Section 4 of the Limitation Act clarifies that when the period of limitation expires on a day when the courts are closed, the suit may be instituted on the day when the court reopens. The proper court for filing the suit is determined by the court in which the suit is actually instituted at the time when the section is being applied.

Bose, J—The only question involved in this appeal is one of limitation. The claim is based on a promissory note, dated May 12, 1930. Limitation expired on May 12, 1933, but as the Courts were closed for the hot weather vacation on that day the suit was instituted on June 16, 1933, when they reopened. The plaint was presented in the Court of the Sub-ordinate Judge, First Class, Ellichpur, and was returned on the next day for presentation to the proper Court. It was then presented at once in the Court of the Subordinate Judge, Second Class. The lower Courts have allowed the period between June 16 and 17, but have declined to exclude the period of the vacation and so have dismissed the claim as barred by limitation. It is urged in appeal that the period of the vacation should also be excluded.

2. The question has been set at rest by their Lordships of the Privy Council in Maqbul Ahmad v. Pratap Narain Singh, 1935 AIR(PC) 85 . They point out that there is a marked difference in the language of Section 4 and other Sections such as Section 14 which allow certain periods to be excluded from computation. Section 4 excludes no period whatever and merely states that when the period of limitation expires on a day on which the Courts are closed, the suit may be instituted on the day on which the Court re opens. If, therefore, one day is all that can be excluded from computation, the suit is obviously barred by time.

3. But it is argued that this suit was instituted in a Court of competent jurisdiction in the first place, whereas the suit in Maqbul Ahmad v. Pratap Narain Singh, 1935 AIR(PC) 85 , had not been and that that makes all the difference. The learned Counsel for the appellant drew a distinction between what he called a lack of inherent jurisdiction and a mere distribution of work for administrative convenience. He said the Subordinate Judge, First Class, undoubtedly had jurisdiction to entertain a suit which would ordinarily be triable by the Subordinate Judge, Second Class, and that it was only on grounds of administrative convenience that such suits have been assigned to a lower Court.

3. I have no doubt that the Court of the Subordinate Judge, First Class, had jurisdiction in that sense and that if he had tried the suit and passed a decree, it could not have been disregarded as a nullity, but what their Lordships of the Privy Council say is that Section 4 refers to the proper Court in which the application ought to have been made. Now under the rules in force, whether they be rules of administrative convenience or rules of conferring inherent jurisdiction, the suit ought to have been filed in the Court of the Subordinate Judge, Second Class. Therefore that undoubtedly was the proper Court in which the suit should have been filed'' within the meaning of their Lordships ruling. The stress is on the last part of the sentence which I have now underlined.

4. But apart from this, the reasoning of their Lordships leaves no room for an argument of this kind. Section 14 allows one day to be excluded from the computation for limitation in this case. Section 4 merely allows the suit to be filed on the first day on which the Court re-opened. The suit was not instituted in the Court of the Subordinate Judge, second class, on the day on which the Courts re-opened. Therefore Section 4 can have no application. If the appellant considered he had a right to insist on the Court of the Subordinate Judge, First Class, trying the case, he should have applied in revision against the order returning the plaint. Whatever the meaning of the ''proper Court'' may be, a phrase which section does not employ, it is clear that the Section can only refer to the Court in which the suit is actually instituted at the time when the Section is being applied. It cannot refer to other Courts in which an unsuccessful attempt at institution was made. The decision of the lower Courts is, therefore, right, and the appeal is dismissed with costs.

Final Result : Dismiss