R. Gopalakrishna Pillai vs M. Kunjithapatham Pillai and Others

Kumaraswami Sastri, J.—The facts in these cases are not disputed and the only question is whether on the facts the Subordinate judge was

right in dismissing the applications.

The election to the Taluk Board in question was held on the 9th of May 1922. The Subordinate Judge''s Court was closed for the summer

recess on the 14th of May and reopened on the 17th of July. The period of 14 days allowed for the presentation of the election petitions expired

during the vacation and these petitions were presented on the 17th July the date when the Court re-opened. The case for the petitioners is that they

had with them the sum of Rs. 200 each which had to be deposited and that these sums were produced before the Subordinate Judge.

Rule 131 of the Civil Rules of Practice requires a person desirous of paying money into Court to bring into Court a lodgment schedule in the

form prescribed by the rules and containing the various particulars mentioned therein. Thereupon an order for lodgment and counterfoil receipt are

to be issued to the payer. Rule 132 states that the payer shall deliver the money and the order and the Counterfoil receipt to the bank or treasury

officer mentioned therein who is to retain the order and return the receipt duly signed by him to the payer, which receipt the payer should return to

the Court. Rule 133 provides that if the bank or the treasury is closed, the money may with the leave of the judge, be paid to the officer of the

Court and the officer of the Court will send it to the bank the next day. As the bank was open at the time of the presentation of the petitions, the

vakil in pursuance of the Rules of Practice obtained a lodgment schedule. The judge on receipt of the petition passed an order for the issue of

chellans and chellans were issued on that day. As there is a branch of the Imperial Bank of India at Cuddalore the chellans issued by the Court had

to be taken to the Officer in charge of the treasury, checked by him and then to the branch of the Imperial Bank. The chellans were issued at about

five minutes to three and they were taken at once to the treasury but the treasury officer was not there. As the bank would not receive the money

after 3 O''clock, it was impossible to pay the money into the bank on that day. The money was returned to the Vakil for the petitioners. He and the

members of his family were then staying at. Thiruvendipuram about four miles from the Court house and the treasury office and he took the money

with him in order that it may be paid the next morning. The money was sent the next day from Thiruvendipuram to the treasury officer with the

chellans and the treasury officer returned the chellans at about 2-40. As the bank was about 2� miles from the treasury office, the person taking

the chellans and the money to the bank arrived at the bank at 5 minutes after 3 but the bank would not receive the money and it was therefore

paid-the next day. On the 18th the person taking the money to the treasury officer went in a jutka. There was an accident to the horse and it was

therefore about 1-50 p.m., when the person reached the treasury officer. There would have been, however, ample time to have gone to the bank if

the treasury officer had not taken nearly an hour to return the chellans to the person who brought the money. The Subordinate Judge is of opinion

that so far as the 17th is concerned the delay was unavoidable but thinks that the delay on the 18th has not been properly explained.

There can be little doubt that if there was no accident to the horse, there would not have been a delay of five minutes on the 18th and that the

money would have been received by the bank. The trouble was that owing to the delay the person who had the money reached the bank at 3-5

while according to the rules of the bank no money would be received after 3. p.m. I do not think that the view taken by the Subordinate Judge is

correct. It is not reasonable to hold that a person is guilty of negligence when he would in the ordinary course of things, have arrived in time for

payment and the delay of five minutes was due to an accident which he could by no means have foreseen. In this connection I need only refer to

the judgment of the Chief Justice in Arunachallam Iyer v. Subbaramayya ILR (1922) M. 60. The learned Chief Justice observes ""The question to

be considered by the Court is not whether by some human possibility, being wise after the event, he could have got there in time...and once the

Court is satisfied, as was the fact in this case, that the man did try to get there and that he would have got there in time but for the intervention of an

inevitable accident for which he was in no way responsible, it is the duty of the Court, in my judgment, to set aside the judgment, mulcting, in

proper cases, the delinquent man in costs."" It is no argument to say that where a man leaves in time and would in the ordinary course have reached

the bank in time, he would in spite of the accident have reached before the bank was closed if he had started earlier, or if the jutka horse had run

faster. The question remains for consideration as to whether even in cases where there is no negligence and where the applicant has complied with

the rules, the application should be dismissed because the money was not paid into Court with the application whatever the reason may be.

