MUNSHI RAM Vs. RAGHUBIR CHAND
HIGH COURT OF HIMACHAL PRADESH
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CHOWDHRY, J. -
(1.) THIS is a defendants' first appeal arising out of a suit for recovery of Rs. 8,838/8/3 as price of potatoes, which was decreed by the Senior Subordinate Judge of Mahasu on 2 5 1951 for Rs. 4,496/5/ . Under paragraph 31 of the Himachal Pradesh (Courts) Order, 1948, the appeal being from a decree of a Subordinate Judge in a suit, of value exceeding Rs. 5,000/ , it should have been filed in this Court. And the 90 day period of limitation for such an appeal under Article 156 of the Limitation Act, after allowing for the twenty two days taken by the defendants appellants in obtaining the necessary copies, expired on 22 8 1953. The present appeal was, however, filed two days too late, i.e., on 24 8 1951. The preliminary question for determination before me at this stage is whether the appeal should be dismissed as time barred.
(2.) THERE is an application for condonation of delay on behalf of the defendants appellants under Sections 5 and 14 of the Limitation Act. In order to understand the plea taken in this application it is necessary to set forth certain facts. As already stated, the decree of the trial Court was passed on 2 5 1951. The defendants appellants applied for the necessary copies on 4 5 1951, and the same were ready and delivered on 25 5 1951. Allowing for these 22 days taken in obtaining the copies, the period of appeal to the District Judge under Article 152 expired on 23 6 1951. Well within that period of limitation, i.e., on 19 6 1951, the defendants appellants filed an appeal, in that Court. An objection as to the maintainability of the appeal in that Court was taken on behalf of the plaintiff respondent. The objection, as already shown, was well founded, and it was allowed by the District Judge on 24 8 1.951. He ordered that the appeal be returned for presentation to the proper Court, and the same day the present appeal was filed in this Court. In the said application for condonation of delay it is alleged by the defendants appellants that it was on. account of the mistaken advice of their counsel that they filed the appeal in the wrong Court. That this was so is apparent from the fact that the appeal in the Court of the District Judge was presented by the appellants' counsel, Sri Amar Chand Sud.
Now Section 14 of the Limitation Act is not in terms applicable since it does not speak of an appeal, but exclusion of time of proceeding bona fide taken in Court without 'jurisdiction being claimed as the reason for condonation of delay, the principle of that section must apply for finding out whether there was sufficient cause for the delay. 'Rajendra Bahadur v. Rajeshwar Bali', AIR 1937 P C 278 at page 278.
(3.) SO far as the conduct of the defendants appellants themselves is concerned, I have no doubt whatsoever with regard to their good faith and due diligence. They applied for necessary copies two days after the decision of the trial Court. They then, filed the appeal, though in a wrong Court, long before the expiry of the period of limitation under Article 152, to say nothing of the longer period to which they were entitled under Article 156. They had engaged Sri Amar Chand Sud Advocate as their counsel in the trial Court, and it was he who presented the appeal first in the Court of the District Judge and then in this Court. Sri Amar Chand Sud is an Advocate of both this Court and the Punjab High Court, and he is an advocate of standing. It is difficult to conceive what more could be expected of the defendants appellants. So far as they themselves are concerned, therefore, the requirements of due diligence and good faith are fully satisfied.;
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