Charles A. Turner, Kt., C.J. (Keman, Kindersley, and Muttusami Ayyar, JJ.)
1. The 5th Section of the Limitation Act provides that, if the period of limitation prescribed for an appeal expires on a day on which the Court is closed, the appeal may be presented on the day the Court reopens.
2. The Statute 24 and 25 Vic., c. 104, Section 15, empowers a High Court, established under that enactment, to make and issue general rules for regulating the practice and proceedings of the Courts which might be subject to its Appellate Jurisdiction. Act XXIII of 1861, Section 40, conferred on, and Act X of 1877, Section 652, continued to the High Court the like power in regard. to all Courts subordinate to it.
3. In the exercise of this power, the Court in 1869 issued a general rule, directing that, during the adjournment of the Courts of every grade, two days in the week at the least should be set apart and notified in the District Gazette on which plaints, petitions, or other papers would be received in Court; that the date on which they were presented should be carefully endorsed; and that the chief ministerial officer of the Court should be responsible for the due observance of the rule and should arrange for the presence of some qualified officer at the Court-house on the days fixed.
4. This rule was of the first importance when the Limitation Act. contained no provision sanctioning an extension of the time for presentation when the Courts were closed; but it was reissued in 1872 after the enactment of the Limitation Act IX of 1871 which contained such a provision.
5. By another rule issued in 1869 the Court directed that, when the time limited for the presentation of any plaint, petition, or other papers expires during any adjournment of the Court, such plaint, petition, or papers must be presented to the ministerial officer left in charge during the adjournment for the purpose of receiving papers, either within the limited time, or on the first day after the expiration of such limited time, when the said ministerial officer should attend.
6. These rules have not been rescinded by the Court.
7. In compliance with them, the District Judge of South Arcot published a notification in the District Gazette to the effect--
It is hereby notified that the District and Sessions Court of South Arcot and the Subordinate Court at Cuddalore will be adjourned for two months, from Monday the 23rd May to Saturday the 23rd July, both days inclusive, and the Courts of the several District Munsifs in South Arcot for six weeks from the 23rd May.
'The Courts will be open between the hours of 4 and 5 P. M on Tuesdays and Fridays during the recess for the reception of plaints, petitions, and other miscellaneous papers.
8. On the 22nd July 1881 the appellants presented a petition of appeal to the District Court.
9. The date on which the time for appeal expired was the 1st July and it is not denied that, in pursuance of the notification, the offices of the Courts were open and the officer appointed to receive plaints and petitions attended twice in the week after the 1st July and before the 22nd July, and that the petition might have been presented on a date earlier than the 22nd July.
10. The appellants contended that the petition was presented within time, in advertance to the provisions of Act XV of 1877, Section 5. The Judge held that the Court was open for the purpose of receiving plaints and petitions on the days specified in the notification and that the appeal was barred by limitation. It is objected that the terms 'a day on which the Court is closed' and 'the day on which the Court reopens' in Section 5 do not refer to a day occurring during the period when the sittings of the Courts are adjourned for the annual vacation. The terms on which the appellant's Counsel relies must be construed in reference to the purpose contemplated by the section. The judicial sittings of the Court may be adjourned; but the offices of the Court may still remain open for the presentation of pleadings. The Court may be open for this purpose although the Judge is not engaged in judicial functions or is not present in the Court-house or in the place where the Court is held. The Court may also be open although there may be a temporary vacancy in the office of Judge. These contingencies were foreseen and provided for (so far as it was necessary to do so) by a series of rules issued by the Court in 1869 and still in force, and the view then entertained by the Court has the sanction of general usage in British India and in England. In this view, the Court reopened on the first day, after the 1st July, on which the offices of the District Court were opened and a proper officer attended to receive the plaints and petitions that might be presented. In the course of the argument, a further objection was taken that the notification did not refer to appeals. Although the term 'petition' is applied in the Procedure Code, Section 592, to an application for the admission of an appeal, it is not now generally used to describe that application, and, if the appellants were misled by the terms of the notification, this circumstance would be a sufficient cause to excuse the delay in the presentation of the appeal. We remit for trial by the Judge the following issue: Was the delay in the presentation of the appeal occasioned by a misconception on the appellants' part of the terms of the notification ?
11. The District Judge is directed to try the foregoing issue upon the evidence already recorded and such further evidence as the parties may adduce and to return his finding thereon together with the evidence to this Court within three months from the date of receiving this order when fourteen days will be allowed for the filing of objections.
12. I only wish to note my dissent as to the interpretation of Section 5 of the Limitation Act.
13. I think the Court is not open when it is closed for the adjournment of the Courts during the annual recess and on public holidays, though the office may be open for the reception of papers. I agree in the issue to be remitted.
14. Ordered accordingly.