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Ratan Jayakisan Shukla Vs. Bapu Hiraji Kunbi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number Civil Revision Application No. 217 of 1935
Judge
Reported inAIR1937Bom25; (1936)38BOMLR1196; 166Ind.Cas.893
AppellantRatan Jayakisan Shukla
RespondentBapu Hiraji Kunbi
Excerpt:
.....civil courts act (xiv of 1869), section 40-clerk of court-power to receive and register plaints -plaint presented outside the court precincts-whether plaint properly presented.;the clerk of the court, who is authorised to accept plaints under section 40 of the bombay civil courts act, 1869, may accept a plaint outside office hours and outside the court buildings, though he is not bound to do so, as there is nothing in order iv, rule 1, of the civil procedure code, 1908, to suggest that a plaint must be presented during court hours or within the precincts of the court.;thakur dinram v. hart das (1912) i.l.r. 34 all. 482 and sattayya padayachi v. soundarathachi (1923) i.l.r. 47 mad. 312, referred to. - - but i am not at all satisfied in this case that in fact the clerk ever did accept..........all. 482 and sattayya padayachi v. soundmathachip i.l.r(1923) mad. 312, that the judge can accept a plaint at any hour he chooses though outside office hours, and at any place he chooses, and i see myself no reason to doubt that the clerk of the court, who is a duly constituted officer of the court with power to accept a plaint under the bombay civil courts act, can accept that plaint outside office hours and outside the court buildings, although i do not for a moment suggest that the clerk is bound to accept a plaint out of court hours. but i am not at all satisfied in this case that in fact the clerk ever did accept the plaint. it was presented to him, as i have said, at 11 p.m. on the 28th, and there is an endorsement upon it, ' received on february 28, 1933, at 11 p.m. vide.....
Judgment:

Beaumont, C.J.

1. This is an application in revision under Section 115 of the Civil Procedure Code against an order made by the District Judge of East Khandesh, and it raises a short, but not unimportant, point. The plaintiff was suing on a bond, and the last day for filing the suit so as to bring it within the period of limitation was February 28, 1933. At 11 p.m. on that day the plaintiff presented his plaint to the clerk of the Subordinate Judge's Court, in which the plaint was to be filed, at the clerk's private house. Both the trial Court and the lower appellate Court assumed that the clerk purported to accept the plaint so presented, but they held on that assumption that the plaint was not properly presented, and that the clerk had no power to accept it. If I were prepared to accept the fact that the plaint was accepted by the clerk, I should disagree with the judgments of the lower Courts and hold that the plaint was presented in time. Order IV, Rule 1, provides that ' Every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf.' There is nothing to suggest that the plaint must be presented during Court hours, or within the precincts of the Court. Section 40 of the Bombay Civil Courts Act provides for the appointment of a clerk of a civil Court, and directs that in addition to such duties as may from time to time be prescribed by the High Court, he may receive and register plaints, and shall refer such as he may consider should be refused for the orders of the Judge of the Court. So that under that section the clerk can receive plaints. If he thinks that a plaint ought not to be received, he must refer the matter to the Judge. But I apprehend that, if he is doubtful whether a plaint should be received or not, it is open to him to refuse to receive it, and refer the matter to the Judge. It has been held both in Allahabad and in Madras, Thakur Din Ram v. Hari Das I.L.R(1912) All. 482 and Sattayya Padayachi v. Soundmathachip I.L.R(1923) Mad. 312, that the Judge can accept a plaint at any hour he chooses though outside office hours, and at any place he chooses, and I see myself no reason to doubt that the clerk of the Court, who is a duly constituted officer of the Court with power to accept a plaint under the Bombay Civil Courts Act, can accept that plaint outside office hours and outside the Court buildings, although I do not for a moment suggest that the clerk is bound to accept a plaint out of Court hours. But I am not at all satisfied in this case that in fact the clerk ever did accept the plaint. It was presented to him, as I have said, at 11 p.m. on the 28th, and there is an endorsement upon it, ' Received on February 28, 1933, at 11 p.m. vide order dated March 1, 1933.' It is clear, therefore, that that endorsement cannot have been made until after the order of March 1, 1933, had been made, so that the endorsement must have been made some time after, a day at least after, the presentation of the plaint. It appears from the learned Subordinate Judge's order made on March 1, 1933, that the plaint was presented to the clerk at 11 p.m. on the last day of limitation, and that the ratification by the Judge of such presentation was sought on March 1, The Judge doubted whether he could ratify what he calls the presentation to the clerk after the period of limitation had expired, but he directed that the plaint should be accepted subject to any objection that might be taken at the hearing. It seems to me clear from that order of the learned Judge that the clerk had not himself accepted the plaint. He only accepted it after the Judge approved; in other words he really referred the matter to the Judge, and the Judge could not accept the plaint on the day after limitation had expired. If the clerk had accepted the plaint, no ratification by the Judge was required. Whether or not the plaint was accepted by the clerk is a question of fact, with which I cannot deal in revision, and before altering the orders of the lower Court, I should have to refer back the question of fact. But as I am satisfied on the documents that the only proper answer to such a question would be that the plaint was not accepted on February 28, 1933, and as it would follow from such a finding that the orders of the lower Courts are right, it is undesirable to make any reference on the question of fact. I think, therefore, that the orders of the lower Courts are right, though not for the reasons which the learned Judges gave. That being so, the application must be dismissed with costs.


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