Kadir Mohideen Saheb and Others vs Syyed Abbubukarr Saheb

A preliminary objection is taken that this appeal has been filed out of time. It was originally filed on the 30th July 1917 with a certified copy of

the decree. The decree was passed on the 31st March 1917, and therefore filing on the 30th July was considerably more than 90 days after the

decree. The time occupied in obtaining the certified copy is only 7 days and assuming that this presentation on the 30th July was a valid

presentation, the appeal is clearly time barred. If this presentation is not valid we have to consider whether the presentation on the 9th August with

the printed copies was in time. The Application for printed copies was made on the 11th April and printing charges were called for on the 28th

April. The court closed for the annual vacation on the 29th. On the 5th May the copy application was dismissed for default of payment of printing

charges and on the re-opening day, 2nd July, a fresh application for copies was put in and they were supplied on the 6th August. The question is

whether the appellant was bound to pay the printing charges called for on the 28th April before the reopening of the Court or on the 2nd July, or to

put it in another form whether the copy application was rightly dismissed on the 5th May for non-payment, for if the period of the vacation cannot

be deemed to be part of the period requisite for obtaining copies, the appeal is certainly out of time. It has been recently held by a Bench of this

Court to which one of us was a party in Kumuru Appalaswami v. Palli Narayanaswami (1918) 36 M.L.J. 62 that when a party failed to take

delivery of a copy during the vacation, he was not entitled to deduct the period intervening between the time when the copy was ready and the end

of the vacation, for in accordance with the High Courts Rules, a notification had been published that arrangements would be made for granting

copies during the adjournment of the Court. In accordance with that case the period of the vacation here also could not be deemed to be requisite

for obtaining copy, for there was a notification that arrangements would be made. In the Coimbatore Court from which this appeal is filed, the

notification instead of saying that arrangements will be made for grant of copies reads, ""Arrangements be made for delivery of copies,"" and it is

contended that this did not mean that money will be received for printing charges. We think, however, that if arrangements are made for delivery of

copies and applications are allowed to be put in up to the close of the last working day, it necessarily follows that arrangements will be made for all

the necessary steps being taken between the application for the copy and the final delivery, and one of these steps is the payment of printing

charges. That the appellant was aware that this was the practice shown by his affidavit in which he says that he remitted the money on the 1st May

to his Vakil and that his Vakil omitted to pay it into Court. The whole period therefore of the vacation must be reckoned in computing the period of

limitation; and the appeal is certainly out of time. Appellant cannot rely on the cases reported in Tukaram Gopal v. Pandurang Sadaram ILR

(1901) Bom. 584 Siyadat-un-nissa v. Muhammad I.L.R (1897) All. 342, for, he did not file the application on the day after he received the

copies, and was guilty of a day''s delay in paying printing charges.

It however appears that the only default committed by the appellant was in not seeing that his vakil paid in the printing charges he remitted.

Except for this omission, he was throughout diligent and lost no time again in applying for copies and presenting the appeal after they were granted

u/s 5 of the Limitation Act, therefore, we excuse the delay.

[Ed. Their Lordships then deal with the merits and affirm the decision of the Subordinate Judge, subject to a declaration of the plaintiffs'' rights.]