Kayambu Pillai (died) and Another vs The Court of Wards and Others

Abdur Rahman, J.—This is an application to excuse the delay in presenting a petition for review against the orders passed by Mr. Justice

Venkatasubba Rao and myself in A.S. No. 343 of 1931 on the 4th March, 1938, I have not, up till now, decided to issue any notice in regard to

the petition for review and nothing in this order shall be taken to refer to the application for review which I shall consider separately.

Since the existence of sufficient cause is a condition precedent without which the discretion given to a Court under this section cannot be

exercised, the question whether the delay should be excused depends for its answer on the fact whether the petitioner has succeeded in making out

the same. According to the well-known decision in Krishna v. Chathappan I.L.R.(1889) Mad. 269 cited by learned Counsel for the appellant, the

words ''sufficient cause'' have to be liberally construed so as to advance substantial justice particularly when ""no negligence, nor inaction nor want

of bona fides is imputable to the appellant"". In defining the general rules of guidance for the exercise of discretion, Lord Dunedin observed in 22

CWN 169 (Privy Council) :

We think the true guide for a Court in the exercise of this discretion is whether the appellant has acted with reasonable diligence in prosecuting his

appeal.

Learned Counsel for the Court of Wards has, on the other hand, naturally laid great stress on the fact that once the time for making an application

is past, a very valuable right has accrued to the successful party of which he should not be lightly deprived.

Section 14 of the Limitation Act provides that in computing the period of limitation for any suit or application, the time during which the applicant

has been prosecuting in good faith and with due diligence another civil proceeding in another Court, which from defect of jurisdiction or other

causes of a like nature, is unable to entertain it, shall be excluded. It has been contended by learned Counsel for the appellant that in considering

the words ""sufficient cause'''' u/s 5 of the Limitation Act, the equities on which Section 14 of the Limitation Act is based may be taken into account,

it being a common case of the parties that Section 14 as such has no application to the present case. The contention has in my opinion,

considerable force. As observed by their Lordships of the Privy Council in AIR 1937 276 (Privy Council) , that in applying Section 5 to cases

where delay has been caused by taking a wrong proceeding, ""analogy of Section 14 is an argument of considerable weight"". The existence of

circumstances mentioned in the section has been, therefore, regarded in decided cases as a sufficient ground for excusing the delay caused by

wrong proceedings. In order to decide therefore, whether the plaintiff would be entitled to exemption, I must see whether he had been during the

time that has elapsed in excess of what is allowed to him by law, prosecuting in good faith and with due diligence other proceeding or proceedings

for substantially the same relief in another Court which was, for defect of jurisdiction or for other causes of a like nature unable to entertain the

same and grant the relief to the petitioner.

There is no doubt, as a reference to the petitioner''s affidavit would show, that he has been prosecuting certain Letters Patent Appeals and other

Civil Miscellaneous Applications between the 17th March, 1938, and the 18th April, 1939. So far as the time spent for the disposal of these

appeals and applications are concerned, there cannot be much of a doubt that these proceedings must be regarded as having been taken in good

faith and prosecuted diligently. Had the time to pay court-fee and to give security been extended either by the Court on the 18th February, 1938,

or had Letters Patent Appeals against those orders been allowed on the 18th April, 1939, the appeal would not have been dismissed on the 4th

March, 1938, and even if dismissed, the order of dismissal would have had to be vacated. No reasons for the dismissal of these appeals have been

given by the Division Bench disposing of them but it seems to be obvious that they were dismissed as the prayer to extend the time or to excuse the

delay in the Letters Patent Appeal filed against the order in C.M.P. No. 5204 of 1934 which was five days beyond time had not been granted.

The applicant cannot be regarded to have been guilty of negligence or inaction or want of bona fides so far as this delay is concerned. This time

must, therefore, be taken into account in his favour and he should get a credit for the same in computing the period of limitation. This is, however,

not enough for the petitioner. He says that the Courts were closed on the 5th May, 1939, and re-opened on the 17th July, 1939, on which date

applications were made on his behalf--S.R. No. 18426 of 1939 (C. M.P.) for accepting the court-fee and security and re-hearing the appeal and

C.M.P. No. 3582 to excuse the delay in making this application. That these applications, if made on the 5th May, 1939, would have been taken

into consideration in computing the period of limitation on the same basis as the proceedings under the Letters Patent Appeals, does not seem to

be open to question. Nor is there any doubt that if these applications had been granted, the petitioner would have achieved his object and the

present petition for review would have been unnecessary. The only question then is whether the time during which the Court was closed, when

these applications could not have been presented, should be taken into consideration in calculating the period of limitation. If the words ''sufficient

cause'' have to be construed liberally and if the test to be kept in view, as laid down in Krishna v. Chathappan I.L.R.(1889) Mad. 269 is whether

negligence, inaction or want of bona fides can be imputed to the plaintiff, my reply must be in his favour. It is true that this is to a certain extent

detrimental to the respondent, although the application for review has not been taken up for consideration so far, and interferes with the valuable

right that has accrued to the respondent, but this question has to be approached in my opinion, from the point of view of the petitioner''s conduct

rather than of the advantage gained by the respondent,

I would, for the above reasons, excuse the delay and ask the learned Counsel for the petitioner to satisfy me whether any notice on the petition

for review should be issued to the other side. No costs.