Citation Codes

Equivalent Citations

citation codes

Case Number

O.C.J.A No. 110 of 1922

Judges

Macleod, C.J
Crump, J.

Acts

S. 10 of the Bombay Rent. (War Restrictions) Act
Order 46, rule 14 of the Supreme Court Rules,
rule 14 arises from Order 52 rule 1,
Section 10-A of the Rent Act.
INDIAN LIMITATION ACT
Order 64, rule 14,
Order 52, rule 1,

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Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

By Act XIV of 1920, Section 10-A was inserted after Section 10 of the Bombay Rent (War Restrictions) Act, No. II of 1918. Under a decree dated 9 September 1921, the plaintiff (the landlord) obtained possession of certain premises and the defendant was evicted on 31 December 1921 on the ground that the landlord required the premises reasonably and bona fide for his own use and occupation.

The defendant alleged that the plaintiff had not occupied the premises within six months from 31 December 1921 and, relying on Section 10-A of the Rent Act, moved the Court for an order for re-instatement on original lease terms and for compensation for the loss suffered while out of possession.

The defendant filed a notice of motion in the Prothonotary's office on 25 August 1922, stating the motion would be heard on 31 August (endorsed as served on the plaintiff's attorneys on 25 August). A chronology of correspondence between the parties' attorneys followed: the plaintiff's attorneys sought an adjournment because the client and his clerk were not in Bombay and forwarded a clerk's affidavit for the adjournment; the defendant's attorneys opposed adjournment and repeatedly pointed out they had not received the plaintiff's affidavit in reply; dates for hearing were discussed, and the matter was eventually brought on before Mr. Justice Pratt on 6 October 1922, at which hearing the plaintiff contended that the defendant's application was barred by limitation because it had not been made within nine months from when the plaintiff obtained possession.

The trial judge (Mr. Justice Pratt) held the application to be time-barred, following a precedent that an application is not "made" to the Court merely by giving notice that it will be made on a future date; the question on appeal was whether the filing of the notice of motion in the court office constituted the making of the application for the purposes of the limitation period under Section 10-A.

Legal Issues Presented

Whether an application under Section 10-A of the Bombay Rent (War Restrictions) Act is to be regarded as "made" to the Court for limitation purposes at the time a notice of motion is filed in the proper office of the Court (i.e., whether filing the notice of motion commences the application).
Whether the defendant's application for re-instatement (filed by notice of motion on 25 August 1922) was barred by limitation because the hearing occurred after the period allowed had expired.

Arguments of the Parties

Plaintiff's Arguments

The plaintiff contended at the hearing before Mr. Justice Pratt that the defendant's application was barred by limitation because it had not been made within nine months from the date when the plaintiff obtained possession (i.e., the filing/bringing-on of the motion at the hearing was too late).
In correspondence, the plaintiff's attorneys explained that their client and the client's clerk were not in Bombay to give instructions for showing cause, and they indicated they would apply for an adjournment and provided a copy of the clerk's affidavit in support of that application for adjournment.

Defendant's Arguments

The defendant took the position (in correspondence and by filing a notice of motion on 25 August 1922) that the application had been made in time; defendant's attorneys repeatedly objected to the plaintiff's application for adjournment and pointed out that they had not received the plaintiff's affidavit in reply.
Implicit in the defendant's procedural position was the view that the notice of motion filed in the court office constituted the commencement of the application for the purposes of the limitation period under Section 10-A.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Khetter Mohun Sing v. Kassy Nath Sett	Held that the taking out of a summons calling upon another to attend a Judge in Chambers on the hearing of an application is the act of the applicant and not of the Court; such a summons/notice is not sufficient to save an application from being barred where the hearing occurred after the statutory time had expired.	The trial judge followed this decision to conclude that the notice of motion did not prevent limitation from running and that an application was not "made" until the applicant actually appeared before the Court; the appeal court reviewed and distinguished this authority in reaching its decision that filing a notice of motion in the proper office may amount to making the application.
In re Gallop and Central Queensland Meat Export Company	Under the cited Supreme Court Rules, a notice of motion given before the last day of the sittings next after an award was held to constitute an 'application' within the meaning of the relevant rule (Order 64, rule 14), and thus be within time.	The appellate court relied on this divisional court decision to support the proposition that filing a notice of motion (i.e., the first procedural step) may reasonably be called "an application" for the purposes of meeting a time limit.
Smith v. Parkside Mining Co.	One of the authorities cited (by Denman J. in the divisional court decision) for the proposition that the notice of motion may constitute the commencement of a complaint/application for the purposes of the relevant rule.	The opinion references this case as part of the reasoning in the divisional court decision (In re Gallop) which was relied upon to treat a notice of motion as constituting the commencement of the application.
In re Corporation of Huddersfield and Jacob	Another authority cited in the divisional court's reasoning supporting that a notice of motion can be the commencement of the complaint/application.	Cited by the divisional court (and thus by the appeal court) as part of the reasoning that a notice of motion given within the prescribed period may amount to an application for the purpose of limitation rules.
Decision referred to as "v. Munna Bibee"	This reference in the provided text is incomplete and mutilated; the full citation and precise ratio are not available in the supplied opinion.	The supplied opinion records that the trial judge had relied upon the decision (as reported in the mutilated passage) to support the conclusion that a notice that an application would be made on a future date did not prevent limitation from running; the exact application cannot be further summarized because the text is incomplete.

