Shahi v Krishna Stores (C.A. 26/1934.) [1935] EACA 19 (1 January 1935)

## COURT OF APPEAL FOR EASTERN AFRICA.

## Before ABRAHAMS, C. J. (Tanganyika), LAW, C. J. (Zanizbar), and WEBB, J. (Kenya).

#### B. D. SHAHI, Appellant (Original Respondent)

# THE KRISHNA STORES, Respondents (Original Appellants). C. A. $26/1934$ .

### Appeals from decree of Subordinate Court-Section 65 Civil Procedure Code-Time for appealing-Limitation.

The Krishna Stores (Appellants) sued B. D. Shahi (Respondent) in the Court of the First Class Magistrate at Nyeri, Kenya, for Sh. 60 for rent due. The Magistrate dismissed the suit with costs. The Krishna Stores appealed to the Supreme Court of Kenya from this decision. The following is an extract from the judgment of the Supreme Court which sets forth the principal points as to limitation argued in Supreme Court. "A preliminary objection in law has been taken by the respondent, namely, that the appeal is out of time. The date of the original Judgment is 18th April, 1934; the date of the Memorandum of Appeal is 17th May, 1934. When this Memorandum of Appeal was filed no certified copy of the Decree was filed with it as required by Order 39, Rule 1. In fact, the certified copy which should have accompanied the Memorandum of Appeal was not filed until the 19th June, 1934. It is settled law that an appeal is not in fact filed until both Memorandum of Appeal and certified copy of the Decree are in. I will only refer to the case of Qasim Ali Khan v. Bhagwanta Kunwar, 40 Allahabad p. 12. At first sight it would therefore appear that the documents necessary to constitute an appeal not having been completed until the 19th June the appeal would be out of time. Under section 12 of the Indian Limitation Act it is prescribed that in computing the period of limitation the time requisite for obtaining a copy of the Decree shall be excluded: this extension of time begins to run when an application for a copy has been made and determines when the copy of the Decree is ready for delivery. In this suit the application for a copy of the Decree is dated 17th May, 1934, i.e. within the statutory period of thirty days. In my opinion time did not run against the appellants from the 17th May, 1934, to the date on which the certified copy of the Decree was received by the Registrar of the Supreme Court, namely 19th June, 1934. It is not possible from the record to ascertain if this certified copy was filed on the 19th June, but it seems probably that it was, and enquiries I have made from the Registrar strengthen this conviction. The mere fact that the appellants filed the Memorandum of Appeal on one day and the

certified copy of the Decree on a subsequent date does not, I consider, invalidate the appeal, provided the complete papers were received within thirty days. In my opinion the appeal was actually complete and filed on the thirtieth day and was therefore not time barred."

The Judge then dealt with the facts in issue and allowed the appeal. From the judgment of the Supreme Court the appellant brought the present appeal on the ground *inter alia* that the first appeal was not filed within the period specified in the Civil Procedure Ordinance (section 65).

Held (15-2-35).--That section 65 (2) of the Civil Procedure Ordinance means that every appeal from a Subordinate Court to the Supreme Court must be filed within thirty days from the date of the decree or order appealed against and if any provision of the Indian Limitation Act as applied to the Colony is in conflict with this provision, this provision shall prevail.

Semble: That an application in writing for a copy of a decree is made when received and not when posted.

Hogan (Trivedi with him) for Appellants.

Modera for Respondent.

$Moderal$ — The Judge ascertained from the record is time-barred by section 65 C. P. C. If not, there is no evidence that provisions of section 12 of the Indian Limitation Act had been complied with. Section $65$ (2) is clear—after thirty days there is no right of appeal however long it may have taken to obtain the copies requisite for filing.

Modera in reply.-The Judge ascertained from the record that the appeal was in time and his finding is therefore not appealable. Before the amendment of section 65 (2) of the Civil Procedure Code the time for appeal was laid down in the Schedule to the Limitation Act. Section $65$ (2) deals with the time for filing the appeal—not to computation of time.

ABRAHAMS, C. J.—This is an appeal from the Judgment of Mr. Acting Justice Gamble who allowed an appeal from the Judgment of the First Class Magistrate sitting at North Nyeri.

The parties in this case had quarrelled about a matter of Sh. 20 due, the plaintiff said, in respect of rent owing by the defendant.

