Madras High Court
Govindasami Padayachi (Minor) By Next ... vs R. Sami Padayachi on 12 April, 1922
Equivalent citations: (1922)43MLJ579, AIR 1923 MADRAS 114(2)
JUDGMENT Oldfield, J.
1. The decisions in these Small Causes come before us in revision. In S.C. No. 166 of 1920 corresponding with C.R.P. No. 58 of 1921 we are asked to interfere on the ground that there was no evidence on record to justify the lower court's decision in favour of one of the endorsements of payment relied on by the plaintiff in connection with limitation. That endorsement stands on the suit promissory note and was explicitly relied on in the plaint. There was no denial of it in the written statement and nothing except as usual, a statement that facts not expressly admitted must be proved. As regards that statement we should be unwilling to treat it as necessarily safeguarding the defendant's interest in any conclusive manner in the absence of anything in the course of the trial to justify suspicion that he was taken by surprise or that there was misunderstanding as to what the party had to prove. In the present case, however, there is something more substantial. The 1st defendant, against whom the decree is sought, is a minor and Mr. R. Kuppuswami Aiyar on his behalf has relied on the exception relating to persons under disability in Order 8, Rule 5, C.P.C. This exception is no doubt not often relied on. In fact in our experience we have never known it applied and there is no reason for supposing that it was in the mind of either side at the trial. We however are bound to give the minor defendant the benefit of it and to remand the case for further trial. The facts in S.C. No. 167 of 1920 corresponding with C.R.P. No. 59 of 1921 are that plaintiff, it is not disputed, in order to show that his suit was instituted in time has to avail himself of three different additions to the normal period of limitation. He has firstly with reference to Section 14 to except from the time which has elapsed the interval, during which his plaint was in the Small Cause Court, Kumbakonam, where it was filed erroneously. He has next to except from that time the interval after its return from that court, until it was filed in the "proper court, the District Munsif's Court of Ariyalur, and for that he claims the application of Section 4 of the Limitation Act, because the clays in question were holidays, on which the District Munsif's Court was closed. As regards these two periods on the view I take nothing more need be said. The lower court's finding, which has not been disputed before us, is that the plaintiff filed his suit in the Small Cause Court of Kumbakonam in good faith and there is no objection to the application of Section 14 to this part of the time. Similarly on no view of the law or authorities is if possible for the defendants to resist the application of Section 4 to the subsequent holiday period.
2. Unfortunately, however, for plaintiff lie must in order to avoid the plea of limitation, rely on Section 4 a second time in order to claim exclusion from the time, which has elapsed, of one day prior to his filing his plaint at Kumbakonam. That day was a holiday, and the question argued before us is whether Section 4 can legitimately be applied to it. I note that one plea is not open to the plaintiff. He cannot, in view of the decision in Seshagin Rao v. Vajravelayudan Pillai (1913) I.L.R. 36 Mad. 482 : 22 M.L.J. 377, ask us to regard the suit as having been finally instituted at Kumbakonam and to treat the subsequent proceedings at Ariyalur as having taken place, whilst the suit was pending. That alternative dismissed from consideration, he must be regarded, unless we are prepared to admit the possibility of the same suit being filed twice, as having tiled the suit at Ariyalur and he must argue that Section 4 is applicable to any days on which the court is closed, whether they occur at the end of the period of limitation prescribed for the suit or at some point in its course. On this however authority, as I understand it, is against him. It is not necessary to consider the decisions of Spencer, J. in Mira Mohidin Rowther v. Nallaperumal Pillai (1911) I.L.R. 36 Mad. 131 : 21 M.L.J. 1000 and Ummathu v. Pathumma (1921) I.L.R. 44 Mad. 817 : 41 M.L.J. 84 since they seem to have dealt rather with cases, in which with reference to the closure of one of the courts concerned a period to be allowed was in question, with which no closure of the other court corresponded. For here the holidays were general holidays and both the Kumbakonam and the Ariyalur courts were closed on those days. The law seems to be stated most clearly in the judgment of Napier, J. in Ramalingam Aiyar v. Subbier (1918) 8 L.W. 256 the learned Judge pointing out that Section 14 and other sections direct the manner, in which the period of limitation is to be ascertained, and that Section 14 becomes applicable only after its ascertainment is complete. That of course will entail in the present case the application of Section 14 up to the holiday which preceded the tiling of the suit at Ariyalur and the application of Section 4 only to the period of that holiday. The view taken by Napier, J. seems to me consistent with that taken by Ramesam, J. in Ummathu v. Pathumma (1920) I.L.R. 44 Mad. 817 : 41 M.L.J. 84 and not inconsistent with any thing in the judgment of Ayling, J. in Mira Mohidin Rowther v. Nallaperumal Pillai (1911) I.L.R. 36 Mad. 131 : 21. It is true that a wider view has been taken in Basavanappa v. Krishnadas (1921) I.L.R. 45 Bom. 443 and there may be some difficulty in reconciling the authorities of this Court, to which I have referred, with the decisions relating to the period requisite for obtaining copies, Saminatha Aiyar v. Venkatasubba Aiyar (1903) I.L.R. 27 Mad. 21 : 13 M.L.J. 300 and Subrahmanyan v. Narasimhan (1920) I.L.R. 43 Mad. 640 : 38 M.L.J. 465. The latter, however, may be explained as proceeding on the interpretation of the words 'time requisite' in Section 12 of the Act. It is urged that a liberal construction of Section 4 should be adopted, since the plaintiff, having acted in good faith, will suffer unmerited hardship. The answer must be that a liberal view cannot be taken, when to do so would involve disregard of the words of the statute. In my opinion C.R.P. No. 59 must be allowed, the lower Court's decree being set aside and the suit dismissed with costs in the lower and in this Court. C.R.P. No. 58 must be allowed to the extent that the lower Court's decree is set aside and the Small Cause is remanded to the lower Court for re-admission and rehearing in the light of the foregoing.
