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Nazarally T. Singaporevalla Vs. V.V. Kanemar Venkapiya - Court Judgment

LegalCrystal Citation
SubjectTenancy;Limitation
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 2676 of 1921
Judge
Reported in(1923)25BOMLR13
AppellantNazarally T. Singaporevalla
RespondentV.V. Kanemar Venkapiya
Excerpt:
limitation - notice of motion-copy of the notice filed with the prothonotary within period of limitation-motion brought on in court after the period of limitation-application time-barred-practice.;in the case of an application by way of motion to the high court the period of limitation is to be calculated from the date on which the motion is brought en in court and not from the date on which the copy of the notice of motion is lodged with the prothonotary. it is only when the motion is brought on that an application can be said to be made to the court. the copy of the notice of motion lodged with the prothonotary does not amount to an application; it is only an intimation to the court that an application is intended to be made.;hinga bibee v. munna bibee (1903) i.l.r. 31 cal. 150..........to the court given to the other party for his information. similarly the copy of the notice of motion lodged with the prothonotary does not amount to an application; it is only an intimation to the court that an application is intended to be made. i am fortified in this construction of the rule by the case of hinga bibee v. munna bibee i.l.r. (1903) cal. 150.2. mr. taleyarkhan draws my attention to the case of kuttayan chetty v. ellappa chetty (1907) 17 m.l.j. 215 there the plaintiff's vakil applied to the registrar for an issue of the notice of motion according to the rules of that court and a notice of motion was accordingly issued by the registrar. the madras high court held that the date of the application to the registrar for the issue of the notice of motion was the terminus a.....
Judgment:

Pratt, J.

1. On this application, the first point that arises is one of limitation. Under Section 10(a) the application must be made within nine months of the date when the plaintiff obtains possession. The application ought, therefore, to have been made on or before September 30, 1922. The motion, however, was not made till four days later, i.e., October 4, 1922. Mr. Taleyarkhan contends that the application is in time, because notice of motion was given on August 25, 1922, returnable on August 31, 1922, and that a copy of that notice of motion was lodged with the Prothonotary as required by Rule 322 on the day on which it was given, that is, on August 25, 1922. He contends that that is the day from which limitation should run, and that the mere fact that the notice of motion was not brought on was due to the solicitor's impression that as the Rent Suit Judge was not sitting on Original Side, the bringing on of the motion might be deferred. That is of course a mistake, for the motion could have been brought on before any Judge. But the real point is whether the date on which the copy of the notice of motion was lodged with the Prothonotary should be taken as the date of the application or the date on which the motion was brought on in Court. On this point, I feel no hesitation in deciding that the date of the application is the date on which the motion was brought on. It is only when the motion is brought on that an application can be said to be made to the Court. The notice of motion is not a proceeding in Court, it is merely an expression of an intention to apply to the Court given to the other party for his information. Similarly the copy of the notice of motion lodged with the Prothonotary does not amount to an application; it is only an intimation to the Court that an application is intended to be made. I am fortified in this construction of the rule by the case of Hinga Bibee v. Munna Bibee I.L.R. (1903) Cal. 150.

2. Mr. Taleyarkhan draws my attention to the case of Kuttayan Chetty v. Ellappa Chetty (1907) 17 M.L.J. 215 There the plaintiff's Vakil applied to the Registrar for an issue of the notice of motion according to the rules of that Court and a notice of motion was accordingly issued by the Registrar. The Madras High Court held that the date of the application to the Registrar for the issue of the notice of motion was the terminus a quo for the purpose of limitation. But the distinction is obvious, for under the Madras High Court's Rules, It is the Court that issues notice of motion. Therefore an application to the Court to issue notice presupposes that an application has been made to the Court. Under the rules of this Court, no application is made to the Court for issuing notice of motion and the Court is not moved until the day in which the motion is brought on. The motion, therefore, is time-barred and I must dismiss it with costs.


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