Rule 4 of the Election Rules framed by the Government under the Madras Local Boards Act enacts that the amount should be deposited at the

time of the presentation of the petition and that if it was not deposited the petition should be dismissed. The contention of the respondents is that in

such cases the money should be paid in and that even if the chellans had been taken and the money paid into the bank a few minutes later, the

petition would still have to be dismissed as the presentation of the petition and the payment of the money were not simultaneous. This construction,

so far as I can see, has nowhere been placed on the rules. In M. Krishnaji Reddiar Vs. Muthuveera Reddiar and Another, , Krishnan, J., though

he held that no question would arise as to the Court excusing the delay the provision in the rule being mandatory, took the view that if the failure to

pay the money was due to any action taken by the Court the petition would be proper. The Rules of Practice are binding on all Civil Courts and

where the rules provide that a chellan must be obtained and money paid into the bank unless at the time of making the application to receive the

money the Bank is closed, it is (difficult to see how the Court could receive the money in violation of the Rules of Practice which have the force of

law and are binding on all Civil Courts. The Subordinate Judge in paragraph 12 of his judgment observes that the vakil was perfectly justified in

putting in a lodgment schedule and taking-out the chellan without tendering the money to the Judge. It cannot therefore be said that the petition

ought to be dismissed because the money was not paid to the Judge in cash. It is argued that, although the Vakil produced the money before the

Judge, he did not formally ask the judge to receive the money; but it seems to me that no object would be gained by making a request which under

the Rules of Practice the Judge is bound to refuse. I am of opinion that where a person who is bound to pay money produces the money in Court

and complies with the rule which requires him to take out a chellan and pay the money at a different place and there is a delay in the actual payment

of the money into the treasury or Bank owing to reasons beyond the control of the person making the payment, the payment must be deemed to

have been made on the date the money is produced and the chellan obtained. To hold otherwise would be to penalise a party for events beyond

his control. In Koil Pillai Samban v. Sappanimuthu Samban (1922) 17 L.W. 187 which was a case u/s 17 of the Provincial Small Cause Courts

Act the provisions of which have been held to be mandatory Ramesam, J., observes as follows: ""I hold that when the party has applied for a

chellan and the delay in issuing the chellan is the delay of the officers of the Court and after the issue of the chellan he deposited the money

immediately, the maxim nuc protune applies and the application for chellan (in such circumstances) is equivalent to the deposit."" With these remarks

I entirely agree. Whether the payment is to be made under the Small Cause Courts Act or under the Election Rules it will, in my opinion, be

contrary to all principles of justice to require a man to comply with the rules which insist on the taking out of a chellan and paying the money to a

different officer and then to dismiss the application on the ground that the money ought to have been paid to the Judge himself or to hold that the

payment to the Officer contemplated by the rules would not be equivalent to the compliance with the rules where the delay in payment is entirely

due to causes beyond the control of the person taking out the chellan. The Subordinate Judge finds that if the money had been paid on the 18th of

July i.e., the next day, the delay would have been justified but he thinks that because it was not paid on the 18th owing to the accident which

happened to the jutka which caused the person making the payment to be five minutes late in the Bank, there was no ground for excusing the

payment the very next day. I have already given my reasons for holding that the accident was one which the person could not have foreseen and

that there was no negligence on the part of the person making the payment.

It has been argued that provisions of Section 5 of the Limitation Act would not apply and that consequently the Court has no power to excuse

the delay. The question is not one of excusing any delay. The question is whether in the present case the rule of law that nobody should be

prejudiced by the acts of the Court or of its officers is one of universal application. It does not depend upon any of the provisions of the Limitation

Act and this rule is applied to cases under Order 21, Rule 89 of the CPC to set aside sales on depositing the money into Court.

In the result, I set aside the order of the Subordinate Judge and direct him to restore the petition to his file and dispose of them according to law.

The respondents will pay the petitioners their costs of these petitions in this Court.