Narayan Mandal and Others vs Beni Madhab SIRKAR

Kemp, J.—The point referred for our determination is whether the "period during which the Mofussil Courts are closed for the Dassara vacation, and during which an application for review cannot be filed because there is no officer to receive the application, ought to be absolutely and invariably excluded in calculating the period within which it is directed by section 377 of the CPC that reviews shall ordinarily be filed." I am of opinion that as a matter of right the applicant cannot claim to deduct from the ninety days any holiday or holidays which may occur within the ninety days, within which u/s 377, Act VIII of 1859. the application shall be made. If the ninety days happen to be a holiday and the application is filed on the next Court day, then such circumstances would be taken into consideration when the Court has to decide whether the applicant has shown just and reasonable cause for not applying within the period prescribed u/s 377. If it should so happen that the Court is closed on the ninetieth day and the application is filed the next day, no Court exercising a wise discretion would say that such was not a just and reasonable cause for not having preferred the application within the limited period. We are not to presume that the Courts will exercise the discretion given them by this section in an improper and arbitrary manner. The law does not grant that the parties are to have any time given them beyond the ninety days except upon the just and reasonable ground for the delay being shown to the satisfaction of the Court. In this case the applicant allowed seventy-eight working days to elapse before taking any steps towards making an application to review the judgment passed against him. It has been said during the course of the argument that the law will not compel a person to do an impossibility, and that if the Courts are closed on a day on which the ninetieth day allowed by law falls, the applicant is compelled, by circumstances over which he has no control, to file his application after the expiry of the time allowed him by law. My reply to this is that u/s 377 that circumstance is just one of the circumstances which may be taken into consideration when the Court decides whether the applicant has been able to show just and reasonable cause to its satisfaction for not having come in within the limited period.

I have very little to add to the judgment of the learned Judges by whom this question has been referred to us. I entirely concur in the opinion expressed by those learned Judges, and I regret to find that that opinion is not concurred in by the other Judges who form this Bench.

Peacock, C.J., Loch, Bayley and Macpherson, JJ.

The question which is propounded for the decision of the Full Bench is whether the period during which the Mofussil Courts are closed for the Dassara vacation, and during which an application for review cannot be filed because there is no officer to receive the application, ought to be absolutely and invariably excluded in calculating the ninety days within which it is directed by section 377 of the CPC that review shall ordinarily be filed.

I rather thick that the meaning of that question is whether the whole number of days which fall in the vacation are to be excluded in the calculation of the ninety days. If that be the meaning it appears to me that the whole number of days ought not to be excluded. For instance if fifty days have expired before the holidays commence, and six weeks or forty-two days are allowed for the holidays, I think that a party ought not to have forty days after the expiration of the holidays to prefer his appeal or review, on the ground that forty of the ninety days fell during the holidays. But I am of opinion that when the last day for filing an appeal or review falls on a Sunday, or on a holiday on which the Court is closed, whether the holiday consists of a single day or of several days, a party has a right to file his appeal or review on the day after the holiday, if it be only one day, or on the day after the last day of holiday if it consists of several days. That I understand has always been the practice, and it has been also so held with reference to the time for depositing money under the regulation relating to mortgages : Abdul Hamad v. Sahaoonnissa Bibi 8. D. A. (1858) 127, Macpherson on Mortgage, 3rd edition, page 222, and the case of Govindo Chandra Chuttopadhya 8 Sev. 99 and Koonkoon Singh 8 Sev. 100. To show what various opinions may be entertained when a matter is left to the discretion of the Judges, and is not governed by a strict rule of law, I need only refer to the present case.

The Courts were closed from the 27th September to the 29th October. Twelve days out of the ninety remained on the 27th September. The Judges who have referred this case say, It is in our opinion clear that "the Moonsiff considered the mere fact that the Courts were closed during part of the time that the ninety days were running to be in "itself just and reasonable cause for not having preferred the application within the limited period." They held that the decision of the Moonsiff on the point, whether there was reasonable excuse for not coming within the ninety days was a matter of appeal to the High Court, and they were not inclined to agree with the Moonsiff in his view of the case. The Moonsiff''s decision was in accordance with the practice. The application was filed on the day following that on which the holidays expired, and the Moonsiff admitted the application, But the learned Judges held that the parties had no right to file the application on the day after the expiration of the holidays, and considered that the Moonsiff had not exercised a sound discretion in admitting the application. It appears to me that we must put a reasonable construction on the Act; and having reference to the practice which has always been adopted under this and similar acts of allowing parties to come in on Monday, when the last day falls on a Sunday, and on the expiry of the holidays if the last day happens to fall on a holiday, it appears to me that when the last day falls on a Sunday or on a holiday, or in the middle of a number of days which are holidays, the party ought to be allowed to file his appeal or review on the first day of the sitting of the Court afterwards.

My honourable colleague has said that every Judge in the exercise of a sound discretion would allow an appeal to be preferred on the first day after a holiday; but we find bow the discretion varies, because we find that the Moonsiff following the practice admitted the application for review on the day following that on which the Court re-opened after the holidays, and the learned Judges thought that the Moonsiff had exercised an unsound discretion and that he ought to have refused the application. The decision of the Subordinate Judge is reversed, and the case is remanded to him to hear the appeal on all the points except as to the admission of the review. The respondent will pay the costs in the Subordinate Judge''s Court and the costs of the appeal to this Court.