Case No: Civil Appeal No. 148 of 1983
Judge: Shahabuddin Ahmed ,
Court: Appellate Division ,,
Advocate: Mr. T. H. Khan,,
Citation: 37 DLR (AD) (1985) 184
Case Year: 1985
Appellant: Syed Amir Hossain
Respondent: Mrs. Nadera Rahman
Subject: Limitation, Wakf, Procedural Law,
Delivery Date: 1985-4-2
FKMA Munim, CJ.
Badrul Haider Chowdhury, J.
Shahabuddin Ahmed, J.
Syed Amir Hossain
Mrs. Nadera Rahman
April 2, 1985.
The Waqf Ordinance, 1962
The Limitation Act, 1908
Section 14 with section 29(2)
Time available under section 32 (3) of the Waqf Ordinance, 1962, which is a special law, having long existed, the respondent might invoke provision of section 14 of the Limitation Act for excluding the time that was spent in other proceedings in wrong forum. But the appellant being found negligent in prosecuting the other proceedings is not entitled to the benefit of section 14 of the Limitation Act.
Remedy against the order of dismissal under Order XLVII rule 7(2) of the Waqf Ordinance might be sought before the District Judge by filing an application for restoration of the Review petition within 15 days from the date of order of dismissal for default………..(12)
In order to get remedy of condonation of delay due to civil proceeding in a wrong forum under section 14 of the Limitation Act, such proceeding should be prosecuted in good faith with the belief that it is the right forum…………….(12)
Considering the circumstances of the case, lawyer’s pre-occupation was not a sufficient ground for failure to take steps in the proceeding on the date of hearing. Throughout the long course of the proceeding the respondent is found to be negligent and as such she is not entitled to get benefit of section 14…………..(12)
Cases Referred To-
Fatema Bibi and another Vs. Choto Khuku and others, 53 CWN, 159; Sati Prashad Ganga Vs. Gahindra Chandra Shaha, AIR 1929, Cal. 325; Drupadi Vs Hiralal, ILR All. XXXIV (1912) 196; Sati Prashad Ganga, AIR 1919, Cal. 325.
Abdul Malek, Senior Advocate instructed by Sharifuddin Chaklader, Advocate-on-Record—For the Appellant.
T.H Khan, Senior Advocate instructed by Md. Aftab Hessian Advocate-on- Record—For the Respondent.
Civil Appeal No. 148 of 1983.
(From the judgment dated 31-5-83 passed by the High Court Division, Jess ore Bench in Civil Revision No.1500 of 1980)
Shahabuddin Ahmed J.
In this appeal by special leave at the instance of a Mutwalli, removed from office under section 32 of the Waqf Ordinance, the main question is whether the revision under section 115 of the Civil Procedure Code against the District judge's order in appeal is maintainable when the Waqf Ordinance provides, in section 32 (2), for a special forum of revision. Secondly, in case the revisional application filed under section 15 C.P C. as disposed of by the High Court Division is treated as a revision under section 32 (3) of the Waqf Ordinance, whether the petitioner who is now respondent before, us is entitled, under section 14 of the Limitation Act, to exclude for the purpose of computing the limitation the time of 4 years which she spent in prosecuting another civil proceeding in a wrong forum.
2. Respondent, Mrs. Nadera Rahman was appointed Mutwalli of the Saleha Khatun Waqf Estate bearing E.G. No.510 and 1511-A, by the Administrator of Waqf in 1964 on the recommendation of the previous Mutwalli, her father, Syed Muhammad Hossain who resigned the office on certain grounds. One of her brother namely the appellant Syed Amir Hossain made an application before the Administrator of Waqf for her removal from the office of the Mutwalli on the ground of her utter negligence in managing and looking after the affairs of the Waqf Estate since she was residing all along with her husband, a Government Officer, in different places of the then Pakistan including Karachi. In due course she received a notice of the allegation and filed an objection before the Administrator denying the allegation. But the Administrator after hearing the parties and perusing documents and considering a report of inquiry passed an order on 1 November 1974 removing her from the office of Mutwalli. She challenged this order of her removal before the District Judge, Barishal by filing an appeal being Miscellaneous Appeal No. 186 of 1974. The learned District Judge after hearing the parties dismissed the appeal by an order dated 25 May 1976.
