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The Limitation Act, 1963
Section 5 in The Limitation Act, 1963
Section 8 in The Limitation Act, 1963
The Bengal Districts Act, 1836 ]
The Indian Penal Code

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Calcutta High Court
Minor Subir Ranjan Mondal vs Sita Nath Mukherjee on 14 May, 1993
Equivalent citations: AIR 1994 Cal 166, 98 CWN 544
Bench: T Chatterji



ORDER
 

1. Whether S. 5 of the Limitation Act is applicable to an 'application' u/S. 8 of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as "the Act") is the question that needs to be decided in the aforesaid six Revisional Applications. Initially C.O. Nos. 3598 and 3599 of 1991, C.O. No. 3615 of 1991 and C.O. No. 852 of 1991 were heard by me at length and the judgments were reserved. Subsequently, two other revisional applications, namely, C.R. Nos. 2992 and 2993 of 1986, came up for hearing before me in which the same question was involved.

2. The learned lawyers, appearing for the respective parties in the subsequent two revisional applications, wanted to argue the said two revisional applications and for that reason, I had to hear them as well. In order to give opportunities to the learned lawyers, appearing for the parties in the subsequent two revisional applications, I had to reserve my judgments of the other four revisional applications which were heard earlier. C.R. Nos. 2992 and 2993 of 1986 were heard separately and by a common judgment, all the aforesaid Revisional Applications are being disposed of. Since in all the revisional applications a common question of law arises, it would be fit and proper to take up the said question of law first for decision.

3. Accordingly, I proceed to decide the said question of law, referred to hereinabove first, before taking up for decision of each of the revisional applications on merits.

As already stated hereinabove, the question of law that needs to be decided in these revisional applications is whether S. 5 of the Limitation Act can be applied to an "application" u/ S. 8 of the Act or in other words, an application u/ S. 8 of the Act can be filed with a prayer for condonation of delay u/S. 5 of the Limitation Act.

4. Mr. Dasgupta, appearing on behalf of some of the pre-emptors in some of the revisional applications, relying on a Supreme Court decision (Hukumdev Narain Yadav v. Lalit Narayan Mishra), after taking me through the relevant provisions of the Act, submitted that the Act is a self contained and a complete Code, and therefore, the legislature expressly excluded application of S. 5 of the Limitation Act to an "application" under S. 8 of the Act.

5. Mr. Dasgupta next contended that even if the Act is not a self contained and a complete Code, still then, the application of S. 5 of the Limitation Act has been "expressly excluded" to an "application" u/S. 8 of the Act by virtue of S. 29(2) of the Limitation Act, relying on the principles laid down in (Hukumdev Narain Yadav v. Lalit Narayan Mishra). In this connection, Mr. Dasgupta also relied on a Division Bench decision of Orissa High Court (Kulamani Kar v. Orissa Land Reforms Tribunals).

6. The contentions raised by Mr. Dasgupta were seriously contested by the Counsel appearing on behalf of the pre-emptors.

7. In order to find out whether the Act is a self contained and a complete Code, it is necessary to refer and deal with some of !he provisions of the Act and the Rules made thereunder.

8. Section 8 of the Act deals with the right of pre-emption of certain categories of persons named therein. Section 9(6) of the Act gives a right to an aggrieved party to prefer an appeal against an order passed u/S. 8 of the Act before the District Judge, having jurisdiction over the area in which the land is situated, within one month from the date of passing such an order. Rule 8 of the West Bengal Land Reforms Rules lays down the procedure for appeals and fees to be paid under sub-sec. (6) of S. 9 of the Act. S. 5 of the Limitation Act has not been expressly made applicable either in S. 9 of the Act or in Rule 8 of the Rules. Therefore, on a plain reading of S. 9 of the Act and Rule 8 of the West Bengal Land Reforms Rules, it is clear that the provisions of S. 5 of the Limitation Act have neither been expressly included nor expressly excluded in the said Act and the Rule.

9. Section 14(C) of the Act deals with the mode of transfer of land by Scheduled Tribes. Section 14(E) of the Act deals with the power of the Revenue Officer to set aside improper transfers by raiyats. Section 14(G) of the Act gives the power to the Revenue Officer to set aside or sell holding for realisation of certificate dues. S. 14(H) of the Act gives a right to an aggrieved party to file an appeal and a revision from any order made under sub-sec. (4) of S. 14(C) or 14(E) or 14(G) of the Act within the time specified therein. It would be important to notice that S. 5 of the Limitation Act has been expressly made applicable to an appeal filed under S. 14(H) of the Act.

(Emphasis is added).

10. Chapter IIB of the Act deals with ceiling on holdings. Section 14(K) of the Act is a definition section in which definition of ceiling area, etc., has been given. S. 14(M) of the Act lays down different ceiling areas for different categories of raiyats. Section 14(N) of the Act empowers the prescribed authority to determine as to whether the land of a raiyat is situated within an irrigated or non irrigated area. S. 14(O) of the Act provides that an appeal by an aggrieved party may be filed against any determination made by the prescribed authority under S. 14(N) of the Act within 30 days from the date of such determination to the appellate authority or within such further time as the Appellate Authority may, on sufficient cause shown, allow to prefer an appeal to such appellate authority.

(Emphasis is added)

11. On a plain reading of S. 14(O) of the Act, it is clear that ordinarily, the period of limitation for presenting an appeal is 30 days from the date of the order u/ S. 14(N) of the Act and the appellate authority may extend the time to file such appeal if sufficient cause is shown. It is true that S. 5 of the Limitation Act has not, in so many words, been made applicable in S. 14(O) of the Act but from the words used by the legislature in that Section, it cannot be doubted that in fact, S. 5 of the Limitation Act has been expressly made applicable to an appeal filed u/S. 14(O) of the Act.

12. Section 14(T) of the Act casts a duty upon a raiyat to furnish return. Section 14(T)(3) of the Act empowers the Revenue Officer to initiate a proceeding on receipt of a return submitted u/S, 14(T)(1) by a raiyat and he has the jurisdiction to determine the extent of land which is to vest in the State under S, 14(S) or which is to be retained by the raiyat and to take possession of such vested lands. Section 14(T)(3A) of the Act gives the power to the Revenue Officer to determine afresh the extent of land which is to be vested in the State under S. 14(S) of the Act and to take possession of such lands by revising the order passed under sub-sec. (3) of S. 14(T). Section 14(T)(6) of the Act gives power to the Revenue Officer to enquire and decide any question as to whether any trust, endowment or institution is one of public or private nature or exclusively religious or charitable in character and/or both and any question of title incidental thereto, as may be necessary to determine the extent of land which is to vest in the State under S. 14(S) by examining the documents. Section 14(T)(7) says that any person aggrieved by any order made under sub-ss. (3)(a), (5) or (6), may prefer an appeal under S. 54 of the Act. It must be noticed that S. 5 of the Limitation Act has not been expressly made applicable to an appeal preferred again an order made under sub-sec. (3)(a), (5) or (6) of S. 14(T) of the Act.

(Emphasis is added).

13. Section 15A of the Act gives a right to the lawful heir of a bargadar or where there are more than one lawful heir, to such lawful heir of the bargadar, as all the lawful heirs of the bargadars may determine within the prescribed period to continue with his right of cultivation on the death of such bargadar. Rule 2A of the West Bengal Land Reforms (Bargadars) Rules, 1956 makes the period for determination or nomination of a lawful heir and the procedure in respect thereof. It is again significant to note that the provisions of S. 5 of the Limitation Act have been made expressly applicable to an application under S. 15A of the Act.

14. Section 17 of the Act deals with the grounds on which the owner can terminate cultivation of a bargadar. S. 18 of the Act deals with the jurisdiction of the officer or authority to decide certain disputes. S. 18(2) of the Act provides that in deciding any dispute, referred to in S. 18(1) of the Act or otherwise, if any question arises as to whether a person is a bargadar or not and to whom the share of produce is deliverable, such question shall be determined by the officer or authority mentioned in S. 18(1) of the Act.

15. Sectional of the Act bars jurisdiction of the Civil Court to entertain any suit or proceeding in respect of any matter mentioned in Ss. 17, 18, 19B and 20B of the Act. S. 21(3) of the Act says that if any question as to whether a person is or is not a bargadar, arises in the course of any suit, case, appeal or other proceedings before any civil or criminal Court, the Court shall refer it to the officer or authority, mentioned in sub-sec. (1) of S. 18 of the Act for decision.

16. S. 19 of the Act provides that an appeal can be preferred before the Collector against an order of the Revenue Officer passed under Sections 17, 18 and 21(3) of the Act. In this connection, it is necessary to mention here that although the Collector, who is admittedly not a "Court" within the meaning of the Act, has been given power and jurisdiction to hear and dispose of an appeal filed under Section 19 of the Act and Section 5 of the Limitation Act has been expressly made applicable to an appeal filed under Section 19 of the Act by the legislature.

(Emphasis is added).

17. Section 51A of the Act empowers the Revenue Officer to revise any entry in the Record of Rights by publishing a draft of the Record so revised and thereafter by final publication of the Record of Rights. Section 51(A)(5) of the Act gives the right to an aggrieved party to prefer an appeal against the order passed by the Revenue Officer to the prescribed authority, who is superior in rank to the authority from whose order the appeal is preferred, of the district in which the land is situated. Rule 26 of the West Bengal Land Reforms Rules, 1965 lays down the procedure and the period of limitation for filing the appeal under Section 51(A)(5) of the Act and before whom such appeal is to be presented. Proviso to sub-rule (ii) of Rule 26 of the said Rules clearly says that an appeal may be admitted after the period of limitation of 30 days from the date of the order of the Revenue Officer, if the applicant satisfies the Additional District Magistrate of the District, who is the "Prescribed Authority" under this Section, that he had sufficient reasons for not preferring the appeal within the period of limitation.

18. Therefore, from a plain reading of the proviso to sub-rule (ii) of Rule 26 of the said Rules, it is clear that Section 5 of the Limitation Act, although not in so many words, has been expressly made applicable to an appeal preferred, under Section 51(A)(5) of the Act.

