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Gopalakrishna Pillai and ors. Vs. Kunjithapatham Pillai and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1924Mad324; 79Ind.Cas.651
AppellantGopalakrishna Pillai and ors.
RespondentKunjithapatham Pillai and ors.
Cases ReferredIn Koil Pillai Samban v. Sapparimuthu Samban
Excerpt:
.....12 of his judgment observes that the vakil was perfectly justified in putting in a lodgment schedule and taking out the challan without tendering the money to the judge......132 states that the payer shall deliver the money and the order and the counterfoil receipt to the bank or treasury officer mentioned therein who is to retain the order and return the receipt duly signed by him to the payer which receipt the payer should return to the court. rule 133 provides that if the bank or the treasury is closed, the money may, with the leave of the judge', be paid to the officer of the court and the officer of the court will send it to the bank the next day. as the bank was open at the time of the presentation of the petitions the vakil in pursuance of the rules of practice obtained a lodgment schedule. the judge on receipt of the petition, passed an order for the issue of challans and challans were issued on that day. as there is a branch of the imperial bank of.....
Judgment:

Kumaraswamy Sastri, J.

1. The facts in these cases are not disputed and the only question is whether on the facts the Subordinate Judge was right in dismissing the applications.

2. The election to the Taluk Board in question was held on the 9th of May 1922. The Subordinate Judge's Court was closed for the summer recess on the 14th of May 1922 and re-opened on the 17th of July. The period of 14 days allowed for the presentation of the election petitions expired during the vacation and these petitions were presented on the 17th of July the date when the Court re-opened. The case for the petitioners is that they had with them the sum of Es. 200 each which had to be deposited and that these sums were produced before the Subordinate Judge.

3. Rule 131 of the Civil Rules of Practice requires a person desirous of paying money into Court to bring into Court a Lodgment Schedule in the form prescribed by the rules and containing the various particulars mentioned therein. Thereupon an order for lodgment and counterfoil receipt are to be issued to the payer. Rule 132 states that the payer shall deliver the money and the order and the counterfoil receipt to the Bank or Treasury Officer mentioned therein who is to retain the order and return the receipt duly signed by him to the payer which receipt the payer should return to the Court. Rule 133 provides that if the Bank or the Treasury is closed, the money may, with the leave of the Judge', be paid to the officer of the Court and the officer of the Court will send it to the Bank the next day. As the bank was open at the time of the presentation of the petitions the Vakil in pursuance of the Rules of Practice obtained a Lodgment Schedule. The judge on receipt of the petition, passed an order for the issue of challans and challans were issued on that day. As there is a branch of the Imperial Bank of India at Cuddalore, the challan issued by the Court had to be taken to the officer in charge of the Treasury, checked by him and then taken to the branch of the Imperial Bank. The challans were issued at about five minutes to three and they were taken at once to the Treasury but the Treasury Officer was not there. As the Bank would not receive the money after 3 o'clock it was impossible to pay the money into the Bank on that day. The money was returned to the Vakil for the petitioners. He and the members of his family were then staying at Tiruvendipuram about four miles from the Court House and the Treasury Office and he took the money with him in order that it may be paid the next morning. The money was sent the next day from Tiruvendipuram to the Treasury Officer with the challans and the Treasury Officer returned the challans at about 240. As the Bank was about 2 miles from the Treasury Office, the person taking the challans and the money to the Bank arrived at the Bank at 5 minutes after 3, but the Bank would not receive the money and it was therefore paid the next day. On the 18th the person taking the money to the Treasury Officer went in a jutka. There was an accident to the horse and it was, there-fore, about 1-50, P.M. when the person readied the Treasury Officer. There would have been, however, ample time to have gone to the Bank if the Treasury Officer had not taken nearly an hour to return the challans to the person who brought the money. The Subordinate Judge is of opinion that, so far as the 17th is concerned, the delay was unavoidable but thinks that the delay on the 18th has not been properly explained.

4. There can be little doubt that if there was no accident to the horse, there would not have been a delay of five minutes on the 18th and that the money would have been received by the Bank. The trouble was that owing to the delay the person who had the money reached the Bank at 3'5 while, according to the rules of the Bank, no money would be received after 3 P.M. I do not think that the view taken by the Subordinate Judge is correct, It is not reasonable to hold that a person is guilty of negligence when he would, in the ordinary, course of things, have arrived in time for payment and the delay of 5 minutes was due to an accident which he could, by no means, have foreseen. In this connection I need refer to the judgment of it he Chief Justice in Arunachela Ayar v. Subbaramiah 68 Ind. Cas. 971 : 46 M. 60 : (1922) M.W.N. 600 : 31 M.L.T. 257 : 16 L.W. 583 : 43 M.L.J. 63 : (1923) A.I.R.(M) 63. The learned Chief Justice observes 'The question to be considered by the Court is not whether by some human possibility, being wise after the event, he could have got there in time, and once the Court is satisfied, as was the fact in this case, that the man did try to get there and that he would have got there in time but for the intervention of an inevitable accident for which he was, in no way, responsible, it is the duty of the Court, in my judgment, to set aside the judgment, mulcting in proper cases, the delinquent man in costs.' It is no argument to say that where a man leaves in time and would, in the ordinary course, have reached the Bank in time, he would, in spite of the accident, have reached before the Bank was closed if he had started earlier, or if the jutka horse had run faster. The question remains for consideration as to whether even in oases where there is no negligence and where the applicant has complied with the rules, the application should be dismissed because the money was not paid into Court with the application whatever the reason may be.