3. As the 2nd defendant in her capacity as guardian of 1st defendant never, so far as we can ascertain, brought to the notice of the lower court the special terms of Order 8, Rule 5 at the trial, the 1st defendant will, whatever be the result of the remand, pay the costs of the plaintiff up to date.
Venkatasubba Rao, J.
4. So far as C.R.P. No. 58 is concerned I agree with the conclusions of my learned brother and in C.R.P. No. 59 I reserve my judgment.
5. Civil Revision Petition No. 59 of 1921 having been posted for delivery of judgment this 12th day of April 1922, the court (Venkatasubba Rao, J.) delivered the following JUDGMENT Venkatasubba Rao, J.
1. The District Munsif has passed a decree in favour of the plaintiff. The defendant contends that the suit is barred by limitation. The suit was to recover a sum of money due upon a promissory note dated 9-9-1915. The last day of the period of limitation was 9-9-1918. The plaint was presented on 10-9-1918 in the Small Cause Court of Kumbakonam, It was returned on 23-1-1920 for presentation to the proper court and it was represented on 26-1-1920 in the Small Cause Court of Ariyalur and the suit was tried by the District Munsif of that place. It has been found that the plaintiff's prosecution of the previous suit was in good faith and that Section 14 of the Limitation Act was therefore applicable. The period between 10-9-1918 and 23-1-1920, it is conceded, can be excluded under Section 14; nor is any objection taken to the exclusion under Section 4 of the period that elapsed between 24-1-1920 and 26-1-1920. The defendant objects to the exclusion of the one day between 9-9-1918 and 10-9-1918 and contends that neither Section 14 nor Section 4 can be of avail to the plaintiff so far as the period of this one day is concerned.
2. The plaintiff points out that if this view is accepted great hardship will result to him and that the intention underlying the beneficient provision enacted in Section 14 will be defeated; he further argues that the court having found that he acted in good faith in filing the suit in the first court on 10-9-1918, he is deprived of the protection intended to be conferred by the said section.
3. The latest pronouncement on the subject is the judgment of the Bombay High Court in Basavanappa v. Krishnadas (1921) I.L.R. 45 Bom. 443 and this authority supports the plaintiff's contention and in it the learned Judges make certain very strong observations in regard to the injustice that follows from the courts accepting the contrary view. The hardships occasioned to the plaintiff is obvious and in view of this fact and the decision cited above I thought the matter was worthy of further consideration and reserved judgment.
4. I shall deal with the cases cited and then examine the terms of the Sections 4 and 14 in order to find out what the proper construction is.
5. I shall first refer to Mira Mohidin Rowther v. Nallaperumal Pillai (1912) I.L.R. 36 Mad. 131. The cause of action arose on the 14th June 1905 and the last day of the period prescribed for the suit was 14th June 1908. The suit was filed in the Madura West Subordinate judge's Court on the 6th July 1908 as on the 14th June that Court was closed for the recess and the 6th July was the reopening day. On an objection being taken to the jurisdiction of the Madura West Subordinate judge's Court, the plaint was returned on 17th February 1S09 and was presented to the Tuticorin Subordinate Judge's Court on the next Court day, viz., the 19 February.
6. Sankaran Nair, J. who heard the revision petition held that the plaintiffs were not entitled to deduct the period from the 14th June 190S to the 6th July 1908. An appeal was filed under Section 15 of the Letters Patent and Ayling and Spencer, JJ. agreed with Sankaran Nair, J. and dismissed the appeal.