Court's Reasoning and Analysis

The appellate court examined competing lines of authority and the procedural rules governing applications and motions. The trial judge had followed a line of authority (exemplified by Khetter Mohun Sing v. Kassy Nath Sett and a decision involving "Munna Bibee" as referenced in the record) that treated procedural notices calling for attendance as the act of the applicant only, and concluded that an application was not "made" to the Court until the applicant actually appeared before the Court — thus allowing limitation to run where the substantive hearing occurred after the statutory time had expired.

On appeal, the court was referred to a divisional court decision (In re Gallop and Central Queensland Meat Export Company) which, interpreting the relevant Supreme Court Rules (Order 46 rule 14 / Order 64 rule 14 and Order 52 rule 1 as cited in the opinion), had held that a notice of motion given before the last day of the sittings next after an event (an award in that case) could be an "application" within the meaning of that rule. The divisional court's view, drawing on Smith v. Parkside Mining Co. and In re Corporation of Huddersfield and Jacob, was that the step of giving notice could be the first step reasonably called an "application" for time-limit purposes even though the formal hearing might occur later.

Applying that reasoning to the present case, the appellate court observed:

That where a party seeks interlocutory relief by motion, the usual first procedural step is to file a notice of motion in Court.
Following the divisional court authorities, the first step (filing the notice of motion in the proper office) may reasonably be called "an application" so as to satisfy the time-limit requirements, provided it is filed in the proper office of the Court.
The court also noted the factual context: the plaintiff had postponed the hearing from time to time, and did not serve his affidavit in opposition until after the relevant limitation period had expired — facts which, on the appellate court's account, were favorable to the defendant.

In light of these points, the appellate court was prepared to hold that an application commences when a notice of motion is first filed in the proper office of the Court. The appellate court therefore disagreed with the trial judge's conclusion that the application was only made upon appearance at the hearing, and concluded that the defendant's filing of the notice of motion on 25 August 1922 commenced the application for limitation purposes.

Holding and Implications

HOLDING: The appeal is allowed. The appellate court held that an application for relief by motion under Section 10-A of the Rent Act commences when a notice of motion is first filed in the proper office of the Court; accordingly, the defendant's notice of motion filed on 25 August 1922 was in time and the trial court's decision that the application was barred by limitation was set aside.

Implications and direct consequences:

The matter is remitted to the trial Court to be decided on the merits (i.e., the application must go back to the trial Court for determination on its substantive grounds).
The appellant (defendant in the original suit) is to receive his costs of the appeal.
Costs in the lower Court are ordered to be the costs in the application.

The opinion articulates a legal principle as to when an "application" may be regarded as commenced for the purposes of a limitation rule (i.e., at the filing of a notice of motion in the proper office), and applies that principle to the facts before it. The opinion does not purport in the provided text to announce a wider rule beyond the circumstances and authorities discussed; the decision's immediate effect is to revive the defendant's time-barred application and to direct the lower Court to proceed to decide it on the merits.

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V.V.K Venkapaiya v. Nazerally Tyabally Singaporevalla .

