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  • M.S.Rao
  • B.K.Pal
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  • Ray, C.J
  • Narasimham, J.
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Advocates
  • M.S.Rao
  • B.K.Pal
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  • Ray, C.J
  • Narasimham, J.
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Smart Summary

Judicial Opinion — Summary and Analysis

Factual and Procedural Background

This revision arises from an order dated 25-11-1948 passed by the Subordinate Judge of Sambalpur in Misc. Case No. 14/1948, which originated from Title Suit No. 46/1944.

Material facts recited in the opinion:

  • The petitioner was the plaintiff in Title Suit No. 46/44. That suit was dismissed for default of the plaintiff on 16-3-1948.
  • The plaintiff filed a restoration petition under Order IX Rules 8 and 9 of the Civil Procedure Code (CPC). That petition was registered as Misc. Case No. 14/1948.
  • On 25-10-1948 the Subordinate Judge allowed the restoration application on condition that the plaintiff deposit Rs. 100 towards the defendants' costs within one month from that date, failing which "this application shall stand dismissed but without costs".
  • On 25-11-1948 the Subordinate Judge recorded that the plaintiff had not deposited Rs. 100 and had applied for further time; the Judge held that the earlier order left no jurisdiction to enlarge the time and stated that on expiry the Misc. case "stands automatically dismissed".
  • On 10-12-1948 the petitioner tendered Rs. 100 and sought condonation of delay; the Subordinate Judge refused to accept the deposit and rejected the petition.
  • The petitioner sought relief in revision, contending inter alia that the computation of the one-month period should exclude the day the order was made (25-10-1948) under the equitable computation principles in section 9 of the General Clauses Act (and related principles), and that the deadline therefore expired at the end of court hours on 25-11-1948.

Legal Issues Presented

  1. Whether the equitable principle contained in section 9 of the General Clauses Act (regarding inclusive/exclusive computation of time) can be extended and applied to the construction of decrees and orders of courts.
  2. What meaning should be given to the expression "month" occurring in the Subordinate Judge's order dated 25-10-1948 (i.e., how to compute the one-month period specified).

Arguments of the Parties

Petitioner's Arguments (as advanced by Mr. Pal)

  • The one-month period specified in the Subordinate Judge's order should exclude the starting day (25-10-1948) by applying the equitable computation rule recognized in section 9 of the General Clauses Act and related provisions (section 12(1), Limitation Act), so the period expired at 4:30 p.m. on 25-11-1948.
  • Because the petitioner had until the end of court hours on 25-11-1948, the Subordinate Judge had no jurisdiction on that day to declare the Misc. case automatically dismissed.

Opposite Party's Arguments (as advanced by Mr. Rao)

