1. This is an appeal from the decision of the learned Chief Justice in which he has held that part of the plaintiffs' claim is barred by limitation. So far as that portion of the claim is concerned the facts are that a call was payable on April 20, 1922, and that the suit was filed on June 11, 1925. Under Article 112 of the Schedule to the Indian Limitation Act the period of filing such a suit is three years from the date when the call is payable. Therefore prima facie the suit is so far time-barred.
2. It is, however, sought to evade this difficulty by invoking Section 4 of the Indian Limitation Act, on the ground that the period of limitation prescribed for the suit expired on a day when the Court was closed. It is said that the Court was closed because the last day on which the suit could have been filed fell within the annual summer vacation of the Court, and that, therefore, as provided by the section the suit could have been instituted on the day when the Court re-opened, that is, on June 15, 1925.
3. We have heard an elaborate argument upon the point from Mr. Munshi who has pressed upon our consideration everything that can be said on behalf of the appellants. But when all is said and done, it appears to me that the point lies within an extremely narrow compass.
4. The question, I take it the only question, is whether this Court on its Original Side was 'closed' within the meaning of that word as used in Section 4 of the Indian Limitation Act during the summer vacation of 1925.
5. Now, it appears to me that in order to determine what the legislature meant by the use of the word 'closed' in this section, we must consider what was the object in view or what was the underlying principle.
6. It seems to me clear that the principle is this that when a party has to do something before a certain day and if upon that day or before that day he cannot do that thing by reason of the act of the Court, then he is entitled to an extension of time over that period during which he is delayed by the Court's action. Thus in considering whether or not Section 4 applies to this suit, it is necessary in my judgment to consider whether the plaintiffs could have filed their suit during the annual summer vacation.
7. When I say 'filed' I merely use the colloquial expression. The word used in the section itself is 'instituted' and its meaning is to be found in the explanation to Section 3 of the Act :-
A suit is instituted, in ordinary cases, when the plaint is presented to the proper officer.
8. Could then the plaintiffs have presented their plaint to the proper officer during the summer vacation of the Court ?
9. A great deal has been said about the rules of the Original Side and we have been referred to Rules 2 and 5 of the rules relating to the civil jurisdiction on the Original Side of the High Court which will be found printed at p. 11 of the Rules and Forms of this Court.
10. In my opinion Rule 2 merely deals with the times at which certain vacations and holidays shall be taken. I do not think that the word 'closed' in that rule can be read as indicating that the Court will or will not receive any particular class of business. It is merely used in its popular sense as indicating the time at which the Easter and Christmas holidays shall be held.
11. The rule which really refers to this matter is Rule 5 and under that rule 'the offices of the Court (except in vacation and on holidays) are open daily from 11 A.M. till 5-30 p.M. but no work, unless of an urgent nature, is admitted after 4-30 P.M.
In the vacation the offices are open daily from 11-30 A.M. to 1-30 P.M. for urgent work only; but on Saturdays and holidays they are closed, provision being made for very urgent business.
12. A plaint has to be presented in this Court by being lodged in the office of the Prothonotary. I may say that I regard the word 'present' in Section 3 of the Indian Limitation Act as indicating a purely mechanical process. When a plaint is taken to the Prothonotary's office and is given to the officer whose duty it is to receive it, it has been presented.
13. Upon the rule itself the question therefore would be whether the presenting of the plaint could be regarded as urgent work. But that view of the matter has to be qualified by a consideration of the practice which has admittedly grown up in recent years. It was conceded that whatever may be the interpretation that was placed upon that rule formerly, in the recent years plaints have as a matter of fact been received in the Prothonotary's office during the vacation whether they were of an urgent nature or not; and that this is so is strikingly exemplified by the plaint in the present case which was lodged in the Prothonotary's office on June 11 whereas the Court vacation did not expire until June 15, 1925. Therefore, in the very case in which we are concerned, there was a presentation of the plaint during the vacation and Mr. Munshi was forced to admit with his usual candour that there was nothing to prevent the plaintiffs from lodging their plaint before April 19, 1925, on which date the period of limitation expired. Therefore in the very case in which we are concerned it is impossible to say that the plaintiffs were precluded by any act of the Court from presenting their plaint before the expiry of the period of limitation and that appears to me to be a conclusive answer to the present appeal.
