1. The decisions in these Small Causes come before us in revision. In S.C. No. 166 of 1920 corresponding with C.R.P. No. 58 of 1921 we are asked to interfere on the ground that there was no evidence on record to justify the lower court's decision in favour of one of the endorsements of payment relied on by the plaintiff in connection with limitation. That endorsement stands on the suit promissory note and was explicitly relied on in the plaint. There was no denial of it in the written statement and nothing except as usual, a statement that facts not expressly admitted must be proved. As regards that statement we should be unwilling to treat it as necessarily safeguarding the defendant's interest in any conclusive manner in the absence of anything in the course of the trial to justify suspicion that he was taken by surprise or that there was misunderstanding as to what the party had to prove. In the present case, however, there is something more substantial. The 1st defendant, against whom the decree is sought, is a minor and Mr. R. Kuppuswami Aiyar on his behalf has relied on the exception relating to persons under disability in Order 8, Rule 5, C.P.C. This exception is no doubt not often relied on. In fact in our experience we have never known it applied and there is no reason for supposing that it was in the mind of either side at the trial. We however are bound to give the minor defendant the benefit of it and to remand the case for further trial. The facts in S.C. No. 167 of 1920 corresponding with C.R.P. No. 59 of 1921 are that plaintiff, it is not disputed, in order to show that his suit was instituted in time has to avail himself of three different additions to the normal period of limitation. He has firstly with reference to Section 14 to except from the time which has elapsed the interval, during which his plaint was in the Small Cause Court, Kumbakonam, where it was filed erroneously. He has next to except from that time the interval after its return from that court, until it was filed in the 'proper court, the District Munsif's Court of Ariyalur, and for that he claims the application of Section 4 of the Limitation Act, because the clays in question were holidays, on which the District Munsif's Court was closed. As regards these two periods on the view I take nothing more need be said. The lower court's finding, which has not been disputed before us, is that the plaintiff filed his suit in the Small Cause Court of Kumbakonam in good faith and there is no objection to the application of Section 14 to this part of the time. Similarly on no view of the law or authorities is if possible for the defendants to resist the application of Section 4 to the subsequent holiday period.
2. Unfortunately, however, for plaintiff lie must in order to avoid the plea of limitation, rely on Section 4 a second time in order to claim exclusion from the time, which has elapsed, of one day prior to his filing his plaint at Kumbakonam. That day was a holiday, and the question argued before us is whether Section 4 can legitimately be applied to it. I note that one plea is not open to the plaintiff. He cannot, in view of the decision in Seshagin Rao v. Vajravelayudan Pillai 22 M.L.J. 377, ask us to regard the suit as having been finally instituted at Kumbakonam and to treat the subsequent proceedings at Ariyalur as having taken place, whilst the suit was pending. That alternative dismissed from consideration, he must be regarded, unless we are prepared to admit the possibility of the same suit being filed twice, as having tiled the suit at Ariyalur and he must argue that Section 4 is applicable to any days on which the court is closed, whether they occur at the end of the period of limitation prescribed for the suit or at some point in its course. On this however authority, as I understand it, is against him. It is not necessary to consider the decisions of Spencer, J. in Mira Mohidin Rowther v. Nallaperumal Pillai I.L.R(1911) . Mad. 131 : 21 M.L.J. 1000 and Ummathu v. PathummaI.L.R. (1921) Mad. 817 : 41 M.L.J. 84 since they seem to have dealt rather with cases, in which with reference to the closure of one of the courts concerned a period to be allowed was in question, with which no closure of the other court corresponded. For here the holidays were general holidays and both the Kumbakonam and the Ariyalur courts were closed on those days. The law seems to be stated most clearly in the judgment of Napier, J. in Ramalingam Aiyar v. Subbier (1918) 8 L.W. 256 the learned Judge pointing out that Section 14 and other sections direct the manner, in which the period of limitation is to be ascertained, and that Section 14 becomes applicable only after its ascertainment is complete. That of course will entail in the present case the application of Section 14 up to the holiday which preceded the tiling of the suit at Ariyalur and the application of Section 4 only to the period of that holiday. The view taken by Napier, J. seems to me consistent with that taken by Ramesam, J. in Ummathu v. Pathumma 41 M.L.J. 84 and not inconsistent with any thing in the judgment of Ayling, J. in Mira Mohidin Rowther v. Nallaperumal Pillai I.L.R. (1911) Mad. 131 . It is true that a wider view has been taken in Basavanappa v. Krishnadas I.L.R(1921) . 45 Bom. 443 and there may be some difficulty in reconciling the authorities of this Court, to which I have referred, with the decisions relating to the period requisite for obtaining copies, Saminatha Aiyar v. Venkatasubba Aiyar 13 M.L.J. 300 and Subrahmanyan v. Narasimhan 38 M.L.J. 465. The latter, however, may be explained as proceeding on the interpretation of the words 'time requisite' in Section 12 of the Act. It is urged that a liberal construction of Section 4 should be adopted, since the plaintiff, having acted in good faith, will suffer unmerited hardship. The answer must be that a liberal view cannot be taken, when to do so would involve disregard of the words of the statute. In my opinion C.R.P. No. 59 must be allowed, the lower Court's decree being set aside and the suit dismissed with costs in the lower and in this Court. C.R.P. No. 58 must be allowed to the extent that the lower Court's decree is set aside and the Small Cause is remanded to the lower Court for re-admission and rehearing in the light of the foregoing.
3. As the 2nd defendant in her capacity as guardian of 1st defendant never, so far as we can ascertain, brought to the notice of the lower court the special terms of Order 8, Rule 5 at the trial, the 1st defendant will, whatever be the result of the remand, pay the costs of the plaintiff up to date.
Venkatasubba Rao, J.
4. So far as C.R.P. No. 58 is concerned I agree with the conclusions of my learned brother and in C.R.P. No. 59 I reserve my judgment.
5. Civil Revision Petition No. 59 of 1921 having been posted for delivery of judgment this 12th day of April 1922, the court (Venkatasubba Rao, J.) delivered the following