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Kichilappa Naickar and anr. Vs. Ramanujam Pillai - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Judge
Reported in(1902)ILR25Mad166
AppellantKichilappa Naickar and anr.
RespondentRamanujam Pillai
Cases ReferredKrishna v. Chathappan I.L.R.
Excerpt:
.....but i fail to see how he can pray in aid a provision of law relating to the computation of the time for appeal, which involves no question of discretion but which lays down a hard and fast rule, for the purpose of making out 'sufficient cause' for the indulgence for which he asked being granted to him. 269 is applied, i think the appellant was not entitled to the indulgence for which be asked, because he failed to show that there had been 'no negligence, nor inaction on his part' during the period above referred to. it seems to me that before this court interferes it ought to be satisfied that the exercise of the discretion was judicially unsound. 8. now, the first point which the subordinate judge had to decide in this case was whether the appellant had shown sufficient cause for..........but i fail to see how he can pray in aid a provision of law relating to the computation of the time for appeal, which involves no question of discretion but which lays down a hard and fast rule, for the purpose of making out 'sufficient cause' for the indulgence for which he asked being granted to him. i presume the object of excluding the time requisite for obtaining a copy of the judgment in computing the period of limitation when a decree is appealed against is to give a party an opportunity for deliberate consideration of the grounds upon which the decree pronounced against him is based before making up his mind as to whether he will appeal. in the present case the appellant had been supplied with a copy of the decree against which he appealed as far back as 18th february 1898,.....
Judgment:

Arnold White, C.J.

1. In this case the Subordinate Judge admitted an appeal which was out of time. The question for consideration is whether this Court ought, on second appeal, to interfere with the finding of the Subordinate Judge that the appellant had shown 'sufficient cause' within the meaning of these words as used in Section 5 of the Limitation Act for not presenting his appeal within the prescribed period. The dates and facts are set out in the judgments of Mr. Justice Benson and Mr. Justice Boddam and are not in dispute.

2. The Subordinate Judge held that the appellant was out of time with his appeal by reason of his following the course pointed out by the District Munsif and that his proceedings before the Deputy Collector and the Collector were bond fide. This being so he held that sufficient cause had been shown for admitting the appeal. In other words, he held that the fact that the appellant had made out a case, which, if the question had been whether under Section 14 he was entitled to have the time occupied by his proceedings before the Revenue Courts excluded in computing the period of limitation prescribed for his suit, would have entitled him to have the time thus occupied excluded from the computation, was in itself 'sufficient cause' within the meaning of Section 5 for his not presenting his appeal within the prescribed period. Now Section 14 of the Act applies in terms to suits and not to appeals. It deals with the computation of time. It does not confer a discretion on the Court, but gives a right to a party to have a certain period of time excluded from the computation of the period of limitation if the requirements of the section are satisfied This being so, Mr. Desikachariar very properly did not contend that the appellant was entitled as of right to 30 days (the prescribed period for appeals) for the presentation of his appeal from the termination of his proceedings in the Revenue Courts. His contention was, first, that the appellant had, in fact and in law, shown sufficient cause for not presenting his appeal within the prescribed period, and, secondly, that in any view, the Subordinate Judge had exercised a judicial discretion in admitting the appeal and that this Court ought not, on second appeal, to interfere with the exercise of this discretion.

3. Now, although Section 14 does not in terms apply to appeals, it, no doubt, indicates that the Legislature intended to show indulgence to a party acting bond fide under a mistake, and the 'equity' of the section may legitimately be taken into consideration in determining whether the discretion conferred by Section 5 ought to be exercised in favour of an appellant whose appeal is out of time.

4. Accepting, as I am prepared to do for the purpose of this judgment, the view of the Subordinate Judge, with regard to the appellant's proceedings before the Revenue Courts, I assume that the appellant showed sufficient cause for not presenting his appeal within the prescribed period, that is, 30 days after 18th February 1898 'the date when he obtained the copy of the judgment of the District Munsif dismissing his suit). Strictly speaking, the first question is not whether the appellant has shown sufficient cause for not presenting his appeal within the prescribed period, but whether he has shown sufficient cause for not presenting his appeal before 4th January 1899. The discretion conferred by Section 5 is a discretion--in the words used by Lord Esher in a similar case, Cusack v. London and North. Western Railway Gornpany [1991] 1 Q.B. 347 'which the Court cannot exercise loosely, but which should be exercised on a consideration of the circumstances of each case as it arises.' At the same time I entirely agree that the words 'sufficient cause' should receive a liberal construction 'so as to advance substantial justice when no negligence, nor inaction nor want of bond fides is imputable to the appellant' see Krishna v. Ghathappan I.L.R. 13 Mad. 269.

5. If I had had to deal with this question in the first instance, my view would have been that the appellant had failed to show 'sufficient cause' for not presenting his appeal until 4th January 1899. The appeal to the District Judge was not presented until 39 days after 25th November 1898, the date of the dismissal of the appeal by the Collector. It seems to me it was entirely unnecessary for the appellant to wait until 28th December, the date when the records were returned by the Collector, before presenting his appeal to the Subordinate Judge, and I cannot adopt the view that he was entitled to wait till 7th December when he obtained a copy of the Collector's order. No doubt if he bad been appealing the law would have allowed him in computing the time within which his appeal must be presented to exclude the period requisite for obtaining a copy of the judgment upon which the decree appealed against was founded, but I fail to see how he can pray in aid a provision of law relating to the computation of the time for appeal, which involves no question of discretion but which lays down a hard and fast rule, for the purpose of making out 'sufficient cause' for the indulgence for which he asked being granted to him. I presume the object of excluding the time requisite for obtaining a copy of the judgment in computing the period of limitation when a decree is appealed against is to give a party an opportunity for deliberate consideration of the grounds upon which the decree pronounced against him is based before making up his mind as to whether he will appeal. In the present case the appellant had been supplied with a copy of the decree against which he appealed as far back as 18th February 1898, and neither the Collector's order nor the records in the case could tell him anything as regards the decree which he proposed to appeal against which he did not already know. The appellant does not attempt to offer any explanation of the delay of 39 days beyond that contained in paragraph 11 of his petition to the Subordinate Judge. He there states 'that after the receipt of the said appellate order petitioner consulted and took advice as to the course that he should take and he was told to obtain return of the material records from the Revenue Courts in which he has filed them.'

