ကာလစည်းကမ်းသတ်ဥပဒေ[ Part Three ]

ဆရာကြီးဦးမြသင်ကြားပို့ချချက်များ

ကာလစည်းကမ်းသတ်ဥပဒေ[ Part Three ]

တရားမမှုများတွင်တရားလိုဘက်ကိုဒုက္ခအများဆုံးပေးသည့်ဥပဒေမှာ၊ကာလစည်းကမ်းသတ်ဥပဒေဖြစ်သည်။

ကာလစည်းကမ်းသတ်အရအမှုစွဲဆိုခြင်းကိုပိတ်ပင်ထားခြင်းမှာ၊တရားလိုဘက်ကိုနစ်နာစေ၍မမျှတဟုအချို့ကသဘောရရှိကြသည်။

Privy Council Appeal No. 44 of 1932.

Allahabad Appeal No. 38 of 1929.

Maqbul Ahmad and others - Appellants

                        V.

Onkar Pratap Narain Singh and others - Respondents

FROM THE HIGH COURT OF JUDICATURE AT ALLAHABAD.

JUDGMENT OF THE LORDS OF THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, DELIVERED THE 7TH FEBRUARY 1935.

Present at the Hearing:

LORD TOMLIN.

LORD THANKERTON.

LORD RUSSELL OF KILLOWEN.

SIR LANCELOT SANDERSON.

SIR SHADI LAL.

[Delivered by Lord Tomlin.]

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Maqbul Ahmad

           vs 

Onkar Pratap Narain Singh 

on 7 February,

Equivalent citations: (1935)37BOMLR533

JUDGMENT, Tomlin, J.

အမှုတွင်၊ပရီဗွီကောင်စီကအမှုသည်တဦးဦးအား၊ယင်းဥပဒေအရနစ်နာစေခြင်းမှကုစားရန်တရားရုံးတွင်လုပ်ပိုင်ခွင့်မရှိကြောင်းအောက်ပါအတိုင်းထုံးဖွဲ့သည်-

[ Outside the limited discretion conferred by the Act in certain cases, the Court has no general discretion to relieve a suitor from the operation of its provisions. ]

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ပရီဗွီကောင်စီ၏စီရင်ချက်စာမျက်နှာ-၄၊အပိုဒ်-၂၂တွင်အောက်ပါအတိုင်းပြဆိုသည်-

[ 22. Secondly, it was urged that there was some sort of judicial discretion which would enable the Court to relieve the appellants from the operation of the Indian Limitation Act in a case of hardship and that this Was a case of hardship, and in particular because it was alleged that the decree-holder was in regard to the proceedings which he took by way of execution in some way misled by some mistake in the form of the preliminary decree. 

It is enough to say that there is no authority to support the proposition contended for. 

In their Lordships' opinion it is impossible to hold that, in a matter which is governed by Act, an Act which in some limited respects gives the Court a statutory discretion, there can be implied in the Court, outside the limits of the Act, a general discretion to dispense with its provisions. 

It is to be noted that this view is supported by the fact that Section 3 of the Act is peremptory and that the duty of the Court is to notice the Act and give effect to it, even though it is not referred to in the pleadings. ]

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Supreme Court of India အပါအဝင် Bombay High Court, Madras High Court, Allahabad High Court, Delhi High Court တို့က Maqbul Ahmad v. Onkar Pratap Narain Singh (1935) 22 A.I.R. P.C. 85. ပရီဗွီကောင်စီ၏စီရင်ထုံးကိုရည်ညွှန်းကိုးကား၍၊ကာလစည်းကမ်းသတ်နှင့်ပတ်သက်သောဥပဒေပြဿနာတို့ကိုအောက်ပါအတိုင်းဆုံးဖြတ်ခဲ့ကြသည်-

Documents citing Maqbul Ahmad vs Onkar Pratap Narain Singh on 7 February, 1935

Learned counsel, however, referred us to the decision of the Privy Council in Maqbul Ahmad v. Onkar Pratap Narain Singh, AlR 1935 PC 85 and contended that since the court is bound under the provisions of S.3 of the Limitation Act to ascertain for itself whether the suit before it was within time, it would act without jurisdiction if it fails to do so. 

All that the decision relied upon says is that S.3 of the Limitation Act is peremptory and that the court has to take notice of this provision and give effect to it even though the point of limitation is not referred to in the pleadings.

The Privy Council has not said that where the court fails to perform its duty, it acts without jurisdiction. 

If it fails to do its duty, it merely makes an error of law, and an error of law can be corrected only in the manner laid down in the Civil Procedure Code. 

If the party aggrieved does not take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity.

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Learned counsel, however, referred us to the decision of the Privy Council in Maqbul Ahmad v. Onkar Pratap Narain Singh, AIR 1935 PC 85 and contended that since the court is bound under the provisions of S.3 of the Limitation Act to ascertain for itself whether the suit before it was within time, it would act without jurisdiction if it fails to do so. 

