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Rupchand Makandas Vs. Mukunda Mahadev - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberCivil Reference No. 15 of 1913
Judge
Reported inAIR1914Bom197; (1914)16BOMLR444
AppellantRupchand Makandas
RespondentMukunda Mahadev
Excerpt:
limitation-exclusion of time-time taken up in obtaining conciliator's certificate-conciliation system abolished after grant of certificate and before date of suit-dekkhan agriculturists' relief act (xvii of 1879), section 48-;the money advanced on two bonds became repayable on the 24th february 1910- the plaintiff applied on the nth february 1913 to obtain a conciliator's certificate, which he obtained on the 26th april 1913. the court was closed jor the summer vacation from the 28th april to the 8th june 1913. in the meanwhile governmont abolished the conciliation system with effect from the 30th may 1913. the plaintiff filed the suit to recover the money on the 9th june and claimed to exclude the time occupied is obtaining the conclliator's certificate.;that the plaintiff was entitled..........it at a time when the conciliation system was in existence and when under the provisions of the dekkhan agriculturists' relief act it was incumbent upon him to obtain such a certificate. he could have filed the suit in time and claimed the benefit of section 48 of the dekkhan agriculturists' relief act, had it not been for the fact that the court was closed for the summer vacation from the 28th april to 8th june 1913. he filed the suit on the opening day after the vacation. the accident of the local government having cancelled the appointments of the conciliators on the 10th may with effect from the 30th may 1913 cannot make any difference in the plaintiff's position. the suit, though filed on the 9th june when the conciliation system was abolished, was substantially one, to which the.....
Judgment:

Shah, J.

1. On the facts stated in the reference, we are clearly of opinion that the suit is not time-barred.

2. The plaintiff applied for a certificate and obtained it at a time when the conciliation system was in existence and when under the provisions of the Dekkhan Agriculturists' Relief Act it was incumbent upon him to obtain such a certificate. He could have filed the suit in time and claimed the benefit of Section 48 of the Dekkhan Agriculturists' Relief Act, had it not been for the fact that the Court was closed for the Summer Vacation from the 28th April to 8th June 1913. He filed the suit on the opening day after the vacation. The accident of the Local Government having cancelled the appointments of the Conciliators on the 10th May with effect from the 30th May 1913 cannot make any difference in the plaintiff's position. The suit, though filed on the 9th June when the conciliation system was abolished, was substantially one, to which the provisions of Chapter VI of the Dekkhan Agriculturists' Relief Act were applicable, throughout the period of limitation which expired during the vacation. The plaintiff is accordingly entitled to deduct the period between his application and the grant of the certificate.

3. Assuming, however, that Section 48 of the Dekkhan Agriculturists' Relief Act does not apply, as at the date of the suit there were no Conciliators in the District, it is clear that the plaintiff's claim is still in time on another ground. On the facts the position is clearly this that the plaintiff's suit would be strictly in time upto a certain date during the vacation, on which day he could not file it as the Court was closed. He could file it on the re-opening of the Court under Section 4 of the Limitation Act. But by the Government Notification the whole position was changed, and it became impossible for the plaintiff to file his suit in time. It is clear that the law doss not compel a man to do that, which he cannot possibly perform. Under the circumstances we think the proper rule to apply is that when the law creates a limitation, and the party is disabled to conform to that limitation, without any default in him, and he has no remedy over, the law will ordinarily excuse him. The facts in this case clearly entitle the plaintiff to be excused.


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