the Limitation
Act are necessarily excluded, then the
benefits conferred therein cannot be called
in aid to supplement the provisions of the
Act. In our view, even in a case where the
special law does not exclude the provisions
of Sections 4 to 24 of the Limitation Act by
an express reference, it would nonetheless be
open to the Court to examine whether and to
what extent the nature of those provisions or
the nature of the subject-matter and scheme
of the special law exclude their operation.”
30. According to Hukumdev Narain Yadav (supra), even if
there exists no express exclusion in the special law,
the court reserves the right to examine the provisions
of the special law, and arrived at a conclusion as to
whether the legislative intent was to exclude the
operation of the Limitation Act.
31. Section 19 of the Act of 1983 prescribes a period
of limitation of three months. This limitation periodPage 18
18
finds no mention in the schedule to the Limitation Act.
Further, Section 19 does not expressly exclude the
application of Sections 4 to 24 of the Limitation Act,
1963.
32. We now turn our attention to the case of Nasiruddin
and Ors. (supra), on which reliance was placed by this
court in the case of Nagarpalika Parishad, Morena
(supra), while dismissing the Special Leave Petition.
The issue in that case was whether the deposit of rent
under section 13(4) of the Rajasthan Premises (Control
of Rent and Eviction) Act, 1950 by a tenant is an
application for the purpose of Section 5 of the
Limitation Act.
33. While examining the nature of the deposit by
tenant, it was held:
“46. ...the deposit by the tenant within
15 days is not an application within the
meaning of Section 5 of the Limitation
Act, 1963. Since the deposit does not
require any application, therefore, the
provisions of Section 5 cannot be extended
where the default takes place in complyingPage 19
19
with an order under Sub-section (4) of
Section 13 of the Act.”
34. Further, explaining as to why Section 5 of the
Limitation Act is not applicable, the Court observed:
“The provisions of Section 5 of the
Limitation Act must be construed having
regard to Section 3 thereof. For filing an
application after the expiry of the period
prescribed under the Limitation Act or any
special statute a cause of action must
arise. Compliance of an order passed by a
Court of Law in terms of a statutory
provision does not give rise to a cause of
action. On failure to comply with an order
passed by a Court of Law instant
consequences are provided for under the
statute. The Court can condone the default
only when the statute confers such a power
on the Court and not otherwise. In that
view of the matter we have no other option
but to hold that Section 5 of the
Limitation Act, 1963 has no application in
the instant case.”
[emphasis laid by this Court]
It is evident on a plain reading of the judgment in
that case, that the reason why Section 5 of the
Limitation Act was said to be inapplicable to the
Rajasthan Act, Section 13(4), was because of the nature
of the specific provision in question. It was held thatPage 20
20
Section 5 of the Limitation Act is not applicable to
Section 13(4), as the deposit of rent by the tenant
cannot be said to be an application for the purpose of
Section 5 of the Limitation Act. This case cannot be
said to be relevant to the facts of the present case,
as Section 5 of the Limitation Act has got application
for the purpose of Section 19 of the Act of 1983, and
the cause of action accrued to the appellant when the
Tribunal passed the award.
35. We now direct our attention to the second case i.e.
Union of India v. Popular Construction (supra)on which
reliance was placed by this Court while dismissing the
Special Leave Petition in the case of Nagarpalika
Parishad, Morena (supra). The issue therein was
whether Sections 4 to 24 of the Limitation Act would
be applicable to Section 34 of the Arbitration Act,
1996.
36. The wording of Section 34(3) of the Arbitration
Act, 1996, reads thus:Page 21
21
“34. (3) An application for setting
aside may not be made after three
months have elapsed from the date on
which the party making that
application had received the arbitral
award or, if a request had been made
under section 33, from the date on
which that request had been disposed
of by the arbitral tribunal:
Provided that if the court is
satisfied that the applicant was
prevented by sufficient cause from
making the application within the said
period of three months it may
entertain the application within a
further period of thirty days, but not
thereafter."
