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Vaithinatha Ayyar (Dead) and anr. Vs. Govindaswami Odayar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtChennai
Decided On
Reported in(1921)41MLJ65
AppellantVaithinatha Ayyar (Dead) and anr.
RespondentGovindaswami Odayar and anr.
Cases ReferredViswanath Sastri v. Sithalakshmi Animal
Excerpt:
- - precisely the same question arose in aravil kaliamma v. here the plaintiff's widow as the guardian of her minor sons gave instructions to bring on their names in november 1920 in ample time, and the mistake appears to have been due to her vakil's failure to notice that under an amending act a shorter period of limitation would be coming into force from the 1st january 1921. on the particular facts of the case i think the fact that a delay due to a slip of this kind on the part of the vakil without any default of the client herself may be regarded as sufficient cause for excusing the delay. 4. in the exceptional circumstances of the case i am not prepared to dissent from the conclusion that the delay in presenting this application should be excused......be applicable in future, and therefore there is no ground should be an exception from the ordinary rule as regards enactments whatever for presuming that it intended that the enactment relating to procedure. in rajah of pittapur v. venkatasubba rao 29 m.l.j. 1 the reason the majority of the full bench held that the provision in question did not repeal section 7, of the limitation act retrospectively as regards the particular cause of action was that any other construction would in the case before the court have taken away the right of suit altogether by leaving no time in which to exercise it. that case has no application here.2. the next question is whether the appellant has proved that he was prevented by any sufficient cause from continuing the suit within the meaning of order 22 rule.....
Judgment:
ORDER

John Wallis, C.J.

1. This is an application under Order 22, Rule 9(2) to set aside an abatement. The deceased plaintiff appellant died on 31st July 1920 when the time limited for bringing on his legal representatives was six months under Article 176 of the Limitation Act of 1908. By an amending Act, which was passed early in September 1920 and came into force on the 1st January 1921, the time was reduced to ninety days. It has been contended before us, that, as the death of the plaintiff took place before the amending Act was passed, the petitioner was in time in filing his application on 17th January 1921 within six months of her husband's death. Precisely the same question arose in Aravil Kaliamma v. Sankaran Nambu-dripad 20 M.L.T. 347 as regards the reduction by the Limitation Act of 1908 of the period for bringing in legal representative from three years to six months, and it was decided that the application which was made after the coming into force of the Limitation Act of 1908 was governed by it. The question was further considered and the same view was taken with reference to a case under Article 164 in Chidambaram Chettiv. Karuppan Chetti I.L.R(1910) Mad. 678, where The Ydum (1899) p. 236 and Hope Mills v. Vithaldas I.L.R. 12 Bom. 730 were also. cited in the judgment. The first of these cases was a decision of the Court of Appeal in England and is expressly in point. The general rule laid down in the earlier of these cases is that new rules of limitation, which are regarded merely as matters of procedure, applying to causes of action which arose before the enactment of the rules. By postponing the coming into force of the amending Act from the beginning of September, when ii was passed, to the 1st of January the legislature as regards deaths occuring before the passing of the amending Act allowed a longer period than it considered should ordinarily be applicable in future, and therefore there is no ground should be an exception from the ordinary rule as regards enactments whatever for presuming that it intended that the enactment relating to procedure. In Rajah of Pittapur v. Venkatasubba Rao 29 M.L.J. 1 the reason the majority of the Full Bench held that the provision in question did not repeal Section 7, of the Limitation Act retrospectively as regards the particular cause of action was that any other construction would in the case before the Court have taken away the right of suit altogether by leaving no time in which to exercise it. That case has no application here.

2. The next question is whether the appellant has proved that he was prevented by any sufficient cause from continuing the suit within the meaning of Order 22 Rule 9(2). The only cause alleged is the mistake or slip of the pleader and there can be no doubt that according to the rule which the Court of Appeal in England regarded as binding upon them in In re. Coles and Ravenshear (1907) I.K.B. 1 this would not be sufficient cause. In that case, however, Collins M.R. and Cozens Hardy L.J. followed the previous decisions with reluctance, and it has been held in two cases in Calcutta Bishendut Tewari v. Nandan Pershad Dubey (1907) 12 C.W.N. 25 and Rakhal Chandra Ghosh v. Ashutosh Ghosh (1913) 17 C.W.N. 807 where the question was carefully considered that the rigid English rule was inapplicable in India. Here the plaintiff's widow as the guardian of her minor sons gave instructions to bring on their names in November 1920 in ample time, and the mistake appears to have been due to her vakil's failure to notice that under an amending Act a shorter period of limitation would be coming into force from the 1st January 1921. On the particular facts of the case I think the fact that a delay due to a slip of this kind on the part of the vakil without any default of the client herself may be regarded as sufficient cause for excusing the delay. Delay is excused.

Oldfield, J.

3. I agree that this application is out of time. As regards the decision in The Ydum (1899) P. 236 and other similar cases cited, I desire to say that they were before me in Viswanath Sastri v. Sithalakshmi Animal (1920) 13 L.W. 37 and that the refusal in my judgment therein to infer from postponement of the operation of a statute an intention that it should have retrospective effect requires reconsideration.

4. In the exceptional circumstances of the case I am not prepared to dissent from the conclusion that the delay in presenting this application should be excused.


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