All that the decision relied upon says is that S.3 of the Limitation Act is peremptory and that the court has to take notice of this provision and give effect to it even though the point of limitation is not referred to in the pleadings.

The Privy Council has not said that where the court fails to perform its duty, it acts without jurisdiction. 

If it fails to do its duty, it merely makes an error of law, and an error of law can be corrected only in the manner laid down in the Civil Procedure Code. 

If the party aggrieved does not take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity.

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If he delays in making his application for a. copy until that day, then he is applying for a copy when the period of limitation has already expired and following the principles laid down in Maqbul Ahmad v. Pratap Narain Singh (1935) 68 M.L.J. 665 : L.R. 62 I.A. 80 : .L.R. 57 All. 242 (P.C.), I must hold that the extension which is granted to him by the application of Section 4 cannot be combined with the extension which he seeks under Section 12. 

It is clear, therefore, to my mind that the appeal in question was time barred when it was presented on the 7th of July and the view of the appellants themselves that it was necessary for them to apply under Section 5 of the Limitation Act was the correct one.

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Learned counsel, however, referred us to the decision of the Privy Council in Maqbul Ahmad v. Onkar Pratap Narain Singh, AIR 1935 PC 85 and contended that since the court is bound under the provisions of S.3 of the Limitation Act to ascertain for itself whether the suit before it was within time, it would act without jurisdiction if it fails to do so. 

All that the decision relied upon says is that S.3 of the Limitation Act is peremptory and that the court has to take notice of this provision and give effect to it even though the point of limitation is not referred to in the pleadings. 

The Privy Council has not said that where the court fails to perform its duty, it acts without jurisdiction. 

If it fails to do its duty, it merely makes an error of law, and an error of law can be corrected only in the manner laid down in the Civil Procedure Code. 

If the party aggrieved does not take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity.

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The question in the present case has been the subject of a decision of their Lordships of the Privy Council reported in Maqbul Ahmad v. Onkar Pratap Narain Singh (1935) 22 A.I.R.P.C. 85. 

In that case no doubt the matter was slightly different and there was a preliminary decree in a mortgage suit and the period within which an application for a final decree could be made expired in the Civil Court vacation. 

Therefore under Section 4 it would have been open to the decree-holder to apply for his final decree on the day on which the Court re-opened. 

He did make an application but he did it in a Court which had no jurisdiction and his petition was returned to him some days later and on the same day he presented the application to the proper Court. 

He claimed therefore that under the provisions of Section 4 and Section 14(2) his application was within time. 

The question was whether the decree-holder could add periods of limitation under Section 4 and Section 14(2) to the prescribed period. 

On the question of Section 4 on page 248 their Lordships observed as follows:

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The plaint was ordered to be returned on 14th August 1959 for presentation to the proper Court. 

15th and 16th August 1959 were holidays and, therefore, the plaint was presented in the proper Court on 17th August 1959.

The question, therefore, is whether the appellant could be entitled to the benefit of Section 4 of the Limitation Act, 1908, as well as to the benefit of Section 14. 

The legal position is well settled in view of the decision of the Privy Council reported in Maqbul Ahmad v. Onkar Pratap Narain Singh 37 Bom LR 533 : (AIR 1935 PC 85),

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In Maqbool Ahmad vs. Onkar Pratap Narain Singh, (supra) it is held that the period prescribed in the Schedule to Indian Limitation Act, 1908 for bringing a legal proceeding are mandatory since the consequence of expiry of period of limitation is provided by Section 3 of the Act in that the Court is enjoined to dismiss a legal proceeding instituted after the expiry of the prescribed period.

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The case reported as Maqbul Ahmad v. Pratap Narain Singh ILR 62 IA 80] does not lay down that the inherent powers of the Court are controlled by the provisions of the Code. 

It simply holds that the statutory discretion possessed by a Court in some limited respects under an Act does not imply that the Court possesses a general discretion to dispense with the provisions of that Act. 

In that case, an application for the preparation of a final decree was presented by the decree-holder beyond the period of limitation prescribed for the presentation of such an application. 

It was however contended that the Court possessed some sort of judicial discretion which would enable it to relieve the decree-holder from the operation of the Limitation Act in a case of hardship. 

To rebut this contention, it was said at p. 87:

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Learned counsel, however, referred us to the decision of the Privy Council in Maqbul Ahmad v. Onkar Pratap Narain Singh [AIR (1935) PC 85] and contended that since the court is bound under the provisions of Section 3 of the Limitation Act to ascertain for itself whether the suit before it was within time, it would act without jurisdiction if it fails to do so. 

All that the decision relied upon says is that Section 3 of the Limitation Act is peremptory and that it is the duty of the court to take notice of this provision and give effect to it even though the point of limitation is not referred to in the pleadings. 

The Privy Council has not said that where the court fails to perform its duty, it acts without jurisdiction. 

If it fails to do its duty, it merely makes an error of law and an error of law can be corrected only in the manner laid down in the Civil Procedure Code. 

If the party aggrieved does not take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity.

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