(Emphasis is added).

19. Section 54 of the Act gives the general power of appeal against any order of a Revenue Officer to a Collector or to a Commissioner when the order is made by a Collector of a district within the division. Again it is significant to note that for filing an appeal under Section 54 of the Act, Section 5 of the Limitation Act has not been made expressly applicable.

(Emphasis is added).

20. From the aforesaid discussions made on the relevant provisions of the Act, it is thus evident that so far as Sections 14(H), 14(O), 15A, 19 and 51(A)(5) are concerned. Section 5 of the Limitation Act has been expressly made applicable by the legislature to them and so far as the rests are concerned, Section 5 of the Limitation Act has not been expressly excluded. Therefore, for exclusion of the provisions of Section 5 of the Limitation Act to a particular Section of the Act one has to read Section 29(2) of the Limitation Act along with that particular Section of the Act, which is admittedly a special and a local law. The Supreme Court decision (Hukumdev Narain Yadav v. Lalit Narayan Mishra), on which Mr. 'Dasgupta relied, is a decision concerning provisions of the Representation of the People Act. The Supreme Court, in that decision, considering the Scheme and the relevant provisions of the Representation of the People Act, held that neither the Limitation Act nor any of the provisions of the Limitation Act has been made applicable to the said Act.

21. From the discussions made herein-above and considering the Scheme of the Act and particularly considering the fact that Section 5 of the Limitation Act, has been made expressly applicable to some of the provisions of the Act by the legislature; I am not in a position to hold, on reliance of the aforesaid decision of the Supreme Court, that the West Bengal Land Reforms Act is a self-contained and a complete Code and therefore Section 5 of the Limitation Act is not applicable to an "application" under Section 8 of the Act. The Supreme Court, in that decision, on an examination of the provisions of the Representation of the People Act and the earlier decisions of the Supreme Court, held that the Representation of the People Act is a self-contained and a complete Code and accordingly, it was concluded that "the provisions of Section 5 of the Limitation Act do not govern filing of election petitions or their trial". As in this Act and the Rules made thereunder, Section 5 of the Limitation Act has been expressly made applicable to some of the provisions of the Act and at the same time in some of the provisions, such as Sections 9 and 54 of the Act, Section 5 of the Limitation Act, has neither been expressly excluded nor expressly included, I am not at all impressed by the argument of Mr. Dasgupta that in view of the aforesaid decision of the Supreme Court and also of the Orissa High Court, it must be held that since the West Bengal Land Reforms Act is a self-contained and a complete Code, Section 5 of the Limitation Act cannot be applied to a proceeding under the provisions of the Act.

22. Let me now proceed to consider whether Section 5 of the Limitation Act is applicable to an "application" and/or "proceeding" under Section 8 of the Act even when the West Bengal Land Reforms Act is not a self-contained and a complete Code.

23. For the purpose of deciding this question, it would be useful for us to consider Section 8 of the Act before and after its amendment.

24. Section 8 of the Act, before its amendment, had given a right of pre-emption to a co-sharer or to a contiguous tenant of the holding when a portion or a share of a holding of a raiyat was transferred to any person other than a co-sharer in the holding, to apply before a "Revenue Officer specially empowered by the State Government in this behalf" (hereinafter referred to as "the Revenue Officer"). Thus it is clear that before the amendment, the forum of filing an application for pre-emption under Section 8 of the Act was before the "Revenue Officer".

25. The period of limitation for filing an application for pre-emption by an applicant, under Section 8 of the Act before "the Revenue Officer" was three months from the date of service of notice of transfer under Section 5(5) of the Act, if he claimed preemption as a co-sharer of the holding and four months from the date of transfer if he claimed pre-emption as a contiguous tenant.

26. It may be mentioned here that it was held by various decisions of this Court that Section 5 of the Limitation Act was not applicable to "an application" under Section 8 of the Act which was to be filed before "the Revenue Officer" as the Revenue Officer was not held to be a "Court". This position, in law, had also not been disputed by the learned lawyers appearing for the parties in the aforesaid revisional applications.

27. Section 8 of the Act has, thereafter, undergone several amendments. By the amendment of the West Bengal Land Re-forms (Amendment) Act, 1972 the words "Revenue Officer specially empowered by the State Government in this behalf" have been omitted and the words "Munsif having territorial jurisdiction" have been substituted in its place and stead. So the other amendments of Section 8 of the Act have also been made by the West Bengal Land Reforms (Amendment) Act, 1972 to which reference is not necessary in these cases.

At this stage Section 8 of the Act, after its amendment, may be referred to and it runs as follows:

"Section 8. Right of purchase by co-sharer or contiguous tenant.

(1) If a portion or share of a holding of a raiyat is transferred to any person other than a co-sharer in the holding, (the bargadar in the holding may, within three months of the date of such transfer, or) any co-sharer raiyat of the holding may, within three months of the service of the notice given under subsection (5) of Section 5, or any raiyat possessing land adjoining such holding, may, within four months of the date of such transfer, apply to the (Munsif having territorial jurisdiction) for transfer of the said portion of share of the holding to him......"

28. A persual of Section 8 of the Act, as it stands now, makes it clear that a pre-emptor can file an application for pre-emption before the "Munsif having territorial jurisdiction" either as a bargadar of as a co-sharer of the holding or as a contiguous tenant of the holding against the purchaser, who is not a co-sharer of the holding. However, such right of pre-emption is to be exercised by the pre-

emptor within three months from the date of service of notice of transfer under Section 5(5) of the Act on him, if he is a co-sharer of the holding and in the event he claims preemption as a contiguous tenant, such right of pre-emption is to be exercised within four months from the date of transfer. Section 5(5) of the Act makes it mandatory to serve the notice of transfer on the co-sharers of the holding. Therefore, the period of limitation, for filing an application of pre-emption by a co-sharer of the holding, shall be three months from the date of service of notice of transfer under Section 5(5) of the Act and if the pre-emptor claims pre-emption as a contiguous tenant, then he is to apply before a "Munsif having territorial jurisdiction" within four months from the date of transfer. Therefore, on comparison of Section 8 of the Act, before and after its amendment, it is seen that the period of limitation for filing an application for pre-emption under Section 8 of the Act, either before its amendment or after its amendment, was not changed by the legislature but only the forum for filing the application under Section 8 of the Act after its amendment was changed.

29. One more significant factor needs to be noticed in Section 8 of the Act. The legislature, in its wisdom, did not think it fit and proper to incorporate a provision in Section 8 of the Act applying Section 5 of the Limitation Act to it either at the time of amending the said Section or before its amendment. By amending Section 8 of the Act, it only changed the forum for filing an application under Section 8 of the Act from "Revenue Officer" to a "Munsif although, at that time, it was very much known to the legislature that Section 5 of the Limitation Act was held to be not applicable to an "application" under Section 8 of the Act filed before the Revenue Officer, before its amendment, by various decisions of this Court. Despite this fact being very much known to the legislature, Section 5 of the Limitation Act was not expressly made applicable to an "application" under Section 8 of the Act by it at the time of amending the Section 8 of the Act. Therefore, it can now well be said that it was the intention of the legislature not to incorporate a provision in Section 8 of the Act applying Section 5 of the Limitation Act to it although it has already been noticed by me, while considering some of the relevant amended provisions of the Act and the Rules, that the legislature has expressly applied Section 5 of the Limitation Act to such provisions of the Act.

30. In view of my observations made hereinabove and considering the above aspect. I am of the view that the legislature, at the time of amending Section 8 of the Act, thought it fit and proper not to apply Section 5 of the Limitation Act to an "application" under Section 8 of the Act.

31. Let me now consider whether by virtue of Section 29(2) of the Limitation Act an application under Section 5 of the Limitation Act is applicable to an "application" under Section 8 of the Act. For a proper decision of this question of law, it would be necessary to refer to Section 29(2) of the Limitation Act which is reproduced below:

"(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 insofar as, and to the extent to which, they are not expressly excluded by such special or local law."

A perusal of Section 29(2) of the Limitation Act would show that where a period of limitation provided by the Limitation Act for a suit, appeal or application has been varied or curtailed by any special or local law, the period of limitation provided by the special or local law shall prevail and it is only where a special or local law enacts a period of limitation which varies from or is in substitution of any period prescribed in Schedule 1 of the Limitation Act then the question of the applicability of Sections 4 to 25 of the Limitation Act dealing with the computation and extension of limitation in particular cases owing to disability, etc., can arise. It is in such cases, Section 29(2) of the Limitation Act applies. But Section 29(2) of the Limitation Act, however, makes it clear that 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 that extent to which they are not expressly excluded by such special or local law. Therefore, from a plain reading of Section 29(2) of the Act it is evident that Section 5 of the Limitation Act shall apply to a special or local law like the West Bengal Land Reforms Act if the operation of Section 5 of the Limitation Act has not been "expressly excluded" to Section 8 of the Act. It is not in dispute that the Act is a special or a local law. It is not in dispute that Section 8 of the Act gives a different period of limitation than that of the Schedule of the Limitation Act relating to filing of an application for pre-emption,

32. As noted earlier, Section 8 of the Act does not expressly exclude the application of Section 5 of the Limitation Act. But the Supreme Court in Hukumdev Narain Yadav v. Lalit Narayan Mishra, observed as follows:

"......... No doubt Section 5 would now apply where Section 29(2) as applicable to even applications and petitions unless they are expressly excluded. Even assuming that the Limitation Act applies to election petitions under the Act, what has to be seen is whether Section 5 is excluded from application to such petitions."

33. Let us, therefore, consider whether Section 5 of the Limitation Act is excluded to an "application" under Section 8 of the Act. The Supreme Court in the aforesaid decision (Hukumdev Narain Yadav v. Lalit Narayan Mishra) in paragraph 17 at page 146 interpreted the words "expressly excluded" in the following manner:

"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 nontheless 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.

