Judgment

MATHEW, J. :- This appeal, by special leave is from the judgment of the High Court of Punjab and Haryana dismissing the appeal filed by the plaintiff against the decree dismissing his suit for recovery of damages to the tune of Rupees 1 lakh.

2. The plaintiff is an advocate practising at the Ajmer bar. On the night between December 31, 1957 and January 1, 1958 the plaintiff was travelling by 2 Dn. Passenger train from Ambala Cantt. to Delhi. While the train was at Mohri Railway Station, the Janatha Express train coming from Delhi collided with it and a as result the plaintiff sustained serious injuries on his head and in the spine. The plaintiff filed the suit claiming damages under several heads. The trial Court found that the claim for damages was well founded to the extent of Rupees 33,503.00, but dismissed the suit on the ground that it was barred by limitation. The High Court, on appeal by the plaintiff, confirmed the finding of the trial Court that the suit was barred by limitation and dismissed the appeal.

3. The main question, in this appeal, is whether the suit was filed within the period of limitation.

4. There is no dispute that the Article applicable to the suit is Article 22 of the Indian Limitation Act, 1908, hereinafter called the Act , which provided a period of one year for a suit for compensation for injury to the person from the date when the injury was committed. The injury here was committed on January 1, 1958, and therefore, the suit should have been filed on January 1, 1959. But the plaintiff had to issue a notice under Section 80 of the Civil Procedure Code before filing the suit. The plaintiff issued the notice and it was served on the General Manager of the Railway in question on December 29, 1958. The suit was filed in the Court of the Senior Subordinate Judge of Karnal, hereinafter called the Karnal Court , on March 2, 1959, as March 1, 1959, was a day on which the Court was not open. For ministerial purposes, the suit was subsequently transferred to the Court of the Subordinate Judge, Panipat, hereinafter referred to as the Panipat Court , which by its order dated October 28, 1959, returned the plaint for presentation to the proper Court. That was on the basis of its finding that Mohri Railway Station, where the injury was committed, was not situate within territorial jurisdiction of the Court. The plaintiff was thereafter presented in the Court of the Senior Subordinate Judge, Ambala, hereinafter referred to as the trial Court , on October 29, 1959, together with an application under Section 14 of the Act.

5. Before the trial Court as well as the High Court, the appellant contended that, by virtue of Section 4, of the Act, the suit filed on March 2, 1959, was within time, as March 1, 1959, was a day on which the Court was not open and that in any event, the suit was not barred by limitation as the appellant could not have filed the suit before the expiration of two months after the delivery of the notice under Sec. 80 of the Civil Procedure Code. Both the Courts overruled these contentions.

6. Counsel for the appellant submitted that the suit could not have been instituted without giving 2 months notice as required by Section 80 of the Civil Procedure Code and, if the period of 2 months is calculated from the date of the service of the notice, the suit need have been filed only on March 3, 1959, and therefore, the suit was filed within time. Under S. 15 (2) of the Act, the plaintiff was entitled to exclude the period of notice. That means, the plaintiff could have filed the suit within one year and 2 months from the date on which the injury was committed. But according to counsel, the plaintiff could not have filed the suit before the expiry of the period of notice, and that period expired only on March 2, 1959, as there were only 28 days in February, 1959, and so, the suit was within time. We find no force in this argument.

7. Section 80 of the Civil Procedure Code provides, among other t