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1917 Supreme(SC) 48
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD DUNEDIN, LORD SHAW OR DUNFERMLINE, LORD SUMNER, SIR JOHN EDGE, AND MR. AMEER ALI.
BRIJ INDAR SINGH - Appellant
Versus
KANSHI RAM - Respondents
On Appeal From The Chief Court of The Punjab.
Decided On : July 19, 1917.
Solicitors for appellant:T. L. Wilson & Co. Solicitors for respondent Coates: Lumley & Lumley.
Time spent in good faith and with due diligence pursuing a review application, even if based on a mistake of law or jurisdiction, constitutes "sufficient cause" under Section 5 of the Limitation Act for the extension of the limitation period for filing an appeal.
Headnote:(A) Limitation Act - Sections 5 and 14 - Civil Procedure Code, 1882 - Sections 365, 366, 368 and 371 - Extension of time for filing appeal - Sufficient cause - Time spent in pursuing review application - Whether time spent in a review application, even if based on a mistake of law, can be excluded under Section 5 of the Limitation Act - It is a general rule that if a party presents an application for review within the limitation period for appeal, the time occupied by the court in disposing of such application, if prosecuted with due diligence and in good faith, shall be excluded in calculating the period for presenting the appeal.
(B) Civil Procedure Code, 1882 - Section 371 - Scope of review for abatement - Section 371 provides for the setting aside of abatement whenever a suit abates or is dismissed under the relevant chapter, regardless of whether the abatement is due to failure to substitute a plaintiff or a defendant.
(C) Procedure - Ex parte abatement orders - Pronouncing an order of abatement ex parte without notice to the opposite party is an indefensible practice.
Facts of the case:
A suit for declaration of property was abated by a district court order passed ex parte. The plaintiff sought review of this order, which was initially granted by a successor judge but later quashed by a higher court on the grounds that review was not the proper remedy and an appeal should have been filed. When the plaintiff subsequently filed an appeal, it was rejected as time-barred, as the court refused to exclude the time spent pursuing the review application.
Findings of Court:
The court found that a general rule exists that time spent in a diligent and good-faith application for review constitutes "sufficient cause" for the extension of the limitation period for an appeal under Section 5 of the Limitation Act. It also held that the review of the abatement order was legally permissible under Section 371 of the Civil Procedure Code, 1882.
Issues: Whether the time spent pursuing a review application, which was later determined to be the incorrect legal remedy, constitutes "sufficient cause" under Section 5 of the Limitation Act to extend the period for filing an appeal.
Ratio Decidendi: Judicial discretion under Section 5 of the Limitation Act must be exercised judicially and not arbitrarily. Where a general rule established by Full Benches indicates that diligent prosecution of a review application constitutes sufficient cause, a judge cannot ignore this rule. Furthermore, Section 371 of the Civil Procedure Code, 1882, applies to any abatement within the specified chapter, including those resulting from failure to substitute a defendant.
Result: Appeal allowed.
Legal Category Hierarchy
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practice and procedure
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limitation
- extension of time
- exclusion of time
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civil procedure
- abatement of suits
- review and appeal
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limitation
Judgement
Appeal from a judgment of the Chief Court (January 20, 1911) affirming an order of the District Judge of Ferozepur (March 16, 1908).
The facts are stated in the judgment of their Lordships.
1917. June 14, 15, 18. De Gruyther, Z.C., and 0Gorman, for the appellant. The effect of Full Bench decisions in India is to lay down a general rule for the exercise of the judicial discretion given by s. 5 of the Indian Limitation Act, namely, that the time occupied in applying for a review, even where made upon a mistaken view as to the jurisdiction, is to be excluded Karm Bakhsh
v. Daulat Ram ( 1888 P. R. No. 183.); Balwant Singh v. Gumani Ram (( 1883) I. L. R. 5 Allah. 591.) ; Brij Mohan Das v. Mannu Bibi. (I. L. R. 19 Allah. 348.) Those decisions followed the rule laid down, under the earlier Act, by fourteen judges in the Calcutta High Court in Nobo Kissen Singh v. Kaminee Dassee (( 1865) B.L. R. Sup. vol. 349.) and followed in In re Brojender Coomar Roy . (( 1867) 7 Suth. W. R. 529.) The judgment appealed from was based upon Ramjiwan Mal v. Chanel Mal (( 1888) I. L. R. 10 Allah. 587.) and the general proposition there laid down that a mistake of law was not a ground for an extension of time under s. 5. That decision must, however, be regarded as overruled as to cases where there has been a mistaken application for review by Brij Mohan Das v. Mannu Bibi (3), which was not referred to by the learned judge. He was mistaken in supposing that no general rule had been laid down as to the discretion given by s. 5 ; the judicial discretion was consequently not properly exercised. [As to the remedy given by s. 371, reference was made to Sun Bhatta v. Sitarama Bhatta (( 1883) I. L. R. 7 Madr. 195.) and Sham Singh v. Sant Singh . ( 1885 P.
11. No. 22.)]
Zeffert, for the respondent A. A. Coates. The judicial discretion given by s. 5 was exercised after a full consideration of the circumstances and should not be interfered with Sharpe v. Wahefield ([ 1891] A. C. 173.); Bhimrao Ramrao Desai v. Ayappa Yellappa . (( 1906) I. L. R. 21 Bomb. 33.) A mistake in law is not a ground for an extension of time In re Coles and Raven-shear ([ 1907] 1 K. B. 1.), and cases there followed. Upon the expiration of the statutory period for an appeal there is a vested right in the order. That principle has been applied in India under s. 5 Ramjiwan Mal v. Chand Mal (6); Bechi Ahsanulla Khan . (( 1890) I. L. R. 12 Allah. 461.) The decision reported at I. L. R. 19 Allah. 348 goes no further than that a mistake as to jurisdiction may be a sufficient cause for an extension. There is no settled rule in India governing the matter, and the discretion was properly exercised. [ Murugesa Mudaliar v. Jataram Davy (( 1900) I. L. R. 23 Madr. 621, 625) and Sultan v. Ala Bakhsh ( 1893 P. R. No. 45.) were also referred to.] Further, having regard to the delay in prosecuting the suit, the refusal of the Courts discretionary indulgence should not be interfered with Ram Narain Joshi v. Parmeshwar Narain Mehta . (( 1902) L. R. 30 Ind. Ap. 20.) In any case, the judgment should be supported on a further ground. The Code of Civil Procedure. 1908, came into operation on January 1, 1909, and governed the appeal to the Chief Court Chajmal Das v. Jagadamba Prasad . (( 1889) I. L. R. 11 Allah. 408, 412) Order xxII., r. 4, of that Code replaced s. 368. Against an abatement order under r. 4 there is no appeal under Order xLIII. r. 1 ; the plaintiff has to proceed under Order xxII., r. 9. The appeal was statute-barred when the new Code came into operation ; consequently the saving clause in r. 9 does not apply. The appeal to the Chief Court was therefore not competent.
De Gruyther, K.C. (who was called on only as to the last contention), in reply. The plaintiffs right of appeal under s. 588, sub-s. 18, of the 1882 Code was not taken away by the 1908 Code. The orders referred to in s. 104 of the latter Code are orders made under that Code. By Order xLIII., r. 1 (k), an appeal lies against