These proceedings have probably cost over £100, and as we propose to allow the appeal on the question of limitation, any decision that we might come to on the merits of the plaintiff's cause would be obiter only, and therefore we do not propose to give one. Whether this is a satisfactory termination or not to this desperate litigation is a matter for the litigants themselves. $\frac{1}{2}$

It is submitted for the appellant that the case for the respondent ought not to have been entertained in the Court below as he had entered his appeal out of time. It was shown that from the date on which Judgment was given to the date when the appeal was filed sixty-two days had elapsed, and it was argued that by section 65 (2) of the Civil Procedure Ordinance the appeal was thirty-two days out of time. This enactment runs as follows: "Notwithstanding anything contained in the Indian Limitation Act, 1877, as applied to the Colony, every appeal from a Subordinate Court to the Supreme Court shall be filed within thirty days from the date of the decree or order appealed against."

It was contended by the respondent that on a proper construction of this sub-section, section 12 of the Limitation Act modified this provision of the law and that the time taken for the preparation of the Judgment should be excluded. Nevertheless, the respondent has to account for two days in excess of the time allowed if his argument is to prevail. He advances another argument which is that these two days were occupied in the transmission of his application for a copy of the Decree from Nairobi to Nyeri, and he contends thereby that the application was made when it was posted. We need waste no time in saying that that proposition is manifestly untenable: it would lead to numerous excuses and complications if it were not to be held that in all reason no application could be said to be made until it actually reaches the proper authority.

On this ground alone we are justified in allowing the appeal, but as it appears that leave to appeal was given by this Court on a very important ground that it involves the proper construction of section $65$ (2) of the Civil Procedure Ordinance, it is necessary that we should deal with that question also.

In my view, what section 65 (2) of the Civil Procedure Ordinance means is this, that every appeal from a Subordinate Court to the Supreme Court must be filed within thirty days from the date of the decree or order appealed against, and if any provision of the Indian Limitation Act as applied to the Colony is in conflict with this provision of the Civil Procedure Ordinance, this provision shall prevail.

Now what does "in conflict" signify in this connection? Prima facie it seems to me to mean some provision of the Indian Limitation Act which purports fully to contradict or else to modify this provision of the Civil Procedure Ordinance: where, for example, in the Schedule to the Limitation Act it is stated that an appeal to the High Court in India shall be preferred within ninety days of the Judgment that provision clearly contradicts the provision for thirty days as prescribed by the Civil Procedure Ordinance. Counsel for the respondent not only admits this is so, but contends that that is as far as section $65$ (2) actually

goes, and that section 12 of the Limitation Act was not intended to be ousted. The material portion of that section reads as follows: "In computing the period of limitation prescribed for an appeal . . . the time requisite for obtaining a copy of the decree ... appealed against... shall be excluded". Counsel says that being merely the method of computing the period of time and not prescribing the period of time it ought not to be ousted.

Now the words "notwithstanding anything contained" are undoubtedly very wide, and I can see no reason why, in the ordinary way of interpretation, they should be narrowed so as to include some conflicting provisions and not others. What did the Legislature intend? It seems to me that they intended to get rid of those provisions of the Indian Limitation Act which referred to limitation and to prescribe by local legislation all the conditions relating to limitation of appeals. I am strengthened in this opinion by the method which the Legislature has adopted to carry out whatever its intention was. Suppose no reference at all had been made to the Indian Limitation Act in section 65 (2) of the Civil Procedure Ordinance what would have been the effect? It would immediately have brought the provisions of section $65$ (2) face to face with those provisions of the Indian Limitation Act which are in conflict with it by purporting to contradict it or to modify it.

Now so far as the contradictory provisions of the Indian $I_{\text{initial}}$ Lamitation Act are concerned 1 have r it the slightest doubt that the Court would have no hesitation in saying that they must perforce be ousted by the provisions of a Local Ordinance of later enactment. Are we then to suppose that the Kenya Legislature in enacting the clause relating to the Indian Limitation Act merely did so out of an abundance of caution because it thought that there might be some doubts as to whether by implication the contradictory provisions of the Indian Limitation Act had been ousted, and by thereby endeavouring to settle one doubt creating another. We must certainly not presume that the Ligislature would do anything so manifestly absurd and say thereby: "We will leave it to the Courts to say what we actually do mean". And I am by no means satisfied that in the same way the provisions of section 12 of the Indian Limitation Act would not be excluded. If that is so, it would appear that the Legislature has chosen a very peculiar method of preserving section 12 while endeavouring to exclude certain other provisions of the Limitation Act. If it had been intended to exclude only the definitely contradictory provisions of the Indian Limitation Act it would have been the simplest thing in the world to have said so either directly or by putting in a proviso preserving section 12. Of course, it may be that the Legislature only intended to get rid of the definitely contradictory provisions of the Indian Limitation Act and completely forgot all about section 12. If that is so, then they have thrown away the baby with

