HARADHAN CHATTOPADHAYA Vs. PRANKRISHNA KUMAR

JUDGEMENT

(1.) THIS is a Rule calling upon the plaintiff to show cause why the defendant's appeal to this Court should not be registered although out of time. The plaintiff sued to eject the defendant from certain land. He alleged that the defendant was a trespasser, but, in order to guard against a case of tenancy being set up, he had in fact given the defendant due notice to quit. The defendant pleaded that he was the plaintiff's tenant by purchase from a former tenant. He also raised the wholly inconsistent plea that he had been in possession as a trespasser for more than 12 years and that he had thus acquired a title by adverse possession. The lower appellate Court acted upon the first plea of the defendant that he was a tenant. It found that he had been duly served with a notice to quit and accordingly passed a decree in favour of the plaintiff. The learned Subordinate Judge very properly declined to consider the question of limitation, which did not on his findings arise.

(2.) THE decree of the lower appellate Court was passed on 10 July 1908. On 11 August 1908 the defendant applied for a review on the ground that he was entitled to a finding on the question of limitation. THE application for review was not disposed of by the lower appellate Court until 6 April 1909, when it was refused. THE defendant then presented this appeal on 13 May 1909. It was presented more than 90 days from the date of the lower Court's decree but would be within time if the period consumed in the review proceedings were excluded. THE question is whether the fact that the defendant was applying for a review " can be regarded as sufficient cause within the meaning of Section 5 of the Limitation Act for his not presenting the appeal within the prescribed period. We have been referred to the various decisions on this question. THE views taken by different Judges have not been entirely unanimous. All the decisions were carefully reviewed by Mookerjee, J. in the case of Gobinda Lall Das V/s. Shibadas Chatterjee 3 C.L.J. 545 It is not necessary to go over them again. On one point at least there is no doubt, namely, that the application for review must be a bona fide one. Further, what is or is not sufficient cause, being a question of discretion, must depend upon the circumstances of each particular case. In this case we are of opinion that the application for review can have been made with no other object than that of gaining time, and, therefore, was not a bona fide one. THE question which the lower appellate Court was asked to reconsider and expressly determine obviously did not arise, and the applicant must have known that it did not arise. It was open to him to appeal against the decree as passed, which is what he now desires to do. As to the merits of such an appeal we do not express any opinion. THE application for review was made without any good reason, and it cannot, we think, be regarded as having been made bona fide merely because it was admitted in the first instance. THE time occupied by that proceeding cannot be taken into account and the appeal is, therefore, out of time. This Rule is, accordingly discharged with costs, 2 gold mohurs.