Decided on June 19,1950

Karora Singh Appellant
Kartar Singh And Ors. Respondents


Harnam Singh, J. - (1.) MR . Amar Nath Grover urges a preliminary objection that the appeal is barred by time.
(2.) THE facts so far as material, are that on 3.5.1947, Additional District Judge, Ferozepore, allowing Civil Appeal No. 67/42 of 1946, passed a decree to the effect that the sale in question shall be null and void as against the reversioners of Sucha Singh alienor except to the extent of Rs. 5,578. On 5 -5 -1947, Karora Singh Defendant made an application for a copy each of the judgment and decree under appeal. The copies were certified under Section 78 of Act I [l] of 1872 on 14 -5 -1947. In computing the period of limitation for filing the appeal the period between 5 -5 -1947 and 14 -5 -1947, has to be excluded. The appeal was, however, filed in this Court on 29 -6 -1948. Karora Singh Appellant filed an affidavit in this Court on 29 -6 -1948, explaining the delay that had occurred in the filing of the appeal. He affirms that on 12 -7 -1947, he engaged Mr. Dev Raj Sawhney Barrister at Law, Lahore, for filing civil appeal, Karora Singh v. Kartar Singh, and that on that day he gave to Mr. Sawhney the necessary papers and the Court -fee for the appeal. On 15 -8 -1947, Punjab was divided under Section 4, Indian Independence Act, 1947 and it appears from the affidavit that Karora Singh Appellant made anxious enquiries about his appeal from Mr. Sawhney, but receiving no reply from the Counsel or his clerk, Karora Singh sent Teja Singh to Simla to enquire about the appeal Going back from Simla, Teja Singh told Karora Singh Appellant on 20 -6 -1948, that the appeal had not been filed. Leaving his village for Simla, Karora Singh reached Simla on 27 -6 -1948, and filed the appeal in this Court on 29 -6 -1948.
(3.) FOR the decision of the preliminary objection it is not necessary for me to investigate as to whether Karora Singh was prevented by sufficient cause from not filing the appeal between 1 -8 -1947, when the period prescribed for filing the appeal expired and 27 -6 -1948, when he reached Simla for filing the appeal for I find that there is no justification for not filing the appeal on 28.6.1948. An examination of the diary of 1948 shows that Karora Singh reached Simla on Sunday, 27 -6 -1948. The appeal could have been filed by him in this Court on 28 -6 -1948. This was not done. The fact that he reached Simla on 27th June, is mentioned in para 9 of the affidavit of Karora Singh, Then the affidavit put in support of the application under Section 5, Limitation Act, shows that the affidavit was sworn by Karora Singh in this Court on 28 -6 1948. Indeed, the record shows that Karora Singh purchased stamp papers for the appeal on 28 -6 -1948. There is, however, not a syllable in the affidavit of Karora Singh giving any explanation for his not filing the appeal on 28 -6 -1948. Indeed the circumstances disclosed by the record show that the appeal was not filed on 28 6 -1948, by reason of sheer negligence.;

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