[emphasis laid by this Court]
While examining the provision of Section 34, the Court
in Popular Construction case (supra) observed as
under:
“8. Had the proviso to Section 34
merely provided for a period
within which the Court could
exercise its discretion, that
would not have been sufficient to
exclude Sections 4 to 24 of the
Limitation Act because "mere
provision of a period of
limitation in howsoever
peremptory or imperative languagePage 22
22
is not sufficient to displace the
applicability of Section 5.”
[emphasis laid by this Court]
While holding that Section 5 is not applicable to
Section 34(3), it was held that the presence of the
words “but not thereafter” operate as an express
exclusion to Section 5 of the Limitation Act.
“12. As far as the language of
Section 34 of the 1996 Act is
concerned, the crucial words are
'but not thereafter' used in the
proviso to sub-section (3). In our
opinion, this phrase would amount
to an express exclusion within the
meaning of Section 29(2) of the
Limitation Act, and would
therefore bar the application of
section 5 of that Act. Parliament
did not need to go further. To
hold that the Court could
entertain an application to set
aside the Award beyond the
extended period under the proviso,
would render the phrase 'but not
thereafter' wholly otiose. No
principle of interpretation would
justify such a result.”
(Emphasis laid down by the Court)
37. Section 19 of the Act of 1983, does not contain any
express rider on the power of the High Court toPage 23
23
entertain an application for revision after the expiry
of the prescribed period of three months. On the
contrary, the High Court is conferred with suo moto
power, to call for the record of an award at any time.
It cannot, therefore, be said that the legislative
intent was to exclude the applicability of Section 5 of
the Limitation Act to Section 19 of the Act of 1983.
38. In our opinion, it is unnecessary to delve into the
question of whether the Arbitral Tribunal constituted
under the Act is a Court or not for answering the issue
in the present case, as the delay in filing the
revision has occurred before the High Court, and not
the Arbitral Tribunal.
Answer to Point No.2
39. In light of the reasons recorded above, we are of
the opinion that the case of Nagar Palika Parishad,
Morena (supra) was decided erroneously. Section 5 of
the Limitation Act is applicable to Section 19 of the
Act of 1983. No express exclusion has been incorporatedPage 24
24
therein, and there is neither any evidence to suggest
that the legislative intent was to bar the application
of Section 5 of the Limitation Act on Section 19 of the
Act of 1983. The cases which were relied upon to
dismiss the Special Leave Petition, namely Nasiruddin
(supra) and Popular Construction (supra) can be
distinguished both in terms of the facts as well as the
law applicable, and thus, have no bearing on the facts
of the present case.
40. For the reasons stated supra, we answer the points
framed by us in the affirmative in favour of the
appellants. The impugned judgments and orders are set
aside and both the appeals are allowed. The delay in
filing revision petitions is condoned and the cases are
remanded to the High Court to examine the same on
merits. We request the High Court to dispose of the
cases as expeditiously as possible.
………………………………………………………………………J.
Page 25
25
[T.S. THAKUR]
………………………………………………………………………J.
[V. GOPALA GOWDA]
………………………………………………………………………J.
[C. NAGAPPAN]
New Delhi,
August 6, 2014
“Whether Provision of Section 5 of the
Limitation Act is applicable to revision
filed under Section 19 in the High
Court?”
“19. High Court’s power of revision –
(1)-
The High Court may suo motu at any time
or on an application made to it within
three months of the award by an aggrieved
party, call for the record of any case in
which an award has been made under this
Act by issuing a requisition to the
Tribunal, and upon receipt of such
requisition the Tribunal shall send or
cause to be sent to that Court the
concerned award and record thereof.
(2) If it appears to the High Court
that the Tribunal –
(a) has exercised a jurisdiction
not vested in it by law; or
(b) has failed to exercise a
jurisdiction so vested; or
(c) has acted in exercise of its
jurisdiction illegally, or
with material irregularity;
or
(d) has misconducted itself or
the proceedings; or
(e) has made an award which is
invalid or has been
improperly procured by any
party to the proceedings,
the High Court may make such order in the
case as it thinks fit.
(3) The High Court shall in deciding
any revision under this sectionPage 8
8
exercise the same powers and
follow the same procedure as far
as may be, as it does in deciding
a revision under Section 115 of
the Code of Civil Procedure,
1908(No.5 of 1908).
(4) The High Court shall cause a copy
of its order in revision to be
certified to the Tribunal.
Explanation.-For the purposes of this
section, an award shall include an
“interim” award.”
Section 5 of the Limitation Act
provides that an
appeal may be admitted after the limitation period has
expired, if the appellant satisfies the court that
there was sufficient cause for delay.
26. Section 29 of the Limitation Act is the saving
section. Sub-section (2) reads as follows:
Page 14
14
“(2) 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.”
Sub section (2) thus, provides that Sections 4 to 24 of
the Limitation Act shall be applicable to any Act which
prescribes a special period of limitation, unless they
are expressly excluded by that special law.
Section 19 of the Act of 1983, does not contain any
express rider on the power of the High Court toPage 23
23
entertain an application for revision after the expiry
of the prescribed period of three months. On the
contrary, the High Court is conferred with suo moto
power, to call for the record of an award at any time.
It cannot, therefore, be said that the legislative
intent was to exclude the applicability of Section 5 of
the Limitation Act to Section 19 of the Act of 1983.
38. In our opinion, it is unnecessary to delve into the
question of whether the Arbitral Tribunal constituted
under the Act is a Court or not for answering the issue
in the present case, as the delay in filing the
revision has occurred before the High Court, and not
the Arbitral Tribunal.
Answer to Point No.2
39. In light of the reasons recorded above, we are of
the opinion that the case of Nagar Palika Parishad,
Morena (supra) was decided erroneously. Section 5 of
the Limitation Act is applicable to Section 19 of the
Act of 1983. No express exclusion has been incorporatedPage 24
24
therein, and there is neither any evidence to suggest
that the legislative intent was to bar the application
of Section 5 of the Limitation Act on Section 19 of the
Act of 1983. The cases which were relied upon to
dismiss the Special Leave Petition, namely Nasiruddin
(supra) and Popular Construction (supra) can be
distinguished both in terms of the facts as well as the
law applicable, and thus, have no bearing on the facts
of the present case.
40. For the reasons stated supra, we answer the points
framed by us in the affirmative in favour of the
appellants. The impugned judgments and orders are set
aside and both the appeals are allowed. The delay in
filing revision petitions is condoned and the cases are
remanded to the High Court to examine the same on
merits. We request the High Court to dispose of the
cases as expeditiously as possible.
2014 Aug. Part - http://judis.nic.in/supremecourt/filename=41818
T.S. THAKUR, V. GOPALA GOWDA, C. NAGAPPAN
Page 1
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3498 OF 2008
STATE OF M.P. & ANR. ……APPELLANTS
Vs.
ANSHUMAN SHUKLA ……RESPONDENT
WITH
CIVIL APPEAL NO. 1145 OF 2009
J U D G M E N T
V.GOPALA GOWDA, J.
Civil Appeal No.3498 of 2008 arises out of order
dated 30.6.2005 in C.R.No.1330 of 2003 passed by thePage 2
2
Division Bench of the Madhya Pradesh High Court at
Jabalpur relying on the judgment and order dated
13.4.2005 passed by the Full Bench of the Madhya
Pradesh High Court in C.R.No.633 of 2003 etc. The
connected Civil Appeal No.1145 of 2009 arises out of
judgment and order dated 4.7.2006 passed by the
Division Bench of the Madhya Pradesh High Court at
Jabalpur in C.R.No.1 of 2006.
2. Civil Appeal No.3498 of 2008 was heard by a
Division Bench of this Court, wherein by way of
judgment dated 12.05.2008, it was opined that the case
of Nagar Palika Parishad, Morena v. Agrawal
Construction Company1 was not correctly decided and,
thus, the matter required consideration by a larger
bench. It was further opined that the record of the
case be placed before the Hon’ble the Chief Justice of
India for constituting an appropriate Bench. That is
1
2004 (II) MPJR SN 55Page 3
3
how this matter has come up for consideration before
us.
3. As both the appeals are identical, for the sake of
convenience, we would refer to the necessary facts of
C.A.No.3498 of 2008 which are stated hereunder:
The respondent filed a petition under Section 7 of
the Madhya Pradesh Madhyastham Adhikaran Adhiniyam,
1983 (hereinafter referred to as “the Act of 1983”)
raising certain claims about the works contract
executed between the parties. The petition was partly
allowed by the Madhya Pradesh Arbitration Tribunal vide
its award dated 18.6.2003. An amount of Rs.6,05,624/-
with interest @12% per annum was awarded from
24.04.1998 till the date of realisation.
4. Being aggrieved, the appellants filed a Civil
Revision No.1330 of 2003 before the High Court of
Madhya Pradesh under Section 19 of the Act of 1983,
along with an application under Section 5 of thePage 4
4
Limitation Act, 1963 (hereinafter referred to as the
“Limitation Act”) to condone the delay in filing the
revision.
5. The High Court observed in its order dated
07.05.2004 in the Revision that the view expressed by
the Division Bench of the High Court in Nagar Palika
Parishad, Morena v. Agrawal Construction Company2
required consideration by a larger Bench on the
question of:
“Whether Provision of Section 5 of the
Limitation Act is applicable to revision
filed under Section 19 in the High
Court?”
6. After the reference was made, the matter in
Nagarpalika Parishad, Morena (supra) came up for
consideration before a division bench of this Court.
While dismissing the petition at the threshold, it was
observed in an order dated 27.08.20043:
2
2004 MLJ 374
3Page 5
5
“……In our view there is no infirmity in
the impugned judgment. The authority in
the case of Nasiruddin and Ors. v. Sita
Ram Agarwal (2003) 2 SCC 577 has been
correctly followed. Same view has also
been taken by this Court in the case of
Union of India v. Popular Construction
Co. (2001) 8 SCC 470.
The Special Leave Petition stands
dismissed with no order as to costs.”
7. The full bench of the High Court in the order dated
13.04.2005, held that the dismissal of a special leave
petition at the threshold stage by the Supreme Court is
a binding precedent, and must be followed by the courts
below. It was however also observed that no specific
time limit can be fixed for exercising the suo motu
revisional power under Section 19 of the Act of 1983.
It was further held that the power has to be exercised
within reasonable time which depends upon the nature of
the order to be revised and other facts and
circumstances of the case. The full bench of the High
Court directed to place the revision petition before
2004(II) MPJR SN 374Page 6
6
the appropriate bench for consideration in accordance
with law.
8. The Civil Revision No. 1330 of 2003 which was
barred by time of 80 days was dismissed by the High
Court for the reasons given by the Full Bench in its
order dated 13.04.2005.
9. Being aggrieved by the order of the High Court, the
appellants filed a special leave petition before this
Court against the dismissal of revision. The Division
Bench of this court vide order dated 12.05.2008 was of
the opinion that the case of Nagar Palika Parishad,
Morena (supra) had been incorrectly dismissed at the
threshold and that the same requires consideration by a
larger Bench and further directed that the records of
the case be placed before the Hon’ble the Chief Justice
of India for constituting an appropriate Bench. Thus,
the matter came before us for consideration.
10. First of all, in order to appreciate rival legal
submissions, it would be necessary to consider SectionPage 7
7
19 of the Act of 1983, which relates to revision and
its limitation, which reads as under :-
“19. High Court’s power of revision –(1)-
The High Court may suo motu at any time
or on an application made to it within
three months of the award by an aggrieved
party, call for the record of any case in
which an award has been made under this
Act by issuing a requisition to the
Tribunal, and upon receipt of such
requisition the Tribunal shall send or
cause to be sent to that Court the
concerned award and record thereof.
(2) If it appears to the High Court
that the Tribunal –
(a) has exercised a jurisdiction
not vested in it by law; or
(b) has failed to exercise a
jurisdiction so vested; or
(c) has acted in exercise of its
jurisdiction illegally, or
with material irregularity;
or
(d) has misconducted itself or
the proceedings; or
(e) has made an award which is
invalid or has been
improperly procured by any
party to the proceedings,
the High Court may make such order in the
case as it thinks fit.
(3) The High Court shall in deciding
any revision under this sectionPage 8
8
exercise the same powers and
follow the same procedure as far
as may be, as it does in deciding
a revision under Section 115 of
the Code of Civil Procedure,
1908(No.5 of 1908).
(4) The High Court shall cause a copy
of its order in revision to be
certified to the Tribunal.
Explanation.-For the purposes of this
section, an award shall include an
“interim” award.”
11. Following submissions were made by the learned
counsel for the parties in support of their claim.
12. Learned counsel on behalf of the appellants
contended that the High Court failed to consider that
the revision petition has been preferred under Section
19 of the Act of 1983 and the delay of 80 days should
have been condoned by it.
13. It was further contended by the learned counsel on
behalf of the appellants that the High Court should
have considered that provision of Section 5 of the
Limitation Act, would be applicable while entertaining
a revision petition under Section 19 of the Act ofPage 9
9
1983. There was also failure on the part of the High
Court for having not exercised the suo motu revisionary
powers under the Act in the circumstances of the case.
14. It was further contended that the judgments
referred in the Full Bench order before the High Court
are not applicable in the circumstance of the case.
15. Regarding Section 19 of the Act of 1983, it was
contended by the learned counsel that the proviso to
Section 19 was added only in the year 2005 though the
issue is concerned with the pre-amendment provision,
when such proviso, specifically conferring power to
condone delay was not there.
16. It was also contended that the question - whether
the Arbitral Tribunal constituted under the Act is a
“Court” or not, need not be decided as Section 19(3) of
the Act of 1983 provides that while exercising the
power of revision, the High Court will exercise the
same powers and will follow the same procedures as itPage 10
10
does in deciding a revision under Section 115 of the
Civil Procedure Code.
17. It was further contended by the learned counsel
appearing on behalf of the appellants that the order in
the case of Nagarpalika Parishad, Morena (supra) does
not lay down the correct legal position. The order was
passed sub-silentio and is per incurium as it neither
considers the aforesaid legal issues and submissions
nor does it take into account the relevant legal
provisions and the Scheme of the Act or various case
laws on the point. The judgments relied on by this
Court in the case of Nagarpalika Parishad, Morena
(supra) are not applicable to the issues arising here
and are distinguishable on facts.
18. On the other side, in the counter affidavit filed
by the respondents in the connected C.A. No. 1145 of
2009, it is stated that the appellants have been trying
to mislead this Hon’ble Court by stating that the
Application was preferred under Section 5 of the
Limitation Act. However, by a bare perusal of thePage 11
11
application for the condonation of delay, it can be
seen that the application was preferred under the
amended provisions of Section 19 of the Act. The
benefit of the amended Section 19 of the Act could not
be given to the appellants as the provisions were not
made with retrospective effect. The amendment came into
effect on 29.08.2005, much after the expiry period to
prefer an application under Section 19 of the Act. The
High Court has very rightly held that the Revision was
time barred. Since no such provision existed on the
date of filing of application for condonation of delay,
the appellants were not entitled to get the delay
condoned.
19. We have heard the learned counsel for the parties
and with reference to the above factual and rival legal
contentions urged on behalf of the parties the
following points would arise for our consideration:
1)Whether the provisions of Limitation Act are
applicable to the provisions of Madhya Pradesh
Madhyastham Adhikaran Adhiniyam, 1983?Page 12
12
2)What Order?
Answer to Point No.1
20. The Madhya Pradesh Madhyastham Adhikaran Adhiniyam,
1983 came into force with effect from 01.03.1985. It
was enacted to provide for the establishment of a
Tribunal to arbitrate on disputes to which the State
Government or a Public Undertaking (wholly or
substantially owned or controlled by the State
Government), is a party and for matters incidental
thereto or connected therewith.
21. The Arbitral Tribunal is constituted in terms of
Section 3 of the Act of 1983, for resolving all
disputes and differences pertaining to works contract
or arising out of or connected with execution,
discharge or satisfaction of any such works contract.
22. Section 7 of the Act provides for reference to
Tribunal. Such reference may be made irrespective of
whether the agreement contains an arbitration clause or
not. Section 7-A of the Act provides for thePage 13
13
particulars on the basis whereof the reference petition
is to be filed.
23. Section 19 of the Act confers the power of revision
on the High Court. It provides that the aggrieved party
may make an application for revision before the High
Court within three months of the date of the award.
This Section was amended in 2005, to confer the power
on the High Court to condone the delay. Since this
dispute pertains prior to 2005, thus, the provision of
the unamended Act shall apply in the present case.
24. The Limitation Act, 1963 is the general legislation
on the law of limitation.
25. Section 5 of the Limitation Act provides that an
appeal may be admitted after the limitation period has
expired, if the appellant satisfies the court that
there was sufficient cause for delay.
26. Section 29 of the Limitation Act is the saving
section. Sub-section (2) reads as follows: Page 14
14
“(2) 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.”
Sub section (2) thus, provides that Sections 4 to 24 of
the Limitation Act shall be applicable to any Act which
prescribes a special period of limitation, unless they
are expressly excluded by that special law.
27. This Court in the case of Mukri Gopalan v.
Cheppilat Puthanpuravil Aboobacker4 examined the
question of whether the Limitation Act will apply to
the Kerala Buildings (Lease and Rent) Control Act,
1965. While holding that the appellate authority under
4
(1995) 5 SCC 5Page 15
15
the Kerala Act acts as a Court, it was held that since
the Act prescribes a period of limitation, which is
different from the period of limitation prescribed
under the Limitation Act, and there is no express
exclusion of Sections 4 to 24 of the Limitation Act, in
the above (Lease & Rent) Control Act, thus, those
Sections shall be applicable to the Kerala Act.
While examining the provisions of Section 29(2) of
the Limitation Act, it was observed:
“8. A mere look at the aforesaid provision
shows for its applicability to the facts of
a given case and for importing the machinery of
the provisions containing Sections 4 to 24 of
the Limitation Act the following two
requirements have to be satisfied by the
authority invoking the said provision:
(i) There must be a provision for period of
limitation under any special or local law in
connection with any suit, appeal or
application.
(ii) The said prescription of period of
limitation under such special or local law
should be different from the period prescribed
by the schedule to the Limitation Act.”Page 16
16
28. It was further held that if the two above
conditions are satisfied, then the following
implications would follow:
“9. If the aforesaid two requirements are
satisfied the consequences contemplated by
Section 29(2) would automatically follow.
These consequences are as under:
(i) In such a case Section 3 of the
Limitation Act would apply as if the period
prescribed by the special or local law was
the period prescribed by the schedule.
(ii) For determining any period of limitation
prescribed by such special or local law for
a suit, appeal or application all the
provisions containing Sections 4 to
24(inclusive) would apply insofar as and to
the extent to which they are not expressly
excluded by such special or local law.”
[emphasis laid by this Court]
29. Further, in the case of Hukumdev Narain Yadav v.
Lalit Narain Mishra5, a three judge Bench of this
court, while examining whether the Limitation Act would
be applicable to the provisions of Representation of
People Act, observed as under:
5
(1974)2 SCC 133Page 17
17
“17. ....but what we have to see is whether
the scheme of the special law, that is in
this case the Act, and the nature of the
remedy provided therein are such that the
Legislature intended it to be a complete code
by itself which alone should govern the
several matters provided by it. If on an
examination of the relevant provisions it is
clear that the provisions of the Limitation
Act are necessarily excluded, then the
benefits conferred therein cannot be called
in aid to supplement the provisions of the
Act. In our view, even in a case where the
special law does not exclude the provisions
of Sections 4 to 24 of the Limitation Act by
an express reference, it would nonetheless be
open to the Court to examine whether and to
what extent the nature of those provisions or
the nature of the subject-matter and scheme
of the special law exclude their operation.”
30. According to Hukumdev Narain Yadav (supra), even if
there exists no express exclusion in the special law,
the court reserves the right to examine the provisions
of the special law, and arrived at a conclusion as to
whether the legislative intent was to exclude the
operation of the Limitation Act.
31. Section 19 of the Act of 1983 prescribes a period
of limitation of three months. This limitation periodPage 18
18
finds no mention in the schedule to the Limitation Act.
Further, Section 19 does not expressly exclude the
application of Sections 4 to 24 of the Limitation Act,
1963.
32. We now turn our attention to the case of Nasiruddin
and Ors. (supra), on which reliance was placed by this
court in the case of Nagarpalika Parishad, Morena
(supra), while dismissing the Special Leave Petition.
The issue in that case was whether the deposit of rent
under section 13(4) of the Rajasthan Premises (Control
of Rent and Eviction) Act, 1950 by a tenant is an
application for the purpose of Section 5 of the
Limitation Act.
33. While examining the nature of the deposit by
tenant, it was held:
“46. ...the deposit by the tenant within
15 days is not an application within the
meaning of Section 5 of the Limitation
Act, 1963. Since the deposit does not
require any application, therefore, the
provisions of Section 5 cannot be extended
where the default takes place in complyingPage 19
19
with an order under Sub-section (4) of
Section 13 of the Act.”
34. Further, explaining as to why Section 5 of the
Limitation Act is not applicable, the Court observed:
“The provisions of Section 5 of the
Limitation Act must be construed having
regard to Section 3 thereof. For filing an
application after the expiry of the period
prescribed under the Limitation Act or any
special statute a cause of action must
arise. Compliance of an order passed by a
Court of Law in terms of a statutory
provision does not give rise to a cause of
action. On failure to comply with an order
passed by a Court of Law instant
consequences are provided for under the
statute. The Court can condone the default
only when the statute confers such a power
on the Court and not otherwise. In that
view of the matter we have no other option
but to hold that Section 5 of the
Limitation Act, 1963 has no application in
the instant case.”
[emphasis laid by this Court]
It is evident on a plain reading of the judgment in
that case, that the reason why Section 5 of the
Limitation Act was said to be inapplicable to the
Rajasthan Act, Section 13(4), was because of the nature
of the specific provision in question. It was held thatPage 20
20
Section 5 of the Limitation Act is not applicable to
Section 13(4), as the deposit of rent by the tenant
cannot be said to be an application for the purpose of
Section 5 of the Limitation Act. This case cannot be
said to be relevant to the facts of the present case,
as Section 5 of the Limitation Act has got application
for the purpose of Section 19 of the Act of 1983, and
the cause of action accrued to the appellant when the
Tribunal passed the award.
35. We now direct our attention to the second case i.e.
Union of India v. Popular Construction (supra)on which
reliance was placed by this Court while dismissing the
Special Leave Petition in the case of Nagarpalika
Parishad, Morena (supra). The issue therein was
whether Sections 4 to 24 of the Limitation Act would
be applicable to Section 34 of the Arbitration Act,
1996.
36. The wording of Section 34(3) of the Arbitration
Act, 1996, reads thus:Page 21
21
“34. (3) An application for setting
aside may not be made after three
months have elapsed from the date on
which the party making that
application had received the arbitral
award or, if a request had been made
under section 33, from the date on
which that request had been disposed
of by the arbitral tribunal:
Provided that if the court is
satisfied that the applicant was
prevented by sufficient cause from
making the application within the said
period of three months it may
entertain the application within a
further period of thirty days, but not
thereafter."
[emphasis laid by this Court]
While examining the provision of Section 34, the Court
in Popular Construction case (supra) observed as
under:
“8. Had the proviso to Section 34
merely provided for a period
within which the Court could
exercise its discretion, that
would not have been sufficient to
exclude Sections 4 to 24 of the
Limitation Act because "mere
provision of a period of
limitation in howsoever
peremptory or imperative languagePage 22
22
is not sufficient to displace the
applicability of Section 5.”
[emphasis laid by this Court]
While holding that Section 5 is not applicable to
Section 34(3), it was held that the presence of the
words “but not thereafter” operate as an express
exclusion to Section 5 of the Limitation Act.
“12. As far as the language of
Section 34 of the 1996 Act is
concerned, the crucial words are
'but not thereafter' used in the
proviso to sub-section (3). In our
opinion, this phrase would amount
to an express exclusion within the
meaning of Section 29(2) of the
Limitation Act, and would
therefore bar the application of
section 5 of that Act. Parliament
did not need to go further. To
hold that the Court could
entertain an application to set
aside the Award beyond the
extended period under the proviso,
would render the phrase 'but not
thereafter' wholly otiose. No
principle of interpretation would
justify such a result.”
(Emphasis laid down by the Court)
37. Section 19 of the Act of 1983, does not contain any
express rider on the power of the High Court toPage 23
23
entertain an application for revision after the expiry
of the prescribed period of three months. On the
contrary, the High Court is conferred with suo moto
power, to call for the record of an award at any time.
It cannot, therefore, be said that the legislative
intent was to exclude the applicability of Section 5 of
the Limitation Act to Section 19 of the Act of 1983.
38. In our opinion, it is unnecessary to delve into the
question of whether the Arbitral Tribunal constituted
under the Act is a Court or not for answering the issue
in the present case, as the delay in filing the
revision has occurred before the High Court, and not
the Arbitral Tribunal.
Answer to Point No.2
39. In light of the reasons recorded above, we are of
the opinion that the case of Nagar Palika Parishad,
Morena (supra) was decided erroneously. Section 5 of
the Limitation Act is applicable to Section 19 of the
Act of 1983. No express exclusion has been incorporatedPage 24
24
therein, and there is neither any evidence to suggest
that the legislative intent was to bar the application
of Section 5 of the Limitation Act on Section 19 of the
Act of 1983. The cases which were relied upon to
dismiss the Special Leave Petition, namely Nasiruddin
(supra) and Popular Construction (supra) can be
distinguished both in terms of the facts as well as the
law applicable, and thus, have no bearing on the facts
of the present case.
40. For the reasons stated supra, we answer the points
framed by us in the affirmative in favour of the
appellants. The impugned judgments and orders are set
aside and both the appeals are allowed. The delay in
filing revision petitions is condoned and the cases are
remanded to the High Court to examine the same on
merits. We request the High Court to dispose of the
cases as expeditiously as possible.
………………………………………………………………………J.
Page 25
25
[T.S. THAKUR]
………………………………………………………………………J.
[V. GOPALA GOWDA]
………………………………………………………………………J.
[C. NAGAPPAN]
New Delhi,
August 6, 2014
