Skip to content


Hangamabai Vs. Zamsing Deosing and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 1116 of 1953
Judge
Reported inAIR1955Bom436; (1955)57BOMLR875; ILR1955Bom993
ActsBombay Agricultural Debtors Relief Act, 1947 - Sections 4, 4(1) and 55; Bombay Agricultural Debtors Relief Rules, 1947 - Rule 4; Indian Post Office Act, 1898; Indian Law
AppellantHangamabai
RespondentZamsing Deosing and ors.
Appellant AdvocateK.R. Bengeri and ;C.K. Bengeri, Advs.
Respondent AdvocateR.B. Kotwal , Adv.
Excerpt:
.....and inasmuch as the applicant is authorised to exercise that particular mode of presentation, the post office is constituted the agent of the court and the post office receives the application from the applicant on behalf of the court, and, therefore, the application made by the creditor was in time.; i.t. commr. v. ogale glass works ltd. [1954] a.i.r. s.c. 429 : s.c. 56 bom. l.r. 1196 applied.; krishnalal maneklal chokshi v. fuljabhai hargovandas thakkar (1948) civil revn. application no. 620 of 1947, decided by weston and chainani jj, on november 25, 1948 (unrep.), vishnu narher bhide v. abu (1952) civil revn. appln. no. 490 of 1950, decided by bajadhayaksha and vyas jj., on march 25, 1950 (unrep.) and dagaduram mulchand shet v. karbhari bala jadhao (1952) civil revn. appln. no. 436..........or he may authorise him to do so. in either' case by reason of the request or the authority the post office would be constituted the agent of the addressee, and when the' sender delivers communication or the document to the post office, in the eye of the law the delivery would be to the addressee. if this principle is well established as between private parties, there is no reason why the same principle should not apply when a court authorises a party to present a particular application through the post. if there is such authority, then the party when it makes the application through the post in the eye of the law makes the application to the court itself, because under those circumstances the post office is the agent of the court duly authorised to receive the application. it is with.....
Judgment:

Chagla, C.J.

1. The question that arises for determination in this Full Bench is whether an application presented by a creditor under Section 4 of the Bombay Agricultural Debtors Relief Act was in time. The creditor wanted to make an application to the Erandol Court in East Khandesh District and he sent the application by registered post from Jal-gaon on 31-7-1947. The application reached the Court on 1-8-1947. Under Section 4 the application had to be presented to the Erandol Court before 1-8-1947. The view taken by the trial Court was that the application was in time. The District Court took the view that inasmuch as the' application reached the Court on 1-8-1941, it was out of time and the District Court therefore dismissed the application.

The creditor came in revision to this Court, and Mr. Justice Gajendragadkar and Mr. Justice Shah have referred this question to the Full Bench as there is a conflict of decisions on this point.

2. Now, it is well settled, as we shall pre-' sently point out, that an addressee may request a sender to send a particular communication or a particular document through the post or he may authorise him to do so. In either' case by reason of the request or the authority the post office would be constituted the agent of the addressee, and when the' sender delivers communication or the document to the post office, in the eye of the law the delivery would be to the addressee.

If this principle is well established as between private parties, there is no reason why the same principle should not apply when a Court authorises a party to present a particular application through the post. If there is such authority, then the party when it makes the application through the post in the eye of the law makes the application to the Court itself, because under those circumstances the post office is the agent of the Court duly authorised to receive the application.

It is with this background that we must look at the provisions of the Bombay Agricultural Debtors Relief Act in order to determine whether under the relevant sections and the rules framed under the Bombay Agricultural Debtors Relief Act the post office was constituted the agent of the applicant.

3. Section 4(1) provides for the time within which an application has to be made by & debtor or a creditor, and Sub-section (2) provides:

'Every application made under Sub-section (1) shall be in writing in the prescribed form and shall be signed, verified and presented in the prescribed manner.'

The manner has been prescribed by the rules framed by Government under Section 55 of the Act, and when we turn to the relevant rule, vie., Rule 4, the mode of presentation is prescribed in that rule, and Rule 4 provides that the applications shall be presented to the Court during office hours by the applicants personally or shall be sent by registered post addressed to the Court and shall be received by the .Civil Judge or by such person as may be authorised by him to receive them. Therefore, it is clear that Rule 4 prescribed two modes of presentation of an application.

