NELLAVADIVU AMMAL Vs. SUBRAMANIYA PILLAI

JUDGEMENT

(1.) The first question is whether the appeal to the Lower Appellate Court should have been dismissed as out of time. It was undoubtedly first filed with proper stamp after the period allowed by the Limitation Act had expired. But appellant, having failed on 31-12-1914 in his application for leave to appeal as a pauper, on 4-1-1915 obtained three weeks time for payment of court-fee and paid it within that period. The delay from 31-12-14 to 4-1-15 may be disregarded, because the court was closed on the days in question and the failure during them must be regarded as condoned by the subsequent order. The question is whether that order was legitimate.

(2.) I think that it was and with reference to more direct considerations than those afforded by Section 5, Limitation Act on which the Lower Appellate Court has to some extent relied. It has further followed the reasoning of Farran C.J. in Bai Ful v. Desai Manorbhai (1897) I.L.R. 22 B. 880 to the effect that the decision on the appellant s pauperism disposes of his application for leave to appeal as pauper and leaves undisposed of the memorandum of appeal, which must accompany that application. The memorandum, though unstamped, is not a nullity and can be validated with effect from the date of presentation by the supply of the requisite stamp within a time fixed by the court with reference to O. VII Rule II (c). I would respectfully adopt this reasoning since it is consistent with the decisions of the Privy Council and this Court in Skinner v. William Orde (1897) I.L.R. 2 A. 241 and Patcha Sahib v. Sub-Collector of North Arcot (1891) I.L.R. 15 M. 78. It is of course open to the objection that Appeal memoranda in pauper cases are not usually dismissed by any order distinct from that passed on the pauperism application and not in practice returned for payment of deficient duty, as ordinary memoranda would be. But there is nothing in the ordinary practice to prevent such return where, as in this case, the appellant asks for it; and the anomaly, if any, is less than that involved in the alternative view of the law, that O. VII Rule II (c) is inapplicable and the dismissal of the pauper application in effect entails dismissal of the appeal, since time would hardly ever be left for its presentation after the dismissal proceedings.

(3.) His Lordship next deals with the merits. Sadasiva Aiyar, J.