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V.V. Kanemar Venkapaiya Vs. Nazerally Tyabally Singaporevalla - Court Judgment

LegalCrystal Citation
SubjectTenancy;Limitation
CourtMumbai
Decided On
Case NumberO.C.J. Appeal No. 110 of 1922 and Suit No. 2676 of 1921
Judge
Reported inAIR1924Bom36; (1923)25BOMLR484
AppellantV.V. Kanemar Venkapaiya
RespondentNazerally Tyabally Singaporevalla
DispositionAppeal allowed
Excerpt:
limitation - notice of motion-copy of notice filed with the prothonotary within the period of limitation-motion brought on in court after the expiry of the period of limitation fixed for the application-application within time-practice. ;where an application is to be made to a court within a prescribed period of limitation, the application is deemed to be made for purposes of limitation when a notice of motion is first filed in the proper office of the court. ;in re gallop and central queensland, meat export company (1890) 25 q.b.d. 230, followed. - .....equities are all in favour of the defendant. the plaintiff put off the hearing of the motion from time to time, and did not even serve his affidavit in opposition until after the period of limitation had expired. the notice of motion was filed on august 25 more than a month before the period of limitation expired, and it was not suggested in correspondence that time was of importance, or that it was necessary to appear in court before september 30, 1922, if the application was not to be time-barred. however that may be, i am prepared to hold that when an application is to be made to the court, it commences to be made when a notice of motion is first filed in the proper office of the court.13. the appeal, therefore, succeeds, and the application must go back to the trial court to be.....
Judgment:

Norman Macleod, Kt., C.J.

1. By Act XIV of 1920, Section 10 A was directed to be inserted after Section 10 of the Bombay Rent (War Restrictions) Act No. II of 1918. On December 31, 1921, the defendant in Suit No. 2676 of 1921 was evicted by the plaintiff under a decree passed on September 9, 1921, on the ground that the plaintiff, his landlord, required the premises reasonably and bona fide for his own use and occupation. The defendant alleging that the plaintiff had not occupied the premises within the period of six months horn December 31, 1921, moved the Court under Section 10 A of the Rent Act for an order that the plaintiff should be made to re-instate him in the occupation of the premises described in the plaint, on the original terms and conditions of his lease and to pay him compensation for the loss suffered during the period he was kept out of possession of the said premises.

2. The defendant filed his notice of motion in the office of the Prothonotary on August 25, 1922, giving notice that the Court would be moved on Thursday, August 31, for an order that the defendant might be re-instated. The notice of motion bears an endorsement that it had been served on the plaintiff's attorneys on August 25.

3. On August 30, the defendant's 'attorneys wrote to the plaintiff's attorneys to note that they had not received the plaintiff's affidavit in reply to the notice of motion. The plaintiff's attorneys answered, on August 30, 1922, as follows:

Please note that neither our client nor our client's Munim is in Bombay to give us instructions for showing cause against the notice of motion We shall, therefore apply for an adjourntment of the hearing of the motion for a month. We beg to send you herewith a copy of our client's clerk's affidavit in support of oar application for adjournment.

4. The defendant's attorneys replied, on August 31, that they would oppose the application for adjournment. On September 6, they wrote again in answer to the plaintiff a letter of August 31 that the plaintiff had then had sufficient time to get his affidavit in reply made, and that there was no justification whatever for their client's proposed application for postponement. The letter added that the motion would be brought on before Mr. Justice Pratt on September 11 as Mr. Justice Pratt would be sitting on that day on the Original Side. Defendant's attorneys wrote on September 8 that the motion would not be brought on September 11 as Mr. Justice Pratt would not be sitting on the Original Side. They again pointed out that they had not received the plaintiffs affidavit in reply. Nothing happened until September 29 when the defendant's attorneys wrote :

We understand that the Huntley Mr. Justice Pratt will be sitting on the Original Side on October 2. Please note that we shall bring on the motion on October 4.

5. On October 4, the plaintiff's attorneys wrote sending a copy of the affidavit of their clerk which would be used in showing cause against the notice of motion.

6. The matter eventually was brought on before Mr. Justice Pratt on October 6, when the plaintiff contended that the defendant's application was barred by limitation as it had not been made within nine months from the date when the plaintiff obtained possession.

7. The question was whether it could be said that the defendant made the application to the Court when he filed his notice of motion in the office of the Prothonotary. Then it was in time according to the provisions of Section 10 A of the Rent Act.

8. The learned Judge in holding to the contrary relied upon the decision in Hinga Bibee v. Munna Bibee I.L.R. (1903) Cal. 150, where it was decided that an application for restoration of a suit to the Board must be made within thirty days of the dismissal of a suit, and that a notice that the application would be made on a future date did not prevent limitation from running. Mr. Justice Sale said (p. 154):

The notice of motion which was given on August 29, 1903, does not prevent the law of Limitation from applying. That is laid down in the case of Khetter Mohun Sing v. Kassy Nath sett I.L.R. (1893) Cal. 899, and inasmuch as the thirty days expired within the period of the vacation, the only course open to the plaintiff to avoid limitation was to mention the matter to the Court on its reopening day, which, as I have said, was not done.

