1. This is a petition to dismiss Appeal No. 163 of 1905 as barred by limitation.
2. The appeal time expired on Sunday the 9th July 1905 and the appeal should therefore have been presented on the 10th. It was not, however presented till the 12th and was returned as no explanation of the delay was given. It was re-presented on the 26th July with affidavits by the appellant and his law agent Veerasawmi, a private pleader. The explanation given for the delay in those affidavits is as follows:The appellant relied entirely upon Veerasawmi for the due presentation of the appeal. 'Veerasawmi calculated that appeal time expired on the 8th July and believed on the strength of the Post Card Exhibit I that the High Court did not re-open after the vacation till the 10th. On the 8th July the appellant entrusted all the papers to Veerasawmi and sent him to Madras to file an appeal. Veerasawmi started on the evening of the 8th and arrived at Madras on the morning of 9th July. He then learnt that the office of the Registrar had re-opened on the 8th to receive appeals etc., and understanding that an affidavit by the appellant would be necessary to explain the delay in filing the appeal, left Madras on the evening of the 9th, again started from Tanjore with the appellant on the evening of the 10th, arrived at Madras with the appellant on the morning of the 11th and entrusted the papers to the Advocate-General who presented the appeal next day.
3. On the strength of those affidavits the appeal was admitted. Subsequently four affidavits made on the 22nd November 1905, were filed on behalf of the respondents. These affidavits are in the main to the effect that the appellant and Veerasawmi were seen in Madras on the morning of the 10th July. If they are true there can be no hesitation in rejecting as false the explanation given by the appellant. We shall therefore first determine whether it is true that the appellant did not arrive in Madras till the 11th July.
4. In March 1907, the appellant put in five affidavits to prove that he could not have been in Madras on the 10th July. He also produced a promissory note Exhibit II and a telegram Exhibit III. In July 1908, further affidavits by the appellant and his agent were sworn on the 28th March 1908, were served on the respondents who in August filed two additional affidavits and produced the Post Card Exhibit A and the letter B. In October 1908, additional affidavits by the appellant and Veerasawmi were put in and were replied to by the 1st respondent and his Agent.
5. It is upon the materials indicated above that we are asked to decide the question at present under consideration. Of the affidavits in March 1907 little weight can be attached to the affidavit of Manikkam Pillai who says he saw the appellant at Tanjore on the 10th July 1905. The affidavit was given 15 months later and no reason is assigned for remembering the date. We do not believe the affidavit of V.R. Krishnasawmi Iyer who says he saw the appellant and Veerasawmi in pial of his house at Kumbakonam on the night of the 10th July and that Veerasawmi dined with them and said, he was leaving for Madras that night with the appellant by the 10-10 P.M. Mail Train. When this affidavit was concocted, the contents of the affidavits of the 26th July 1905, were apparently forgotten. According to them the appellant and Veerasawmi left Tanjore on the evening of the 10th July and there is no suggestion of any break of journey at Kumbakonam. We may also here dispose of the affidavits of the appellant and Veerasawmi sworn in October 1908.These contain entirely new allegations to the effect that on the 11th July the appellant and Veerasawmi travelled to Madras in the same train as the 1st respondent and his agent and that Veerasawmi spoke to the latter at Egmore Station. The allegations are denied in the counter-affidavits and there can be no doubt they are after-thoughts and untrue.
6. The main case for the appellant is revealed in the remaining three affidavits of March 1907, the appellant's own affidavit of March 1908 and Exhibits II and III. That case is as follows:The appellant being in want of money for the purpose of filing his appeal went to various places to raise a loan. On the 8th and 9th July he was at Nemathampetti which is 54 miles byroad from Tanjore; on the morning of the latter date he and two others executed a promissory note Exhibit II in favour of Palaniappa Chetti. The amount of the promissory note is Rs. 2,000, of which Rs. 1,500 was the amount of a Hundi drawn by Palaniappa Chetti on Periannan Chetti of Madras and Rs. 500, the amount agreed to be paid to Palaniappa Chetti for the accommodation. The Hundi was delivered to the deponent Perumal Thevan who delivered it to Periannan Chetti in Madras on the morning of the 10th July. The appellant remained at Nemathampetti till 4 P.M. and then started with the intention of going to Madras. He was accompanied as far as Kanadukathan by the deponent.Murugapillai, agent of Palaniappa Chetti who sent the telegram Exhibit III from that place at 5-15 P.M. on the 9th July. The telegram, is addressed to Periannan Chetti at Madras and its material portion runs thus:'Sellattur Zamindar comes there, Cash hundi, and file appeal immediately.'
7. By Sellatur Zamindar the appellant is meant. This telegram duly arrived a Madras and was given by the Periannan Chetti on the morning of 10th July to his against the deponent Ramasami Iyer, with instructions to go to the Railway Station and meet the appellant. The appellant, however, did not arrive according to the expectation raised by the telegram. Instead Perumal Thevan arrived and handed over the hundi already referred to. On the morning of the 11th July appellant and Veerasawmi arrived.