  • It was urged that the petitioner was not ready to tender the Rs. 100 on 25-11-1948, i.e., even if the deadline extended to that day, the petitioner could not have deposited the sum then.
  • On the question whether the words "this application shall stand dismissed but without costs" effect an automatic dismissal or require a separate order, Mr. Rao relied on Balakrishna Ayyer v. Parvathammal (AIR 1928 Mad 154) to support his position (as recorded in the opinion).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Sankaran v. Raman, AIR 1925 Mad 743 Supported the view that the equitable principle in section 10 of the General Clauses Act might be applied to interpretation of decrees of courts. The Court cited this decision to support the broader proposition that equitable computation principles can be applied to judicial orders and decrees.
Puran Chand v. Mohd. Din, AIR 1935 Lah 291 Application of the equitable principle of section 9 of the General Clauses Act to the construction of a decree. Relied upon as authority for applying the section 9 principle to court decrees/orders; used to justify excluding the first day in computation here.
Ramchandra Govind v. Laxman Savleram, AIR 1938 Bom 447 Expressed desirability of giving the same interpretation to expressions in judicial orders as would be given in statutes; held "fifteen days" to mean fifteen clear days excluding the date of making the order. Quoted to reinforce the rule that expressions of time in orders should generally be construed as they are in statutes (excluding the first day).
Balakrishna Ayyer v. Parvathammal, AIR 1928 Mad 154 Cited by the opposite party on the question whether language like "this application shall stand dismissed" effects automatic dismissal or requires a separate order. The Court noted the reliance but expressly declined to decide the automatic-dismissal point on the basis of the cited authorities because it resolved the case on the deadline computation; the precedent was therefore recorded but not determinative here.
Surajmal v. Bhubaneshwar Prasad, AIR 1940 Pat 50 Cited (by Mr. Pal) on the question whether an application stands automatically dismissed on expiry of a specified date or whether a separate order is necessary. The Court recorded this authority among those cited on the automatic-dismissal issue but did not decide that question, as it found relief on other grounds.
Collinson v. Jeffery, (1896) 1 Ch D 644 English authority cited on the automatic-dismissal / effect of conditional orders point. Not decided upon; included as part of the argument material but the Court did not determine the broader legal point because it found it unnecessary in the circumstances.
Dadu v. Balgouda, 5 Bom HCR (A.C.J) 39 Authority indicating that "month" was intended to mean a British calendar month and that civil courts had adopted that interpretation since the CPC came into operation. Relied upon in support of interpreting "month" as a British calendar month for purposes of the order's time computation.
Saroda Pershad v. Pahali Mohanti, 10 Cal 913 Cited as an authority consistent with the British-calendar-month interpretation for "month". Used to corroborate the view that "month" should be read as a calendar month in the relevant context.
Vama Daya Desikar v. Murugesa Mudali, 29 Mad 75 In that context the expression "month" was held to mean a period of 30 days. The Court acknowledged this decision to show that context may affect whether "month" is a calendar-month or a fixed-day period; the Court nonetheless applied the calendar-month construction here.

Court's Reasoning and Analysis

The Court undertook a two-part analysis corresponding to the two framed questions:

  1. Application of section 9 General Clauses Act principles to judicial orders:

    The Court observed there is "abundant authority" that, although section 9 does not in terms apply to decrees or orders, the equitable principle it embodies (excluding the first day in the computation of time where a period runs "from" a given day) should ordinarily be applied to the construction of decrees and orders unless repugnant in the subject or context. The Court cited Halsbury's exposition on inclusive/exclusive computation and several judicial decisions (including Sankaran, Puran Chand and Ramchandra Govind) supportive of applying the equitable rule to judicial orders. On that basis the Court held that the 25th October 1948 (the day the conditional order was made) should be excluded in computing the one-month period.

  2. Meaning and computation of the term "month":

    The Court turned to the meaning of "month." It noted section 3(33) of the General Clauses Act defines "month" as a British calendar month (observing that definition strictly applies to statutes). The Court relied on historical practice and authorities (Dadu v. Balgouda; Saroda Pershad) showing courts have interpreted "month" as a calendar month. The Court also considered authorities and reference works that variously describe "month" as a calendar month or as a 30-day period in some contexts (Vama Daya Desikar), and lexicographical definitions (Oxford Dictionary and Iyer's Law Lexicon) that explain a "calendar month" ordinarily runs to the corresponding day of the succeeding month less one, terminating with the last day if there is no corresponding day.

    Applying these meanings and excluding the first day (25-10-1948), the Court concluded that "within a month" meant the deposit should be made before the 26th day of November 1948 — i.e., before the expiry of court hours on 25-11-1948.

Having reached that construction, the Court found that the Subordinate Judge and the parties had been under the erroneous impression that the period expired by the end of court hours on 24-11-1948. The Subordinate Judge's order dated 25-11-1948 (declaring no jurisdiction to extend time and stating the Misc. case stood automatically dismissed) was therefore founded on an incorrect premise and was held to have been passed without jurisdiction.

