1. This revision petition is based upon Rule 4 of the Rules framed by the Local Government for the conduct of enquiries with reference to elections to District Boards, etc., under the Madras Local Boards Act, XIV of 1920, published in the Fort St. George Gazette, dated 14th June, 1921. It is contended that Rule 4, Sub-rule 1, was not complied with inasmuch as the* deposit of Rs. 200 required under it was not made within time and that under Sub-rule 2 the Court was bound to dismiss the petition and Sub-rule 3 did not apply as the provisions of Sub-rule 1 were not complied with.
2. The facts on which this question arises are as follows: The petitioner before me was elected as a member of the Taluk Board of Cuddalore. An objection petition was filed to his election by the counter petitioner urging certain grounds against its validity. The election was held on the 12th of May and the result published 6n 15th of May. According to Rule 2 of the above mentioned rules, 14 days were allowed for an objection petition to be presented against the validity of the election. The 14 days in this case having elapsed during the time the Court was closed, the petition was actually put in on the re-opening date, 17th July. It is not contended that the petition was not in time; but on the 17th of July no deposit of 200 rupees was actually made. It would appear from the judgment of the Subordinate Judge and from the affidavits filed before him that the Vakil who was entrusted with the filing of this petition had with him a sum of Rs. 200 to deposit. He went to the Sub-Judge in the middle of the day, 7 minutes past 2 (p. m) as the learned Sub-Judge says and presented the petition and stated to the Sub-Judge that he had 200 rupees to pay, but he did not actually tender the money, nor did he ask the Judge to take the deposit himself. In accordance with the usual practice, he went to the Chellan clerk to obtain a chellan to pay his money into the Imperial Bank. That being the luncheon interval, the chellan clerk was not there. He returned soon after, and issued the chellan for payment of the money into the Bank at 2-45 p.m. It is the counter-petitioner's case, and there is nothing to show that it is untrue, that the money was sent to the Bank through one Narayanaswami Reddi. But the Bank being about 2 1/2 miles or 3 miles from the Court-house, he was not able to reach the Bank in time to make the deposit before 3 p.m. as required by the Bank's rules and the Officers of the Bank accordingly declined to accept the money that day. The money was paid into the Bank only the next day. In these circumstances, the question arises whether the Sub-Judge was right in applying the principle of Actus Curiae Neminem Grava-bit (the act of the Court should not prejudice any one) to this case. The Sub-Judge has applied that principle but I regret I am unable to agree with him; for it cannot be said that in this case, the failure to pay the money in time was due to any action taken by the Court.
3. The learned Vakil for the respondent says that as the chellan clerk was not in his seat when the petitioner's Vakil went to him at the luncheon hour, he lost time and was unable to make the payment in the Bank according to its rules and the fault is the clerk's. But this argument cannot be accepted, for the time during which the Vakil went to the chellan clerk was the time when the clerks were allowed to go for tiffin. It cannot be said that the clerk committed any fault in going away for his tiffin and being absent at the time. He seems to have granted the chellan as soon as he returned. The Vakil certainly knew that he could not expect the clerk to be in his place of work during the luncheon time.
4. There is nothing that the Judge did that has been pointed out to me as having prevented the respondent from complying with the rule, by making the deposit in time. It is not stated that any application was made to the Judge that he should take the money himself, under Rule 133 of the Civil Rules of Practice
5. The learned Subordinate Judge has referred to certain authorities as justifying his view; I shall deal with them now. The case in Mahomed Akbar Taman Khan v. Satchdeo. Pande (1911) 13 C.L.J. 467, is the first case cited. That was a case under Order 21, Rule 89 of the Code of Civil Procedure. In that case it was found that the agent of the judgment-debtor was ready to deposit money in Court but he was not able to do so as the Judge had left the Court before time whose signature had to be obtained as the presiding officer for the chellan to be paid. That was clearly a case where owing to the action of the Judge himself by leaving the Court before the Court hours were over, the party was actually prevented from complying with the rule requiring the payment into Court within the time fixed. To that case the maxim clearly applied but that is a different case altogether from the present one. To apply the maxim it must be possible to hold that the failure to comply with the rule of law was due to the action of the Court and not to any default of the party. The other cases cited are also of a similar kind. The case in Munna Lal v. Radhakishen I.L.R. (1915) All 591 , which followed the ruling in Mahomed Akbar Taman Khan v. Satchdeo Pande (1911) 13 C.L.J. 467, was a case where the Treasury Officer refused to receive the money. The amount was large and though the money was tendered before 3 p.m. the hour fixed before which payment had to be made into the Treasury, according to the Treasury rules, the Treasury Officer refused to receive the money because he thought that there was a period of three days more to pay it in. In that case the 1st Court had come to the conclusion that the money was tendered after 3 p.m. but the learned Judges in appeal reversed that finding and found that the money was tendered before 3 p.m., and that it was due altogether to the Treasury Officer's fault that the money was not paid into the Treasury and therefore the principle was applied that the party should not be prejudiced by the mistaken action of the Officer. The Madras case cited, Aravamuthu Ayyangar v. Samiyappa Nadan I.L.R. (1898) M. 385 was a case where the Court was actually closed on the date when the payment was to be made. Their lordships held that payment on the following day was a proper payment. That case has dearly no application to the present case. The last case cited is reported in Gajadhar Das v. Ram Samiran Dube (1918) 52 I.C. 161. In that case, it would appear on the facts, that the money was tendered both to the Revenue Court and to the Civil Court but both Courts declined to receive it and the non-payment in time was due to the action of the courts. Some of the observations perhaps go a little too far but the decision is fully in consonance with the principle enunciated in the other cases cited. The learned Vakil for the respondent drew my attention to a recent decision of Mr. justice Ramesam in C.R.P. No. 870 of 1921 but there the question was one under Section 17 of the Provincial Small Cause Courts Act and the point the learned judge had to consider was, whether in the circumstances of the case, proper ground had been shown for excusing delay. There is no question of excusing delay in the present case. The position here is clear. The Act expressly lays down that unless the deposit is made at the time of the presentation of the petition it shall be dismissed and again says that only on compliance with the provisions of Sub-rule 1 the Judge shall proceed to enquire into the petition. The language is very clear and mandatory in its character and unless the condition is complied with, the petition must be rejected.
6. I would add in conclusion that when the petitioner found that he could not pay the money into the Bank on the 17th it was easy for him to have returned to the Court as he had ample time to do so and to have tendered the money to the learned Sub Judge himself under Rule 133 but nothing of that sort was done. The non-payment of the money is therefore clearly not due to any action of the Court but to the default of the petitioner. Now, in these circumstances, it seems to me clear, that this is not a case to which the maxim applies. The Subordinate Judge having assumed jurisdiction to enquire into the petition on a wrong view of the law, Section 115 of the Code of Civil Procedure applies. Acting under that section I set aside the order of the Subordinate Judge and reject the 1st respondent's election petition. There will be no order as to costs.