Akhwari Bibi and Others vs Rajlaksmmi Debi and Others

Das Gupta, J.—On the 24th August, 1953, Manjur Ahmed obtained a Rule from this Court calling upon the opposite parties to show cause why an order passed in a reference u/s 18 of the Land Acquisition Act should not be set aside or such other order or orders passed as to the Court may seem fit and proper. Manjur Ahmed died on the 7th of July, 1954, leaving,--it is not disputed before us, eleven persons including among others his son Monir Ahmed his widow Akhtari Bibi, minor daughters Washima Bibi, Najma Bibi and minor sons Mohomed Hashim, Mohomed Kasim, Nissar Ahmed and Gulzar Ahmed. This Court closed for the long vacation on the 9th of September, 1954, and remained closed till the 21st of November, 1954. The offices of the Court, however, remained open from the 9th to the 24th of September and again from the 29th of October to the 20th of November. On the 14th of September, 1954, when the Court was closed, but the offices of the Court were open, an application for substitution was presented in the office on behalf of ten out of the eleven heirs of Manjur Ahmed. It was, however, taken back the same day. It was thereafter filed in the office on the 22nd of November, 1954. It is stated in this application that these ten persons as well as Monir Ahmed may be brought on the record as heirs of Manjur Ahmed and that as Monir Ahmed is not willing to join in the present application, he may be brought on the record as an opposite party and the other ten persons on whose behalf the petition was presented may be permitted to carry on the proceedings. It was also stated in the application that the application was being presented on behalf of the minor sons and daughters by Akhtari Bibi, their mother and "natural guardian.

This petition has been hotly contested before us. Three objections have been taken on behalf of the opposite party. The first is that the application is barred by limitation. The second is that as Akhtari Bibi has not been appointed by the Court guardian of the minors, she is not entitled in law to present the application on behalf of the minor children so that there is no proper application on behalf of the minor children. Thirdly it is contended that it has not been proved properly that Monir Ahmed is unwilling to join in the application and consequently an application to carry on the suit by other persons to the exclusion of Monir Ahmed is not maintainable in law.

As regards the last contention, it is undoubtedly true that before the other heirs are allowed to carry on the proceedings as heirs of Manjur Ahmed to the exclusion of Monir Ahmed, it should be properly proved that Monir Ahmed is not willing to join. There is, however, an affidavit on the record that Monir Ahmed is unwilling to "join the petitioners in this application or to sign the Vakalatnama in that be-half". '' There is no counter affidavit before us to show that this statement is not correct. In this state of the record, I think that, we are bound to hold that it has been properly proved that Monir Ahmed is unwilling to join the petitioners in this application. Consequently, the right course has been followed by the other ten heirs in asking that they should be allowed to carry on the proceedings themselves after bringing Monir Ahmed also on the record as one of the heirs of Manjur Ahmed. The decision in the case of Fajor Banu v. Rohim Bux Bhuiya, (1) (32 C.W.N. 1020), which was cited by the learned Advocate for the opposite party in my opinion fully supports this proposition. There it was laid down :

In case of representatives unknown or unwilling to join in the application under Order XXII, rule 3, a bona fide application by all the representatives known or willing may be sufficient compliance with the law, but when there is a known representative whose unwillingness has not been proved, omission to have him substituted is fatal

The learned Advocate for the opposite party wanted to convince us that the unwillingness of Monir Ahmed has not been proved. As I have stated above, the affidavit filed on behalf of the petitioners that Monir Ahmed is unwilling should be taken as sufficient proof of that fact.

Nor is there, in my opinion, any substance in the second contention raised, namely, that there can be no proper application on behalf of the minors unless there is a formal appointment by the Court of Akhtari Bibi as their guardian. When a minor has to present an application, he cannot do it himself but he has to proceed through a next friend. This follows from Order XXXII, rule 1 of the Code of Civil Procedure. The provision in Order XXXII, rule 1, that "every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor" is equally applicable to all applications in suits or appeals. Rule 4 of Order XXXII provides :

Any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit provided that the interest of such person is not adverse to that of the minor...