Macleod, C.J:— By Act. XIV of 1920, S. 10A was directed to be inserted after S. 10 of the Bombay Rent. (War Restrictions) Act No. II of 1918. On 31, December 1921, the defendant in Suit No. 2676 of 1921 was evicted by the plaintiff under a decree passed on 9, September 1921, on the ground that the plaintiff, his landlord, required, the premises reasonably and bona fide for his own use and occupation. The defendant alleging that the plaintiff had not occupied the premises within the period of six months from 31, December 1921, moved the Court under Section 10-A of the Rent Act for an order I that the plaintiff should be made to re-instate him in the occupation of the premises described in the plaint, on the original terms and conditions of his lease and to pay him compensation for the loss suffered during the period he was kept out of possession of the said premises.

2. The defendant filed his notice of motion in the office of the Prothonotary on 25, August 1922, giving notice that the Court would be moved on Thursday, August 31, for an order that the defendant might be re-instated. The notice of motion bears an endorsement that it had been served on the plaintiff's attorneys on August 25. On August 30, the defendant's attorneys wrote to the plaintiff's attorneys to note that they had not received the plaintiff's affidavit in reply to the notice of motion. The plaintiff's attorneys answered, on 30, August 1922, as follows:—

“Please note that neither our client nor our client's Munim is in Bombay to give us instructions for showing cause against the notice of motion. We shall therefore apply for an adjournment of the hearing of the motion for a month. We beg to send you herewith a copy of our client's clerk's affidavit in support of our application, for adjournment.”

3. The defendant's attorneys replied, on August 31, that they would oppose the application for adjournment. On September 6, they wrote again in answer to the plaintiff's letter of August 31 that the plaintiff had then had sufficient time to get his affidavit in reply made, and that there was no justification whatever for their client's proposed application for postponement. The letter added that the motion would be brought on before Mr. Justice Pratt on September 11 as Mr. Justice Pratt would be sitting on that day on the Original Side Defendant's attorneys wrote on September 8 that the motion would not be brought on September 11 as Mr. Justice Pratt would not be sitting on the Original Side. They again pointed out that they had not received the plaintiff's affidavit in reply. Nothing happened until September 29 when the defendant's attorneys wrote:—

“We understand that the Hon'ble Mr. Justice Pratt will be sitting on the Original Side on October 4. Please note that we shall bring on the motion on October 4.”

4. On October 4, the plaintiff's attorneys wrote sending a copy of the affidavit of their clerk which would be used in showing cause against the notice of motion.

5. The matter eventually was brought on before Mr. Justice Pratt on October 6, when the plaintiff contended that the defendant's application was barred by limitation as it had not been made within nine months from the date when the plaintiff obtained possession.

6. The question was whether it could be said that the defendant made the application to the Court when he filed his notice of motion in the office of the ???. Then it was in time according to the provisions. 10A of he Rent Act.

7. The learned Judge in holding to the ??? upon the decision in ??? v. Munna Bibee, (1) ??? it was decided that an application for restoration of a suit to the ??? must be made within thirty ??? of the dismissal of a suit, and that a notice that the application would be made on a future date did not prevent limitation from running. Mr. Justice Sale said.

“The notice of motion which was given on August 29, 1903 does not prevent the law of Limitation from applying. That is laid down in the case of Khetter Mohun Sing v. Kassy Nath Sett(2); and inasmuch as the thirty days expired within the period of the vacation, the only course open to the plaintiff to avoid limitation was to mention the matter to the Court on its reopening day, which, as I have said, was not done.”

8. The learned Judge was, therefore, constrained to follow the decision in Khetter Mohun Sing v. Kassy Nath Sett, which was a decision by the Appeal Court to the effect that the taking out of a summons calling upon another to attend a Judge in Chambers on the hearing of an application, was the act of the applicant and not of the Court taking cognizance of the application, and was not sufficient to save the application from being barred if the hearing of the application came on after the time allowed by the Indian Limitation Act for the application had expired.

