Decided on October 18,1901



Benson, J - (1.) The first ground of second appeal taken, before us is that the Subordinate Judge ought not to have admitted the appeal to him under Section 5 of the Limitation Act.
(2.) In 1893 the plaintiff was dismissed by the Zemindar (1 defendant) from his office of Karnam in his Zemindari. In 1894 he endeavoured to establish his right to the office before the Deputy Collector and the Collector, but he was referred by them to the Civil Courts. He accordingly filed the present suit for a declaration fend for recovery of the office and of the emoluments of the office before the District Munsif who dismissed the suit on 29 January 1898 on the ground that Section 3 of Madras Act II of 1894 ousted his jurisdiction. The plaintiff applied for copy of judgment and decree on the same day, and copies were delivered to him on 18 February. Agreeably to Act II of 1894, on which the District Munsif relied, the plaintiff moved the Deputy Collector on 5 March 1398, and his petition was rejected on 13th June. The plaintiff got copy of that order on 14 July and appealed to the Collector on 25th July. The Collector rejected the appeal on 25 November. He obtained copy of the Collector's order on 7 December and the return of records on 28 December. These dates are not disputed. The plaintiff presented this appeal to the District Court on 4 January 1899. After stating the facts as above, the Subordinate Judge expressed his belief that the proceedings taken by the plaintiff before the Deputy Collector and Collector were taken bona fide, and that his failure to appeal against the District Munsif's order within the time allowed by law was in consequence of his pursuing the remedy pointed out by the District Munsif as the proper remedy. The Subordinate Judge found that under the circumstances there was sufficient cause shown for admitting the appeal, and the first question for our decision is whether we ought in second appeal to set aside that finding and dismiss the plaintiff's appeal to the Subordinate Judge. I do not think that we ought. It will be seen that the case is a somewhat peculiar one. The Revenue Courts had referred the plaintiff to the Civil Courts and when plaintiff sued in the Civil Court, the District Munsif declined jurisdiction. In this the District Munsif was wrong, as, point ad out by the Subordinate Judge. However, the plaintiff, acting on the ruling of the District Munsif, again applied to the Revenue Courts and on the 25 November 1898, the Collector referred the plaintiff again to the Civil Court. The plaintiff obtained a copy of the Collector's order on the 7 December, and filed his appeal against the District Munsif's order in less than a month after that date notwithstanding the intervention of the Christmas holidays.
(3.) This Court has always shown an inclination to construe Section 5 liberally. The High Court of Bombay Sitaram Paraji V/s. Nimbavalad Harishat I.L.R., 12B. 320), has no doubt held that a mistake of law is not a "sufficient cause" within the meaning of Section 5 and Mahmood, J. concurred in that opinion in the case reported in Bechi V/s. Ahsan-Ullah Khan I.L.R., 12 A., 461, but this Court (following a Calcutta case, Euro Chunder Roy V/s. Surnamoyi I.L.R., 13 C., 266) has expressly held that, under certain circumstances, a mistake of law may be sufficient and that "the true rule is, whether under the special circumstances of each case, the appellant acted under an honest though mistaken, belief formed with due care and attention. Section 14 of the Limitation Act indicates that the Legislature intended to show indulgence to a party acting bona fide under a mistake". (Krishna V/s. Chathappan I.L.R., 13 M., 269). It is, I think, clear that up to the 25 November the plaintiff was pursuing the remedy indicated to him by the District Munsif with diligence and bona fides. It is, however, contended that after the Collector's order of the 25 November, the plaintiff ought at once to have filed his appeal against the decree of the District Munsif, and that there was no need for him to get a copy of the Collector's order of the return of the records from the Collector before doing so. If the appellant had been appealing against the order of the Collector, he would have been entitled, as of strict right under Section 12 of the Act, to deduct the time requisite for obtaining a copy of that order. He was not, however, appealing against that order, and it was therefore not necessary for him to get a copy of that order, but considering the conflict between the various authorities and the real difficulty surrounding the question, it seems to me that it was a natural and reasonable thing for the plaintiff to arm himself with these papers before seeking further legal advice and filing his appeal. It must be observed that there is a wide distinction between the law of limitation in respect of suits and in respect of appeals. In the case of the former, the rules are rigid and are laid down with exactness, nothing being left to the discretion of the Court. But in the case of appeals, Section 5 gives the Court a discretion to admit the appeal after the prescribed time if the appellant." satisfies the Court that he had sufficient cause for not presenting the appeal" within the prescribed period. "Sufficient cause" is evidently something more than "legally sufficient" or "sufficient according to the rules laid down in the law of limitation" for if any case fell within these rules it would be governed thereby as in the case of suits, and there would be no scope for the application of Section 5. "Sufficient cause" seems to mean not only those circumstances (such as the Courts being closed, or time being spent in obtaining copies, or the party being a minor or insane) which the law expressly recognizes as extending the time but also such circumstances as are not expressly recognized but which may appear to the Court to be reasonable, looking to all the facts of the case. In the case already referred to (I.L.R. 13 M., .269) the late Chief Justice and Muthusami Iyer, J. construed the section in these words: "We think that Section 5 gives the Courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood ; the words "sufficient cause" receiving a liberal construction so as to advance substantial justice when no neligence nor inaction nor want of bona-fides is imputed to the appellant." I do not think that in this case negligence or inaction or want of bona fides can fairly be imputed to the appellant, and substantial justice undoubtedly requires that the District Munsif's order should be reversed. Moreover, this matter comes before us in second appeal and in my judgment, we ought not to set aside the decision of the Court below in a matter within its discretion, unless it has failed to exercise any discretion at all, or has exercised it in a manner that is clearly wrong. This was well laid down by Mahmood J., in the case reported in Bechi v. Ahsan-Ullah Khan I.L.R., 12 A., 485, and his judgment was concurred in by the Full Bench. Dealing with the very question now before us as to Section 5 he said: "This, then, is the exact scope of the rule laid down by the learned Chief Justice in that case; it does not repudiate the jurisdiction of the second appellate Court to interfere, but points out that, when discretion has been actually exercised, it must not, upon light grounds and in the absence of strong reasons, be disturbed in appeal. In the principle thus expressed I fully concur, because, in matters of this kind, as indeed in matters of conclusions on the weight of evidence, the appellate Court should always act cautiously antic not disturb findings of the lower Court, unless it is absolutely satisfied that the conclusions at which the lower Court arrived were erroneous".;

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