7. In regard to this case it is to be observed that the proper court had reopened before the 6th July 1908 and that so far, the facts of the present case are distinguishable. But as I shall show presently, with reference to the principle applicable, this distinction is of no avail.
8. The correctness of this decision was affirmed in Seshagiri Row v. Vajra Velayudam Pillai (1913) I.L.R. 36 Mad. 482 by Benson and Sundara Aiyar, JJ. who overruled the contention that the suit filed in the second court should be regarded as a continuation of the infructuous suit tiled in the wrong court. Mir a Mohideen Rowther v. Nallaperumal Pillai (1912) I.L.R. 36 Mad. 131 was again followed in Ramalinga Aiyar v. Subbier (1918) 8 L.W. 256 where Napier, J., observed "If this plaint has been presented in a proper Court on the day after that on which the limitation expired, that day having been a holiday then the plaintiff would have been able to take advantage of the specific provision in Section 4; but as he has not done so, in my opinion, he is not entitled to take advantage of that provision." The learned Judge points out that while Section 14 deals with the computation of the period of limitation, Section 4 is only "a particular statutory provision not for the purpose of computing the period of limitation but allowing in certain circumstances the filing of suits after the period has expired.
9. The authorities were reviewed in Ummathu v. Pathumma (1921) I.L.R. 44 Mad. 817 and the cases cited above were followed in it. The last day for presenting the plaint was the 30th December 1917. It was actually presented on the 3rd January 1918 in the Small Cause Court of Cochin, that being the day when that court reopened after the Christmas holidays. The plaint was returned for want of jurisdiction on the 6th February, as the suit was excepted from the cognizance of a court of Small Causes and the plaintiff re-presented the plaint on the following day in the c court of the Subordinate Judge of Cochin. It would have been in time if it had been instituted on the 3rd January in the latter court, as it was also closed on the 30th December and it re-opened only on the 3rd January.
10. It was conceded that the period from the 3rd January to the 6th February was to be excluded from computation under Section 14, The question to be decided was whether the days from the 31st December to the 2nd January could be excluded. The answer was in the negative and the suit was held to be barred. In his judgment Ramesam, J. points out that Section 4 affords help to a plaintiff if the holidays follow the period that can be excluded under Section 14 but not if the holidays precede such period.
11. The Madras High Court has thus uniformly taken a view opposed to that contended for on behalf of the plaintiff.
12. In Mukund Rao v. Ramraj (1916) 14 A.L.J. 310 the same construction found favour with the learned Judges. The plaint was filed in the court of the Subordinate Judge of Agra on the 2nd June 1913 and the proceeding's in that court lasted until the 21st January. The plaint was represented in the Court of the Subordinate Judge of Aligarh on the 22nd January 1914. The suit was dismissed as barred on the ground that the period of limitation originally expired on the 1st and not on the 2nd June 1913, and therefore even excluding the time from the 2nd June 1913 to the 22nd January 1914, both days inclusive, plaintiff's suit in the second court was beyond time. The District Judge's reason for this conclusion is contained in the following passage, "...the period of limitation 'computed' as laid down in Section 1.4 of Limitation Act did not expire on a day when the court (of the Subordinate Judge of Aligarh) was closed. Therefore the extra day (1st June 1913 to 2nd June 1913) cannot be allowed". This statement of the law was accepted by the learned Judges who, in a very short judgment dispose of the appeal with an observation which indicates that they were sensible of the hardship that resulted to the plaintiff. Haridas Ray v. Saratchandra Ray 17 C.W.N. 515 cannot be said to be a decision on the question. The case was decided in my opinion with reference to a point which is different from the one under consideration and I shall not therefore deal with it further.
13. The plaintiff mainly relies on the authority of Basavanappa v. Krishnadas (1921) I.L.R. 45 Bom. 443. The learned Judges refuse to follow Mira Mohideen Rowther v. Nallaperumal Pillai (1912) I.L.R. 36 Mad. 131 and it is worthy of observation that Macleod, C.J. assumes in his judgment, in regard to the facts of the case that carne up for decision before him, that no difficulty would have existed if the second court had also been closed for th3 vacation. The learned Judge observes "Clearly the plaintiff is entitled to take advantage of these days during which the first court was closed for the vacation and calculation should be made in the same way as if the second court had been closed for the vacation". The actual decision in the Bombay case as well as the assumption involved in the passage referred to, are opposed to the current of the authority of this Court and in my opinion are not warranted by the provisions of the Limitation Act.