The one mode is presentation to the Court itself and the other mode is sending the application by registered post. It is equally clear that the rule authorises both modes of presentation. Whether the applicant presents the application by one mode or the other, he is presenting the application in a mode authorised by the rule. Therefore, on a plain reading of Rule 4 it is difficult to understand how it can be contended that this rule does not authorise the applicant, whether he is a debtor or a creditor, to present his application by registered post.

That being the proper construction of Rule 4, in view of the principle we have just enunciated the post office would be constituted the agent of the Court. If the post office is the agent, then when the petitioner, the creditor; presented his application through registered post on July 31, 1947, it was presented to the Court in the mode prescribed and authorised by Rule 4.

4. Mr. Kotwal has contended that all that Rule 4 does is to validate the mode of presentation which but for the rule was invalid. Mr. Kotwal rightly says that the ordinary mode of approaching the -Court is for the litigant or his advocate going with an application to the Court itself. Civil Courts in this State do not permit applications to be made or placed before them to be presented by post, and therefore Mr. Kotwal says that this rule permitted something to be done by the applicant which but for the rule was not permissible.

But in advancing this argument Mr. Kotwal concedes that but for Rule 4 this particular mode of presentation would not be proper and therefore in making this mode of presentation possible to the applicant the rule has authorised the applicant to avail himself of this mode of presentation which would not be open to him in the case of civil Courts.

It is then urged that under Rule 4 there is no request or authorisation by the Court. .Mr. Kotwal says that the rule is framed by Government & it is the Government, if at all, that authorised the applicant to avail himself of this particular mode of presentation. We find it difficult to accept that argument. Rule 4 is framed under the authority given to Government by Section 55 of the Bombay Agricultural Debtors Relief Act and the Court as much as the litigants are bound by that rule.

Therefore, if the Government under its rule making power authorises the applicant to present an application through post, the Government constitutes the post office the agent of the Court and the Government has as much power to do so as the Court itself would have.

5. It is then urged by Mr. Kotwal that the presentation contemplated by Rule 4 is not complete till the application is received by the Judge or by such person as may be authorised by him to receive it, and therefore according to Mr. Kotwal the mere posting of the application is only the first step towards the ultimate presentation which is brought about by the Judge or the authorised officer receiving the application.

Now, the last part of R. 4 which provides 'shall be received by the Civil Judge or by such person as may be authorised by him to receive them' applies not only to the application which is sent by registered post, but also to the application which is presented in Court, and in our opinion the last part is merely a direction by the Government as to who is the proper authority to receive the applications which are duly presented either by post or by being presented in the Court, itself.

If' we wore to accept Mr. Kotwal's contention, we would be driven to this rather extraordinary conclusion that even though the registered packet was received in Court in time unless the Judge or some authorised person receives that packet there would be no presentation and the application might be beyond time. It would also lead to this conclusion that even though a litigant went to Court in person and submitted his application and the application was in time, until the Judge or some other person authorised by him received it the application would not be considered to be in time.

6. it is then urged by Mr. Kotwal that if the post office was constituted the agent of the Court, then it is difficult to understand why the only mode prescribed is 'registered post'. But a Court or a person may give a limited' authority and not an unlimited authority. The only authority given to the applicant under Rule 4 is to present the application by registered post. If he were to present it by ordinary post, then that presentation would not be to an authorised agent because that is not the authority conferred by the Court upon the post office. It is only when the application is sent by registered post that the post office is constituted the agent of the Court.

7. Finally, it is urged by Mr. Kotwal that Rule 4 is nothing more than a convenience conferred upon the litigant and the convenience should not be elevated to the position of an authority conferred by the Court upon the litigant. Undoubtedly, Rule 4 in view of the fact that the Bombay Agricultural Debtors Relief Act is dealing with poor! illiterate debtors, has conferred a special right upon the applicants who were to make applications under Section 4 of the Bombay Agricultural Debtors Relief Act.

But the very nature of the privilege conferred upon the applicant is that he is authorised to present his application through post if he so chose and not present it in the Court itself, and therefore whether one calls it a convenience or a privilege or a departure from the ordinary rule of presentation of applications to Courts, the rule in terms authorises the applicant to avail himself of this particular mode of presentation.

Therefore, as far as Rule 4 Itself is concerned, the only conclusion we can come to after taking into consideration all the arguments advanced by Mr. Kotwal is that it does constitute a clear authority to the applicant to present an application through registered post, and Inasmuch as the applicant is authorised to exercise that particular mode of presentation, the post office is constituted the agent of the. Court and the post office receives the application from the applicant on behalf of the Court.

