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Ahad Baksh Molla Vs. Sheikh Babar Ali and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in14Ind.Cas.173
AppellantAhad Baksh Molla
RespondentSheikh Babar Ali and anr.
Cases Referred and Shoshee Bhusan Rudro v. Gobind Chunder Roy
Excerpt:
registration act (iii of 1877), section 77 - limitation act (xv of 1877), section 5--suit for registration of document--court closed on last day for filing suit--whether suit may be filed on day of re-opening--lex non cogit ad impossibilia. - .....can be, is by an appeal to the maxim lex non cogib ad impossibilia. it is on this ground that in mayer v. harding 2 q.b. 410 : 9 b. & s. 27 : n. 16 l.t. 429 : 15 w.r. 816 an appellant was permitted to transmit his appeal after the prescribed period, where during the whole of that period, the transmission of his appeal was impossible because the courts were closed. mr. justice mellor in that case says: where a statute requires a thing to be done within three days, or six months, or within any particular period, the time may, no doubt, be circumscribed by the fact of its being impossible to comply with the statute on the last day of the period so fixed. but this is not the present case. here, it was impossible for the appellant to lodge his case within three days after he received it.'.....
Judgment:

Lawrence Jenkins, C.J.

1. This appeal arises out of a suit brought under the provisions of Section 77 of the Indian Registration Act of 1877. The cause of action is the refusal by the Registrar to order a document to be registered. This refusal was on the 29th of November 1906. The present suit was instituted on the 2nd of January 1907. Now, Section 77, in authorising a suit as the result of such a refusal, imposes as a condition that it should be instituted within thirty days after the making of the order of refusal. The institution here was after more than thirty days. Therefore, it is urged on the part of the defendant that the suit is barred.

2. This view found favour with the Munsif. But the learned Subordinate Judge considered that the suit was brought within time, inasmuch as the 29th of December, the thirtieth day, was a holiday, and it was not until the 2nd of January that the Court was re-opened. The decree of the Subordinate Judge was affirmed on appeal by Mr. Justice Digambar Chatterjee, and from his judgment the present appeal is preferred under Clause 15 of the Letters Patent. When the Legislature imposes a condition, the only escape from its operation, if escape there can be, is by an appeal to the maxim lex non cogib ad impossibilia. It is on this ground that in Mayer v. Harding 2 Q.B. 410 : 9 B. & S. 27 : N. 16 L.T. 429 : 15 W.R. 816 an appellant was permitted to transmit his appeal after the prescribed period, where during the whole of that period, the transmission of his appeal was impossible because the Courts were closed. Mr. Justice Mellor in that case says: Where a statute requires a thing to be done within three days, or six months, or within any particular period, the time may, no doubt, be circumscribed by the fact of its being impossible to comply with the statute on the last day of the period so fixed. But this is not the present case. Here, it was impossible for the appellant to lodge his case within three days after he received it.' Had the case been uncovered by authority, I should, therefore, have come to the conclusion that the plea of the defendant in this case was sound. There are, however, three cases in this Court by which we are bound. The first of them to which I must refer is Hossein Ally v. Donzelle 5 C. 906 : 6 C.L.R. 239 which professes to be in conformity with the decision in Mayer v. Harding 2 Q.B. 410 : 9 B. & S. 27 : N. 16 L.T. 429 : 15 W.R. 816 although it would appear that in all the days of the prescribed period the Court was. not closed: it was open on two of those days. It may be that the Court considered that those two days were, in the circumstances of the case, not practically possible days for the doing of that which was prescribed. But the judgment is not clear as to that, nor does it discuss the case from that point of view. Then, there are two decisions, Shooshee Bhusan Rudro v. Gobind Chunder Roy 18 C. 231; Peary Mohun Aich v. Anunda Churn Riswas 18 C. 631. The earlier proposes to follow and is based upon Mayer v. Harding 2 Q.B. 410 : 9 B. & S. 27 : N. 16 L.T. 429 : 15 W.R. 816 although the circumstances were not similar to those in the English case, inasmuch as the period indicated was not wholly incapable of being utilised by the appellant. The case at page 631 does not expressly mention Mayer v. Harding 2 Q.B. 410 : 9 B. & S. 27 : N. 16 L.T. 429 : 15 W.R. 816 but it purports to follow, amongst other, cases those two which I have just mentioned. These cases appear to me to go further than is sanctioned either by Mayer v. Harding 2 Q.B. 410 : 9 B. & S. 27 : N. 16 L.T. 429 : 15 W.R. 816 or by the maxim on which the whole doctrine rests; but they are decisions which are binding on us and for which we cannot, in confirmity with the established practice of the Court, dissent, without refering the matter to a Full Bench. Now, should we refer this matter to a Full Banch? In the circumstances, I think not. It is of paramount importance that the law should not be unsettled, especially in a matter of this kind. The rule adopted by the decisions is one to which Legislative sanction has been given ever since 1887 by the General Clauses Act of that year and by that which took its place in 1397; and, although the words of the Acts may furnish a somewhat potent argument for attacking the conclusion in the cases of Hossein Ally v. Danzelle 5 C. 906 : 6 C.L.R. 239 and Shooshee Bhusan Rudro v. Gobind Chunder Roy 18 C. 231 I think there is no reason why we should not be content to be bound by those decisions. For these reasons, and out of deference to the decisions that I have cited in Hossein Ally v. Donzelle 5 C. 906 : 6 C.L.R. 239 and Shoshee Bhusan Rudro v. Gobind Chunder Roy 18 C. 231 I think we must support the judgment of Mr. Justice Chatterjee and dismiss the appeal with costs.

N. Chatterjea, J.

3. I agree.


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