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Madan Gopal Daga Vs. Rallis, India Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 2961 of 1951
Judge
Reported inAIR1957Cal598,61CWN368
ActsCode of Civil Procedure (CPC) , 1908 - Section 148 - Order 17, Rule 1 and 1(2); ;General Clauses Act, 1897 - Section 10
AppellantMadan Gopal Daga
RespondentRallis, India Ltd.
Appellant AdvocateBimal C. Mitter, Adv.
Respondent AdvocateAjit Ganguli and ;B.K. Chakravarti, Advs.
Cases ReferredRam Kinkar Singh v. Srimati Kamal Basini Debi
Excerpt:
- .....the doing of any act prescribed or allowed by this court, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.''this surely was an act, namely, payment of a sum which was allowed by the court because the judge adjourned the matter on such terms and conditions as he thought fit by reason of order 17 (1) (2) of the code of civil procedure and the condition imposed in this case was as quoted in the order of the 19th december 1956 quoted elsewhere in this judgment. the court also fixed a period within which the act of payment of costs assessed at rs. 500/- was to be made. therefore, under section 148 of the code of civil procedure the court has discretion from time to time to enlarge the period even.....
Judgment:

P.B. Mukharji, J.

1. This is a Notice of Motion taken out by the plaintiff for an order that the suit be directed to appear in the peremptory list for hearing and if necessary, the 'delay in payment of the sum of Rs. 500/- under order dated December 19, 1956 be condoned and the time for such payment by the applicant be extended upto such time as to this Court may seem fit and proper.

2. This application raises an interesting point about computation of time under an order of this Court.

3. This is a commercial suit instituted by the plaintiff for the recovery of the sum of Rs. 25,891/8/- from the defendant as damages for failure to supply gunny bags to the plaintiff under a contract. The suit appeared on the peremptory list for disposal on December 19, 1956. An application was then made orally for an adjournment. On 19th December 1956 my learned brother Section Rule Das Gupta J. thereupon directed the applicant to pay Rs. 500/-to the respondent by the end of December 1956 and, in default, the suit was to stand dismissed. The actual terms and language of the order of the point are :

'It is ordered that upon the plaintiff paying by the end of this month to the defendant company the sum of Rs. 500/- as costs of this day subject to taxation, the hearing of the suit do stand adjourned till 9th day of January next and it is further ordered that in default of the plaintiff paying the said sum as aforesaid within the time aforesaid, this suit do stand dismissed lor want of prosecution and in that event, the plaintiff do pay to the defendant company its costs of the suit to be taxed by the Taxing Officer of this Court.''

4. On December 29, 1956, a cheque for Rs. 500/- was drawn by the plaintiff's attorney in favour of the defendant's attorney and was sent to the respondent's solicitor. It is alleged that December 29, 1956 being a Saturday and the cheque and the letter enclosing it having been sent after 1 p. m. the payment was rightly refused by the respondent's solicitor. The following three days were holidays. The 30th December 1956 was a Sunday, 31st of December 1956 and 1st January 1957 were public holidays. Immediately on the following open day, namely, the 2nd January 1957, the cheque and the letter were sent to the respondent's solicitor. The respondent's solicitor admitted receipt of the cheque but returned the cheque on the ground that it should have reached by the end of December, 1956. To quote the words of the respondent's solicitor's letter, the language used is as follows :

'You are well aware that the directions of the Court were that you were to deposit with us a sum of Rs. 500/- as a condition precedent, as costs of the day thrown away on or before the end of December last. As the aforesaid sum did not reach us on 29th December 1956, we were unable to accept the same which please note.'

5. That letter acknowledged the fact that the cheque of Rs. 500/- was received by the respondent's solicitor on 2nd January 1957 by 12 noon. Thereafter followed some correspondence the gist of which was that the plaintiff's solicitor contended that the cheque could not be sent by the end of December 1956 on account of holidays and was sent on the first reopening day and the respondent's solicitor contended that the cheque should have been sent by the end of December, 1956 under the terms of the order.

6. Now, the order of December 19, 1956, has been duly drawn up, settled and filed. There is, therefore, no jurisdiction left to the Court to vary or amend or alter that order.

7. The whole controversy, however, is whether there was in fact a default which could legally operate as a dismissal of the suit by thc terms of that order. The operative part of the order directed the plaintiff to pay to the defendant company a sum of Rs. 500/- 'by the end of this month.' The question, therefore, now is that if 'the end of this month' which was December 1956, was a holiday, should the plaintiff get the benefit of paying at thc earliest opportunity, the subsequent day, which is not a holiday and that was on January 2, 19.57? If the plaintiff docs get that benefit of a holiday, then his payment of the money on January 2, 1957, would be a compliance with the order of the Court so that there would be no default and the suit will not be regarded as having been dismissed by reason of such default.