I can find nothing in law to pre-vent the court from allowing the mother to act as next friend for the minor sons and daughters of Manjur Ahmed for the purpose of making this application for substitution.

This brings us to the main objection raised on behalf of the opposite party, namely, that the application is barred by limitation. Manjur Ahmed''s death having taken place admittedly on the 7th of July, 1954, 90 days expired on the 5th of October, 1954. The application would, therefore, ordinarily be barred by limitation unless it was presented on or before the 5th of October. The only way in which the application can save this position is by application of section 4 of the Limitation Act which is in these words :

Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court re-opens.

As I have indicated earlier, the Court was closed on the 5th of October, and continued to remain closed up to the 21st of November, and reopened on the 22nd of November so that, on the face of it, the position appears to be that limitation was saved. It is, however, contended on behalf of the opposite party that the word Court in "The Court is closed" and "the Court re-opens" should be given the limited meaning of "Court''s office". So, it is argued that while the period of limitation in this case expired on the 5th of October, when the office was also closed, this application may, u/s 4 of the Limitation Act, have been presented on the 29th of October, when the office re-opened and limitation cannot be escaped by making it on the date the court as a whole re-opened, namely, the 22nd of November. Our attention has been drawn to a notification which was published in these words :

It is hereby notified that the High Court Appellate Side, will be closed for the Long Vacation from Friday, the 10th September, to Saturday, the 20th November, 1954, both days inclusive......... The office of the Appellate Side will be closed from Sunday, the 26th September, to Thursday, the 28th October, 1954, both days inclusive.

I must assume for the purpose of this case that this notification was issued under the authority of this Court and represents the correct state of facts as regards the period for which the High Court as a whole was closed and the period during which the office on the Appellate Side remained closed. I am unable, however, to see anything in this notification to justify the conclusion that the Court was not closed within the meaning of section 4 of the Limitation Act during the period when the office was open. The offices of the Court are not the same thing as the Court. The Legislature in its wisdom used the words "the Court is closed". We shall be legislating instead of interpreting the statute if for the words "the Court is closed", we read the words "the office of the Court is closed". I am aware that an interpretation as suggested by the learned Advocate has found favour with a Bench of the Bombay High Court. With due deference to those learned Judges, I have come to the conclusion that this view is wrong. It is always wrong for a Court anywhere to read words in a statute which are not there, even more so when the effect thereof is to increase the rigour of the law of limitation which is a drastic law and has always been considered as a necessary evil. The bounds of the law of limitation must be kept within the strict words of the statute and there is no justification, in my mind for interpreting the words in such a way as to refuse the litigants justice which they would be otherwise entitled unless the plain meaning of the words require this. It has been said that the tower of justice is always upright and should never lean. This is nowhere more true than in interpreting the statute of limitation.

It has been argued that when the offices are open, it is possible for the parties to file their plaints and applications in the office, so that it will be wrong to say that the Court is closed. In the absence of any definite rule to the contrary, it seems to me clear that every application to the Court is to be presented to the Judges of the Court, but in fact for the sake of convenience presentation is made to officers of the Court, who are really doing the manual work of receiving as the hands of the Court. If the Court is closed, so that the Judges are not present, the mere fact that some officers are present cannot give them the right and duty to receive such documents. It may be that in actual fact, even when the Court is closed, the office remains open for certain purposes and during that period even presentation of applications is made. That cannot alter the legal position that presentation of these applications is to the judges of the Court. I am unable to agree, therefore, that the mere fact that the notification issued by the Registrar shows that the office remained open on the 29th October, 1954, thereafter made it obligatory on the applicants to present their application on the 29th October. In my opinion, therefore, the application is not barred by limitation, as it was filed on the 22nd November, when the Court as a whole reopened. I would therefore allow the application for substitution and order that the petitioners be brought on the record as heirs of Manjur Ahmed and be allowed to carry on the proceedings and that Monir Ahmed be also brought on the record as an opposite party as heir of the said Manjur Ahmed. The parties will bear their own costs of this application.

Guha, J.

I agree.