9. The learned Judge was, therefore, constrained to follow the decision in Khetter Mohun Sing v. Kassy Nath Sett, which was a decision by the Appeal Court to the effect that the taking out of a summons calling upon another to attend a Judge in Chambers on the hearing of an application, was the act of the applicant and not of the Court taking cognizance of the application, and was not sufficient to save the application from being barred if the hearing of the application came on after the time allowed by the Indian Limitation Act for the application had expired, The Chief Justice said (p. 902):

The gammons to attend the hearing of the application is the act of the applicant only and in merely a notice, signed by the Registrar at his request, that the application will be made on the day mentioned, i. e., December 5th, and is not the act of the Court receiving or taking cognizance of the application as would perhaps be the case if it were a rule nisi to show cause issued by the Court after hearing the statement of the application.... Under these circumstances we think that no application was made to the Court until the application of December 5th which was made in pursuance of the notice given by the summons, and as that was more than three years from the time when the right to make it accrued the learned Judge was right in rejecting the application.

10. The learned Chief Justice, therefore, considered that an application could not be said to be made to the Court until the applicant had actually appeared before the Court.

11. In appeal we have been referred to a decision of the Divisional Court in In re Gallop and Central Queensland Meat Export Company (1890) 25 Q.B.D.230 which was not cited in the trial Court. Under Order LXIV, Rule 14, of the Supreme Court Rules, an application to set aside an award might be made at any time before the last day of the sittings next after such award had been made and published to the parties. By Order LII, Rule 1, where by the rules any application was authorised to be made to the Court or a Judge, such application, if made to a Divisional Court or to a Judge in Court, should be made by motion. An award was made and published on February 27. Notice of motion to set it aside was served on May 20. The motion did not appear in the day's list for hearing during the Easter sittings, which ended on May 23, but came on to be heard afterwards. It was held that the notice of motion having been given before the last day of the sittings next after the award, the 'application' was within the time prescribed by Order LXIV, Rule 14, and the motion was, therefore, not too late. Mr. Justice Denman said (p. 231):

The notice of motion was given on May 20, and therefore within the time allowed by Order LXIV, Rule 14, for an application to set aside an award. If the notice was an 'application' within the meaning of Rule 14, it was in time. Applying the ratio decidendi of Smith v. Parkside Mining Co. (1880) 6 Q.B.D. 67 and In re Corporation of Hudderafield and Jacob (1874) L.R. 10 Ch. 92, I think that in this case the 'application ' really was the commencement of the complaint. That is, in my opinion, what was intended in Order LXIV, Rule 14, as the application Section The only difficulty in putting this construction on Rule 14 arises from Order LII, Rule 1, which provides that, ' where by these rules any application is authorised to be made to the Court or a Judge such application, if made to a Divisional Court or to a Judge in Court, shall be made by motion'. It might seem, at first sight, from the terms of that rule, that the application and motion were one. But it is not necessary so to decide. Order LII, Rule 1, does not say that for all purposes the words 'application' and motion shall be identical, and mean the game thing. The application may be ' made by motion ', and yet be complete enough within Order LXIV, Rule 14, and a sufficient 'complaint' within the meaning of the cases on the old Act for the purpose of launching a motion to set aside the award. I think that the two sections, although not easy to reconcile, may, perhaps, be reconciled in that way, viz., by deciding that the step had been taken before the last day of the sitting which is the first step which can be reasonably called an 'application' to set aside the award. I think, therefore, no extension of time was necessary.

12. Now in this case it was open no doubt to the defendant to apply direct to the Court for a rule nisi calling upon the plaintiff to show cause why the relief prayed for should not be given under Section 10 A of the Rent Act. But the usual procedure, where a party wishes to obtain a relief of an interlocutory nature, is by motion, and necessarily the first step which has to be taken is to file a notice of motion in Court, and following the decisions in the above-mentioned case that may reasonably be called 'an application'. There is no reason, therefore, why the filing of the notice of motion m this case should not be called 'the application' which the applicant desired to make. Apart from that I may mention that, on the facts of this particular case, the equities are all in favour of the defendant. The plaintiff put off the hearing of the motion from time to time, and did not even serve his affidavit in opposition until after the period of limitation had expired. The notice of motion was filed on August 25 more than a month before the period of limitation expired, and it was not suggested in correspondence that time was of importance, or that it was necessary to appear in Court before September 30, 1922, if the application was not to be time-barred. However that may be, I am prepared to hold that when an application is to be made to the Court, it commences to be made when a notice of motion is first filed in the proper office of the Court.

13. The appeal, therefore, succeeds, and the application must go back to the trial Court to be decided on the merits. The appellant should get his costs of the appeal. Costs in the lower Court to be costs in the application.


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