1995 PLP 1740 (CLC)

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29. Limitation.‑‑In any ,case not provided for by Article 8 of the Second Schedule of the Limitation Act of the State, the period of limitation in a suit to enforce a right of prior purchase shall be one year‑‑ (a) in the case of a sale of agricultural land or village immovable property. from the date of attestation (if any) of the sale by a Revenue Officer having jurisdiction in the register of mutations maintained under the Land Revenue Act;. from the date on which the vendee takes under the sale physical possession of any part of such land or property whichever date shall be earlier; (b) in the case of a foreclosure of the right to redeem village property or urban immovable property; from the date on which the title of the mortgagee to the property becomes absolute; (c) in the case of a sale of urban immovable property from the date on which the vendee takes under the sale physical possession of any part of the property." Similarly section 29 of the Limitation Act which excludes the operation of Limitation Act in the cases where a special statute itself provides a limitation to the extent it is relevant for the purpose is reproduced below: "

29. Saving.‑‑(1) Nothing in this Act shall effect section 25 of the Contract Act, 1872. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of Section 3 shall apply, as if such period were prescribed therefor in that Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law‑‑ (a) the provisions contained in section 4, sections 9 to 18 and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and (b) the remaining provisions of this Act shall not apply."

5. The provisions of Limitation Act in view of above are excluded from operating upon a special or local law which itself prescribes a period of limitation. The special' law is a law which deals with a particular subject is enacted for special cases as distinguished from the general law which applies generally. The right of prior purchase is a special right created by a special law which governs the special cases bestowing the right, of pre‑emption in a particular class of person or persons and for particular properties. Section 29 of the Right of Prior Purchase Act provides a period of one year to enforce the right of pre‑emption in the cases for which the period is not provided by the relevant Article of the Limitation Act. But, where the relevant Article of the Limitation Act provides the period, it is the latter which will govern the limitation not the Prior Purchase Act. It in other words means that the period of limitation for enforcing the Right of Prior Purchase is subject to the provisions of Limitation Act. In order to attract the provisions of section 29 of the Limitation Act, it is essential to ascertain that the special law has prescribed a different period of limitation from that prescribed under the Limitation Act. But where the special law is silent on the subject or specifically subjects itself to all or some of the provisions of the Limitation Act, exclusion provided by section 29 of the Limitation Act is not attracted. A comparative study of both the sections referred above, reveals that section 29 of the Prior Purchase Act makes the provisions of the Limitation Act specifically applicable to a suit to enforce the right of prior purchase in all those cases which are not provided by the Prior Purchase Act. Thus in view of specific reference to the provisions of the Limitation Act for enforcing the right of prior purchase, the period provided by the Right of Prior Purchase Act is excluded to the extent it finds place in the Limitation Act, notwithstanding the Right of Prior Purchase Act being a special law. The amendment in the Limitation Act providing a different period, therefore, is not derogatory to the period of limitation provided by the Right of Prior Purchase Act, it is rather in furtherance thereof and in accordance therewith.

9. Section 29 of the Right of Prior Purchase Act, however, in view of the amendment in the Limitation Act, requires a modification as phraseology used therein is not compatible with the relevant Article of the Limitation Act, e.g. 'the section refers to `Article 8 of 11 Schedule' while it is `Article 10 of the First Schedule` which provides the limitation to enforce the right of prior purchase. It deserves consideration of the Legislature.

7. The case of the appellant, however, is different and amendment in the Limitation Act, whereby the period of limitation has been substituted as four months instead of one year, does not apply in the case in hand for the reason that sale‑deed was executed on 17‑2‑1992 cause of action arose to the appellant on 17‑2‑1992, when the period of limitation for enforcing the right of prior purchase was one year. The amendment in the law was effected through Act No. X of 1992 which received the assent of the President on 24‑6‑1992 and it was published in the official Gazette on 29‑6‑1992. The law of limitation is a rule of Procedure and the rules of Procedure do not apply retrospectively, unless these are specifically so made. The Amendment Act, according to subsection (2) of its section 1 is to come into force at once. Thus, the amendment which curtails the period to four months, does not apply to the case of appellant, as cause of action accrued to him before the enforcement of the amendment in the Limitation Act, and the same did not apply retrospectively.

8. Besides that, section 5 of the Limitation Act is also amended by Act X of 1992. An explanation is attached to the section, which is as follows:‑‑ "Explanation:‑‑The fact that the plaintiff, appellant or applicant was misled by any circumstances, order practice or judgment of the High Court in ascertaining or computing the prescribed period of limitation may be sufficient cause within the meaning of this section."

9. Though the amendment in Article 10 of the first Schedule of Limitation Act, does not, ipso facto, apply to the case of appellant, but if it is so stretched and if the worst comes to worst, there is no reason not to believe that the appellant might have been misled by the position and practice of law then prevailing for the purpose of enforcing the right of prior purchase, which was one year. The laws in our society are neither published for public opinion nor discussed in Assembly or Press. Unless a person is actually hit by a clandestine law, its enforcement remains concealed. Such an eventuality is a sufficient ground for admitting the plaint of the plaintiff even after the period of limitation of four months in view of above explanation attached to section 5 of the same Amendment Act, if the period is reckoned from the date of amendment.

10. In view of above, the appeal is accepted and the orders passed by the Courts below are set aside. The case is remanded to the trial Court for trial in accordance with law.

11. In view of the circumstances of the case, no order as to costs. AA./64/AJ&K Appeal accepted.