The Supreme Court in the said decision in paragraph 18 at page 147 observed :

"It was sought to be contended that only those provisions of the Limitation Act which are applicable to the nature of the proceedings under the Act, unless expressly excluded, would be attracted. But this is not what Section 29(2) of the Limitation Act says, because it provides that Section 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. If none of them are excluded, all of the them would become applicable. Whether those Sections are applicable is not determined by the terms of those Sections, but by their applicability or inapplicability to the proceedings under the special or local law......."

Reading the entire judgment of the aforesaid Supreme Court decision and particularly considering the aforesaid observations made by it, which have been quoted hereinabove, it is thus clear that it must be seen that even in a case where the special or local 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 the scheme of the special law exclude their application. Relying on the aforesaid observations of the Supreme Court, let me now, therefore, consider whether application of Section 5 of the Limitation Act has been excluded by the legislature to an "application" and/or proceeding under Section 8 to the Act.

34. I have already discussed the different provisions of the Act which are relevant for our purpose to decide the question in hand. As discussed earlier, insertions 14(H), 14(O), 15(A), 19 and 51(A)(5) of the Act, Sections of the Limitation Act has been made "expressly applicable" by the legislature, whereas in the rest of the Sections of the Act, as referred to hereinabove, Section 5 of the Limitation Act has neither been expressly made applicable nor has been excluded by express reference. From this an inference can be drawn that if it was the intention of the legislature to apply Section 5 of the Limitation Act to Section 8 of the Act, then there was no reason for it to apply Section 5 of the Limitation Act expressly to some of the provisions of the Act only in view of the observations made by the Supreme Court in Hukumdev Narain Yadav's case that if none of the Sections 4 to 24 (both inclusive) of the Limitation Act are excluded, all of them would become applicable by virtue of Section 29(2) of the Limitation Act. Therefore, I am of the opinion that the legislature, whenever it thought fit and proper, applied Section 5 of the Limitation Act to the relevant provisions of the Act and in the case of Section 8 of the Act, the legislature thought it fit and proper not to make an express reference applying Section 5 of the Limitation Act to an "application" under Section 8 of the Act and also omitted intentionally its application to Section 8 of the Act. In this connection, it is also to be noted, as discussed earlier, that before the amendment of the Act, an application for pre-emption had to be presented before a Revenue Officer, who was admittedly not a "Court" and now after the amendment, the presentation of an "application" under Section 8 of the Act is to be made before a "Munsif having territorial jurisdiction" and the appeal against an order passed under Section 8 of the Act by a "Munsif having territorial jurisdiction" has to be preferred under Section 9(6) of the Act before the "District Judge having jurisdiction over the area in which the land is situated". Taking into consideration Section 8 of the Act as it stood before and after its amendment and the discussions made hereinabove, there is no doubt in my mind that after the amendment of Section 8 of the Act, only the forum of presentation of an application under Section 8 of the Act had been changed by the legislature although it was known to the legislature at the time of amending Section 8 that by judicial decisions pronounced before its amendment, Section 5 of the Limitation Act was not made applicable to an "application" under Section 8 of the Act because the "Revenue Officer" was not considered, by such judicial decisions, as "Court". Although this was very much known to the legislature, even then it was not deemed necessary 10 make a provision applying Section 5 of the Limitation Act to Section 8 of the Act. It is also significant that when the Act was amended and the jurisdiction was given to the "Munsif having territorial jurisdiction" to entertain and try a pre-emption petition under Section 8 of the Act, a provision applying Section 5 of the Limitation Act to Section 8 of the Act was not enacted. This definitely expresses the intention of the legislature not to confer the power to condone any delay in the presentation of the preemption application.

35. In view of my discussions made hereinabove, considering the Scheme of the Act as described hereinbefore, the intention of the legislature in the matter of not applying Section 5 of the Limitation Act to Section 8 of the Act by express reference and relying on the interpretation given by the Supreme Court in Hukumdev Narain Yadav's case of the words "expressly excluded" as made in Section 29(2) of the Limitation Act, I am of the opinion that Section 5 of the Limitation Act does not apply to an "application" under Sections of the Act as operation of Section 5 of the Limitation Act has been "expressly excluded" by necessary implication.

36. In view of the discussions made hereinabove, I am, therefore, of the view that Section 5 of the Limitation Act does not apply to an "application" under Section 8 of the Act.

37. At this stage, it would be fit and proper to consider the judgments relied on by Mr. Sengupta, appearing on behalf of some of the pre-emptors, in support of his contention that since the application of Section 5 of the Limitation Act not having been "expressly excluded" to an "application" under Section 8 of the Act, by virtue of Section 29(2) of the Limitation Act. Section 5 of the Limitation Act is applicable to an "application" or to a proceeding under Section 8 of the Act. In this connection, Mr. Sengupta, at the first instance, relied on the decisions of the Supreme Court (Kerala State Electricity Board, Trivendrum v. T. P. Kunhaliumma) and (Sakuru v. Tanaji). After carefully going through the aforesaid two decisions of the Supreme Court, I fail to understand how the aforesaid decisions of the Supreme Court help us to come to a proper decision on the question in hand. In the Kerala State Electricity Board's case, the question before the Supreme Court was whether Article 137 of the Limitation Act was applicable to an application filed before the District Judge under Section 16(3) of the Indian Telegraph Act. The Supreme Court in that decision held that Article 137 of the Limitation Act applies to any petition or application filed under any Act. It was contended before the Supreme Court on behalf of the claimant that Article 137 of the Limitation Act did not apply to "applications" before the District Judge under the Indian Telegraph Act. The principles laid down in the aforesaid Supreme Court decision are that Article 137 of the Limitation Act will apply to any petition or application filed under any Act to a Civil Court and Article 137 of the Limitation Act is not confined to applications contemplated by or under the Code of Civil Procedure. There cannot he any dispute that Article 137 of the Limitation Act is applicable to any application or petition filed under any Act nor there can be any doubt about the same in view of the aforesaid decision of the Supreme Court. But the principles laid down by the Supreme Court in respect of applicability of Article 137 of the Limitation Act, cannot be of any help to the pre-emptors for the purpose of holding that Section 5 of the Limitation Act is applicable to an application under Section 8 of the Act. Article 137 of the Limitation Act prescribes the period of limitation of applications for which no period of limitation is prescribed elsewhere in the Limitation Act. It says that the period of limitation is three years from the date when the right to apply accrues. In Section 8 of the Act, the right to apply shall occure in case of a co-sharer and a Bargadar within three months from the date of service of notice under Section 5(5) of the Act and in the case of adjoining owner within four months from the date of transfer.

38. Assuming that in respect of all categories of persons named in Section 8 of the Act, Article 137 of the Limitation Act apples, then can it be said that an application for pre-emption under Section 8 of the Act can be filed even where the period of limitation prescribed in Article 137 of the Limitation Act has expired, with an application under Section 5 of the Limitation Act? In my view, it cannot be done. Article 137 of the Limitation Act prescribes the period of limitation for filing certain applications when no period of limitation has been provided elsewhere in the Limitation Act, whereas Section 5 of the Limitation Act extends the period of limitation prescribed for filing an application and/or appeal. Therefore, the principles laid down in a case under Article 137 of the Limitation Act cannot be applied for the purpose of holding that an application under Section 5 of the Limitation Act is applicable to a particular special or a local law only because Article 137 of the Limitation Act has been made applicable to any Act. There is no dispute now that in view of the Supreme Court decision (Kerala State Electricity Board, Trivendrum v. T. P. Kunhaliumma) and in view of the words "any other applications" used by the legislature in Article 137 of the Limitation Act it self. Article 137 of the Limitation Act is applicable to all applications filed under any Act. But that does not help us in coming to a decision that Section 5 of the Limitation Act is applicable to a particular provision of a special or a local law. Therefore, in my view, the principles laid down in (KSEB v. T.P. Kunhaliumma) do not help us to come to a decision that Section 5 of the Limitation Act is applicable to an "application" under Section 8 of the Act. One has to see whether by virtue of Section 29(2) of the Limitation Act, Section 5 of the Limitation Act applies or not to any particular provision of a particular local or a special law. As Section 29(2) of the Limitation Act clearly says that Section 5 of the Limitation Act does apply to any application under a special or a local law unless its applicability is "expressly excluded", it is only to be considered whether Section 5 of the Limitation Act has been "expressly excluded" to an "application" under Section 8 of the Act.

39. In view of my discussions made hereinabove and in view of the interpretation given by the Supreme Court in Hukumdev Narain Yadav's case, of which reference has already been made earlier, of the words "expressly excluded". I have no hesitation to hold that the principles laid down in cases under Article 137 of the Limitation Act cannot be applied to hold that Section 5 of the Limitation Act is applicable to a particular provision of a special or a local law. Therefore, the decision of the Supreme Court (KSEB v. T. P. Kunhaliumma), as relied by Mr. Sengupta, cannot be of any help to us. At the risk of repetition it may again be stated that Section 8 of the Act gives a right of pre-emption to three categories of persons named therein. They are, co-sharers and baragadar of the holding and any other raiyat possessing land adjoining such holding. In the case of a co-sharer and a bargadar, an application for preemption is to be presented before the "Munsif having territorial jurisdiction" within three months of service of notice given under Section 5(5) of the Act on the co-sharer or the bargadar, as the case may be. But in the case of a raiyat, possessing any land adjoining such holding, application for pre-emption is to be presented by him within four months from the date of such transfer. In a Division Bench decision of this Court, reported in 1975 (1) CLJ 494 (Ashalata Bairagya v. Gopal Chandra), it has been held that in the case of adjoining owner, as Section 8 of the Act itself prescribes four months' limitation commencing from the date of transfer, there cannot be any occasion to invoke the period of limitation as prescribed under Article 137 of the Limitation Act. In Ashalata Bairagya's case, the Division Bench in paragraph 6 at page 497 observed as follows:

"..........The right conferred under Section 8 is a statutory and, therefore, it has to be exercised strictly in accordance with the provisions of Section 8 and obviously no question of equity arises. Secondly, when Section 8 itself expressly provides two different starting points for computation of limitation in case of co-sharers and in case of adjoining owners, we are not prepared to read into the section something which is not there in order to give an extended period of time to the adjoining owners for exercising their right of pre-emption. It was rightly pointed out that, in any event, some period of time is bound to lapse between the date of presentation of a document of transfer for registration and the actual publication in the locality in terms of Section 5(4). Section 5(4) does not also prescribe any time limit within which such publication is to be made. Therefore, as presently advised, we are unable to hold that in case of an adjoining owner, the period of limitation is to be counted not from the date of transfer but from some other point of time."