The Court also remarked that the lower Court's order had misled the petitioner; noting the settled rule that no party should be prejudiced by a mistake committed by a court, it accepted that this provided grounds for relief in revision.

On the collateral question whether the phrase "this application shall stand dismissed but without costs" effects an automatic dismissal or requires a separate order, the Court recorded the rival authorities cited by counsel but expressly declined to decide that question because the case was resolved on the timing/computation issue. The Court held that irrespective of that contested point, the lower Court should have waited until the expiry of court hours on 25-11-1948.

Holding and Implications

Core Holding: REVISION ALLOWED. The Court allowed the revision petition and set aside the orders of the Subordinate Judge dated 25-11-1948 and 10-12-1948.

Direct consequences and directions contained in the opinion:

  • The petitioner is directed to pay Rs. 100 to the opposite party on or before 31-10-1951.
  • If such payment is made on or before 31-10-1951, Title Suit No. 46 of 1944 may be restored and heard by the Subordinate Judge in accordance with law.
  • If the Rs. 100 is not paid by that date, Misc. Case No. 14 of 1948 shall stand automatically dismissed with costs and no express order of the Subordinate Judge or of this Court shall be necessary to that effect.
  • Regarding costs of this revision, the Court directed that both parties would bear their own costs of the revision, except that if the costs of Rs. 100 are not paid on or before 31-10-1951 then this revision shall stand dismissed with costs and a hearing fee of one gold Mohur.
  • Chief Justice Ray agreed with the judgment (recorded as concurrence: "I agree").

Broader implications: The opinion endorses, as a general rule, the application of the equitable computation principle (commonly associated with section 9 of the General Clauses Act) to judicial orders and endorses the ordinary calendar-month construction of the term "month" for computing deadlines in such orders. The Court did not, however, purport to decide the separate contested legal question on whether conditional language effects automatic dismissal in every circumstance; it left that question open as unnecessary to decide in this case.

Disposition: Revision allowed; orders dated 25-11-1948 and 10-12-1948 set aside; conditional directions as to deposit and restoration as specified above.

Show full summary ...

    Marakanda Sahu v. Lal Sadananda Singh Opposite-Party.

    Narasimham, J.:— This revision is against an order dated 25-11-48 passed by the Subordinate Judge of Sambalpur in Misc. case No. 14/1948 arising out of Title Suit No. 46/1944. The material facts are as follows:—

    2. The petitioner was the plaintiff in Title Suit No. 46/44 which on 16-3-48 was dismissed for default of the plaintiff. Then he filed a restoration petition under Order 9 Rules 8 and 9 of the CPC. This was registered as Misc. case No. 14/1948 and on 25-10-48 the Court after being satisfied that there was sufficient cause for the inability of the plaintiff to proceed with the suit on 16-3-1948, passed the following order:

    “This application for the restoration of the suit T.S No. 46/44 will therefore be allowed if the plaintiff deposits the sum of Rs. 100/- towards the costs of the defendants within one month from this date failing which this application shall stand dismissed but without costs”.

    3. On 25-11-48 the following order was passed by the same court.

    “Plaintiff does not deposit Rs. 100/- towards the costs of the defendant as per order No. 34 dated 25-10-48 but he applies for time to deposit the said amount.

    The order dated 25-10-48 leaves no jurisdiction with the Court to enlarge or extend the time allowed, and no separate order is necessary as on expiry of the time allowed this Misc. case stands automatically dismissed”.

    4. Again on 10-12-48 the petitioner tendered the sum of Rs. 100/- and requested the Court to condone the delay in payment of the costs. But the Court rejected the prayer in the following order.

    “In view of order No. 35 dated 25-11-48 deposit cannot be accepted and time extended. Petition is rejected”.