8. With regard to deponents Perumal Thevan, Muruga Pillai and Ramasawmi Iyer on whose statements the case above set out largely rests it must be observed that Perumal Thevan is apparently a person interested in the appellant as he accompanied him when he went in search of money, that Muruga Pillai is the agent of Palaniappa Chetti in whose favour the promissory note Exhibit II was executed, while Ramasawmi Iyer is the agent of the person who was to pay to the appellant the amount of the hundi drawn by Palaniappa Chetti. All these men must therefore be looked upon as in some way interested in the appellant's success. It is contended that the promissory note Exhibit II and the telegram Exhibit III prove the truth of their story; neither Exhibit II nor Exhibit III is, however, necessarily inconsistent with the appellant having arrived in Madras on the 10th July. Perumal Thevan did not start for Madras till the promissory note had been executed. Still, he arrived in Madras on the morning of the 10th July. It was therefore quite possible for the appellant also to have reached Madras at the same time. That the appellant was aware that the appeal had to be filed on the 10th appears from Exhibit II itself. That he intended to go to Madras in any case and without any call from Veerasawmi is clear from Exhibit III, it not being his case that he received any communication from Veerasawmi before he started for Madras. No doubt if the appellant was at Kanadukathan at 5-15 P.M. on the 9th July he could not have reached Madras on the morning of the 10th. But there was no necessity to send Exhibit III till the evening of the 9th even if the appellant started in the morning, as there was still sufficient time for the telegram to reach Madras before the appellant did.
9. Seeing that the appeal was to be filed on the 10th and the appellant intended to go to Madras the probability is that he would try to be in Madras on the 10th. Exhibit III itself seems to indicate that the hundi was to be cashed after the appellant's arrival and if this is so the appellant's presence on the 10th was imperative. Further, the amount of the hundi was only as.1,500. The stamp duty payable was Rs. 1,125 and it is hardly likely that the balance Rs. 75 would be enough to meet other preliminary expenses. This furnishes an additions reason for the appellant's presence on the spot. In addition to these probabilities we have the testimony afforded by the four affidavits of the 22nd November 1905, filed on behalf of the respondents. Of those, the affidavit of Sesha Iyengar may be neglected as no personal knowledge is spoken to. The other three deponents assert that they saw the appellant and Veerasawmi on the morning of the 10th July; Sawmia Narayana Iyengar is no doubt an agent of the respondent but the statement is borne out by the letter Exhibit B written and posted by him at Madras on the 10th July and duly received by the 1st respondent. It is suggested that there was ample time before its production to forge Exhibit B with its post marks. No doubt such a forgery is not impossible but we are not prepared on that ground to reject Exhibit B which bears every mark of genuineness. Another of the deponents is the 4th respondent and his statement may be said to be that of an interested person. But nothing has been or can be said against Mr. Raghavachari. This man was a clerk in the office of Mr. Sundra Iyer, High Court Vakil, and swears that the appellant and Veerasawmi came to Mr. Sundra Iyer's office on the morning of the 10th July. Finally there is the affidavit dated 4th August 1908, of R. Aiyavaiyer, a Sub-Inspector of Police, who swears he saw the appellant and Veerasawmi in Madras on the morning of the 10th July. This man is a friend of the 1st respondent. His statement is supported by the Post Card Exhibit A, written to the 1st respondent from Madras on the 10th July and posted on that date. The same remark applies to Exhibit A. as to Exhibit B.
10. For the above reasons we have no hesitation in holding that it is not true that the appellant did not arrive in. Madras till the 11th July. We find it proved beyond reasonable doubt that the appellant was in Madras on the morning of the 10th July. This finding strikes out the root of the explanation given by appellant and Veerasawmi in their affidavits of the 26th July 1905, and we have no hesitation in rejecting the whole of the explanation as false. The true explanation of the delay in filing the appeal is undoubtedly that the appellant found difficulty in raising all necessary funds. It is significant that no statement has been made as to when the appellant was supplied with money and that the stamp for the appeal memorandum was not purchased till the 12th July. It is not contended that the want of funds is 'sufficient cause' within the meaning of Section 5, Clause 2 of the Limitation Act and there is ample authority that it is not. See for instance Moshaullah v. Ahmedullah 13 C. 87
11. The explanation given for the delay having, been found to be false it is unnecessary to consider whether the explanation if accepted as a true statement of facts would furnish 'sufficient cause' within the meaning of Section 5, Clause 2 of the Limitation Act. We may, however, briefly deal with this aspect of the case. The words' sufficient cause' should receive a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant--vide Krishna v. Chathappan 13 M.c 269. In the present case we find that the appellant entrusted all the business connected with the filing of his appeal to Veersawami, an unqualified man. This being so we are unable to hold that the appellant acted without negligence and bona fide, i.e., with due care and attention, or that he can be allowed to plead the mistakes made by Veerasawmi who himself does not appear to have made any attempt to take professional advice, Further, the affidavits of the 26th July 1905, reveal 'no sufficient cause' for the non-filing of the appeal on the 11th July and the appellant is bound to give a proper explanation for every day's delay--vide Kichilappa Naickar v. Ramanujam Pillai 25 M. 166 p. 180.
12. We find that no sufficient cause has been, shown for the delay in filing the appeal. The appeal is therefore dismissed with costs of the 1st and 13th respondents.