8. Turning to the authorities which have necessitated this Full 'Bench, there is a judgment of Mr. Justice Weston and Mr. Justice Chainani in -- 'Krishnalal Maneklal v. Fuljabhai Har-govandas', Civil Revn. Appln. No. 620 of 1947 (Bom) (A), which has taken a contrary view of this identical rule under the Bombay Agricultural Debtors Relief- Act. Mr. Justice Weston, with respect, has not attached sufficient importance to the language of Rule 4 itself. What he says is:

'We do not think that in arty sense the post office can be said to represent the Board or the 'Court, and when the two Acts require that applications must be made in a prescribed form to the Board or to the Court, this means that the applications must reach the Board or the Court within that period, and may not be merely in a stage of transition when that period expires.'

Now, nowhere does Rule 4 provide that the application must reach the Court within a particular period. Section 4 speaks of presentation in the prescribed manner and Rule 4 prescribes the manner of presentation. Therefore, the question of limitation is to be Judged from the point of view of presentation and not from the point of view of the application physically reaching the Court.

If under Rule 4 the presentation is made as soon as the application is delivered to the post office, then that is the relevant' point of time for considering the question of limitation. With respect, therefore, we are unable to agree with the view taken by Mr. Justice Weston and Mr. Justice Chainani in 'Krishnalal Maneklal's case (A) There are two other judgments of Division Benches which have really followed this decision and those are -- 'Vishnu Narhar v, Abu', Civil Revn. Appln. No. 490 of 1950 (Bom) (B); and -- 'Dagaduram Mulehand v. Karbhari Bala Jadhao', Civil Revn. Appln. No. 436 of 1952 (Bom) (C).

9. On the other side there are two decisions of mine one of which is reported in -- Ashalal Maganlal v. Funjaji', : AIR1954Bom301 , and the other is -- 'Bhimrao Ganpatrao v. Gangappa Sanabasappa', Civil Revn. Appln. No. 374 of 1953 (Bom) (E), and the view I took in these two Civil Revision. Applications was that on a plain reading- of Rule 4 the post office was constituted the agent of the Court, and therefore the relevant point of time to be considered was when the application was handed over to the post office and not when it ultimately reached the Court. In coming to that conclusion I preferred to rely on a decision given by a Division Bench in -- 'Kirloskar Bros Ltd. v. Commr. I. T.', : AIR1952Bom306 . At pp. 309-310 in that judgment it is pointed out:

'............It is only in those cases where the receiver nominates the post office as his agent that the posting of a letter constitutes the receipt of the letter by the receiver at the time and at the place where the letter is posted. If the post office is not nominated an agent by the receiver, then by posting the letter the sender constitutes the post office as his agent, and when the letter is delivered to the receiver, it is delivered by the agent of the sender and not of the receiver.'

10. This view seems to have found favour with the Supreme Court in a recent decision in -- 'I.T. Commr. v. M/s Ogale Glass Works Ltd', : [1954]25ITR259(SC) . It was Sought to be argued before the. Supreme Court that the provisions or the Indian Post Office Act were different from the provisions of the English Post Office Act. It seems that in England once a sender has posted a letter, the posting is irrevocable and he cannot claim back the letter. Under the Indian law under certain circumstances the sender has a right to claim back the letter.

On the strength of this, difference it was attempted to be argued before the Supreme Court that the English decisions which lay down the principle which we have enunciated do not apply to India. The Supreme Court rejected that contention and pointed out (p, 435):

'........ .There tan be no doubt that as between the sender and the addressee it is the request of the addressee that the cheque be sent by post that makes the post office the agent of the addressee. (There the Supreme Court was dealing with a case of the posting of a cheque.) After such request the addressee cannot be heard to say that the post office was not his agent and, therefore, the loss of the cheque in transit must fall on the sender on the specious plea that the sender having the very limited right to reclaim the cheque under the Post Office Act, 1898, the Post Office was his agent, when in fact there was no such reclamation. Of course, if there be no such request, express or implied, then the delivery of the letter of the cheque to the post office is delivery to the agent of the sender himself.'

Applying that test to the facts of the present case, the Court cannot be heard to say that it has not received the application in time when it authorised the applicant to make the application by means of the post.

11. In our opinion, therefore, the application made by, the creditor, the petitioner beforeus, was in time. We will therefore set aside theorder passed by the learned District Judge andrestore the order of the trial Court. No order asto costs.

12. Order accordingly.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //