1917 JTR(SC) 71
1917 AIR(PC) 179 ; 1917 45 LawReportsInd.App. 25 ; 1918 16 AllLJ 57 ; 1918 22 CWN 481 ; 1918 41 ILR(Mad) 412 ; 1918 7 LW 156
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD PARKER OF WADDINGTON, LORD WRENBURY, SIR JOHN EDGE, MR. AMEER ALI, AND SIR LAWRENCE JENKINS.
KRISHNASAMI PANDIKONDAR - Appellant
Versus
RAMASAMI CHETTIAR - Respondents
On Appeal from the High Court at Madras.
Decided On : November 8, 1917.
An order admitting an appeal by excusing delay, made without notice to the respondent, is not final and may be reconsidered by the court at the hearing to ensure justice. The burden of proving "sufficient cause" for delay rests entirely on the appellant.
Act
Referred
:LIMITATION ACT
: S.5
(A) Indian Limitation Act - Sections 4 and 5 - Admission of appeal - Order excusing delay made by a single judge without notice to the respondent is not final - Such order, though unqualified in expression, is open to reconsideration at the instance of the party prejudicially affected in the interest of common fairness and justice.
(B) Procedure - Reconsideration of limitation at the hearing stage - Practice sanctioned by usage but open to grave objection as it leads to waste of time and money - Expediency of adopting a procedure to secure final determination of limitation at the stage of admission after due notice to all parties.
(C) Burden of Proof - Litigant seeking to excuse delay under Section 5 of the Limitation Act bears the burden of adducing distinct proof of sufficient cause.
Facts of the case:
An appeal was presented after the prescribed limitation period. A single judge admitted the appeal, excusing the delay based on affidavits. The respondent, who received no notice of the admission order, subsequently filed affidavits controverting the grounds for the delay. At the hearing, a Division Bench of the High Court reconsidered the limitation issue and dismissed the appeal as barred by limitation.
Findings of Court:
The Division Bench had jurisdiction to reconsider the sufficiency of the cause shown for delay at the hearing of the appeal. The appellant failed to provide distinct proof of sufficient cause to justify the delay.
Issues: Whether an order admitting an appeal by excusing delay, made by a single judge without notice to the respondent, is final or can be reconsidered by a Division Bench at the hearing of the appeal.
Ratio Decidendi: An order that deprives a party of a valuable right, such as the finality of a decision, and is made without notice to that party, must be open to reconsideration to avoid a denial of justice. While the practice of reopening limitation at the hearing stage is supported by usage, it is inefficient; therefore, limitation should be finally determined at the admission stage after notice to all parties.
Result: Appeal dismissed with costs.
(B) Procedure - Reconsideration of limitation at the hearing stage - Practice sanctioned by usage but open to grave objection as it leads to waste of time and money - Expediency of adopting a procedure to secure final determination of limitation at the stage of admission after due notice to all parties.
(C) Burden of Proof - Litigant seeking to excuse delay under Section 5 of the Limitation Act bears the burden of adducing distinct proof of sufficient cause.
Facts of the case:
An appeal was presented after the prescribed limitation period. A single judge admitted the appeal, excusing the delay based on affidavits. The respondent, who received no notice of the admission order, subsequently filed affidavits controverting the grounds for the delay. At the hearing, a Division Bench of the High Court reconsidered the limitation issue and dismissed the appeal as barred by limitation.
Findings of Court:
The Division Bench had jurisdiction to reconsider the sufficiency of the cause shown for delay at the hearing of the appeal. The appellant failed to provide distinct proof of sufficient cause to justify the delay.
Issues: Whether an order admitting an appeal by excusing delay, made by a single judge without notice to the respondent, is final or can be reconsidered by a Division Bench at the hearing of the appeal.
Ratio Decidendi: An order that deprives a party of a valuable right, such as the finality of a decision, and is made without notice to that party, must be open to reconsideration to avoid a denial of justice. While the practice of reopening limitation at the hearing stage is supported by usage, it is inefficient; therefore, limitation should be finally determined at the admission stage after notice to all parties.
Result: Appeal dismissed with costs.
Procedure - Held that the procedure of reconsidering an order admitting an appeal was invalid.
Procedure - A case that did not follow the decision in Bharrutt Chunder Roy v. Issur Chunder regarding the reconsideration of admission orders.
Procedure - A case that did not follow the decision in Bharrutt Chunder Roy v. Issur Chunder regarding the reconsideration of admission orders.
Procedure - A case that did not follow the decision in Bharrutt Chunder Roy v. Issur Chunder regarding the reconsideration of admission orders.
Procedure - A Madras case that did not follow the decision in Bharrutt Chunder Roy v. Issur Chunder regarding the reconsideration of admission orders.
Solicitor for appellant: Douglas Grant.
Solicitors for respondents: Chapman-Walker & Shephard.
Judgement
Appeal by special leave from a judgment and decree of the High Court (November 4, 1908) dismissing an appeal from a decree of the additional Subordinate Judge of Tanjore.
The suit was instituted by the first respondent against the appellant and other persons who were joined as respondents to the appeal to the High Court and in the present appeal. The claim was in respect of the estate of the Zamindar of Sillatur, deceased.
The facts material to the question of practice, which alone was argued before the Board and is the subject of the judgment of their Lordships, appear from that judgment.
1917. Oct. 16, 17, 18. Sir Erle Richards, K.C., and Kenworthy Brown, for the appellant. There was no power in the High Court to reconsider the order admitting the appeal. The order was properly made by
Law Rep. 45 Ind. App. 25 ( 1917- 1918) Krishnasami Pandikondar V. Ramasami Chettiar
a single judge under the Rules of the Madras High Court, 1905, r. 1 (1.) (6). The respondents must have had notice of the order, since they filed evidence controverting the affidavit upon which the order was made. The respondents proper remedy was by an application under s. 623 of the Code of Civil Procedure for a review of the order. Review is applicable in the case of an ex parte order Woodroffe and Ameer Ali, Civil Procedure Code, p. 1316. At the time of the hearing the right to apply for a review, or to appeal (if there was that right) was barred by limitation. There is no inherent power in the High Court to reconsider an order of the Court unqualified in its terms; the power, not being given by the Code, does not exist. The procedure followed in the present case was held to be invalid by the Calcutta High Court in Bharrutt Chunder Roy v. Issur Chunder . (( 1867) 8 Suth. W. R. 141.) That decision has not been followed in later cases Dubey Sahey v. Caneshi Lal (( 1875) I. L. R. 1 A. 34 (F.B.)); Jhotee v. Omesh Chunder (( 1879) I. L. R. 5 C. 1.); Bhismadeo Das v. Sita Nath Ray (( 1882) 17 Cal. W. N. 42.), including Venkatrayudu v. Nagadu (( 1886) 1. L. R. 9 M. 450.) in Madras. The procedure is, however, not supported by the Code and is ultra vires. If there was power to reconsider the order admitting the appeal the affidavit evidence shows that there was “sufficient cause " within s. 5 of the Limitation Act for admitting it.
De Gruyther, K.C., and OGorman, for the respondents, were not called upon.
Nov. 8. The judgment of their Lordships was delivered by
SIR LAWRENCE JENKINS. On November 4, 1908, the High Court of Madras dismissed an appeal from an original decree on the ground that it was barred by limitation. From this order of dismissal the present appeal has been preferred, and in its support it has been contended, first, that the order was without jurisdiction and, secondly, that it was erroneous on the merits.
The original decree was passed on February 8, 1905, in the Court of the additional Subordinate Judge at Tanjore in the plaintiffs favour. Against it the first defendant, Krishnasami Pandikondar, preferred an appeal to the Madras High Court. The last day for its presentation was July 10, when the Court reopened after vacation ; but it was not presented until July 12, 1905. It was then returned to the appellant as out of time. It thus became necessary for the appellant to satisfy the Court that he had sufficient cause for not presenting his appeal within the prescribed period. He accordingly again presented his appeal on July 26, supported this time by affidavits purporting to explain the delay. The application for admission came before Sankaran Nair J., sitting as a single judge, and on July 31 he made an order in these terms "Delay excused in the circumstances and appeal admitted."
When notice of this appeal was served on the respondents does not appear, but in the following November affidavits were filed controverting the material allegations in those on which delay had been excused. Further affidavits were subsequently filed on both sides.
The appeal thus admitted came on for hearing before a Division Bench of the Court on October 7, 1908, and at the outset it was objected that the appeal was out of time, and so not competent. The Court, after an examination of the several affidavits, accepted this view and, on November 4, 1908, dismissed the appeal as provided by s. 4 of the Indian Limitation Act. A subsequent application for review failed.
It has been argued that the admission of the appeal by Sankaran Nair J. was final, and that the Division Bench had no jurisdiction at the hearing of the appeal to reconsider the question whether the delay was excusable. But this order of admission was made not only in the absence of Ramasami Chettiar, the contesting respondent, but without notice to him. And yet in terms it purported to deprive him of a valuable right, for it put in peril the finality of the decision in his favour, so that to preclude him
Law Rep. 45 Ind. App. 25 ( 1917- 1918) Krishnasami Pandikondar V. Ramasami Chettiar
from questioning its propriety would amount to a denial of justice. It must, therefore, in common fairness be regarded as a tacit term of an order like the present that, though unqualified in expression, it should be open to reconsideration at the instance of the party prejudicially affected ; and this view is sanctioned by the practice of the Courts in India.
But there remains the contention that, at any rate, the Court exceeded its jurisdiction in permitting the question of limitation to be reopened at so late a stage as the hearing of the appeal. This objection, however, has all the appearance of an afterthought. It was not urged at the hearing, though the appellant was represented by so experienced an advocate as Sir Bashyam Aiyangar ; nor was it-even mentioned in the original review petition. It was no doubt advanced at a later stage as an additional ground for review, but it met with no success, for the High Court held that the procedure adopted in this case was in accordance with the usual practice of the Court. The authorities, moreover, show that this practice is not peculiar to Madras, and in the circumstances their Lordships hold that the Division Bench had jurisdiction to reconsider the sufficiency of the cause shown, and to do this at the hearing of the appeal.
But while this procedure may have the sanction of usage it is manifestly open to grave objection. It may, as in this case, lead to a needless expenditure of money and an unprofitable waste of time, and thus create elements of considerable embarrassment when the Court comes to decide on the question of delay. Their Lordships therefore desire to impress on the Courts in India the urgent expediency of adopting in place of this practice a procedure which will secure at the stage of admission, the final determination (after due notice to all parties) of any question of limitation affecting the competence of the appeal.
On the merits little need be said. It is the duty of a litigant to know the last day on which he can present his appeal, and if through delay on his part it becomes necessary for him to ask the Court to exercise in his favour the power contained in s. 5 of the Indian Limitation Act, the burden rests on him of adducing distinct proof of .the sufficient cause on which he relies. It was with the claim of such a litigant that the Division Bench had to deal, and, after a careful and critical examination and appreciation of the evidence, the learned judges distrusted his explanation and held that sufficient cause had not been shown. The Court therefore declined to exercise in. his favour the power to excuse delay. It has not been shown that in this the Court fell into any error, and their Lordships consequently decline to interfere with its decision. They will therefore humbly advise His Majesty that this appeal should be dismissed with costs.