BIJUBOO Vs. RAJABALLI TAYABALLI
HIGH COURT OF BOMBAY
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(1.) This is an application to excuse the delay in filing an appeal, The original suit, which was filed by the applicant as plaintiff, was decided by the Joint First Class Subordinate Judge on January 23, 1928. From that decree, it is said, under advice from the local pleaders at Ahmedabad, an appeal No. 106 of 1928 was filed within time in the Court of the District Judge of that place. The appeal appears to have been admitted and an interim injunction was granted against the defendants, but a preliminary point was raised on behalf of the opponents, and it was held by the learned District Judge, that the appeal did not lie to his Court, but to the High Court, and that he had no jurisdiction to hear it. This decision was given on July 20, 1928, and the memorandum of appeal was returned to the applicant on July 28, 1928. It was presented to this Court on July 30, 1928. The appeal in question is obviously out of time, and we have been asked to excuse the delay under Section 5 of the Indian Limitation Act on the ground of sufficient cause.
(2.) The only reason given by the applicant in the application is that the presentation of the appeal to the District Court was under advice from the local pleaders at Ahmedabad. This is stated in paragraph 2 of the application. On the other hand, the opponents have urged that no affidavit, of any pleader or pleaders said to have given any such advice, has been filed by the applicant, and that the applicant herself in her plaint in the original suit specifically valued the claim for jurisdiction as well as for pleaders fee at Rs. 6,000 and that therefore, her suit was rightly treated and registered as a special jurisdiction one throughout! that the petitioner s pleader in the suit and in the appeal to the District Court was the same gentleman, and that there was therefore no likelihood of any reasonable or bona fide belief that the suit was not a special jurisdiction one and that the appeal lay to the District Court. It has also been urged that the point as to where the appeal lay did not involve any complicated question of law or fact, on which there may be difference of opinion, or mistake of law, that the petitioner s own plaint and the proceedings in the suit throughout made it clear that her legal adviser must have known that it was a special jurisdiction suit and that if, however in spite of this, the petitioner was advised by her pleader that the appeal should be filed in the District Court, such advice was the result of negligence and not of any bona fide and considered belief, and that the opponents should not be made to suffer for it.
(3.) The main difficulty in the applicant s position is that no reasonable explanation of what happened has been furnished to us in the course of the hearing of the application. It does not seem to be a matter in which there could be a mistake, as is alleged by the opponents and not denied by the applicant s learned pleader. The pleader employed by the applicant in the lower Courts was the same in each of them, and his action is unintelligible for the suit having been tried as a special jurisdiction one throughout, he must have been well aware that the appeal from that decision was not to the District Court. Mr. Mehta has suggested that, in the nature of the suit, it was within the plaintiff s power to value it as she dose and that even in the original Court it could have been valued as, in fact, the appeal was valued ultimately in the District Court. But this argument seems to me to be beside the point, for as I have already said, the suit was throughout treated as a special jurisdiction one and what has actually happened could only have been done intentionally, for what reason it is not now possible to say, or if it was unintentional, it must have been the result of very great carelessness in the Court below.;
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