5. Rule 4 of the Election Rules framed by the Government cinder the Madras Local Boards Act enacts that the amount should be deposited at the time of the presentation of the the petition and that if it is not deposited the petition should be dismissed, The contention of the respondents is that in such cases money should be paid in and that even if the challans had been taken and the money paid into the Bank a few minutes later, the petition would still have to be dismissed as the presentation of the petition and the payment of the money were not simultaneous. This construction, so far as I can see, has nowhere been placed on the rules. In Krishnaji Reddiar v. Muthuveera Reddiar 72 Ind. Cas. 449 : 44 M.L.J. 344 : (1923) M.W.N. 199 : 18 L.W. 299 : A.I.R. (1923) (M) 490. Krishnan, J., though he held that no question would arise as to the Court excusing the delay the provision in the rule being mandatory, took the view that if the failure to pay the money was due to any action taken by the Court, the petition would be proper. The Rules of Practice are binding on all Civil Courts and where the rules provide that a challan must be obtained and money paid into the Bank unless at the time of making the application to receive the money the Bank is closed, it is difficult to see how the Court could receive the money in violation of the Rules of Practice which have the force of law and are binding on all Civil Courts. The Subordinate Judge in Paragraph 12 of his judgment observes that the Vakil was perfectly justified in putting in a Lodgment Schedule and taking out the challan without tendering the money to the Judge. It cannot, therefore, be said that the petition ought to be dismissed because the money was not paid to the Judge in cash. It is argued that, although the Vakil produced the money before the Judge, he did not formally ask the Judge to receive the money; but it seems to me that no object would be gained by making a request which, under the Rules of Practice, the Judge is bound to refuse. I am of opinion that where a person who is bound to pay money produces the money in Court and complies with the rule which requires him to take out a challan and pay the money at a different place and there is a delay in the actual payment of the money into the Treasury or Bank owing to reasons beyond the control of the person making the payment, the payment must be deemed to have been made on the date the money is produced and the challan obtained. To hold otherwise would be to penalise a party for events beyond his control. In Koil Pillai Samban v. Sapparimuthu Samban 72 Ind. Cas. 220 : 17 L.W. 187 : 44 M.L.J. 247 : A.I.R.(1923) (M) 354, which was a case under Section 17 of the Provincial Small Cause Courts Act, the provisions of which have been held to be mandatory, Ramesam, J, observes as follows: 'I hold that when the party has applied for a challan and the 'delay in issuing the challan is the delay of the officers of the Court and after the issue of the challan he deposited the money immediately the maxim nune protune applies and the application for challan (in such circumstances) is equivalent to the deposit.' With these remarks I entirely agree. Whether the payment is to be made under the Small Cause Courts Act or under the Election Rules it will, in my opinion, be contrary to all principles of justice to require a man to comply with the rules which insist on the taking out of a challan and paying the money to a different officer and then to dismiss the application on the ground that the money ought to have been paid to the Judge himself or to hold that the payment to the officer contemplated by the rules would not be equivalent to the compliance with the rules where the delay in payment is entirely due to causes beyond the person taking out the challan. The Subordinate Judge finds that if the money had been paid on the 18th of July, i.e., the next day, the delay would have been justified but he thinks that because it was not paid on the 18th owing to the accident which happened to the jutka which caused the person making the payment to be five minutes late in the Bank, there was no ground for excusing the payment the very next day. I have already given my reasons for holding that the accident was one which the person could not have foreseen and that there was no negligence on the part of the person making the payment.

6. It has been argued that the provision of Section 5 of the Limitation Act would not apply and that consequently the Court has no power to excuse the delay. The question is not one of excusing any delay. The question is whether in the present case the rule of law that nobody should be prejudiced by the acts of the Court or of its Officers is one of universal application. It does not depend upon any of the provisions of the Limitation Act and this rule is applied to cases under Order XXI, Rule 89 of the Civil Procedure Code to set aside sales depositing the money into Court.

7. In the result, I set aside the order of the Subordinate Judge and direct him to restore the petitions to his file and dispose of them according to law. The respondents will pay the petitioners their costs of these petitions in this Court.


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