In Ashalata Bairagya's case in page 498 at paragraph 7 it has also been observed as follows:

"7. In the instant case, the learned District Judge purported to apply under Article 137 of the Limitation Act, 1963. In our view, the same was clearly erroneous. Presumably, the learned District Judge was thereby seeking to apply the ratio decidendi of the decision of the Special Bench in (1) 52 CWN 64 (Asmatali Sharip v. Mujaraii Sardar). In the first place, Section 26F of the Bengal Tenancy Act in context of which the above Special Bench decision was delievered did not contemplate the right of an adjoining owner to exercise the right of preemption. Secondly, the principal point for consideration in Asmatali's case was whether there was any period of limitation in case of an exercise of a right of pre-emption by a non-notified co-sharer tenant and, if so, which was the appropriate provision applicable. In Asmatali's case the Special bench, inter alia, found that an 'application contemplated by Section 26F of the Bengal Tenancy Act should be regarded as an application under the Civil Procedure Code or, at any rate, as an application for making of which the Civil Procedure Code gave authority. Accordingly, it was held that an application by an non-notified co-sharer for pre-emption under Section 26F of the Bengal Tenancy Act would be governed by Article 181 of the Limitation Act, 1908 and the applicant had three years time from the date of transfer when the right to apply accrued. In the instant case, the opposite party No. 1 was an adjoining owner. Secondly. Section 8 of the West Bengal Land Reforms Act itself prescribes four months limitation commencing from the date of transfer. Therefore, there could be no occasion, in any event, for invoking the provision of Article 137 of the Limitation Act, 1963....."

In view of the aforesaid observations of he Division Bench, with which I am in full agreement, it is now clear that in case of an adjoining owner, an application for pre-emption under Section 8 of the Act cannot be filed beyond four months from the date of transfer by invoking Article 137 of the Limitation Act. Such being the settled law now, it can now be safely said that Article 137 of the Limitation Act can be applied to an "application" under Section 8 of the Act only in cases of non-notified co-sharers who were not served with notice under Section 5(5) of the Act. When a pre-emptor has been served with a notice under Section 5(5) of the Act or has filed an application for pre-emption as an adjoining owner, the application for pre-emption cannot be said to have been filed in time by invoking Article 137 of the Limitation Act after the period of Limitation prescribed in Section 8 itself expires.

41. In view of my discussions made hereinabove and relying on the decision of the Supreme Court in Hukumdev Narain Yadav's case that by virtue of Section 29(2) of the Limitation Act, the operation and/or applicability of Section 5 of the Limitation Act has been "expressly excluded" to a particular provision of a special or local law, the principles laid down in the Kerala State Electricity Board's case cannot at all be relied for the purpose of holding that Section 5 of the Limitation Act is applicable to Section 8 of the Act.

42. So far as the other decision of the Supreme Court, on which Mr. Sengupta also relied, i.e. (Sakuru v. Tanaji) is concerned, it is not at all understood how that decision can be relied for the purpose of holding that Section 5 of the Limitation Act does apply in a proceeding under Section 8 of the Act. In Sakuru's case, the question before the Supreme Court was whether the provisions of Section 5 of the Limitation Act can be invoked for condoning the delay in filing an appeal before the Collector under Section 90 of the Andhra Pradesh Telenghana Area Tenancy and Agricultural Lands Act, 1950 (hereinafter referred to as the "AP Act"). In that case, as noted hereinabove, the Supreme Court was considering as to whether Section 5 of the Limitation Act was applicable to an appeal filed before the Collector under Section 19 of the AP Act. In paragraph 3 at page 1280 of the said decision the Supreme Court observed as follows:

"3....... On a plain reading of the section it is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to computation of the period of limitation. The provisions relating to computation of the period of limitation are contained in Ss. 12 to 24 included in Part III of the Limitation Act, 1963. Section 5 is not a provision dealing with computation of the period of limitation. It is only after the process of computation is completed and it is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise. We are, therefore, in complete agreement with the view expressed by the Division Bench of the High Court in Venkaiah's case that Section 93 of the Act did not have the effect of rendering the provision of Section 5 of the Limitation Act, 1963 applicable to the proceedings before the Collector.

From the aforesaid observation of the Supreme Court, it is thus evident that Section 5 of the Limitation Act was not made applicable to an appeal filed under Section 92 of the A. P. Act, In view of the fact that the Supreme Court, while interpreting Section 93 of the A.P. Act which prescribes period of limitation under the A.P. Act and which says that the Limitation Act. 1908 shall apply for the purpose of computation of the said period, held that since Section 5 of the Limitation Act is not a provision dealing with computation of the "period of limitation", it has no application as Section 93 of the A.P. Act "expressly excludes" such application. Therefore, I am not in a position to rely on the aforesaid decision of the Supreme Court for the purpose of holding that Section 5 of the Limitation Act is applicable to an "application" under Section 8 of the Act.

43. Mr. Haradhan Banerjee, the learned Advocate appearing on behalf of the pre-emptors in C.O. Nos. 3615 of 1991 and 3598-99 of 1991 also submitted that by virtue of Section 29(2) of the Limitation Act, Section 5 of the Limitation Act is applicable to a proceeding and/or to an "application" under Section 8 of the Act. In support of this contention, Mr. Banerjee relied on a decision of Supreme Court , (Manguram v. Municipal Corporation of Delhi). The Supreme Court, while considering sub-section 4 of Section 417 of the Cr.P.C. (1898), Held that since there was nothing in the Cr.P.C. (1898) which expressly excluded, applicability of Section 5 of the Limitation Act, by virtue of Section 29(2) of the Limitation Act, Section 5 of the Limitation Act was applicable to an application for Special Leave under Section 417 (3) of the Cr.P.C. (1898). The Supreme Court in that decision at page 108, paragraph 7 observed:

"......It is only if a special law or local law expressly excluded the applicability of Section 5 that would stand displaced......"

Considering the aforesaid observation of the Supreme Court, it is, therefore, clear that in that decision also the Supreme Court held that applicability of Section 5 of the Limitation Act, in a special or local law, cannot be excluded until and unless the special or local law expressly excludes the applicability of Section 5 of the Limitation Act to a particular provision of a special or a local law. In (Hukumdev Narain Yadav v. Lalit Narayan Mishra) the principle laid down by the Supreme Court for the purpose of giving true meaning to the words "expressly excluded" is that, it is not the law that there must be an express exclusion of applicability of Section 5 of the Limitation Act to special or local law but it would necessarily mean that on consideration of the Scheme of the Act, it can always be held that by necessary implication. Section 5 of the Limitation Act has been excluded. I have already held, relying on the principles laid down in the Supreme Court decision (Hukumdev Narain Yadav v. Lalit Narayan Mishra) that Section 5 of the Limitation Act, by necessary implication, has been excluded to an "application" or to a proceeding under Section 8 of the Act.

44. Another decision of the Supreme Court (Johri Singh v. Sukh Pal Singh) was relied upon by Mr. Banerjee in support of this contention. So far as this decision of the Supreme court is concerned, I do not find that the said decision has any application to the facts of this case as in that decision the Supreme Court held that the "Court" has power under Section 148 of the Code of Civil Procedure to enlarge the time to deposit certain money directed to be deposit-

ed in terms of judgment and decree passed in a pre-emption suit. In that case, admittedly, the pre-emption suit was filed before a "Civil Court" and therefore, all the provisions of the Code of Civil Procedure are applicable to it and in the facts of that case the Supreme Court, applying Section 148 of the Code of Civil Procedure, enlarged the time to deposit the amount directed to be deposited in the judgment and decree.

45. Mr. Banerjee next relied on a Single Bench decision of this Court reported in 1980 (1) CLJ 135 (Surendra Nath Jana v. Abhimanyu Jana). After going through the said decision. 1 find that the question in hand, i.e., whether Section 5 of the Limitation Act is applicable to an "application" or to a proceeding under Section 8 of the Act, was not at all in issue in the said decision. Arun Kumar Jana-J (as His Lordship then was) in paragraph 5 at page 137 of the said decision observed as follows:

"5. Mr. Mukherjee learned Advocate on behalf of the petitioner made a prayer that his client should be given an opportunity to file an application under Section 5 of the Limitation Act for condoning the delay in presenting the application. This prayer has been made at a very late stage. In order to decide whether the petitioner was entitled to the condonation of delay, it would be necessary to go into facts, and, in my view, if it is not possible to allow the petitioner to take up this point at this scage. The matter appears to be concluded by finding of fact arrived at by the Courts below.

(4) .

This Rule is, therefore, liable to be and it is accordingly discharged with costs."

It appears from the aforesaid observation of A.K. Jana-J that the question as to whether Section 5 of the Limitation Act is applicable to an "application" or to a proceeding under Sections of the Act, was never decided in the said decision and as such this decision does not help Mr. Banerjee.

46. Mr. Banerjee next relied on the decisions (Nirmal Kumar Banerjee v. Panihati Cooperative Bank Ltd.) (The Commissioner of Sales Tax, Uttar Pradesh, Lucknow v. M/s. Parson Tools & Plants, Kanpur), (Mohd Asfaq v. State Transport) and 92 CWN 385 (Gaya Prasad Shaw v. Khagendra N. Chakraborty).