3. Respondent, Mutwalli filed a review petition being Miscellaneous Case No. 39 of 1976 under Order 47 of the Civil Procedure Code before the District Judge seeking review of his order dismissing the appeal but the said review petition was dismissed for default on 10 August 1977 whereupon she filed revisional application—Civil Revision No.1429 of 1979—in the High Court Division. A learned Single Judge of the High Court Division by an order dated 2 July 1977 rejected the application with an observation that the petitioner might seek remedy before the District Judge under Order XLVII, rule 7(2) of the Civil Procedure Code. Accordingly, she filed an application under rule 7(2) of Order XLVII. C.P.C being Miscellaneous Case No. 32 of 1979 before the District Judge for restoration of her review petition taking the ground that when the said application was taken up for hearing her lawyer was prevented from attending the Court by his pre occupation with a municipal election. The learned District Judge rejected the application on a number of grounds including the ground as to limitation. She then filed another revisional application, being Civil Revision No.1500 of 1980, under section 115 C.P.C. before the High Court Division challenging the original order of the District Judge dismissing her appeal on 25, May 1976. The learned Judges of the High Court Division, overruling the contention of the other party namely, the appellant before us, that the revisional application was not maintainable tinder the Civil Procedure Code and that it was barred by limitation, allowed the revisional application and set aside the District Judge's order in appeal as well as the Administrator's order removing the Mutwalli, by the impugned order dated May 31 1983. Leave was taken from us by the appellant calling in question this order of the High Court Division.
4. Mr. Abdul Malek, learned Advocate, has appeared for the appellant who had set the machinery of law in this case by seeking removal of the respondent Mutwalli under section 32 of the Waqf Ordinance, 1962. Mr. Malek has gone straight to section 32 (3) of the Waqf Ordinance and has submitted that this Ordinance is a special law relating to a special Subject and it has created a special forum for appeal, and revision against certain orders passed either by the Administrator of Waqfs or by the District Judge. He has pointed out that the order passed by the District Judge in appeal from an order of the Administrator under section 32 (2) of the Ordinance is not appealable, but revision lies against it to the High Court Division, and that this being a special provision for revision under the Ordinance, the revisional application filed under section 115 of the Civil Procedure Code, no matter to the same court, High Court Division, is not maintainable Section 32(3) of the Waqf Ordinance reads thus:
5. Mr. T.H. Khan learned Advocate for the respondent does dispute this position of law, but he contends that the subject matter being the same and the forum of revision also being the same, the application under section 115, Civil Procedure Code, may be treated as an application under section 32(3) of the Waqf Ordinance. It appears that the respondent also in her concise statement made a similar prayer for converting her application under section 115 C.P.C. to an application under section 32(3) of the Waqf Ordinance. In view of fact that the scope of revision under both the Laws being same there is hardly any difficulty to treat the revisional application filed under the Civil Procedure Code as that under section 32 of the Waqf Ordinance. But serious difficulty is likely to arise because of the question of limitation as is discussed below.
6. For an application for revision under the Civil Procedure Code no period of limitation has been specifically prescribed, particularly when the Court may suo motu exercise this power in appropriate cases. But in view of the provision of Article 181 of the limitation Act relating to 'residuary' cases, the period of limitation for an application for revision has been consistently taken as three years. Computing the limitation in this way, the revisional application under section 115 C.P.C. was held to be within time. But the question is whether the limitation prescribed by the Limitation Act—a general law—will apply when a different period of limitation has been specifically prescribed in a special law governing this subject, namely, the Waqf Ordinance. Mr. T.H. Khan does non dispute that in a case governed by any special law the general law as to limitation shall not apply. In other words there is no dispute that section 32(3) of the Waqf Ordinance which has prescribed a limitation ninety days for a revision shall apply in this case. But Mr. Khan contends that if computing the period of limitation, the time spent in prosecuting another civil proceeding in a wrong forum shall be excluded. The learned Counsel argues that the respondent spent about four years in prosecuting in good faith the proceedings in review before the District Judge and the High Court Division under the Civil Procedure Code and if this time is excluded the present revisional application is within the period prescribed in section 32(3) of the Waqf Ordinance. Section 14 of the Limitation Act, which provides for exclusion of this time spent in legal proceedings in wrong forums, has been invoked by Mr. Khan. This section is quoted below.
(2) In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the same party for the same relief shall be excluded, where such proceeding is good faith in a court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it."
7. Mr. Malek on the other hand contends that section 29(2) of the Limitation Act excludes the application of section 14 of the Limitation Act in this case. Section 29(2) is quoted below:
(a) The provisions contained in section 4, sections 9 to 18 and section 22 shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special law; and
(b) The remaining provisions of this Act shall not apply.”