8. One of the fundamental principles in administration of justice is Actus Curiae Neminem Gravabit which means that an act ot Court shall prejudice no man. In construing and applying an ambiguous order of Court this principle should be observed. It means that no litigant or person should be hurt or damaged or prejudiced by any ambiguity of the order of the Court. If the time fixed by an order of Court is ambiguous then the correct computation of time by a true Construction of the order must be such as causes the least prejudice and harm to a litigant or a person affected by the order.

9. If the order of the Court was, as it was in this ease, that the plaintiff should get the end of December 1956 to pay, then, I think, it is contrary to the principles of fairness that that time should be abridged by the further consideration that by that expression of 'the end of the month', the Court meant 29th December, 1956, because the following two days, 30th and 31st December, 1956, were holidays known to the Court. I should have thought that thc construction should be the otherway that the Court knowing that 30th and 31st December, 1956. were holidays, gave the order in that form using the expression 'the end of this month', meaning thereby that the Court intended to give the benefit of these holidays and the true construction of the order should be that the Court intended to give time to the plaintiff to pay that money until 2nd of January 1957. If the Court meant by 'the end of this month' not the end but two days earlier before the end, then the Court would have expressly said so. The Court's orders are meant to be just and not merely technical to be used by parties for tactical advantages. The construction of this order as implying that payment by the first reopening day, 2nd January, 1957, would be a sufficient compliance with the direction of the order to pay by 'the end of this month' does not cause any injustice to any of the parties because the suit was not to be placed on the list until 9th January 1957 for disposal. The other construction will not only be harsh but will also involve the heaviest penalty and irreparable prejudice of the plaintiff's suit and claim for Rs. 25891/8/- being dismissed without trial and hearing. Unless therefore the Court expressly said that time was to expire by 29th December I would not visit the plaintiff with that penalty and I would therefore construe the words of the order 'by the end of this month' as giving him the benefit of the two holidays that intervened and hold that he complied with the order by paying on the first available working day after the end of the month.

10. Mr. Mitra relied upon a Full Bench decision of the Allahabad High Court in Muhammad Jan v. Shiam Lal, ILR 46 All 328: (AIR 1924 All 218) (A). In that case the plaintiff by an appellate order was given one month from 27th September 1921 within which he was to deposit a certain sum of money if he desired to obtain the benefit of the decree in his favour. The Civil Court closed for the vacation in that year on 30th September and opened on 4th November. Therefore, when the month expired the Court was closed but on the very next reopening day on 4th day of November the plaintiff made the deposit. The lower Court held that the plaintiff was out of time and the matter ultimately came up before the Full Bench which set aside the order ot the lower Court and said that the plaintiffs deposit was in time. At p. 332 (of ILR Ail): (at p. 219 of AIR), of the Report, a reference to the decision of this High Court in Shooshee Bhusan Rudro v. Gobind Chunder Roy, ILR 18 Cal 231 (B), was made. In that case the Calcutta High Court relied upon certain English cases and made the following observations :

'The broad principle there laid down is that, although the parties themselves cannot extend the time for doing an act in court, yet if the delay is caused, not by any act of their own, but by some act of the court itself, such as the fact of the court being closed, they are entitled to do the act on the first opening day.'

The Full Bench judgment of the Allahabad High Court goes on to say at p. 332 (of ILR AH) : (at p 219 of AIR) : --

'The significance of that lies in the fact that the Hon'ble Judges repelled contentions based upon the statutory provisions of the Indian Limitation Act and of the General Clauses Act; but nevertheless held that there is a generally recognised principle of law under which parties who are prevented from doing a tiling in court on a particular day, not by any act of their own, but by the court itself, are entitled to do it at the first subsequent opportunity,'

I respectfully agree with the principle as laid down by the Allahabad Full Bench and the Calcutta decision in ILR 18 CaL 231 (3) Followed by yet another Calcutta decision in Peary Mohun v. Anunda Charn, ILR 18 Cal 631 (C).

11. Rule 46 of Chapter XXXVIII of the Original Side Rules gives to the Court and the Judge power to enlarge or abridge time fixed by any order for doing any act or taking any proceeding, upon such terms as the justice of the ease may require and this rule expressly recognises the fact that such power can be exercised even after the expiration of the time appointed or allowed. On this rule Mr. Ganguly has contended that it could only apply where there is a suit or matter pending. When a proceeding is pending, it is only then in such pending proceeding that an application could be made for enlargement of time fixed by an order although such application is made after the time that was fixed by the order. But in this case as the order has been drawn up, filed and completed and the suit register also amended accordingly, there is no pending suit in which the application could be made and therefore the Court could not enlarge time because there is no pending proceeding in which to do so. But then the whole question again is whether the suit is pending or not and that depends on the view whether there was in fact and in law the default which the order of December 19, 1956 contemplated. If there was no default, in fact and in law, then the suit would still be pending. Therefore Rule 46 of Chapter XXXVIII would apply. Rule 43 of Chapter XXXVIII of the Original Side Rules provides:

'In all cases in which any particular number of days, not expressed to be clear days, is prescribed by the rules or practice of the Court and not Coming under the Statute of Limitation, the same shall be reckoned exclusively of the first day, and inclusively of the last day, unless the last day shall happen to fall on a Sunday or other day on which the Court is closed, in which case, the time shall be reckoned exclusively of that day also, and any succeeding day or days on which the Court continues closed.'

