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Kayambu Pillai (Died) and anr. Vs. the Court of Wards by the Collector of Trichinopoly District and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1942Mad170; (1941)2MLJ873
AppellantKayambu Pillai (Died) and anr.
RespondentThe Court of Wards by the Collector of Trichinopoly District and ors.
Cases ReferredKrishna v. Chathappan I.L.R.
Excerpt:
.....affidavit would show, that he has been prosecuting certain letters patent appeals and other civil miscellaneous applications between the 17th march, 1938, and the 18th april, 1939. so far as the time spent for the disposal of these appeals and applications are concerned, there cannot be much of a doubt that these proceedings must be regarded as having been taken in good faith and prosecuted diligently......the 17th march, 1938, and the 18th april, 1939. so far as the time spent for the disposal of these appeals and applications are concerned, there cannot be much of a doubt that these proceedings must be regarded as having been taken in good faith and prosecuted diligently. had the time to pay court-fee and to give security been extended either by the court on the 18th february, 1938, or had letters patent appeals against those orders been allowed on the 18th april, 1939, the appeal would not have been dismissed on the 4th march, 1938, and even if dismissed, the order of dismissal would have had to be vacated. no reasons for the dismissal of these appeals have been given by the division bench disposing of them but it seems to be obvious that they were dismissed as the prayer to extend the.....
Judgment:
ORDER

Abdur Rahman, J.

1. This is an application to excuse the delay in presenting a petition for review against the orders passed by Mr. Justice Venkatasubba Rao and myself in A.S. No. 343 of 1931 on the 4th March, 1938, I have not, up till now, decided to issue any notice in regard to the petition for review and nothing in this order shall be taken to refer to the application for review which I shall consider separately.

2. Since the existence of sufficient cause is a condition precedent without which the discretion given to a Court under this section cannot be exercised, the question whether the delay should be excused depends for its answer on the fact whether the petitioner has succeeded in making out the same. According to the well-known decision in Krishna v. Chathappan I.L.R.(1889) Mad. 269 cited by learned Counsel for the appellant, the words 'sufficient cause' have to be liberally construed so as to advance substantial justice particularly when 'no negligence, nor inaction nor want of bona fides is imputable to the appellant'. In defining the general rules of guidance for the exercise of discretion, Lord Dunedin observed in Brij Indar Singh v. Kanshi Ram :

We think the true guide for a Court in the exercise of this discretion is whether the appellant has acted with reasonable diligence in prosecuting his appeal.

Learned Counsel for the Court of Wards has, on the other hand, naturally laid great stress on the fact that once the time for making an application is past, a very valuable right has accrued to the successful party of which he should not be lightly deprived.

3. Section 14 of the Limitation Act provides that in computing the period of limitation for any suit or application, the time during which the applicant has been prosecuting in good faith and with due diligence another civil proceeding in another Court, which from defect of jurisdiction or other causes of a like nature, is unable to entertain it, shall be excluded. It has been contended by learned Counsel for the appellant that in considering the words 'sufficient cause'' under Section 5 of the Limitation Act, the equities on which Section 14 of the Limitation Act is based may be taken into account, it being a common case of the parties that Section 14 as such has no application to the present case. The contention has in my opinion, considerable force. As observed by their Lordships of the Privy Council in Kanwar Rajendra Bahadur Singh v. Rai Rajeshwar Bali , that in applying Section 5 to cases where delay has been caused by taking a wrong proceeding, 'analogy of Section 14 is an argument of considerable weight'. The existence of circumstances mentioned in the section has been, therefore, regarded in decided cases as a sufficient ground for excusing the delay caused by wrong proceedings. In order to decide therefore, whether the plaintiff would be entitled to exemption, I must see whether he had been during the time that has elapsed in excess of what is allowed to him by law, prosecuting in good faith and with due diligence other proceeding or proceedings for substantially the same relief in another Court which was, for defect of jurisdiction or for other causes of a like nature unable to entertain the same and grant the relief to the petitioner.

4. There is no doubt, as a reference to the petitioner's affidavit would show, that he has been prosecuting certain Letters Patent Appeals and other Civil Miscellaneous Applications between the 17th March, 1938, and the 18th April, 1939. So far as the time spent for the disposal of these appeals and applications are concerned, there cannot be much of a doubt that these proceedings must be regarded as having been taken in good faith and prosecuted diligently. Had the time to pay court-fee and to give security been extended either by the Court on the 18th February, 1938, or had Letters Patent Appeals against those orders been allowed on the 18th April, 1939, the appeal would not have been dismissed on the 4th March, 1938, and even if dismissed, the order of dismissal would have had to be vacated. No reasons for the dismissal of these appeals have been given by the Division Bench disposing of them but it seems to be obvious that they were dismissed as the prayer to extend the time or to excuse the delay in the Letters Patent Appeal filed against the order in C.M.P. No. 5204 of 1934 which was five days beyond time had not been granted. The applicant cannot be regarded to have been guilty of negligence or inaction or want of bona fides so far as this delay is concerned. This time must, therefore, be taken into account in his favour and he should get a credit for the same in computing the period of limitation. This is, however, not enough for the petitioner. He says that the Courts were closed on the 5th May, 1939, and re-opened on the 17th July, 1939, on which date applications were made on his behalf--S.R. No. 18426 of 1939 (C. M.P.) for accepting the court-fee and security and re-hearing the appeal and C.M.P. No. 3582 to excuse the delay in making this application. That these applications, if made on the 5th May, 1939, would have been taken into consideration in computing the period of limitation on the same basis as the proceedings under the Letters Patent Appeals, does not seem to be open to question. Nor is there any doubt that if these applications had been granted, the petitioner would have achieved his object and the present petition for review would have been unnecessary. The only question then is whether the time during which the Court was closed, when these applications could not have been presented, should be taken into consideration in calculating the period of limitation. If the words 'sufficient cause' have to be construed liberally and if the test to be kept in view, as laid down in Krishna v. Chathappan I.L.R.(1889) Mad. 269 is whether negligence, inaction or want of bona fides can be imputed to the plaintiff, my reply must be in his favour. It is true that this is to a certain extent detrimental to the respondent, although the application for review has not been taken up for consideration so far, and interferes with the valuable right that has accrued to the respondent, but this question has to be approached in my opinion, from the point of view of the petitioner's conduct rather than of the advantage gained by the respondent,

5. I would, for the above reasons, excuse the delay and ask the learned Counsel for the petitioner to satisfy me whether any notice on the petition for review should be issued to the other side. No costs.


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