14. I would further add that in view of the decision of Mr. Justice Marten (as he then was) in Tata Industrial Bank Ltd. v. Abdul Husein (1922) 25 Bom. L.R. 1296 it is very difficult to feel that there is any real case of hardship about this matter. In that judgment, which must have been well-known to the profession, the learned Judge says (p. 1302) :-
But I wish to emphasise that so far as certain classes of business are concerned, these Courts have undoubtedly not been closed. They certainly had not been closed as regards the admission of plaints, the filing of written statements, and what is much more important, the hearing of Short Causes.
15. Now, in view of this pronouncement by a Judge of this Court, a pronouncement of which the plaintiffs' advisers must or ought to have been aware, it is very difficult to feel that they were justified in waiting until the period of limitation was over, relying upon the fact that the period expired during the vacation.
16. Our attention has been invited to the decision of 'Kemp J., in suit No. 1928 of 1924 pronounced on February 21, 1921, in which a contrary view is taken. But with all deference to that learned Judge, it seems to me that once it is admitted that the Prothonotary's office was open and that the plaint could have been filed, no answer remains to the plaintiffs so far as this question of limitation is concerned.
17. I would, therefore, confirm the decree of the Court below and dismiss this appeal with costs.
18. I agree. The matter, in my opinion, falls within an extremely narrow compass.
19. The question is whether the suit with regard to that part of it with which we are concerned, namely the first call, was barred by Section 4 of the Indian Limitation Act upon the ground that the suit could not have been instituted because the Court was closed.
20. Whether a Court is or is not closed is, in my judgment, in each case a question of fact, and must depend upon the practice which prevails in the particular Court. We have been referred, as my learned brother has pointed out, to Rule 5 of the Original Side rules, where it is no doubt stated that in the vacation the offices are open daily from 11-30 A.M. to 1-30 P.M. for urgent work only, and Mr. Munshi has contended that it must depend upon the individual opinion of the officer presiding in the office at any particular time as to whether any class of business is or is not urgent. There would be, I think, much force in that contention except for the fact that a practice has admittedly grown up under which there is no opportunity for the exercise of individual opinion as to whether the lodging of suits or plaints is or is not urgent work. In 1922 the present learned Chief Justice, in dealing with a case in which the actual decision was with regard to the disposal of a summary suit, nevertheless discussed in great detail the class of work in regard to which this Court was by the practice prevailing not closed during the long vacation, and he pointed out that this Court was not closed during the long vacation. The learned Judge was speaking from his experience of the practice which prevailed, and it must have been perfectly well-known to all persons in the profession who took the trouble to familiarise themselves with the practice that prevailed, that plaints can be lodged during the vacation.
21. The rule dealing with the lodging of plaints is Rule 19 which provides that they should be lodged with the Judge's Clerk at the time specified in that rule. In my opinion the moment a plaint is lodged it is presented to the Court within the meaning of Section 3 of the Indian Limitation Act which defines what is meant by the institution of a suit; and in my judgment nothing more is required of a person who desires to institute a suit except to lodge a plaint as required by Rule 19. He has then done all that is required of him and he has instituted the suit 1 am speaking in reference to the institution of suits by the lodging of ordinary plaints where no special question of leave being required under Clause 12 of the Letters Patent may arise.
22. In my opinion, it was impossible for this appeal to succeed the moment Mr, Munshi admitted that it would have been open to the plaintiffs to lodge this plaint on April 18, 1925. He was forced to make that admission and he did so, if I may say so, quite frankly, because he must have been aware of the practice which has grown up of receiving plaints during the long vacation. As a matter of fact, the plaint in this suit was lodged during the long vacation, namely, on June 11, and it is perfectly plain that if it could, as was the fact, be so lodged, then it could have been lodged at anytime between the commencement of the vacation and April 19, the date on which the period of limitation expired. In my opinion, therefore, it is clear that the Court was not as a matter of fact closed during the April to June vacation in 1925, within the meaning of Section 4 of the Indian Limitation Act, and this appeal fails.