MONILAL PAL Vs. GOUR CHANDRA DAS

JUDGEMENT

(1.) THIS is a rule calling upon the opposite parties to show cause why an order rejecting the petitioner's application under Section 26.F, Ben. Ten. Act, should cot be set aside. The notice was served on the petitioner on 9 December 1936. The application was filed on 26 January 1937. The money which had to be deposited was paid into the treasury on the following day. The learned Munsif rejected the application as time-barred on the authority of the decision in Girish Chandra Ghose V/s. Jadavpur Estates Ltd. . Now the Section requires that the applicant at the time of making an application shall deposit certain money in Court. There is nothing to show in the case on which the learned Munsif relied whether the applicant brought the money with him at the time of making; the application or not. The only finding is that he filed the chalan next day. It seems to me to be abundantly clear that the exact moment when the money was received in the treasury, a matter over which the applicant has no control, is quite irrelevant. The real point to discover is whether the applicant had the money with him in Court; at the time of making the application. Under the rules of procedure for depositing money into a Government treasury, it is often impossible to have it done upon the actual day when the application is made. For example the treasury may not even be open in some places. It would be ludicrous to hold that the application is time barred when the applicant brings the money with him and the delay in getting it into the treasury is solely due to the rules of procedure or possibly some supineness on the part of a clerk.

(2.) NOW, in the present case, the affidavit of the petitioners show that they did bring; the money with them and had it ready at the time they made the application. They explained the circumstances in which it could not be paid into the treasury until1 the next day. No attempt was made to controvert that. The opposite party never contended that the application was not made in time. I accordingly make this rule absolute and set aside the order of the Munsif dismissing the application and direct him to hear and determine the objection of the opposite parties on the merits. Both sides will be at liberty to adduce evidence. As the only opposite party who opposed this rule is a minor, I make no order for costs.