LIMITATION OF SUITS, APPEALS AND APPLICATION
3. (1) Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.
(2) For the purposes of this Act,–
(a) a suit is instituted,–
(i) in an ordinary case, when the plaint is presented to the proper officer;
(ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and
(iii) in the case of a claim against a company which is being wound up by the Court, when the claimant first sends in his claim to the official liquidator;
(b) any claim by way of a set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted–
(i) in the case of a set off, on the same date as the suit in which the set off is pleaded;
(ii) in the case of a counter claim, on the date on which the counter claim is made in Court;
(c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that Court.
15. After having comparative study of definition as provided under section 2 inconsonance with Article 120 of the Act, it is evident that in Section 2 there happens to be non presence of appellant/respondent. Furthermore, Article 120 or 121 did not deal with petitioner or O.P. In likewise manner it also did not say regarding presence of applicant.
16. In its continuity, it has also to be seen whether any kind of nomenclature has been prescribed to particular nature of litigation. As stated above, CPC has not defined, though presence of plaintiff, defendant, appellant/respondent are there at relevant places. In likewise manner,General Clauses Act is also silent on that very score. The High Court Rules governing the procedure of civil court as well as High Court on its own, did not properly identify the same. Therefore, nature of petition is not to be identified in accordance with the nomenclature of the party.
17. At the present juncture, Section 141 of the CPC is also to be taken note of which reads as follows:-
141. Miscellaneous proceedings.– The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.
[Explanation.– In this section, the expression “proceedings” includes proceedings under Order IX, but does not include any proceeding under article 226 of the Constitution.]
18. That means to say, the procedure so prescribed under CPC is not at all found applicable with regard to writ petition under the banner of Article 226 of the Constitution of India. Legislature was very much conscious with regard to applicability of procedure prescribed under CPC relating to proceeding in any subordinate court of civil jurisdiction and as it is evident, scope of Article 227 of the Constitution has been confined relating to proceeding of the subordinate court coming out of civil/criminal jurisdiction, hence, procedure of CPC has not been made inapplicable relating to the petition filed under Article 227 of the constitution. Had there been apart fromArticle 226 of the Constitution, it should also have Article 227 along with Article 226 of the Constitution.
United India Insurance Company Limited v. Orient Treasures (P) Ltd reported in (2016) 3 SCC 49
it has been held as follows:-
” 39. It is a settled rule of interpretation that when the words of a statute are clear, plain or unambiguous, i.e., they are reasonably susceptible to only one meaning, the courts are bound to give effect to that meaning irrespective of consequences. In other words, when a language is plain and unambiguous and admits of only one meaning, no question of construction of a statue arises, for the Act speaks for itself. Equally well-settled rule of interpretation is that whenever the NOTE is appended to the main Section, it is explanatory in nature to the main Section and explains the true meaning of the main Section and has to be read in the context of main Section (See – G.P.Singh -Principle of Statutory Interpretation 13th Edition page 50 and 172). This analogy, in our considered opinion, equally applies while interpreting the words used in any contract.”
20. Therefore, it is found that exclusion of Article 226 in terms of Section 141 of the CPC makes the petition purported to be under Article 226 of the Constitution immune from performance of obligation as prescribed under CPC, while all other kinds of proceeding is to be proceeded in terms thereof, unless and until having their own procedure ousting the jurisdiction of Civil Court in terms of Section 4 of the CPC. As, Article 227 of the Constitution is confined only with regard to proceeding relating to Civil Court or Tribunal, and further, the Court exercising such jurisdiction is to see propriety of the order, having within the ambit of law, thus, applicability of CPC is found applicable whenever it relates with an order passed by the Civil Court. Because of the fact that Article 120 as well as 121 of the Limitation Act is applicable to civil proceeding consequent thereupon, it should also be found applicable to the application filed under Article 227 of the Constitution.
21. Learned counsel for the petitioner has referred AIR 1996 SC 1092 in order to substantiate his plea that like Article 226, Article 227 of the Constitution has also been excluded from aforesaid procedural obligation and so, application of Article 120, 121 of the Limitation Act should not be made applicable. After going through the facts of the case, it is evident that a petition was filed under Article 226 of the Constitution of India whereunder question of substitution arose and while dealing with the same, though the matter in controversy was not relating to Article 227 of the Constitution but the same has also been inumbrate over Article 227 of the Constitution. However, while considering the question of substitution, it has been held that ambit and scope ofArticle 226, 227 of the Constitution could not be barricaded by a procedure, however, the Court has to formulate it own procedure and to facilitate the same, the Court can take recourse of Order XXII of the CPC. For better appreciation para-10 thereof is quoted hereinbelow:-
10. As such even if it is held that Order 22 of the Code is not applicable to writ proceedings or writ appeals, it does not mean that the petitioner or the appellant in such writ petition or writ appeal can ignore the death of the respondent if the right to pursue remedy even after death of the respondent survives. After the death of the respondent it is incumbent on the part of the petitioner or the appellant to substitute the heris of such respondent within a reasonable time. For purpose of holding as to what shall be a reasonable time, the High Court may take note of the period prescribed under Article 120 of the Limitation Act for substituting the heirs of the deceased defendant or the respondent. However, there is no question of automatic abatement of the writ proceedings. Even if an application is filed beyond 90 days of the death of such respondent, the Court can take into consideration the facts and circumstances of a particular case for purpose of condoning the delay in filing the application for substitution of the legal representative. This power has to be exercised as well known and settled principles in respect of exercise of discretionary power by the High Court. If the High Court is satisfied that delay, if any in substituting the heirs of the deceased respondent was not intentional, and sufficient cause has been shown for not taking the steps earlier, the High Court can substitute the legal representative and proceed with the hearing of the writ petition or the writ appeals, as the case may be. At the same time the High Court has to be conscious that after lapse of time a valuable right accrues to the legal representative of the deceased respondent and he should not be compelled to contest a claim which due to the inaction of the petitioner or the appellant has become final.
22. However, while observing so, neither there was argument before the Hon’ble Court regarding distinct character of Article 226 as well as Article 227 of the Constitution, nor the Apex Court had occasion to scrutinize the relevant judicial pronouncement on that score.
23. Learned counsel for the petitioner also referred 1978 PLJR 659 wherein the question of substitution relating to Civil Revision was involved. During consideration of prayer mainly, nomenclature of party arrayed at the time of filing of petition was specifically considered and in the aforesaid background, it has been observed that as there happens to be absence of aforesaid heading under Article 120 of the Limitation Act, therefore, is found non applicable.
24. The High Court Rules, though, by a recent amendment has identified both two petitions under Article 226 as well as Article 227 of the Constitution separable to each other and further, distinguishable to each other and for that, a petition under Article 227 of the Constitution has been identified as Civil Miscellaneous petition and not as a writ commonly used conjointly along with Article 226 of the Constitution.
25. Apart from this, it has also to be taken note of that against an order passed under Article 226of the Constitution, Letters Patent Appeal is permissible while order under Article 227 of the Constitution goes out of purview of Letters Patent Appeal.