The principle of computation recognised by Rule 43 is to extend the time fixed if the last date happens to be a Sunday or a date on which the Court is closed. This rule, however, applies only to cases where the rules or the practice of the Court prescribe a number of days within which something is to be done. This, however, is not a case in which the rules and practice of the Court prescribe any particular number of days within which the act is to be done. It is an order of the Court giving some time to the plaintiff to pay certain sum of money. Rule 45 therefore has no application to the present case.

12; A reference to Section 148 of the Code of Civil Procedure will also be relevant in this connection showing Court's power of enlarging time. That section provides --

'Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Court, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.''

This surely was an act, namely, payment of a sum which was allowed by the Court because the Judge adjourned the matter on such terms and conditions as he thought fit by reason of Order 17 (1) (2) of the Code of Civil Procedure and the condition imposed in this case was as quoted in the Order of the 19th December 1956 quoted elsewhere in this judgment. The Court also fixed a period within which the act of payment of costs assessed at Rs. 500/- was to be made. Therefore, under Section 148 of the Code of Civil Procedure the Court has discretion from time to time to enlarge the period even though the period originally fixed had expired. If the respondent were right in their contention that the default clause in the order of the 19th December 1956 has operated in this ease leading to the dismissal of the suit then there might be difficulty in applying Section 148 of the Civil Procedure Code because in that event there would be no pending suit or proceeding in which relief under Section 148 of the Code could be granted. But I am satisfied that there is no default and on the construction of the order of the 19th December 1950 payment on the 2nd January 1957 in the facts of this case was a good and valid compliance with that order.

13. Mr. Mitter, learned counsel for the respondent tried to take advantage of Section 10 of the General Clauses Act by saying that if the Court or office is closed on the last day of the prescribed period, the act or proceeding can be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open. I am of opinion that this section of the General Clauses Act does not apply to an order of the Court Section 10 of the General Clauses Act is only applied where a statute allows an order or act to be done within a particular time. It cannot be extended to cover an order of Court fixing a particular time within which an act is to be done. I am supported in this view by the decision in Ram Kinkar Singh v. Srimati Kamal Basini Debi, ILR 17 Pat 191 : (AIR 1938 Pat 451) (D).

14. Independently of Section 10 of the General Clauses Act or Section 148 of the Code of Civil Procedure or Rules 43 and 46 of Chapter XXXVIII of the High Court Rules, it appears to me on a point of construction that when the Court orders that payment is to be made by the end of a month and the end of such month happens to be a holiday it is no breach of that order for the party to do the act on the very first subsequent day on which the Court reopens alter the holiday. The principle of construction on which I proceed is that the Court grants time knowing that the time will expire on a holiday so that the litigant who is required to do an act within that time can get the benefit and grace of the additional time involved in holidays and pay on the very next subsequent day on which the Court reopens. It is only by that construction that the Court can avoid prejudice to a litigant before it. If the Court wants that a particular act is to be done without the benefit of this extended time, a holiday intervening on the date of the expiry of the order, then it is for the Court to expressly say so that the particular act should be done by a particular date which is not a holiday. Doubts, if any, in the construction or effect of the order of a court in which there is a penal code should always, in my view, be resolved in favour of the litigant by extending the time to include the holiday and not to make him a victim of such doubts.

15. Both by the technicalities of construction as well as by the object and ideals for which the courts exist this appears to be the most proper view to take.

16. I, therefore, hold that the plaintiff in thiscase by sending the cheque on January 2, 1957 complied with the order of December. 9, 1956 whichdirected him to pay the money by the end of December 1956. It follows that there was no default. Itfollows further that the suit was not dismissed. Ishall, therefore, direct the suit to appear in theWarning List of Commercial Causes within a fortnight from date. I also further direct that the sumof Rs. 500/- which was refused by the respondent'ssolicitor be offered again by the plaintiffs solicitorto the respondent's solicitor on or before February19, 1957. In default of making this payment on orabout February 19, 1957 this suit will stand dismissed with costs and in that event the applicant willalso pay to the respondents the costs of this application. But in case the payment of Rs. 500/- is madeon or before February 19, 1957 the suit will be triedin due course after it has appeared in the WarningList as aforesaid and the costs of this- applicationin that event will be costs in the cause,Order accordingly.


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