Sheodas Daulatram Marwadi vs Narayan Asaji on 18 September, 1911

Bombay High Court
Sheodas Daulatram Marwadi vs Narayan Asaji on 18 September, 1911
Equivalent citations: (1911) 13 BOMLR 1153, 12 Ind Cas 811
Author: K Basil Scott
Bench: B Scott, Kt., Batchelor


Basil Scott, Kt., C.J.

1. We have already held in Dayaram v. Laxman that the two years’ time specified in Section 31 of the Limitation Act of 1908 is not the period of limitation ‘prescribed’. We are now asked whether a suit for which provision is made in Section 31(1), if instituted on a Monday, one day after the period of two years from the date of the passing of the Act has expired, can be taken to have been instituted within the period of two years.

2. learned Subordinate Judge, who made the reference, thinks the suit must be taken to be within time, relying upon Sambasiva Chari v. Ramasami Reddi (1898) I.L.R. 22 Mad. 179. and Shooshee Bhusan v. Gobind Chunder Roy (1890) I.L.R. 18 Cal. 231. In the last mentioned case it was held that where thirty days were allowed for making a deposit in Court under Section 174 of the Bengal Tenancy Act 1885, the deposit might be made within thirty-one days if the thirtieth day fell on a Sunday. The learned Judges deduced from the cases of Mayer v. Harding (1867) L.R. 2 Q.B. 410 and Waterton v. Baker (1868) L.B. 3 Q.B. 173, the broad principle 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. We are unable to find any such general principle laid down in those cases. In Mayer v. Harding the appellant having applied to the Justices to state a case under 20 & 21 Vict. Clause 43, (which provides that the party shall within three days after receiving such case transmit the same to the proper Court), received the case from the Justices on Good Friday and transmitted it to the proper Court on the following Wednesday, and it was held that as the offices of the Court were closed from Good Friday till Wednesday, the appellant had sufficiently complied with the requirements of the section. Mellor J. in delivering the judgment of the Court said:

Where a Statute requires a thing to be done within three days, or six months, or within any particular period, the time may no doubt be circumscribed by the fact of its being impossible to comply with the Statute on the last day of the period so fixed. But this is not the present ease. Here it was impossible for the appellant to lodge his case within three days after he received it. As regards the conduct of the parties themselves, it is a condition precedent. But this term is sometimes used rather loosely. I think it cannot be considered strictly a condition precedent where it is impossible of performance in consequence of the offices of the Court being closed, and there being no one to receive the case.

3. The opening passage in Mellor J.’s judgment refers to the well-established rule of construction in England that Sunday is not a dies non in computing time in accordance with an Act of Parliament. In Ex parte Simpkin (1859) 29 L.J.M.C. 23 it was said: “Where an Act of Parliament gives a given number of days for doing a particular act, and says nothing about Sunday, the days mentioned are to be taken as consecutive days including Sunday.”the same rule was applied in Rowberry v. Morgan (1854) 23 L.J. Ex. 191 and Peacock v. The Queen (1858) 27 L.J.C.P. 224 and Wynne v. Ronaldson (1865) 12 L.T.N.S. 711: in this last mentioned case Crompton J. followed Peacock v. The Queen (1858) 4 C. B. N. S. 264 saying, “we have always held that where Sunday is the last day, Monday is too late for renewing a writ. “The case of Waterton v. Baker (1868) L.R. 3 Q.B. 173, cited in Shooshee Bhusan Rudro v. Gobind Chunder Roy (1890) I.L.R. 18 Cal. 231, was one in which the neglect of the appellant’s adversary created an impossibility against which the appellant was relieved.

4. None of the other cases in 5 Calcutta or 18 Calcutta were cases of delay caused merely by the last day of a period falling on a Sunday.

5. We think that as the Special Statutory provisions, Section 10 of the General Clauses Act and Section 4 of the Limitation Act, do not apply to the case, we must decline to sanction the non-observance of the provisions of
Section 31(1) on the ground that the last day of the two years’ period fell on a Sunday. It is not a case of hardship. It was a simple matter of calculation to realize that the suit in order to get the advantage of the saving provisions in Section 31 must at latest be instituted on the Saturday preceding the last Sunday. For these reasons we answer the question in the negative.

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