Section 3, it is to be noted, provides for dismissal of a suit, appeal or application, when it is instituted, preferred or made, beyond the period of limitation prescribed in Schedule I of the Limitation Act. The period of limitation under section 32(3) of the Waqf Ordinance is 90 days, and if the time spent by the respondent in prosecuting her previous proceedings for review and revision is not excluded under section 14, this application for revision cannot but be dismissed being barred by limitation. But the moot point is whether application of section 14 is barred by section 29(2). Section 32(3) of the Waqf Ordinance is undisputedly a special law within the meaning of section 29(2) as quoted above and this law prescribes a limitation different from that prescribed by the Limitation Act and the period of limitation as to revision is 90 days which has obviously long expired. Only section 14 may save this revision. Section 29(2), does not say that section 14 like sections 4, 9 to 18, is excluded in all cases governed by a special law, rather it says that these sections are applicable, but Only "insofar as they are not expressly excluded” by the special law. In other words unless application of these sections is not excluded in express words and language, they shall apply. Mr. Malek contends that section 32(3) by prescribing a shorter period—90 days— of limitation has excluded the limitation of 3 years, prescribed in Article 181, Limitation Act. But as no express words have been used for this purpose in section 32(3). It is very difficult to read, 'exclusion' of these sections in section 32(3). Even if it is conceded that in section 32(3) prescribing 90 days of limitation, any longer period is excluded by "implication", still, in view of the clear words ''expressly excluded" no exclusion can be read therein.
8. Mr. T.H. Khan contends that the pro-vision of special limitation in this case will not be altered or affected by the application of section 14, in that section 4 like sections 4, 9 to 18, and 23, are intended not to alter or affect the period of limitation prescribed by special law but these sections are intended to provide only the means for computing or determining the period of limitation under the special law. Mr. Khan has referred to a number of decisions in, order to substantiate this point that the alteration of period of limitation is quite different from the method of computation of such a period of limitation. Of the decisions relied upon by him we propose to refer to three decisions, such as Fatema Bibi and another Vs. Choto Khuku and others, 53 CWN, 159; Sati Prashad Ganga Vs. Gahindra Chandra Shaha, AIR 1929, Cal. 325; and Drupadi Vs Hiralal, ILR All. XXXIV (1912) 196. In the case of Fatema Bibi vs. Choto Khuku, the question was whether in the case governed by the special limitation prescribed in the Bengal Tenancy Act in Schedule III, Article (3), the provision of section 14 of the Limitation Act as to exclusion of the time spent in litigation in a wrong forum could be available, and. the learned Single Judge of the High Court straightaway answered the question in the affirmative in view of a previous decision of the same High Court in the case of Sati Prashad Ganga in AIR 1929 Cal 325 =33 CWN 227, as referred to above. But in that case of Fatema Bibi, the proceeding was not saved from limitation even after exclusion of the period as referred to in section 14 of the Limitation Act besides the facts of the case were also different from those in the case of Sati Prashad Now, in the case of Sati Prashad Ganga, AIR 1919, Cal. 325, the question was whether section 184 of the Bengal Tenancy Act, read with its Schedule III, which prescribes a special period of limitation, excludes the application of section 14 of the Limitation Act, and the answer was in the negative. It was held that section 184 provides period of limitation, whereas section 14 of the Limitation Act doss not provide any period of limitation but it simply provides a means to compute that period which is entirely a different thing. The learned Judge, who delivered that judgment namely, Cuming, J referred to section 185 of, the Bengal Tenancy Act in order to press his point that for exclusion of section 14 of the Limitation Act 'express’ language in clear terms within the meaning of section 29(2) shall be necessary. Section 185, B.T. Act specifically provides that sections ‘'7, 8 and 9" of the Limitation Act shall not apply to the suits and applications mentioned in the last foregoing section. The learned Judge observed that if section 14 was intended to be excluded this exclusion could have been provided by adding section '14' to the list of excluded section "7, 8 and 9". It was therefore that section 184 of the B.T.Act which is a special law, prescribes a period of limitation but does cot exclude application of section 14 of the Limitation Act.