47. In (Nirmal Banerjee v. Panihati Co-operative Bank Ltd.) a Division Bench of this Court, presided over by Salil Kumar Dutta-J) As His Lorship then was), while considering an appeal filed under Section 133A(2) of the West Bengal cooperative Societies Act, 1940, held that by virtue of Section 29(2) of the Limitation Act, the period for obtaining copy of the impugned award and its reasons, must be excluded, even though the certified copy was not required to be filed with the appeal. In that decision in paragraph 8 of page 248, Salil Kumar Dutta-J (as His Lordship then was) observed as follows:

"Under the provisions of Section 133A (2) of the Bengal Co-operative Societies Act, 1940 the Tribunal shall hear the appeals under the Act as specified in its Sch. 4 and shall exercise all the powers conferred under the appellant Court by 0.41, in the First Schedule to C.P.C. In respect of such appeals the Tribunal called the Co-operative Tribunal, in exercising the powers of the appellate-court, will be governed by the provisions of the Lim. Act which are applicable to courts and accordingly Section 29(2) of the said Act in respect of the provisions relating to appeals will be applicable when such application has not been expressly excluded by the Bengal Co-operative Societies Act save as regards the period of limitation for filing the appeal. The Tribunal accordingly will have the power to and will entertain an appeal subject to the provisions of Section 12(2) of the Lim. Act, 1963 excluding the period for obtaining copy of the award and its reasons sought to be appealed front. The Supreme Court also held that when the Lim. Act has been made applicable, the provisions under Section 29(2), unless otherwise excluded, shall be applicable to tribunals like the Board of Revenue as was held in the decision in Maloji Rao's case . For all these reasons, we accept the contention raised by Mr. Sinha and hold that the provisions of S. 29(2) would be applicable to appeals under the West Bengal Co-operative Societies Act, 1940 also as held in Sunit Pramanik's case ".

Considering the aforesaid observation of the Division Bench it is clear that this decision was delivered while considering the relevant provisions regarding filing of appeal under the West Bengal Co-operative Societies Act, 1940. The Co-operative Tribunal in that decision was considered to be a "Court" and on interpretation of the relevant provisions of that Act held that as application of Section 12(2) of the Limitation Act has not been "expressly excluded" by the Bengal Co-operative Societies Act, the period for obtaining copy of the award and its reasons must be excluded. In view of my observation made hereinbefore which has been arrived at on the basis of the principles laid down in the decision of the Supreme Court (Hukumdev Narain Yadav v. Lalit Narayan Mishra) and also on consideration of other aspects of the matter of which I have already referred to hereinbefore, I do not find any applicability of this Division Bench decision to the cases in hand.

48. In (The Commissioner of Sales Tax, Uttar Pradesh, Lucknow v. M/s. Parson Tools & Plants, Kanpur) the Supreme Court has observed that while considering Section 10 of the U. P. Sales Tax Act which clearly says that a revising authority has no jurisdiction to extend the period of limitation, how a further period of six months, even on sufficient cause being shown, the provisions of Limitation Act can be imported into the U.P. Sales Tax Act, even by analogy. The Supreme Court in paragraph 11 at page 1043 has observed as follows:

"Be that as it may, from the Scheme and language of Section 10, the intention of the Legislature to exclude the unrestricted ap-

plication of the principles of Sections 5 and 10 of the Limitation Act is manifestly clear. These provisions of the Limitation Act which the legislature did not, after due application of mind, incorporate in the Sales Tax Act, cannot be imported into it by analogy. An enactment being the will of the legislature, the paramount rule of interpretation, which overrides all others, is that ,a statute is to be expounded "according to the intent of them that made it. ""The will of the legislature is the supreme law of the land, and demands perfect obedience". "Judicial power is never exercised", said Marshall, C.J. of the United States, "for the purpose of giving effect to the will of the Judges; always for the purpose of giving effect to the will of the Legislature; or in other words, to the wilt of the law". "

(Emphasis is mine).

The Supreme Court has also observed in paragraph 17 at page 1045 as follows:

"17. Thus the principle that emerges is that if the legislature in a special statute prescribes a certain period of limitation for filing a particular application thereunder and provides in clear terms that such period of sufficient cause being shown, may be extended, in the maximum, only up to a specified time limit and no further, then the tribunal concerned has no jurisdiction to treat within limitation, an application filed before it beyond such maximum time limit specified in the statute, by excluding the time spent in prosecuting in good faith and due deligence any prior proceeding on the analogy of Section 14(2) of the Limitation Act."

(Emphasis is mine) It is not understandable how this decision of the Supreme Court helps the pre-emptors. From the aforesaid observations of the Supreme Court decision, on which Mr. Banerjee relied, for the proposition that Section 5 of the Limitation Act is applicable to a particular special or a local law, it can be safely said that in that decision also the Supreme Court in fact approved the principle laid down by it in Hukumdev Narain Yadav's case by observing that from the Scheme and language of Section 10 of the U.P. Sales Tax Act, the intention of the legislature to exclude unrestricted application of the principles of Sections 5 and 10 of the Limitation Act was manifestly clear. It also approved the principle that when Section 5 of the Limitation Act has not been incorporated in a particular special or a local law, namely, in that case U.P. Sales Tax Act, that cannot be imported into it by analogy. Therefore, this decision, in my view, helps the pre-emptees and not the pre-emptors. Secondly, it also appears from the observations made in paragraph 17 of the aforesaid Supreme Court decision, as noted hereinabove, that Section 5 of the Limitation Act cannot have any application to a special statute when such statute itself gives a power to condone delay to a particular limit and no further even on sufficient cause being shown after such period of limitation expires.

49. In 92 CWN 385 (Gaya Prasad Shaw v. Khagendra N. Chakraborty) the question that was raised before N.K. Mitra was that whether a contiguous owner can get the benefit of of Article 137 of the Limitation Act. In the said decision N.K. Mitra, J. held, relying on the Division Bench decision of this Court reported in 1975 (1) CLJ 494 (Ashalata Bairagya v. Gopal Chandra Chakraborty), that a contiguous owner cannot get the protection of Article 137 of the Limitation Act. This decision was not concerned with the question that Section 5 of the Limitation Act is applicable to an application under Section 8 of the Act by virtue of Section 29(2) of the Act, and as such, this decision, in my view, cannot help the pre-emptors. On the other hand it was held in that decision that a contiguous owner cannot get protection of Article 137 of the Limitation Act as the period of limitation in the case of a contiguous owner is four months from the date of transfer. Therefore, in that decision, N.K. Mitra, J. reiterated the principles laid down by the Division Bench in Ashalata Bairagya's case that in case of an adjoining owner, an applicant for pre-emption cannot get the protection of Article 137 of the Limitation Act by saying that no notice of transfer was served on him because Section 8 of the Act clearly says that the application for preemption has to be presented within four months from the date of transfer and does not say such application has to be presented within four months from the date of notice of transfer upon the applicant.

50. In (Md. Asfaq v. State Transport) the Supreme Court held that the time limit prescribed by the proviso to Section 58(2) of the Motor Vehicles Act, 1939 did not apply in case of application for renewal of permit under Section 68F (ID) of the Motor Vehicles Act. In paragraph 8 at page 2158, the Supreme Court has observed as follows:

"......Does sub-section (3) expressly exclude further extension of time under Section 5 ? If it does, then Section 5 cannot be availed of by the appellant for condonation of the delay. Sub-section (3) in so many terms says that the Regional Transport Authority may condone the delay in making an application for renewal and entertain it on merits provided the delay is of not more than 15 days. This clearly means that if the application for renewal is beyond time by more than 15 days, the Regional Transport Authority shall not be entitled to entertain it, or in other words, it shall have no power to condone the delay. There is thus an express provision in Subsection (3) that delay in making an application for renewal shall be condonable only if it is of not more than 15 days and that expressly excludes the applicability of Section 5 in cases where an application for renewal is delayed by more than 15 days....."

Going through the above decision, it is clear that the Supreme Court has held that an application under Section 5 of the Limitation Act is not applicable to an application for renewal of permits filed under Section 58(3) of the Motor Vehicles Act as it expressly excludes the application of Section 5 of the Limitation Act beyond 15 days after expiry of the period of limitation mentioned in Section 58(3) of the Motor Vehicles Act. Therefore, in my view, the decision of the Supreme Court would show that when a special statute prescribed its own period of limitation different than that of the Limitation Act, it is the period of limitation which is prescribed by the special statute shall apply and the question of applying Section 5 of the Limitation Act does not arise at all.

51. In view of the observations made hereinabove, relying on the principles laid down in Hukumdev Narain Yadav's case and considering the Scheme of the Act and the intention of the legislature, I am of the view that Section 5 of the Limitation Act is not applicable to an "application" or to a proceeding under Section 8 of the Act as the application of Section 5 of the Limitation Act, by necessary implication has been "expressly excluded" to an "application" or to a proceeding under Section 8 of the Act.

52. Before parting with this question, a Single Bench decision of this Court which was also relied on by the learned lawyers for the pre-emptors, must be taken into consideration This is a decision of S.M. Guha-J. (as His Lordship then was) and it is (Chandra Sekhar Sarkar v. Baidyanath Ghosh). It is true that the view that I have expressed on the question in hand, is contrary to the view expressed by S.M. Guha-J. Ordinarily, I would have referred this matter to a Division Bench for a decision with a note of dissent but in view of the decision of the Supreme Court in Hukumdev Narain Yadav's case, which was not considered by S. M. Guha-J., I do not feel it necessary to refer these cases to Division Bench for decision. Apart from that, while deciding the question as to whether Section 5 of the Limitation Act is applicable to an application under Section 8 of the Act, S.M. Guha-J. relied on a decision of the Supreme Court (Mangurani v. Municipal Corporation of Delhi) which has already been dealt with by me hereinbefore and which dealt with Section 417 (3) of the Code of Criminal Procedure. It does not appear from the said decision that the scheme of the Act was ever considered by S.M. Guha-J. and the decision reported in Hukumdev Narain Yadav's case which clearly lays down the principle that by virtue of Section 29(2) of the Limitation Act, Sections 4 to 24 (both inclusive) of the Limitation Act shall apply to a special or a local law only if the application of the said Section are not "expressly excluded", were not considered by S.M. Guha-J. in the said decision.