14. Some cases were cited before us which are said to relate to the joint application of Sections 4 and 12 of the Limitation Act. These are Saminatha Aiyar v. Venkatasubba Aiyar (1901) I.L.R. 27 Mad. 21 Venkata Row v. Venkatachella Chetty (1905) I.L.R. 28 Mad. 452 and Subramanyam v. Narasimham (1920) I.L.R. 43 Mad. 640. I am however of the opinion that these cases do not throw any light on the interpretation of Section 4 and that they deal only with the effect of the words "the time requisite for obtaining a copy" in Section 12,
15. The facts relevant in Saminatha Ayyar v. Venkatasubba Ayyar (3) are these: Judgment was delivered on the 22nd December 1900, the last day before the Christmas vacation at 4 p.m. when according to the practice of the Court, papers Were not received. The appellant made his application for a copy of the judgment on the 7th January 1901 the day on which the court re-opened after the Christmas holidays and presented his appeal on a day which would be in time if he was entitled to deduct the period the court was closed. His contention, was, that in computing the period for appeal the time during which the Court was closed, should be deducted. The learned Judges held that the appellant was entitled to deduct the period from the 23rd December to the 6th January, as such period, in the circumstances, must be taken to be part of the "time requisite for obtaining a copy of the judgment."
16. Similarly the judgments in Venkata Row v. Venkatachellam Chetty (1905) I.L.R. 28 Mad. 452 and Subbramanyam v. Narasimham (1920) I.L.R. 43 Mad. 460 leave no room for doubt that they were dealing only with the definition of the words "time requisite" and not with the applicability of Section 4 In the latter case Wallis, C.J. observes "What we have to see in all these cases is what was the time requisite for obtaining copies within the meaning of the section, and by "requisite" I understand "reasonably requisite."
17. These cases therefore give no assistance in deciding the question at issue.
18. Turning to the Sections 4 and 14 of the Limitation Act, which is the right construction to be placed upon them, that adopted-in the Madras cases and the Allahabad case cited above, or that approved in Basavanappa v. Krishnadas (1921) I.L.R. 45 Bom. 443 With all respect the latter construction seems to be clearly untenable. Section 4 refers to a period of limitation which expires on a day when the Court is closed. How is this period of limitation ascertained? The manner of computing the period in certain circumstances is set out in Section 14. In other words Section 4 assumes that the period of limitation has been ascertained. In computing the period Section Hallows a certain concession and after the period has been computed in accordance with it recourse to Section 4 becomes necessary. This is the view taken by Napier, J, in Ramalinga Aiyar v. Subbier (1918) 8 L.W. 256 which is in accord with that which received the approval of the judges who decided Makund Ram v. Ramraj (1916) 14 A.L.J. 310 and has been approved by my learned brother in his judgment. According to this construction, if the holidays follow the period specified under Section 14 they can be availed of but if the holidays precede the said period they cannot be excluded. In my opinion, Sections 4 and 14 are incapable of any other construction, and the correct view is that set forth above.
19. In the judgment in Basavanapa v. Krishnadas (1921) I.L.R. 45 Bom. 443 the result that follows from this view is described as iniquitous. This is a just criticism of the sections of the Limitation Act under consideration. But the defect is inherent in, and inseparable from these and similar provisions as they can only be general in the matter of wording and cannot possibly provide for all cases that are likely to occur. For instance, the appellant for copies under Section 12 is under no obligation to make an early application and he may apply at any time, even on the last day prescribed for the filing of the appeal. Turning to Section 13, if a defendant leaves British India on the day after the accrual of the cause of action, say, in respect of a promissory note executed by him and is absent from British India for three years the period of limitation is extended to six years by reason of the section in question and in this instance the protection afforded is far beyond the needs of the case; whereas if the defendant leaves British India just a day previous to the expiration of the period of limitation and is absent from British India for three years it becomes the plaintiff's duty to find at his peril that the defendant has returned to British India and file his suit forthwith because there is only a day outstanding out of the period of limitation prescribed; and it must be said that the concession granted falls in this instance short of what may be considered equitable. It is possible to conceive of many more cases of a like nature in respect of Sections 12, 13 and 14; but these considerations cannot affect the construction of the sections and the present case is an extreme instance of the very great hardship that is sometimes occasioned in consequence of the very general wording of the aforesaid sections.
20. It must be observed that in the view I have taken of Sections 4 and 14, it makes no difference whatsoever whether the first Court alone is closed as happened in Mira Mohidin Rowther v. Nallaperumal Pillai (1912) I.L.R. 36 Mad. 131 or whether the first and the second courts are both closed.
21. If a plaintiff, after the expiration of the full period of limitation, on account of the intervening of the holiday, files a suit on the reopening day in a wrong court, Section 14 can never be of any avail to him and afford to him no help whatsoever. The defendant has contended that we must construe the sections liberally. If two constructions were possible the more liberal one might be adopted but I am clearly of the opinion that the view I have taken is the only possible view to take of the Jaw as it stands, and I therefore entirely concur in the Judgment delivered by ray learned brother.