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Marakanda Sahu Vs. Lal Sadananda Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 26 of 1949
Judge
Reported inAIR1952Ori279; 18(1952)CLT111
ActsGeneral Clauses Act, 1897 - Sections 3(33) and 9; Limitation Act, 1908 - Sections 12(1); Code of Civil Procedure (CPC) , 1908 - Order 9, Rule 9
AppellantMarakanda Sahu
RespondentLal Sadananda Singh
Appellant AdvocateB.K. Pal, Adv.
Respondent AdvocateM.S. Rao, Adv.
DispositionRevision allowed
Excerpt:
.....deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 100/- should be deposited before the 26th..........or context. as pointed out in halsbury's laws off england, 2nd edition, vol. 32, p. 138 : 'when a period of time running from a given day or event to another day or event is prescribed by law or fixed by contract, and the question arises whether their computation is to be made inclusively or exclusively of the first mentioned or of the last mentioned day, regard must be had to the context and to the purposes for which the computation has to be made. where there is room for doubt, the enactment or instrument ought to be so construed as to effectuate and not to defeat the intention of parliament or of the parties, as the case may be. expressions such as 'from such a day' or 'until such a day' are equivocal since they do not make it clear whether the inclusion or the exclusion of the day.....
Judgment:

Narasimham, J.

1. This revision is against an order dated 25-11-48 passed by the Subordinate Judge of Sambalpur in Misc. case No. 14/ 1948 arising out of Title Suit No. 46/1944. The material facts are as follows :-

2. The petitioner was the plaintiff in Title Suit No. 46/44 which on 16-3-48 was dismissed for default of the plaintiff. Then he filed a restoration petition under Order 9 Rules 8 and 9, C. P. C. This was registered as Misc. case No. 14/1948 and on 25-10-48 the Court after beingsatisfied that there was sufficient cause for the inability of the plaintiff to proceed with the suit on 16-3-1948, passed the following order :

'This application for the restoration of the suit T. S. No. 46/44 will therefore be allowed if the plaintiff deposits the sum of Rs. 100/- towards the costs of the defendants within one month from this date failing which this application shall stand dismissed but without costs'.

3. On 25-11-48 the following order was passed by the same court.

'Plaintiff does not deposit Rs. 100/- towards the costs of the defendant as per order No. 34 dated 25-10-48 but he applies for time to deposit the said amount.

The order dated 25-10-48 leaves no jurisdiction with the Court to enlarge or extend the time allowed, and no separate order is necessary as on expiry of the time allowed this Misc. case stands automatically dismissed'.

4. Again on 10-12-48 the petitioner tendered the sum of Rs. 100/- and requested the Court to condone the delay in payment of the costs. But! the Court rejected the prayer in the following order.

'In view of order No.35 dated 25-11-48 deposit cannot be accepted and time extended. Petition is rejected'.

5. The petitioner's main contention is the the period of one month given to him by the Court on 25-10-48 must exclude that day by applying the equitable principles which have been recognised in Section 9 of the General Clauses Act and Section 12(1), Limitation Act. Therefore, if the 25th of October 1948 was excluded, the period of one month which would ordinarily mean a calendar month would really expire at 4-30 p. m. on the 25th November, 1948. Mr. Pal therefore urged that his client (the petitioner) had time till the end of the Court hours on the 25th November, 1948 and that consequently the Court had no jurisdiction to say on that day that the time had expired and that the Misc. case stands automatically dismissed.

6. Two important questions arise : (1) Whether the principles of Section 9 of the General Clauses Act can be extended to decrees and orders passed by courts; and (2) What meaning should be given to the expression 'month' occurring in the order dated 25-10-48.

7. So far as the first question is concerned, there is abundant authority for the view that though Section 9 of the General Clauses Act does not in terms apply to the construction of decrees or orders the equitable principle laid down therein should ordinarily be applied unless there is something repugnant in the subject or context. As pointed out in Halsbury's Laws off England, 2nd Edition, Vol. 32, p. 138 :

'When a period of time running from a given day or event to another day or event is prescribed by law or fixed by contract, and the question arises whether their computation is to be made inclusively or exclusively of the first mentioned or of the last mentioned day, regard must be had to the context and to the purposes for which the computation has to be made. Where there is room for doubt, the enactment or instrument ought to be so construed as to effectuate and not to defeat the intention of Parliament or of the parties, as the case may be. Expressions such as 'from such a day' or 'until such a day' are equivocal since they do not make it clear whether the inclusion or the exclusion of the day named may be intended. As a general rule, however.the effect of defining a period in such a manner is to exclude the first day and to include the last day. Both days must be included if the word 'inclusive' is added'.

In 'SANKARAN v. RAMAN', AIR 1925 Mad 743, it was pointed out that the equitable principle of Section 10 of the General Clauses Act might properly be applied to the interpretation of decrees of courts. In 'PURAN CHAND v. MOHD. DIN', AIR 1935 Lah 291, this decision was relied Upon and the equitable principle of Section 9 of the General Clauses Act was applied for the construction of a decree. To a similar effect is the observation in 'RAMCHANDRA GOVIND v. LAXMAN SAVLERAM', AIR 1938 Bom 447 :

'It is true that Section 9 would not apply here in terms as the words do not occur in a statute but in an order of the Court, but it is desirable for the sake of uniformity that the same interpretation should be given to an expression occurring in a judicial order as would be given to it in a statute and I think, therefore, the expression 'fifteen days' would mean fifteen clear days, and that the date of making the order should be excluded.'