53. On a perusal of the aforesaid decision of S. M. Guha-J. it further appears that His Lordship relied on the observation made by the Supreme Court in Manguram's case to hold that Section 5 of the Limitation Act is applicable to a special statute by virtue of Section 29(2) of the Limitation Act as amended in the year 1963. From the aforesaid decision of the Supreme Court, it appears that in the, said decision, the Supreme Court was considering the important departure made by the Limitation Act, 1963 from the provision contained in Section 29(2) of the Limitation Act, 1908 which clearly excluded application of Section 5 of the Limitation Act to a special or a local law. But in view of Section 29(2), as amended, the question of not applying Section 5 of the Limitation Act, to any special or a local law cannot arise at all. But the Supreme Court in the same paragraph, on which S. M. Guha-J. had relied, observed as follows:

"......Section 29 sub-section (2) Cl. (b) of the Indian Limitation Act 1908 specifically excluded the applicability of Section 5, while Section 29 sub-section (2) of the Limitation Act 1963 in clear and unambiguous terms provides for the applicability of Section 5....."

From the aforesaid paragraph of the Supreme Court decision on which S.M. Guha-J. (as His Lordship then was) relied for the purpose of holding that Section 5 of the Limitation Act, is applicable to Section 8 of the Act, it also appears in the same paragraph that the Supreme Court has also noticed that Section 5 of the Limitation Act cannot be applied to a special or a local law, if the application of Section 5 of the Limitation Act has been expressly excluded to such special or local law or to any of their provisions. From the aforesaid observation of the Supreme Court, it also appears that the Supreme Court found that there was nothing in Section 417 of the Code of Criminal Procedure, which is a special law of limitation, from which it can be said that applicability of Section 5 of the Limitation Act has been excluded to such special law.

54. In view of my findings made herein-above and relying on the Supreme Court decision in Hukumdev Narain Yadav's case, Section 5 of the Limitation Act has been "expressly excluded" by necessary implication to Section 8 of the Act, it cannot be said that the decision (Manguram v. Municipal Corporation of Delhi) on which S.M. Guha-J had based his decision which is (Chandra Sckhar Sarkar v. Baidyanath Ghosh), is the authority for the purpose of holding that Section 5 of the Limitation Act is applicable to Section 8 of the Act.

55. In view of my observations made hereinabove, the the argument of the learned advocates, appearing for the pre-emptors, that Section 5 of the Limitation Act is applicable to an "application" under Section 8 of the Act cannot be accepted.

56. The learned lawyers appearing for the pre-emptors submitted that when a contrary view is being expressed by me sitting Singly from that of another Single Bench decision, relying on (Sridhar son of Ram Dular v. Nagar Palika Jaunpur), (Sri Venkateshwara Rice, Ginning & Groundnut Oil Mill Contractors Co., etc. v. The State of Andhra Pradesh) and 1991 (1) CLJ 418 (Oriental Coal Company Ltd. v. U. Roy), these revisional applications should be referred to Division Bench. In view of the decision of the Supreme Court in Hukumdev Narain Yadav's case which I have followed for the purpose of deciding the question in hand and in view of the fact that S. M. Guha-J. in Chandra Sekhar's case had not considered the said decision of the Supreme Court and in view of the discussions made hereinabove that the decision of the Supreme Court (Manguram v. Municipal Corporation of Delhi) is not the authority for the proposition that Section 5 of the Limitation Act is applicable to Section 8 of the Act, it is not necessary for me to refer these matters for decision to Division Bench. Yet there is another reason for which reference to Division Bench of these revisional applications are not necessary. In Ashalata Bairagya's case reported in 1975 (1) CLJ 494 Chittotosh Mukherjee, J. (as His Lordship then was) observed in paragraph 6 at page 497 as follows:

"6. ...... The right conferred under Section 8 is a statutory right and, therefore, it has to be exercised strictly in accordance with the provisions of Section 8 and obviously no question of equity arises. Secondly, when Section 8 itself expressly provides two different starting points for computation of limitation in case of cosharers and in case of adjoining owners, we are not prepared to read into the section something is not there in order to give an extended period of time to the adjoining owners for exercising their right of pre-emption. It was rightly pointed out that, in any event, some period of time is bound to lapse between the date of presentation of a document of transfer for registration and the actual publication in the locality in terms of Section 5(4). Section 5(4) does not also prescribe any time limit within which such publication is to be made. Therefore, as presently advised, we are unable to hold that in case of an adjoining owner the period of limitation is to be counted not from the date of transfer but from some other point of time."

From the aforesaid observation of the Division Bench it is thus clear that in case of an adjoining owner the period of limitation is to be counted from the date of transfer as the right conferred under Section 8, of the Act which is a statutory right has to be exercised strictly in accordance with the provisions of Sections. (Emphasis is mine). Such being the principles laid down in the Division Bench that Section 8 has to be exercised strictly in accordance with the provisions and considering that Section 5 of the Limitation Act has not been expressly included in the Section 8 of the Act it it also not necessary to refer these cases to Division Bench for decision because the principles laid down by the Division Bench which is binding on me is being followed by you.

57. There is another aspect of the matter.

Assuming for argument's sake, that by virtue of Section 29(2) of the Limitation Act, Section 5 of the Limitation Act is applicable to an 'application' under Section 8 of the Act, even then I am of the view that an 'application under Section 8 of the Act cannot be considered to be an 'application' within the meaning of Section 5 of the Limitation Act as the said application must be construed in the nature of a 'plaint' filed in a suit.

58. Let us, therefore, consider whether an "application" under Section 8 of the Act is only an "application" in its true sense within the meaning of Section 5 of the Limitation Act or it is in the nature of a 'plaint' giving rise to a "suit" or "to a trapping of a suit". If it is held that it is in the nature of a 'plaint' filed in a suit, then there cannot be any difficulty to hold that Section 5 of the Limitation Act is not applicable to such an 'application, because Section 5 of the Limitation Act itself omits its application in a "suit".

59. On this question, J have heard Mr. Das Gupta, Mr. Roy Chowdhury and Mr. Bhaskar Bhattacharyya, appearing on behalf of the pre-emptees and Mr. Sengupta, Mr. Haradhan Banerjee and Mr. Saha, appearing on behalf of the pre-emptors, in the aforesaid six revisional applications.

60. According to the learned Advocates, appearing on behalf of the pre-emptees, 'the application* under Section 8 of the Act is in the nature of a 'plaint' filed in a suit. According to the learned Advocates, appearing for the pre-emptors, although it is an "original application" but it cannot be construed as a 'plaint' filed in a 'suit'.

61. I have given my serious consideration to the submission made on behalf of the parties. After giving my serious consideration on the respective submissions made by the learned advocates appearing on behalf of the parties, I am of the view that an 'application' under Section 8 of the Act, is in the nature of a 'plaint' filed in a 'suit' and therefore, would not come within the ambit of Section 5 of the Limitation Act as Section 5 of the Limitation Act omits its application in a "suit" or in other words, in my view, an 'application' under Section 8 of the Act must be deemed to be a 'plaint' filed in a suit. The Code of Civil Procedure does not provide definition of 'Suit' but in legal parlance, it means any legal proceeding of a civil nature brought by one person against another. It is well known that under the Code of Civil Procedure a suit is instituted when a plaint, which is nothing but a statement of claim and recital of the cause of action, is presented in the Court. A perusal of Section 8 of the Act would clearly show that in case of an application for pre-emption under Section 8 of the Act, the claim for preemption has to be presented before the "Munsif". The form of lodging the claim for pre-emption, in stead of being a 'plaint', is to be made by an 'application' before the "Munsif. It was admitted by the learned lawyers for the pre-emptors that on the presentation of the application under Section 8 of the Act, the Munsif starts an 'original proceeding' under Section 8 of the Act. In case of a 'suit' on presentation of a 'plaint', a suit is instituted. Such being the position, since the proceeding under Section 8 of the Act commences on filing of an 'application' for pre-emption, in my view, it has little difference with the 'Plaint', filed in a suit had it is not merely an 'application' in a proceeding but, an original claim required by laws of procedure to be filed by way of an application. Such proceeding arising out of a claim for pre-emption, cannot be said to have little difference from a suit in legal pharasealogy.

62. As stated hereinabove, a suit is instituted in an ordinary case when the plaint is presented before the proper Court and in the case of an application for pre-emption under Section 8 of the Act it would be on the date when the claim for pre-emption under Section 8 of the Act is filed before the "Munsif. Since the Limitation Act applies to all claims and applications to Court under any Act, the word 'suit' must be given a wider meaning so as to include claim for pre-emption in whatever form it is presented to Court either by plaint or otherwise, where a proceeding before the Court commences.

Let me now consider, even assuming that a "Munsif having territorial jurisdiction" under Section 8 of the Act is a tribunal or an authority, even then such tribunal or authority shall be deemed to be a 'Court' or trapping of a 'Court'. The Supreme Court, while dealing with a case under the Industrial Disputes Act, in its decision (Bharat Bank Ltd. v. Its Employees) observed in paragraph 7 of page 190 as follows:

"Now there can be no doubt that the industrial tribunal has, to use a well known expression, "all the trappings of a Court" and performs functions which cannot but be regarded as judicial. This is evident from the rules by which the proceedings before the tribunal are regulated. It appears that the proceeding before it commences on an application which in many respects is in the nature of a plaint. It has the same powers as are vested in a Civil Court under the Code of Civil Procedure when trying a suit, in respect of the discovery, inspection, granting adjournment, reception of evidence taken on affidavit, enforcing the attendance of witnesses, compelling the production of documents, issuing commissions, etc. It is to be deemed to be a Civil Court within the meaning of Ss. 480 and 482, Criminal P.C., 1898. It may admit and call for evidence at any stage of the proceeding and has the power to administer oaths. The parties appearing before it have the right of examination, cross-examination and re-examination and of addressing it after all evidence has been called. A party may also be represented by a legal practitioner with its permission."

63. After considering various decisions of the Supreme Court including the aforesaid decision of the Supreme Court and other High Courts in India, S.K. Dutta-J. (as His Lordship then was), while dealing with a case under Workmen's Compensation Act, 1923 observed as follows in paragraph 14 of 83 CWN 786: (1979 Lab IC 707) (Indian Iron & Steel Co, v. Shish Ram):

"On the basis of judicial decisions that a Tribunal or an Authority shall be a 'Court' if the following conditions are in fact present:

(1) The jurisdiction to adjudicate the disputes between the contending parties involving their rights is conferred on it by law and does not depend on any voluntary act or submission of parties.

(2) Right to move the tribunal or the authority is conferred on the aggrieved party by law.

(3) The proceeding on the lis commences by presentation of the case by the aggrieved party with a corresponding right on the other party to meet the case.

(4) In adjudicating the dispute the tribunal or authority follows established or prescribed procedure.

(5) If the dispute is on question of fact, the opportunity to parties is given to adduce evidence and the facts are to be ascertained through evidence supplemented by argument.

(6) If the dispute is on question of law, there will be submission or argument on such questions of law by the parties before such tribunal or authority.

(7) The tribunal or authority in arriving at its decision acts judicially and according to Jaw following the principles of natural justice -and fair play and not on any other consideration of policy or expediency.

(8) Decision wholly disposing of the matter by finding upon the facts in dispute upon application of law with ruling on any disputed question of law, if required.

(9) Finality (subject to appeal if provided) and authoritativeness of decisions are binding on parties.

(10) Enforceability of the decisions by the tribunal or authority through process of law.

64. All the above conditions or tests are present in respect of the proceeding under Section 8 of the Act before the Munsif. The Munsif exercises, the power to adjudicate the dispute in a proceeding for pre-emption under Section 8 of the Act by virtue of the Act itself. This Munsif has been conferred with a special jurisdication to decide the right of pre-emptor who is entitled to an order of pre-emption in his favour, if he satisfies the conditions laid down in S. 8 of the Act. He substantially follows the procedure laid down in the Code of Civil Procedure as it was allowing the other party to submit his case and also in accordance with law of procedure. In this connection, reference can be made to S. 57 of the Act which deals with the powers of the officers dealing with proceedings under the Act. Section 57 of the Act reads as under:

"Subject to the provisions of this Act and any rules made thereunder, any officer in dealing with proceedings under this Act shall exercise the powers of a Civil Court under the Code of Civil Procedure, 1908, for the purpose of-

(a) summoning and enforcing the attendance of any person and examining him on oath as a witness;

(b) requiring the discovery and production of any document or record;

(c) receiving evidence on affidavits;

(d) requisitioning any public record or copy thereof from any Court or office;

(e) issuing commission for the examination of witness or documents;

(f) enforcing or executing orders including an order for restoration of possession as if such orders were decrees of a civil court, and

(g) remanding any case or proceedings to the officer from whose decree the appeal is preferred, and such officer shall record the substance of the evidence, if any, taken by him."

65. At this stage, it is also necessary to refer to S. 57 of the Act which stood before its amendment. Section 57 pf the Act, as it stood before its amendment runs as follows :

"57. Power to compel production of records and documents and to enforce attendance of wit nesses.- Subject to the provisions of this Act and any Rules made under this Act, any Officer in dealing with the proceedings under this Act shall exercise the powers of a Civil Court under the Code of Civil Procedure, 1908 for the purpose of enforcing the attendance of witnesses and the production of records or documents or in enforcing or executing orders including an order for restoration of possession as if such orders were decrees of a Civil Court and such Officer shall record the substance of the evidence, if any, taken by him."

Comparing new S. 57 with the old S. 57 of the Act, it is evident that some more powers of a Civil Court under the Code of Civil Procedure have been conferred upon the Munsif dealing with a proceeding initiated under S. 8 of the Act. Therefore, while deciding an application under S. 8 of the Act for preemption, the Munsif substantially follows the procedure laid down in the Code of Civil Procedure. He also adjudicates finally the claims of pre-emption made under S. 8 of the Act in accordance with law, facts and evidence and gives a ruling on any point of law, if necessary, and pronounces a judgment disposing of the matter and such a judgment is binding between the parties, subject to appeal, which has been provided in the Act itself. The judgment of the Munsif is again enforceable by way of filing an application for execution. Therefore, in the facts and circumstances, it appears obvious that the application for pre-emption under S. 8 of the Act must be deemed to be a 'plaint' in a suit filed in a Court of law. As already stated herein-above, that the word 'suit' has not been defined in the Code of Civil Procedure but it means any legal proceeding of a civil nature brought by one person against another. It is also observed that the Limitation Act also does not define a 'suit' excepting that it does not include an application or an appeal. Under S. 3(2)(a) of the Limitation Act it is said that the suit is instituted in art ordinary case where a plaint is presented to a proper officer. In case of an 'application' under S. 8 of the Act, the institution of the case will be on the date when the claim for pre-emption under S. 8 of the Act is filed before the Munsif. Therefore, in my view, the word 'suit', since the Limitation Act applies to all claims and applications to Court under any Act, must be given a wider meaning so as to include a claim in whatever form it is presented to a Court either by a plaint or otherwise when a proceeding before the Court commences, as was held in the case of Hayat Khan v. Mangi Lal , which was delivered, while dealing with the provisions of Motor Vehicles Act. In that view of the matter, it must be held that an application under Sec. 8 of the Act, when filed before the Munsif, must be deemed to be in the nature of a 'plaint' filed in a 'suit' in a Court of law by an aggrieved party.

66. At this stage, may I come back to the argument advanced by Mr. Sengupta, the learned Advocate appearing on behalf of some of the pre-emptors? Mr. Sengupta has submitted that although an application under Sec. 8 of the Act is an original application even then the said original application can only give rise to a miscellaneous proceeding which would not amount to a 'plaint' filed in a 'suit'. In Support of this contention, Mr. Sengupta relied on the decision of the Special Bench of this Court reported in 52 CWN 64 (Asmatali Sharip v. Mujaharali Sardar). According to Mr. Sengupta, since the Special Bench held that a pre-emption application under Sec. 26F of the Bengal Tenancy Act initiated a "miscellaneous proceeding" within the meaning of Sec. 141 of the Code of Civil Procedure and not a 'suit', it must be held that the Special Bench rejected the proposition that an "application" under Sec. 26F of the Bengal Tenancy Act was in the nature of a 'plaint' filed in a suit.

67. Basically in the said decision, the Special Bench was considering the question whether Art, 181 of the Limitation Act, 1908 could be applied in case of a non-notified co-sharer or not, i.e., whether Art. 181 of the Limitation Act, 1908 applied to an application under S. 26F filed by a co-sharer/ tenant who was not served with a notice under S. 26C or whether his application would be considered to have been filed in time if made within three years from the date of sale. In the said decision the Special Bench also, upon interpretation of certain provisions of the Bengal Tenancy Act, came to a conclusion that an application, contemplated under S. 26F of the Bengal Tenancy Act, could be regarded as an 'application' under S. 141 of the Code of Civil Procedure or at any rate an application for the making of which the Code of Civil Procedure gave authority. As the Code of Civil Procedure was attracted to such application and other miscellaneous proceedings by virtue of the provisions of S. 141 of the Code of Civil Procedure, it was held that the entire proceeding in an application under S. 26F was thus regulated by the Code of Civil Procedure and therefore the residuary Article 181 of the Limitation Act, 1908 would be applicable to an application under S. 26F of the Bengal Tenancy Act except so far as any special provision had been made in regard to them in the section itself.

68. In my view, the principles laid down in the Special Bench decision can at all be relied to decide the question now in hand. It was never decided in the said decision that an application filed under S. 26F of the Bengal Tenancy Act was an 'application' in the nature of a plaint filed in a suit or it was an 'application' giving rise to a 'miscellaneous proceeding' within the meaning of S. 141 of the Code of Civil Procedure. Even if it is accepted that in the said decision it was decided that the filing of the application under S. 26F of the Bengal Tenancy Act had given rise to a 'miscellaneous proceeding' within the meaning of S. 141 of the Code of Civil Procedure then the Special Bench decision would help the pre-emptees and not the pre-emptors because the application under S. 26F of the Bengal Tenancy Act although gave rise to a 'miscellaneous proceeding' but such miscellaneous proceeding in an appropriate case can be construed to be a 'suit'. The Supreme Court in (Ram Chandra Aggarwal v. The State of Uttar Pradesh) at page 1891 in paragraph 6 observed as follows:

"(6)..... Bearing in mind that the term "proceeding" indicates something in which business is conducted according to a prescribed mode it would be only right to give it, as used in the aforesaid provision, a comprehensive meaning so as to include within it all matters coming up for judicial adjudication and not to confine it to a civil proceeding alone. In a recent case Kichadai Naidu v. Nagawasami Naidu, , Ramachandra Iyer. J., (as he then was) was called upon to consider the very question which arises before us. The learned Judge held that a proceeding before a Civil Court arising out of a reference to it under S. 24, C.P.C. because it is in any case a "proceeding". He has also considered this question from the angle of the nature of the proceeding and expressed the view that the proceeding was a civil proceeding to which the procedure for suits could, with the aid of S. 141, C.P.C. be applied. If indeed the term "proceeding" in S. 24 is not confined to a civil proceeding there is no need whatsoever of taking the aid of S. 141, C.P.C. Upon this view we dismiss the appeal."

69. In view of the aforesaid observations of the Supreme Court it can well be said that the proceeding initiated under S. 8 of the Act is a civil proceeding to which the procedures for suits, can with the aid of S. 141 of the Code of Civil Procedure, be applied.

70. Apart from that, in the said decision it was only held by the Special Bench that an application under S. 26F of the Bengal Tenancy Act could be regarded as an 'application' under the Code of Civil Procedure or at any rate, an application for the making of which the Code of Civil Procedure had given authority. It also held that the residuary Art. 181 of the Limitation Act, 1908 would be applicable to an application under S. 26F of the Bengal Tenancy Act because the entire proceeding under Sec. 26F of the Bengal Tenancy Act was regulated by the Code of Civil Procedure and, therefore, the applicant, filing an application for pre-emption under S. 26F of the Bengal Tenancy Act, who was not served with a notice of transfer of the sale in question, was entitled to invoke Art. 181 of the Limitation Act, 1908.

71. In view of my discussion made hereinbefore, I am, therefore, of the view that the Special Bench decision cannot be relied by the pre-emptees for the purpose of deciding the question now in hand.