6. Even assuming that the appellant was entitled to wait till he obtained a copy of the Collector's order--7th December--there is no attempt beyond the vague statement in the petition to which I have referred to explain the delay from 7th December to 19th December when the Court closed for the Christmas recess, or to account for the fact that the appeal was not presented on the day of the re-opening of the Court. If what I have termed the 'equity' of Section 14 is applied to this case, I think the appellant was not entitled to the indulgence for which he asked, because he gave no reason and offered no explanation to account for his not having shown 'due diligence' during the period which elapsed between 25th November 1898 and 4th January 1899, or at any rate between 7th December and 4th January. If the proposition laid down by this Court in Krishna v. Chathappan I.L.R. 13 Mad. 269 is applied, I think the appellant was not entitled to the indulgence for which be asked, because he failed to show that there had been 'no negligence, nor inaction on his part' during the period above referred to. For every day's delay after 25th November, or at, any rate after 7th December, the onus lay on the appellant to justify or explain. He has made no attempt to discharge this onus. I am not called upon to say that a delay of a given number of days would not have disentitled the appellant to the indulgence for which he asked and that a delay of a given number of days would have disentitled him. All I say is that, on the admitted facts in this case, there is a delay which remains unexplained. That being so, I should have declined to admit the appeal.

7. There remains, however, a further question for consideration Ought we, in second appeal, to interfere with the finding of the Subordinate Judge? So far as I can gather from reported oases the principles applicable to the determination of this question have not been so fully considered by this Court as by the other High Courts. See, for Sinstance Bechi v. Ahsanullah Khan I.L.R. 12 All. 46 and Parvati v. Ganpati I.L.R. 23 Bom. 513. In fact it would almost seem as if the rule which has been followed in this Court has been that the mere fact that the view of the Court as to the sufficiency of the cause for not presenting the appeal in time differs from that of the lower Appellate Court justifies the interference of this Court in second appeal. See, for instance, the judgment of this Court in Krishna Bhatta v. Subraya I.L.R. 21 Mad. 228. In my opinion (and Benson and Boddam, JJ., agree as to this) a mere difference in view as to the mode in which the discretion conferred by the section ought to have been exercised is in itself no ground for interference. It seems to me that before this Court interferes it ought to be satisfied that the exercise of the discretion was judicially unsound. The test is, has the discretion been exercised after appreciation and consideration of all the facts which are material for the purpose of enabling the Judge to exercise a judicial discretion and after the application of the right principle to these facts? If a discretion is exercised under these conditions and a certain conclusion is arrived at, that conclusion, it seems to me, would be an exercise of discretion judicially sound, though an appellate tribunal might be disposed to draw a different inference from the facts.

8. Now, the first point which the Subordinate Judge had to decide in this case was whether the appellant had shown sufficient cause for not presenting his appeal within thirty days of 18th February 1898. Having satisfied himself as to this, the next point he had to consider was whether he had shown sufficient cause for not presenting his appeal until 4th January 1899.

9. No doubt the fact that the appeal was not presented till 4th January 1899 was present to his mind; but can it be said that the Judge considered the question of the appellant's conduct between the time when his appeal to the Collector was dismissed and his appeal to the Subordinate Judge was presented, or if he did consider this question, can it be said that he applied the right principle in exercising his discretionary powers'? The Subordinate Judge admitted the appeal, as be says expressly in his judgment, because the appellant 'lost his time' in following out the course pointed out by the District Munsif and because his proceedings before the Collector and the Deputy Collector were bond fide. This may have been a very good reason for holding that the appeal ought to have been admitted notwithstanding that it was not presented until some date subsequent to 25th November 1898. It is no reason for holding that it ought to be admitted notwith- standing it was not presented till 4th January 1899. If it appeared that the Judge has considered the conduct of the appellant during the period subsequent to 25th November and had come to the conclusion, upon the evidence, that in the circumstances of the case the appellant had shown 'due diligence,' or in the words used by the Judges of this Court in Krishna v. Chathappan I.L.R. 13 Mad. 269 that 'there had been no negligence nor inaction on his part,' I think his conclusion as an exercise of his discretion would have been judicially sound, and that, even if we did not agree with it, we ought not to interfere. It seems to me that the Judge did not consider all the facts which were material for him to exercise a judicial discretion, viz., the facts in connection with the period referred to, and that if he did consider these facts he applied the wrong principle. The question he ought to have asked himself was--was the appellant diligent during this period? The question which he appears to have asked himself was--was the appellant misled by the Munsif and were his proceedings before the Revenue Courts bond fide?

10. I think this appeal ought to be allowed on the ground that the appellant's appeal to the lower Appellate Court was time-barred.

Moore, J.

11. I concur.

12. This appeal is allowed and the decree of the Additional Subordinate Judge's Court is set aside with costs in this Court and n the lower Appellate Court.


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