What Made Justice. R.F. Nariman Overrule The Judgements He Appeared As Counsel For Losing Side (Part-II)

Mukri Gopalan Vs Cheppilat, 1995 AIR 2272 [This case rejected the arguments of Justice R.F. Nariman that Limitation Act will apply to 'Court' in some other special or local law only in relation to suit, appeal or application of the nature described in the schedule]

This judgement was concerning the interpretation of Section 29 (2) of the Limitation Act, 1963. In this case, the appellant was a tenant who occupied the suit premises of the respondent. Respondent filed Rent control petition seeking eviction of the appellant under Section 11 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (Rent Act). The Rent Control Court passed an order for possession against the appellant.

The appellant got delayed in filing the Appeal. Later appellant filed an appeal along with the application of condonation of delay under Section 5 of the LimitationAct. It is to be noted that appeal, as per Section 18 of the Rent Act was required to be filed within 30 days before the appellate authority who was "District Judge". The Rent Act did not provide any provision for condonation of delay in filing the appeal. Thus, the appellate authority dismissed the appeal being time-barred on the ground that it is not actually a 'court' but merely a 'persona designata' and thus, it has no power to condone the delay in filing the appeal under Section 5 of the Limitation Act, 1963.

The said order passed by Appellant Authority was confirmed by the High Court of Kerala. Appellant filed an appeal before the  Supreme Court where the substantial question of law was framed as:

"Whether the appellate authority constituted under Section 18 of the Kerala Buildings (Lease and Rent Control) Act, 1965 has power to condone the delay in the filing of appeal before it under the said section'?"

In other words, the question was that:

Whether Section 29 (2) read with Section 5 of the Limitation Act, 1963 will apply in condoning delay in filing an appeal before the appellate authority under Section 18 of the Rent Act?

Respondent, in this case, was represented by Justice R.F. Nariman (the then Counsel for Respondent) who intelligently agreed to the well-settled law that appellate authority under Rent Act is 'court' and not 'persona designata'. However, he put forth his submission in some other way. He submitted that appellate authority under Rent Act is a 'court' but not a 'Civil Court' under CPC, thus, Section 29(2) has no applicability to Rent Act. His submission in Mukhri Gopalan Case may be extracted as:

"…Mr. Nariman learned counsel for respondent also fairly stated that these appellate authorities would be courts and would not be persona designata. But in his submission as they are not civil courts constituted and functioning under the Civil Procedure Code as such, they are outside the sweep of Section 29(2) of the Limitation Act."

When the said submission was made, the actual purpose was to state that Section 29 (2) makes clear, that Limitation Act will apply to the court in some other special or local law only in relation to suit, appeal, or application of the nature described in the schedule.

Justice R.F. Nariman in Mukhri Gopalan Case, in order to support his contention also relied on the Parson Tools Case (1975), which held that Limitation Act, 1963 only applies to courts, not to any quasi-judicial authority or tribunals.

The Supreme Court, without going into depth submission made by him, held that:

"22. As a result of the aforesaid discussion it must be held that appellate authority constituted under Section 18 of the Kerala Rent Act, 1965 functions as a court and the period of limitation prescribed therein under Section 18 governing appeals by aggrieved parties will be computed keeping in view the provisions of Sections 4 to 24 of the Limitation Act, 1963 such proceedings will attract Section 29(2) of the Limitation Act and consequently Section 5 of the Limitation Act would also be applicable to such proceedings."

It is relevant to note that the Supreme Court did not go into detail about the arguments set forth by Justice R.F. Nariman that Section 29(2) of the Limitation Act applies only to Civil Court under CPC or any 'Court' in some other special or local law only in relation to suit, appeal or application of the nature described in the schedule.

M.P. Steel Corporation Vs Commnr. Of Central Excise [This case held that Limitation Act will apply to 'court' in some other special or local law only in relation to suit, appeal or application of the nature described in the schedule]

In order to have a proper understanding of the law involved in this case, it is essential to adumbrate the material facts. In this case, the Collector of custom had encashed the bank guarantee given by the appellant who was the company engaged in Shipbreaking activity. Appellant company protested the illegal action of the Department and preferred an appeal directly to CEGAT under Section 129-A of the Customs Act, 1962. On 23.06.1998, the CEGAT allowed the appeal of the appellant and set aside the order of the Collector. Aggrieved by this, Department preferred an appeal before the  Supreme Court. The Supreme Court through its order dated 23.13.2003, allowed the appeal of the Department holding:

"…In our view, the reasoning of CEGAT cannot be sustained. The decision taken by the Collector was not taken in his capacity as Collector (Appeals). Also the order by which respondent is aggrieved is the order passed by the Superintendent. An appeal against that order has to be filed before the Commissioner (Appeals) under Section 128. By virtue of Section 129-A, CEGAT has no jurisdiction to entertain such an appeal…"

After the said judgement was passed by the Supreme Court, the appellant-Company preferred an appeal before the Commissioner (Appeals) along with an application for condonation of delay against the earlier order passed by the Collector encashing the bank guarantee. There were two major reasons given in the application for Condonation of Delay. The same are as follows:

•         (i)Since the appeal was filed by the appellant company before the correct forum after receipt of the Supreme Court judgement, thus, there has         been no delay in filing the appeal;
•         (ii)It is well-settled law that the time taken for pursuing a remedy before another appellate forum is to be excluded for the purpose of computing         the period for filing an appeal.