9. In Drupadi vs. Hiralal, ILR 34, the matter was governed by the Provincial Insolvency Act which is a special law within the meaning of section 29 of the Limitation Act. Facts of the case are that one Ram Narayan was declared insolvent by court and the respondent in that case was appointed receiver of his estates. On an application of the receiver, under section 37 of the Provincial Insolvency Act, certain transfers made by the insolvent in favour of the applicant were set aside by an order dated 18 March 1911. The applicant presented an appeal to the District Judge on 26 April, 1911, but the appeal was found barred by limitation as prescribed in section 46 of the Provincial Insolvency Act. The applicant invoked section 12 of the Limitation Act for excluding the time he had spent for obtaining copy of the order appealed against. The District Judge held that the applicant was not entitled to the benefit of section 12 of the Limitation Act in view of the provision of section 6 of the Limitation Act, 1877 corresponding to section 29 of the Limitation Act, 1908. The order of the District Judge came up in revision before the High Court, and a Special Bench of the Allahabad High Court presided over by Henri Richard, CJ on reviewing a great number of decisions on the subject; some of which were conflicting, held that section 12 of the Limitation Act did apply to the appeal presented to the District Judge and as such the appeal was within time.
10. Section 12(4) of the Limitation Act, it may be kept in mind, provides for exclusion of the time spent in obtaining the copy of a judgment, or order which, is to be challenged in appeal or revision If any appeal or revision be filed without being accompanied with a copy of the judgment or order and the appellant or petitioner cannot obtain the copy for factors beyond his control, such as, if the copy is not prepared or issued by the Court concerned, his right to appeal or revision will be defeated. So, it also a matter of common sense and justice that the period spent in obtaining a copy of the judgment or order should be excluded in computing the period of limitation whether prescribed by a special law or a general law. Similarly, if a person in good faith prosecutes his legal proceedings in a wrong forum be should be entitled to exclude this period in computing the period of limitation under special law, such as the Waqf Ordinance, in the instant case.
11. But application of section 14 is not a matter of course and to get the benefit of this section the applicant must show that he prosecuted his earlier proceeding in the wrong forum “in good faith" and also "diligently". If he fails to fulfill these two conditions, rather if it is found that he purposely or without due care and attention prosecuted his proceeding in a wrong forum, he will not be so entitled. General provision of law is that nothing is done in good faith if it is not done with due care and attention.
12. Mr. Malek contends that the long history of this case which ran in a zigzag course for about 10 years clearly shows that the respondent was not diligent in prosecuting her earlier proceedings nor did she resort to those proceedings in good faith, and as such, she is not entitled to the benefit of section 14 even if it is not excluded under section 29. The order of the Administrator dated 1 November 1974 was challenged in a right forum by appeal before the District Judge who dismissed the appeal on merit on 25 May 1976. No appeal lay against that order but it could have been assailed in revision before the High Court Division within 90 days under section 32(3) of the Waqf Ordinance, but instead of filing a revision the respondent filed an application for review which, was obviously not maintainable. Even that application was dismissed for default on 10 August 1977. Remedy against the order of dismissal Jay in another application under rule 7(2) of Order XLVII C.P.C. but again a wrong forum was chosen; a revisional application under section 115 C.P.C., being Civil Revision No.1429 of 1977, was made before the High Court Division which however rejected it pointing out that remedy might be sought before the District Judge by filing an application for restoration of the review petition. Such an application was to be filed within 15 days from the order of dismissal for default as has been rightly pointed out by the learned District Judge in his judgment dated 8-7-79 in Miscellaneous Case No.32 of 1979. But it was filed after about 2 years. The period spent in prosecuting the revisional application (C.R. No. 1429 of 1977) was sought to be excluded from the period of limitation. The learned District Judge found that even if that period of time was excluded and the limitation started from the date of the High Court Division's order dated 2 July 1979, still the application under rule 7(2) was filed far beyond the period of limitation of 15 days. Dismissal of the original application for review on the ground of default shows that the respondent was not diligently prosecuting her proceeding, though in a wrong forum. Again, the other "civil proceeding" in wrong forum as referred to in section 14 should be prosecuted in good faith. In the facts and circumstances if cannot be said that the respondent started proceeding in good faith and consequently she is not entitled to the benefit of section 14. In disposing of the respondent's application under rule 7(2) of Order XLVII C.P.C. the learned District Judge also considered the reasons shown by her for the dismissal for default and found that her lawyer's pre-occupation was not a sufficient ground for her failure to take steps in her proceeding on the date of hearing. All through the long course of this proceeding she is found to be negligent and as such she is not entitled to get benefit of section 14.
13. In the result, the revisional application filed by the respondent challenging the District Judge's order in appeal being barred by limitation it was liable to be dismissed. The impugned order of the High Court Division is therefore set aside and that of the District Judge is restored. In the circumstances of the case we however do not make any order as to costs.