the bath-water; but we are not to suppose that the Legislature overlooked anything, unless it manifestly appears from the wording of the enactment itself which we have to construe, and whatever inconvenience may be caused by the ousting of section 12 of the Limitation Act (as to which I do not think it necessary to express an opinion) I find myself compelled to say that the only proper construction to be placed on section $65$ (2) is that the Legislature intended to get rid of all provisions of the Indian Limitation Act which would contradict or modify the period of limitation prescribed in section $65$ (2).

I would therefore order that the appeal should be allowed with costs here and in the Court below and that the Judgment of the Magistrate should be restored.

LAW, C. J.—The first question for consideration is whether the appeal from the Decree of the First Class Magistrate's Court at North-Nyeri to the Supreme Court was filed within the period prescribed by law. Admittedly the period is thirty days. The judgment in question is dated 18th April, 1934. The Memorandum of Appeal, together with a certified copy of the judgment, was filed in the Supreme Court on the 17th May, but a certified copy of the relevant Decree was not filed before the 19th June. 1934, when, it is agreed, the Appeal complied with the requirements of Order 39 Rule 1 (1). From these facts it would appear that the appeal was filed out of time, unless a period of time can be excluded as provided by section 12 of Indian Limitation Act. 1877, an Act applied to Kenya. This section permits the time requisite for obtaining a copy of the Decree to be excluded when computing the thirty days. It is observed from a letter dated the 17th May, that the advocates for the present respondents applied on that date to the Nveri Court for a certified copy of the Decree. This letter, from the official rubber stamp thereon, appears to have been received by the Nyeri Court on the 21st May. There is no other evidence that it was received there before that date. Respondents' learned Counsel has argued that the application for the certified copy must be taken to have been made on the 17th May when the letter was written and, it is assumed, posted. To my mind, such a contention cannot be entertained, because no application can be considered to have been made until it has been received. The preparation and despatch of an application are preliminary steps. Were this not so, there would be no limit to excuses for delay in presenting such an application. It is obvious, therefore, that the thirty-days' period had expired before the 21st May, and it does not matter what was the fate of the application from that date till the 19th June. For these reasons, in my opinion, it is clear that the appeal was not filed within time.

$\pmb{\mathfrak{l}}$

A second question for consideration is the effect of section 65 (2) Civil Procedure Code, which provides that "notwithstanding anything contained in the Indian Limitation Act, 1877, as applied to the Colony, every appeal from a Subordinate Court shall be filed within thirty days from the date of the Decree or Order appealed against". On behalf of the Respondents it is urged that this language can only be read to refer to the Second Schedule to the Limitation Act, and consequently must only be applied to the period of limitation, namely the thirty days, and not to any other portion of that Act such, for example, as section 12. In other words, it is argued that only that portion of the Limitation Act which refers to periods of limitation is affected by section 65 (2) and that the rest of that Act remains effective. This question is determinable only by the construction of the language of section $65$ (2) and it is assumed that the Legislature means what it says when it employs ordinary English words. I consider that the words "notwithstanding anything contained" to mean "in spite of anything contained", and that they are absolute in their meaning and not restricted to any particular portion of the Limitation Act. In effect, the words quoted abrogate that Act in its entirety. This being so, section 12 of the Limitation Act cannot be considered, and consequently section $65$ (2) does not permit any other period to be computed in determining whether or not thirty days had expired when the Appeal was-Applying these remarks to the present case, as no appeal $filed$ . had been filed within thirty days from the 18th April the appeal filed thereafter was out of time. For these reasons also I am of opinion that the appeal should not have been entertained by the Supreme Court. Accordingly, I would allow the appeal to this Court, with costs in this Court and in the Supreme Court, and restore the judgment in favour of the present appellant which he had obtained in the Nyeri Court.

WEBB, J.-I have had the advantage of reading the judgment of the Chief Justice of Tanganyika with which I agree and have nothing to add.