VIDYACHARAN SHUKLA versus KHUBCHAND BAGHEL AND OTHERS

Citation: [1964] 6 S.C.R. 129 · Decided: 20-12-1963 · Supreme Court of India · Bench: BHUVNESHWAR PRASAD SINHA · Disposal: Dismissed

Cited by 8 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

• 
6 S.C.R. 
SUPREME COURT REPORTS 
129 
umbrella fllld soap which never paid tax under the Act of 
1961 
1918 could be dealt with by the partners as they liked Sail Nagi•• p,,,. 
without affecting 'the question of relief under s. 25 in respect shottam &: Co. 
.of the head business. 
Commi.s:~,,.,. ot 
lncome·ta>:. 
· 
In my judgment, these appeals must be allowed ano the Madr., 
question answered in favour of the assessee firm but only in Hidayatul/IJh 
1.; 
respect of the business in piece-goods, yarn and banking 
which alone had paid tax under the Income-tax Act of 1918. 
I would therefore allow the appeals with costs here and in 
the High Court 
ORDER BY COURT . 
In accordance with the opinion of the majority the 
appeals are dismissed with costs. 
VIDY ACHARAN SHUKLA 
11. 
KHUBCHAND BAGHEL AND OTHERS 
(B. P. SINHA, C.J., K. SUBBA RAO, RAGHUBAR DAYAL, 
N. RAJAGOPALA AYYANGAR AND J. R. MUDHOLKAR JJ.) 
Election-Appeal ta 
High 
Court 
under 
s. 
116·A-Whether in 
computing period of limitation for filing an appeal to High Court, time 
provided by s. 12 of Limitation Act for getting a copy of the order CIJll 
be excluded-Whether s. 29(2)(a) applied to cases of appeal preferre4 
under s. 116-A-Relationship between the two limbs of •· 29(2) of Limi· 
tation Act-Limitation Act. 
1908 
(9 of 1908), ss. 12, 29(2), Fir/II 
Schedule, Art, 156-Representation of the People Act, 1951 (43 of 1951), 
•· 116-A. 
The appellant was elected to the House of the People from a con· 
•tituency in the State of Madhya Pradesh. The respondents were tho 
other contesting candidates' Respondent No. 1 filed an election petition 
challenging the election of the appellant. That election petition was 
dismissed by the Election Tribunal. Against the order of the Tribunal. 
the first respondent preferred an appeal to the High Court under s. 116-A 
134-159 S.C.-9. 
1963 
Decunber, 20 
1963 
Vltlyac/raran 
Sltukla 
v. 
Xhubchand 
Baghel 
SUPREME COURT REPORTS 
of the Representation of the People Act, 1951. Admittedly, the appeal 
was filed more than 30 days after the order of the Election Tribunal. 
If the time requisite for obtaining a copy o(. the order of the Tribunal 
was excluded. the appeal was filed within 30 days. However, if that 
was not tlone, the appeal was 
out of time. The contention of the-
appellant before the High Court was that the respondent No. I was not 
entitled in law to exclude the time taken by him i'l obtaining the copy 
of the order of the Tribunal. That contention was rejected by the High 
Court. The High Court also found that the appellant was guilty of two 
corrupt practices and hence his election was set aside. 
The appellant 
came to this Court by special leave. 
The only question raised before this Court was whether for the-
purpose of computing the period of 30 days prescribed under s. 116-A(3) 
of tho Act, the provisions of s. 12 of the Limitation Act could be invoked 
or not. Dismissing the appeal. 
Held: (per B. P. Sinha, C.J., K. Subba Rao, Raghubar Dayal and 
N. Rajagopala Ayyangar JI.) (i) The exclusion of time provided for 
by s. 12 is permissible in computing the period of limitation for filing 
the appeal in the High Court. 
Per B. p. Sinha, C.J., K. Sobba Rao and N. Rajagopala Ayyangar 
JI.) (ii) Though the right of appeal is conferred by s. 116-A of the 
Representation of the People Act, 1951, and it is by virtue thereof that 
the appeal was filed by respondent in the High Court, it is still an appeal 
"under the Code of Civil Procedure, 1908, tO the High Court". 
To 
attract Art. 156 of the First Schedule to the Limitation Act. it is not 
necessary for an appeal to be an "appeal under the Code of Civil Pro-
cedure" that tho right to prefer the appeal should be conferred by the 
Code of Civil Procedure. It is sufficient if the proccaure for the filing. 
of the appeal and the power of the Court for dealing With the ippeal, 
when filed, are &overned by the Code. 
Per Raghubar Dayal and Mudholkar JJ.-There is no warrant fer 
holding that an appeal which is not given by the Code of Civil Proce-
dure is still an appeal under the Code merely because its procedural 
provisions govern its course. Where a right of appeal is given by some· 
other law, the appeal must be regarded as one untler that law and not 
under the Code of Civil Procedure. There is no reason for constr.llng 
the words "under the Code of Civil Procedure" as meaning ••governed 
in the matter of procedure by the Code of Civil Procedure". 
Held: 

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