9. The Chief Justice said:—

“The summons to attend the hearing of the application is the act of the applicant only and is merely a notice, signed by the Registrar at his request, that the application will be made on the day mentioned, i.e, December 5th, and is not the act of the Court receiving or taking cognizance of the application as would perhaps be the case if it were a rule nisi to show cause issued by the Court after hearing the statement of the applicant…. Under these circumstances we think that no application was made to the Court until the application of December 5th which was made in pursuance of the notice given by the summons, and as that was more than three years from the time when the right to make it accrued the learned Judge was right in rejecting the application.”

10. The learned Chief Justice, therefore, considered that an application could not be said to be made to the Court until the applicant had actually appeared before the Court.

11. In appeal we have been referred to a decision of the Divisional Court in In re Gallop and Central Queensland Meat Export Company(3) which was not cited in the trial Court. Under Order 46, rule 14 of the Supreme Court Rules, an application to set aside an award might be made at any time before the last day of the sittings next after such award had been made and published to the parties. By Order 52, rule 1, where by the rules any application was authorised to be made to the Court or a Judge, such application, if made to a Divisional Court or to a Judge in Court, should be made by motion. An award was made and published on February 27. Notice of motion to set it aside was served on May 20. The motion did not appear in the day's list for hearing during the Easter sittings, which ended on May 23, but came on to be heard afterwards. It was held that the notice of motion having been given before the last day of the sittings next after the award, the ‘application’ was within the time prescribed by Order 64, rule 14, and the motion was, therefore not too late. Mr. Justice Denman said.—

“The notice of motion was given on May 20, and therefore within the time allowed by Order 64, rule 14, for an application to set aside an award. If the notice was an ‘application’ within the meaning of rule 14, it was in time. Applying the ratio decidendi of Smith v. Parkside Mining Co.(4) and In re Corporation of Huddersfield and Jacob(5), I think that in this case the ‘application really was the commencement of the complaint. That is, in my opinion, what was intended in Order 64, rule 14, as the ‘application.’ The only difficulty in putting this construction on rule 14 arises from Order 52 rule 1, which provides that, ‘where by these rules any application is authorised to be made to the Court or a Judge such application, if made to a Divisional Court or to a Judge in Court, shall be made by motion’. It might seem, at first sight, from the terms of that rule that the ‘application’ and ‘motion’ were one. But it is not necessary so to decide. Order 52, rule 1, does not say that for all purposes the words ‘application’ and motion’ shall be identical, and mean the same thing. The ‘application’ may be made by motion’, and yet be complete enough within Order 64, rule 14, and a sufficient ‘complaint’ within the meaning of the cases on the old Act for the purpose of launching a motion to set aside the award. I think that the two sections, although not easy to reconcile may perhaps be reconciled in that way, viz., by deciding that the step had been taken before the last day of the sitting which is the first step which can be reasonably called an ‘application’ to set aside the award I think, therefore, no extension of time was necessary.”

12. Now in this case it was open, no doubt, to the defendant to apply direct to the Court for a rule nisi calling upon the plaintiff to show cause why the relief prayed for should not be given under Section 10-A of the Rent Act. But the usual procedure, where a party wishes to obtain a relief of an interlocutory nature, is by motion and necessarily the first step which has to be taken is to file a notice of motion in Court, and following the decisions in the above-mentioned case that may reasonably be called ‘an application’. There is no reason, therefore, why the filing of the notice of motion in this case should not be called ‘the application’ which the applicant desired to make. Apart ??? that ??? may mention that, on the facts ??? this particular case, the ??? a are all in favour of the defendant. The plaintiff put off the hearing the motion from time to time, did not even serve his affidavit opposition until after the ??? limitation had expired. The no motion was filed on August 25 than a month before the ??? limitation expired, and it was suggested in correspondence that time was of importance, or that it was necessary to appear in Court before September 30, 1922, if the application was not to be time-barred. However that may be, I am prepared to hold that when an application is to be made to the Court, it commences to be made when a notice of motion is first filed in the proper office of the Court.

13. The appeal, therefore, succeeds, and the application must go back to the trial Court to be decided on the merits. I The appellant should get his costs of the appeal.

14. Costs in the lower Court to be costs in the application.

15. Appeal allowed.

V.V.K Venkapaiya v. Nazerally Tyabally Singaporevalla .

Structured Summary of the Provided Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Plaintiff's Arguments

Defendant's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

V.V.K Venkapaiya v. Nazerally Tyabally Singaporevalla .

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