    5. The petitioner's main contention is that the period of one month given to him by the Court on 25-10-48 must exclude that day by applying the equitable principles which have been recognised in section 9 of the General Clauses Act and section 12(1), Limitation Act. Therefore, if the 25th of October 1948 was excluded, the period of one month which would ordinarily mean a calendar month would really expire at 4-30 p.m on the 25th November, 1948. Mr. Pal therefore urged that his client (the petitioner) had time till the end of the Court hours on the 25th November, 1948 and that consequently the Court had no jurisdiction to say on that day that the time had expired and that the Misc. case stands automatically dismissed.

    6. Two important questions arise: (1) Whether the principles of section 9 of the General Clauses Act can be extended to decrees and orders passed by courts; and (2) What meaning should be given to the expression ‘month’ occurring in the order dated 25-10-48.

    7. So far as the first question is concerned, there is abundant authority for the view that though section 9 of the General Clauses Act does not in terms apply to the construction of decrees or orders the equitable principle laid down therein should ordinarily be applied unless there is something repugnant in the subject or context. As pointed out in Halsbury's Laws of England, 2nd Edition, Vol. 32, p. 138:

    “When a period of time running from a given day or event to another day or event is prescribed by law or fixed by contract, and the question arises whether their computation is to be made inclusively or exclusively of the first mentioned or of the last mentioned day, regard must be had to the context and to the purposes for which the computation has to be made. Where there is room for doubt, the enactment or instrument ought to be so construed as to effectuate and not to defeat the intention of Parliament or of the parties, as the case may be. Expressions, such as ‘from such a day’ or ‘until such a day’ are equivocal since they do not make it clear whether the inclusion or the exclusion of the day named may be intended. As a general rule, however, the effect of defining a period in such a manner is to exclude the first day and to include the last day. Both days must be included if the word ‘inclusive’ is added”.

    8. In ‘Sankaran v. Raman’, AIR 1925 Mad 743, it was pointed out that the equitable principle of section 10 of the General Clauses Act might properly be applied to the interpretation of decrees of courts. In ‘Puran Chand v. Mohd. Din’, AIR 1935 Lah 291, this decision was relied upon and the equitable principle of section 9 of the General Clauses Act was applied for the construction of a decree. To a similar effect is the observation in ‘Ramchandra Govind v. Laxman Savleram’, AIR 1938 Bom 447:

    “It is true that Section 9 would not apply here in terms as the words do not occur in a statute but in an order of the Court, but it is desirable for the sake of uniformity that the same interpretation should be given to an expression occurring in a judicial order as would be given to it in a statute and I think, therefore, the expression ‘fifteen days’ would mean fifteen clear days, and that the date of making the order should be excluded.”

    9. No decision to the contrary has been cited before me, and I would, with respect, agree with the views expressed in the aforesaid decision and hold that the equitable principle of section 9 of the General Clauses Act should, as a general rule, be applied for the construction of decrees and orders of Courts. Therefore in computing the period of one month, the 25th October 1948 should be excluded.

    10. The second question also does not present much difficulty. Section 3(33) of the General Clauses Act says that the expression ‘month’ shall mean a month reckoned according to the British calendar. Doubtless, this meaning applies only to statutes. But as early as 1868, in ‘Dadu v. Balgouda’, 5 Bom HCR (A.C.J) 39 it was pointed out:

    “From the practice which prevailed previous to 1860 when the Code of Civil Procedure came into operation, and from the subsequent Acts of the Legislature, I think it may be rightly inferred that their intention was to express by the term ‘month’ a British calendar month, and, so far as I am aware, all Civil Courts on this side of India have adopted this interpretation since the Code became law.”

    (See also ‘Saroda Pershad v. Pahali Mohanti’, 10 Cal 913). Some difficulty is however experienced in determining how many days would constitute a ‘month’ where the commencing day is not the first of the month, that is to say, whether the month should be computed as 30 or 31 days. In ‘Vama Daya Desikar…(Defendant) v. Murugesa Mudali…(Plaintiff) .*’, 29 Mad 75 it was held that in the context the expression ‘month’ meant a period of 30 days. In the Oxford Dictionary also, the following meaning is given for the expression ‘month’.