No decision to the contrary has been cited before me, and I would, with respect, agree with the views expressed in the aforesaid decision and hold that the equitable principle of Section 9 of the General Clauses Act should, as a general rule, be applied for the construction of decrees and orders of Courts. Therefore in computing the period of one month, the 25th October 1948 should be excluded.

8. The second question also does not present much difficulty. Section 3(33) of the General Clauses Act says that the expression 'month' shall mean a month reckoned according to the British calendar. Doubtless, this meaning applies only to statutes. But as early as 1868, in 'DADU v. BALGOUDA', 5 Bom HCR :(A. C. J.) 39 it was pointed out :

'From the practice which prevailed previous to 1860 when the Civil Procedure Code came into operation, and from the subsequent Acts of the Legislature, I think it may be rightly inferred that their intention was to express by the term 'month' a British calendar month, and, so far as I am aware, all Civil Courts on this side of India have adopted this interpretation since the Code became law.'

(See also 'SARODA PERSHAD v. PAHALI MOHANTI', 10 Cal 913). Some difficulty is however experienced in determining how many days would constitute a 'month' where the commencing day is not the first of the month, that is to say, whether the month should be computed as 30 or 31 days. In 'VAMA DAVA v. MURUGESA MUDALI', 29 Mad 75 it was held that in the context the expression 'month' meant a period of 30 days. In the Oxford Dictionary also, the following meaning is given for the expression 'month'.

'A space of time, reckoned from any moment, and either (a) extending to the corresponding day of the next calendar month (in which case the space of time is called 'a calendar month')., or (b) containing 28 days (often miscalled a 'lunar month').'

Similarly in lyer's Law Lexicon the following passage occurs :

'The term 'month' whether employed in modern statutes or contracts, and not appearing to have been used in a different sense, denotes a period terminating with the day of the succeeding month numerically corresponding to the day of its beginning, less one. Ifthere be no corresponding day of the succeeding month, it terminates with the last day thereof.'

9. Applying the aforesaid meaning to the expression, it will be clear that by the words 'within a month' the Subordinate Judge in his order dated 25-10-48 meant that the sum of Rs. 100/- should be deposited before the 26th of November 1948, that is to say, before the expiry of the Court hours on the 25th November 1948. But the Court as well as the parties seemed to have been under the impression that the period expired by the end of the court hours of the 24th November and the order of the Subordinate Judge dated 25-11-48 was based on this erroneous assumption. He, therefore, thought that he had no jurisdiction to enlarge or extend the time allowed and that on the expiry of that period the Misc. case stands automatically dismissed. There seems no doubt that on the 25th November 1948 the Misc. Case did not stand automatically dismissed.

10. It was rightly urged that this order of the lower Court misled the party and the petitioner as well as the Court were under the impression that nothing could be done that day. It is difficult for us to speculate whether the plaintiff-petitioner would have been in a position to deposit the sum on the 25th if he had been aware of the fact that the period would not expire till 4-30 p.m. that day. Mr. Rao on behalf of the opposite party rightly stressed the point that the petitioner was not ready to tender the sum on the 25th. I fully realise the force of this argument but the petitioner can reasonably say that the order of the court dated 25-11-48 completely misled him and he thought that he had nothing more to do in the matter. It is a well-settled rule that no party should be prejudiced by a mistake committed by a court and as the order of the court dated 25-11-48 was passed without jurisdiction the petitioner can claim relief from this court.

11. Much argument was advanced at the Bar as to whether the words 'this application shall stand dismissed but without costs' occurring in the order dated 25-10-48 of the Subordinate Judge mean that on the expiry of the date fixed in that order the application stands dismissed automatically or else whether a separate order is necessary for that purpose. Mr. Rao relied on 'BALAKRISHNA AYYER v. PAR-VATHAMMAL', AIR 1928 Mad 154 and Mr. Pal relied on 'SURAJMAL v. BHUBANESHWAR PRASAD', AIR 1940 Pat 50 and on 'COLLINSON v. JEFFERY', (1896) 1 Ch D 644. I do not think it necessary to decide this point because in any view of the case, on the 25th November 1948, the Misc. case did not stand automatically dismissed and the court should have waited tilt the expiry of the Court hours on that day.

12. I would, therefore, allow this revision, set aside the orders dated 25-11-48 and 10-12-4S passed by the lower Court and direct the petitioner to pay the costs of Rs, 100/- (one hundred) to the opposite party on or before the 31st October 1951. If such payment is made on or before the aforesaid date, Title Suit No. 46 of 1944 may be restored and heard by the Subordinate Judge in accordance with law. If, however, the said sum is not paid by that date, Misc. Case No. 14 of 1948 shall stand automatically dismissed with costs and no express order either of the Subordinate Judge or of this Court to that effect shall be necessary. In the circumstances of this case, both parties will bear their own costs of this revision except when the costs of Rs. 100/- be not paid on or before the 31stOctober 1951, in which event this revision shall stand dismissed with costs and hearing fee of one gold Mohur.

Ray, C.J.

13. I agree.


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