However, the Commissioner (Appeals) did not consider the contentions of the Appellant company and dismissed the appeal on the ground of delay itself postulating that appeal was filed beyond the period of 60 days plus 30 days provided for under the newly amended Section 128 of the Customs Act, 1962. Appellant filed an appeal before the Customs, Excise and [Service Tax] Appellate Tribunal (CESTAT). CESTAT also dismissed the appeal stating that:

"Commissioner (Appeals) had no power to condone delay beyond the period specified in Section 128."

The Appellant Company aggrieved by the order passed by the CESTAT preferred an appeal before the  Supreme Court. There was majorly two substantial questions involved in this case before the Supreme Court, as to:

            i.Whether the Limitation Act, 1963 applies only to Courts and not to Tribunals?

            ii.Whether the Limitation Act applies only to Civil Court under CPC or any 'Court' in some other special or local law only in relation to suit,             appeal, or application of the nature described in the schedule?

Justice R.F. Nariman after analysing all the provisions of the Limitation Act specifically under Section 13, Section 14, Section 21, Article 130, Article 131 of the Limitation Act emphasised that Limitation Act applies only to suits, appeals and application before the court established under the Constitution of India. It was held by the Court that:

        "8…The Limitation Act, 1963 would show that the bar of limitation contained in the Schedule to the Act applies to suits, appeals, and         applications…"

This is the reason, that Justice R.F. Nariman had to revisit the judgement in Mukri Gopalan vs Cheppilat, 1995 AIR 2272, where he himself was the counsel for the appellant. He vividly stated in M.P. Steel Corporation that:

        "25. Two other judgments of this Court need to be dealt with at this stage. In Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker, (1995) 5          SCC 5, a 2-Judge Bench of this Court held that the Limitation Act would apply to the appellate authority constituted under Section 13 of the          Kerala Buildings (Lease and Rent Control) Act, 1965…"

        "26. Quite apart from Mukri Gopalan's case being out of step with at least five earlier binding judgments of this Court, it does not square also         with the subsequent judgment in Consolidated Engg. Enterprises v. Principal secy., Irrigation Deptt., (2008) 7 SCC.."

Countering the reasoning engrafted in Mukri Gopalan's case, it was held in Para No. 28 that Section 29(2) apply to 'Courts' only in relation to the suit, appeal, and applications of the nature described in the schedule of the Limitation Act. It was held in evident terms that:

        "28. A bare reading of this Section would show that the special or local law described therein should prescribe for any suit, appeal or application         a period of limitation different from the period prescribed by the schedule. This would necessarily mean that such special or local law would have         to lay down that the suit, appeal or application to be instituted under it should be a suit, appeal or application of the nature described in the         schedule. We have already held that such suits, appeals or applications as are referred to in the schedule are only to courts and not to         quasi-  judicial bodies or Tribunals. It is clear, therefore, that only when a suit, appeal or application of the description in the schedule is to be         filed in a court under a special or local law that the provision gets attracted…"

Thus, the  Supreme Court in M.P. Steel Corporation's case held that Mukri Gopalan's case is not a good law to be followed. After giving the cursory reading of the judgement in M.P. Steel Corporation's case and other judgements cited in that case, the following principles emerge in relation to the applicability of the Limitation Act to courts or tribunals:

• (i)That Limitation Act applies to all the Courts and tribunals if the same has been provided in the special statute.

• (ii)Limitation Act does not apply to Tribunals automatically. It will apply if its applicability has been extended by the Special or Local Law to that tribunal.

• (iii)Limitation Act applies automatically to all the courts only in relation to suit, appeal or application of the nature described in the schedule. It means Limitation Act will not automatically apply to the court if the proceedings before it is not in the nature of Suit, appeal, or application.

In this case, Court also held that even if the Limitation Act does not apply to an appeal before the Commissioner (Appeals), then also the principle laid down under Section 14 of the Limitation Act will apply to its proceedings. It means the time taken in pursuing a remedy before another appellate forum will be excluded.

However, after the detailed discussion of the various provisions of the Limitation Act and even holding Mukri Gopalan's case bad law, the relevant operative part of the judgement was delivered on a different aspect of law. Court held that Limitation for the purpose of the present case will not be counted as per the amendment made in Custom Act in 2001 which had reduced the appeal time period from 180 days to 90 days but it will be counted as per old provisions. Since, as per old provisions, the time for filing appeal was 180 days, it was held that, Appellant filed an appeal within the prescribed period of limitation.

It is now relevant to note that judgement passed by the  Supreme Court in Mukri Gopalan's case and in M.P. Steel Corporation's case was delivered by the division bench. Further, someone may call the reasoning given in M.P. Steel Corporation's case as a mere obiter for future purposes because it had very little relevance to the operative part of the judgement. It is in the coming time to see how the larger bench of the Supreme Court deals with these questions. However, one thing is palpable that Justice.R.F. Nariman after analysing almost all the relevant provisions of the Limitation Act in detail, and previous and subsequent judgement, has not left even a scintilla of doubt in making the applicability of Section 29 (2).

The author is an advocate practicing at the Supreme Court of India, views are personal.

Read Part I here