72. On this question, another single Bench decision of this Court, (Smt. Radha Rani Dasi v. Atul Chandra Mondal), was relied by Mr. Sengupta, appearing on behalf of some of the pre-emptors.

73. After carefully going through the aforesaid single Bench decision of this Court, I do not find from the same that it was ever decided in the said decision that an application filed even under S. 26F of the Bengal Tenancy Act could not be construed to be a 'plaint' filed in a suit but simply an 'application' for the purpose of invoking S. 5 of the Limitation Act. In the said single Bench decision Lahiri J. (as His Lordship then was) was considering whether S. 6 of the Limitation Act applied to an application for preemption under S. 26F of the Bengal Tenancy Act and whether the application under S. 26F of the Bengal Tenancy Act could be held to be barred by limitation because it was filed within three years form the attainment of majority. In that context, Lahiri J. (as His Lordship then was) observed in paragraph 3 of the said judgment as follows:

"..... An application for pre-emption under S. 26F, Bengal Tenancy Act, is neither a suit nor an application for execution of a decree and therefore the running of limitation in a case like the present one cannot be suspended under the provisions of Sec. 6, Limitation Act. ...."

In deciding the said question, Lahiri J. only made an observation that an application for pre-emption under Sec. 26F of the Bengal Tenancy Act ' was neither a suit nor an application for execution of a decree.

74. In view of my observations made hereinabove and in view of the fact that the single Bench decision, was not based on an application filed under S. 8 of the Act and that the said decision had no occasion to consider the question whether an application under S. 26F of the Bengal Tenancy Act was to be construed to be a 'plaint' filed in a suit, I am of the view that this decision is not applicable to the questions now raised in these revisional applications.

75. Mr. Sengupta, on this point, thereafter relied on the decisions (Ram Kumar Kajaria v. M/s. Chandra Engineering (India) Ltd.), (Dwijapada Haldar v. Prafulla Chandra Haldar), 1978 (1) Cri LJ 172 (Anil Kumar Mondal v. Amulya Charan Mondal), 1978 (1) Cri LJ 451 (Gangadhar Bhandari v. Lalmohan Mukherjee) and 81 Cal WN 580 (Prasanna Kumar Giri v. Gangadhar Ram).

76. So far as (Ram Kumar Kajaria v. M/s. Chandra Engineering (India) Ltd.), 1978 (1) Cri LJ 172 (Anil Kumar Mondal v. Amulya Charan Mondal), 1978(1) Cri LJ 451 (Gangadhar Bhandari v. Lalmohan Mukherjee), 81 Cal WN 580 (Prasanna Kumar Giri v. Gangadhar Raut) and (Dwijapada Haldar v. Prafulla Chandra Haldar) and concerned, I do not find any reason how the said decisions help the pre-emptors in view of, my discussions made hereinbefore and in view of the fact that the aforesaid decisions were based on the question as to whether Art. 137 of the Limitation Act is applicable to an application under S. 8 of the Act when such applications were filed by non-notified co-sharers.

77. On this question Mr. Sengupta also cited other decisions (Mangu Ram v. Municipal Corporation of Delhi), (Kerala Stale Electricity Board, Trivandrum v. T. P. Kumhaliumma), (Major (Retd.) Inder Singh Rekhi v. Delhi Development Authority).

78. In the aforesaid decisions of the Supreme Court, it was never considered whether an application for preemption under S. 8 of the Act is an 'application' within the meaning of S. 5 of the Limitation Act, or in other words, it was not considered that the application for pre-emption under S. 8 of the Act filed before a Munsif is in the nature of a 'plaint' filed in a suit. Therefore, in my view, these decisions of the Supreme Court cannot help the Court to come to a decision on the question that an 'application' under S. 8 of the Act is not in the nature of a 'plaint' filed in a suit and the proceeding initiated on such an application is not in the nature of a suit.

79. Mr. Sengupta, on this point, further submitted that even if an application for preemption under S. 8 of the Act is considered to be a plaint filed in a suit, even then Art. 113 of the Limitation Act would apply for a non-notified co-sharer to file a suit. Article 113 of the Limitation Act gives the period of limitation as three years from the date when the right to sue accrues. The question is when the right to sue accrues from the date of transfer or from the date of knowledge. Mr. Sengupta, in support of his contention, relied on a decision (Raghubir Jha v. State of Bihar) and submitted that it would be from the date of knowledge and, therefore, according to Mr. Sengupta, the pre-emptors, in the revisional applications in which he had appeared were within the time as it was his case that there had been a fraud practiced on the pre-emptors. This question cannot be decided at this stage and it is for the trial Court to consider such aspects of the matter. It will be however, open to the pre-emptors to agitate this question i.e. whether such application has been filed within the period of limitation or not, and the same would be decided by the trial Court on merits and, therefore, I need not go into this question at this stage.

In view of the discussions made herein-above, I am of the view that an application for pre-emption under S. 8 of the Act must be deemed to be a 'plaint' filed in a 'suit'. Therefore, S. 5 of the Limitation Act cannot be applied in a proceeding or to an "application" under S. 8 of the Act as S. 5 of the Limitation Act itself omits its application in suits. Accordingly, it is decided that S. 5 of the Limitation Act has no manner of application to S. 8 of the Act.

80. Before parting with this judgment, one more significant factor needs to be considered.

81. In (Bishan Singh v. Khazan Singh) the Supreme Court in paragraph 11 at page 841 has observed as follows:

"The plaintiff is bound to show not only that his right is as good that of the vendee but that it is superior to that of the vendee. Decided cases have recognised that the superior right must subsist at the time the pre-emptor exercises his right and that the right is lost if by that time another person with equal or superior right has been substituted in place of the original vendee. Courts have not looked upon this right with great favour, presumably, for the reason that it operates as a clog on the right of the owner to alienate his property. The vendor and the vendee are, therefore, permitted to avoid accrual of the right of pre-emption by all lawful means. The vendee may defeat the right by selling the property to a rival pre-emptor with preferential or equal right. To summarize: (1) The right of pre-emption is not a right to the thing sold but a right to the offer of a thing about to be sold. This right is called the primary or inherent right. (2) The pre-emptor has a secondary right or a remedial right to follow the thing sold. (3) It is a right of substitution but not of repurchase i.e., the pre-emptor takes the entire bargain and steps into the shoes of the original vendee. (4) It is a right to acquire the whole of the property sold and not a share of the property sold. (5) Preference being the essence of the right, the plaintiff must have a superior right to that of the vendee or the person substituted in his place. (6) The right being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place."

82. In another decision of the Supreme Court (Radhakishan Laxminarayan Toshniwal v. Shridhar Ramchandra Alshi), the Supreme Court in paragraph 13 at page 1372 has observed as follows:

"(13) ........ There are no equities in favour of a pre-emptor, whose sole object is to disturb a valid transaction by virtue of the rights created by him by statute. To defeat the law of pre-emption by any legitimate means is not fraud on the part of either the vendor or the vendee and the person is entitled to steer clear of the law of pre-emption by all lawful means."

83. In paragraph 14 of the same judgment the Supreme Court has also reiterated the principles laid down by it in (Bishan Singh v. Khazan Singh) that the right of pre-emption is a weak right and not looked upon with favour by Courts and, therefore, the Courts could not go out of their way to help the pre-emptors.

84. Considering the aforesaid observations of the Supreme Court in its aforesaid reported decisions, it would be always open to the pre-emptees to get rid of the application for preemption by any legitimate process. Therefore, the pre-emptees always can throw the application for pre-emption under S. 8 of the Act by lawful means including on the ground of limitation.

85. Let me now decide, in the light of the findings made hereinabove, all the revisional applications on merits.

86. So far as C. R. Nos. 2992 of 1986 and 2993 of 1986 are concerned, in view of my findings made hereinbefore that S. 5 of the Limitation Act is not applicable to S. 8 of the Act, there is no merit in the said two revisional applications. Accordingly, the aforesaid two revisional applications are dismissed.

87. So far as C. O. No. 3615 of 1991 is concerned, in view of my findings made hereinbefore, the learned Munsif was perfectly justified in holding that S. 5 of the Limitation Act is not applicable to- an application under S. 8 of the Act. Accordingly, this revisional application fails.

88. So far as C. O. Nos. 3598 of 1981 and 3599 of 1981 are concerned, I find that the learned Munsif, in the facts and circumstances of the case, allowed the application for condonation of delay filed under S. 5 of the Limitation Act in filing an application under S. 8 of the Act. In view of my findings made hereinbefore, that an application under S. 5 of the Limitation Act is not applicable to an application under S. 8 of the Act, it must be held that the learned Munsif has acted illegally and with material irregularity in the exercise of his jurisdiction in passing the impugned orders. Accordingly, the impugned orders are set aside and the applications under Section 5 of the Limitation Act, are, therefore, rejected.

89. So far as C. O. No. 852 of 1991 is concerned, in view of the findings made hereinbefore that an application under Section 8 of the Act cannot be filed with an application for condonation of delay under Sections of the Limitation Act, I am of the view that the learned Munsif has acted illegally and with material irregularity in the exercise of his jurisdiction in allowing the application for condonation of delay. Therefore, the impugned order is set aside only to the extent by which the application for condonation of delay has been allowed. But in spite of rejection of the application for condonation of delay, it would be open to the Court to consider whether in terms of the direction made by this Court in C. R. No. 2728 of 1987, disposed of on 10th of August, 1987 by M.N. Roy, J. (as His Lordship then was), the pre-emptor is still entitled to amend the original petition under Section 8 of the Act.

90. Accordingly the revisional applications are disposed of.

91. I, however make it clear that it will be open to the parties even after my observation that Sections of the Limitation Act is not applicable to an application under Section 8 of the Act to agitate before the Trial Court that the application filed by the pre-emptors under Section 8 of the Act is still maintainable as the same has/have been filed within the period of limitation.

92. There will be no order as to costs.

Office is directed to communicate this order to the Courts below at an early date.

94. Let xerox copies of the order dated 14-5-93 be given to the learned advocates, appearing for the respective parties, on usual undertaking.

95. Order accordingly.