    “A space of time, reckoned from any moment, and either (a) extending to the corresponding day of the next calendar month (in which case the space of time is called ‘a calendar month’), or (b) containing 28 days (often miscalled a ‘lunar month’).”

    11. Similarly in Iyer's Law Lexicon the following passage occurs:

    “The term ‘month’ whether employed in modern statutes or contracts, and not appearing to have been used in a different sense, denotes a period terminating with the day of the succeeding month numerically corresponding to the day of its beginning, less one. If there be no corresponding day of the succeeding month, it terminates with the last day thereof.”

    12. Applying the aforesaid meaning to the expression, it will be clear that by the words ‘within a month’ the Subordinate Judge in his order dated 25-10-48 meant that the sum of Rs. 100/- should be deposited before the 26th of November 1948, that is to say, before the expiry of the Court hours on the 25th November 1948. But the Court as well as the parties seemed to have been under the impression that the period expired by the end of the court hours of the 24th November and the order of the Subordinate Judge dated 25-11-48 was based on this erroneous assumption. He, therefore, thought that he had no jurisdiction to enlarge or extend the time allowed and that on the expiry of that period the Misc. case stands automatically dismissed. There seems no doubt that on the 25th November 1948 the Misc. Case did not stand automatically dismissed.

    13. It was rightly urged that this order of the lower Court misled the party and the petitioner as well as the Court were under the impression that nothing could be done that day. It is difficult for us to speculate whether the plaintiff-petitioner would have been in a position to deposit the sum on the 25th if he had been aware of the fact that the period would not expire till 4-30 p.m that day. Mr. Rao on behalf of the opposite party rightly stressed this point that the petitioner was not ready to tender the sum on the 25th. I fully realise the force of this argument but the petitioner can reasonably say that the order of the court dated 25-11-48 completely misled him and he thought that he had nothing more to do in the matter. It is a well-settled rule that no party should be prejudiced by a mistake committed by a court and as the order of the court dated 25-11-48 was passed without jurisdiction the petitioner can claim relief from this court.

    14. Much argument was advanced at thee Bar as to whether the words “this application shall stand dismissed but without costs” occurring in the order dated 25-10-48 of the Subordinate Judge mean that on the expiry of the date fixed in that order the application stands dismissed automatically or else whether a separate order is necessary for that purpose. Mr. Rao relied on ‘Balakrishna Ayyer v. Parvathammal’, AIR 1928 Mad 154 and Mr. Pal relied on ‘Surajmal v. Bhubaneshwar Prasad’, AIR 1940 Pat 50 and on ‘Collinson v. Jeffery’, (1896) 1 Ch D 644. I do not think: it necessary to decide this point because in any view of the case, on the 25th November 1948, the Misc. case did not stand automatically dismissed and the court should have waited till the expiry of the Court hours on that day. I would, therefore, allow this revision, set aside the orders dated 25-11-48 and 10-12-48 passed by the lower Court and direct the petitioner to pay the costs of Rs. 100/- (one hundred) to the opposite party on or before the 31st October 1951. If such payment is made on or before the aforesaid date, Title Suit No. 46 of 1944 may be restored and heard by the Subordinate Judge in accordance with law. If, however, the said sum is not paid by that date. Misc. Case No. 14 of 1948 shall stand automatically dismissed with costs and no express order either of the Subordinate Judge or of this Court to that effect shall be necessary. In the circumstances of this case, both parties will bear their own costs of this revision except when the costs of Rs. 100/- be not paid on or before the 31st October 1951, in which event this revision shall stand dismissed with costs and hearing fee of one gold Mohur.

    Ray, C.J:— I agree.

    V.B.B

    15. Revision allowed.

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    Comments

    Marakanda Sahu v. Lal Sadananda Singh Opposite-Party.
    (Sep 7, 1951)