AHAD BAKSH MOLLA Vs. SHEIKH BABAR ALI

JUDGEMENT

(1.) THE plaintiff presented a kabala for registration, the defendant denied execution and the Sub-Registrar refused registration. On appeal the Registrar confirmed the order of the Sub- Registrar on the 29 November 1906. THE Civil Courts being closed on the 29 December on account of the Christmas holidays, the plaintiffs presented their plaint on the 2nd of January 1907, the next open day. THE defendant pleads that the suit is barred by limitation. THE Court of first instance gave effect to this plea and dismissed the suit. THE appellate Court has decreed the suit. THE defendant appeals and on his behalf it is contended that the appellate Court was wrong in law.

(2.) IT is contended that Section 77 of the Registration Act provides 30 days as the period within which such a suit must be brought and Section 5 of the Limitation Act has no application. In the case of Nijabutoolla V/s. Wazir Ali 8 C. 910 : 10 C.L.R. 333, it was held that Section 5 does apply to such suits. In the case of Khetter Mohun Chuckerbutty V/s. Dinabashy Skaha 10 C. 265 it was held that Section 14 of the Limitation Act was applicable to a similar suit. In the case of Nogendra Nath Millick V/s. Mathura Mahun Parhi 18 C. 368, it was held that Section 14 of the Limitation Act was not applicable to a suit for arrears of rent under Act X of 1859. The case of Khetter Mohan Chuckrbutty 10 C. 265, was referred to in the referring order as supporting the applicability of Section 14 of the Limitation Act to control Limitation rules under special Acts but the Full Bench held that the decision of the Privy Council in the case of Annoda Persaud Mookerjee V/s. Kristo Coomar Moitro 19 W.R. 5 : 15 B.L.R. 60 (note) disposed of the case as arising under Act X of 1859 which is a complete Code in itself. No reference was made to the case of Nijabatoolla 8 C. 910 : 10 C.L.R. 333. In the case of Abdul Hahim v. Latifunnessa Khatun 30 C. 532, the question of the applicability of Section 14 of the Limitation Act to a suit under Section 77 of the Registration Act was considered to have been settled by the decision of the Full Bench in the case of Nagenda Nath Mullick 18 C. 368 and the case of Khetter Mohun Chuckerbutty 10 C. 265 was considered as overruled by the Full Bench. These are all the cases referred to on behalf of the appellant who contends that it must now be taken as settled law that the provisions of the Limitation Act do not control the special rule of limitation in Section 77 of the Registration Act. Although the case of Nijabatoolla 8 C. 910 : 10 C.L.R. 333 stands singly in favour of the respondent and has not been expressly overruled or dissented from in any case, the ratio decidendi of some at least of the above cases must be taken as barring the application of Section 5 of the Limitation Act to the present suit. IT is contended on behalf of the respondent, however, that on general principles, this case, must be held to be within time. He contends that the respondent had up to the 29 December to file his plaint but this Courts were then closed and it was not through his default that the plaint was not filed on the 29 December there; being no body to receive the same from the 29th December to the 2nd of January, these, days must be considered as dies non and in filing his plaint on the 2 January, next, he was within time. This principle, the) respondent contends, has been followed in a number of cases both in this Court and in some of the other High Courts. In the case of Shooshee Bhusan Rudro V/s. Gobind Chuder Roy 18 C. 231, it was held that the, deposit under Section 174 of the Bengal Tenancy Act for setting aside a sale could be made on the reopening day if the 30 day fell on a close holiday. Referring to the case of Waterton V/s. Baker L.R. 3 Q.B. 173 : 9 B. & S. 23 : 37 L.J.Q.B : 65 : 17 L.T. 468 : 16 W.R. 358, the Court said: "The broad principle there laid down is that although the parties themselves cannot extend the time for doing an act in Court, yet if the delay is caused not by any act of their own but by some act of the Court itself such as the, fact of the Court being closed, they are entitled to do the act on the first opening day". The same principle was followed in the case of Peary Mohun Aich V/s. Anunda Charan Biswas 18 C.631, Sir Comer Petheram, C.J., who was a party to the Full Bench case of Nogendra Nath Mullick 18 C. 368, being one of the Judges. In the case of Surendra Narayan Mustafi V/s. Sauravini Dasi 3 C.L.J. 339, the same principle was followed in respect of a deposit under a compromise within a certain date when that date happened to be a close holiday. In the cases of Aravamudu Ayyangar V/s. Saniyappa Nadan 21 M. 385; Sambasiva Chari V/s. Ramsami Reddi 22 M. 179; Haji Ismail Sait V/s. The Trustees of the Harbour Madras 23 M. 389, similar view was taken in respect of other matters although it had been laid down by the Madras High Court that neither Section 7 nor Section 5 of the Limitation Act controlled proceedings under Section 77 of the Registration Act. See Veeramma V/s. Abbiah 18 M. 99; Nallappa Reddi V/s. Pamalingachi 20 M. 250. The Legislature has adopted this general principle in Section 7 of Act 1 of 1887 and Section 10 of Act X of 1897 as applying to all Acts passed after 1887 to which the Limitation Act does not apply. This, I think, is a legislative recognition of the broad equitable principle acted upon by the Courts in certain cases while ignoring it in others. Although the Registration Act was passed 10 years before the Act of 1887,1 do not feel at all embarrassed in following this principle and I hold that the suit was within time. The appeal is accordingly dismissed with costs.