- (1.) JUDGEMENT This second appeal and Civil Revision No. 9 of 1967 arise out of a suit for partition filed by the plaintiff-appellant which was partly decreed and partly dismissed by the trial Court by its Order dated 30-9-1965. It is not necessary to give in detail the facts of this case, for the lower Appellate Court has not considered the merits or this case but has dismissed the appeal on the preliminary point of limitation. The necessary facts giving rise to the present appeal and the civil revision are as follows :-
(2.) THE plaintiff-appellant instituted a suit for partition at first in the Munsifs Court valuing it at Rs. 2,000. An objection was taken by the defendant about the valuation of the property and a commission was issued. The Commissioner found the valuation to be Rs. 18,220 with the result that the plaintiff having claimed half share in the property, the valuation of his share came to Rs. 9,110. The learned Munsif returned the plaint for presentation to the proper Court. The plaint was presented in the Court of the Civil Judge, Azamgarh, and the plaintiff valued the suit at Rs. 9,110. The suit proceeded and was partly decreed and partly dismissed. Thereafter, an application for copies of judgment and decree was filed on 7-10-1965. Copies were ready by the 1st of December, 1965. Thereafter the case of the plaintiff is that he was advised by the clerk of his counsel to go to the High Court to file the appeal. The clerk concerned got a letter from his counsel recommending his case to an Advocate of the High Court. The Mukhtarkhas of the appellant actually came to the High Court and got the memo of appeal prepared but when the appeal was going to be filed, the mistake was discovered by the Advocate at Allahabad that the appeal which was valued only at Rs.9,110 could be filed in the Court of the learned District Judge and not in the High Court as directed by the counsel practising in district Court. Consequently, the advocate at Allahabad made an endorsement on the letter of the counsel of the District Court to the effect that he should file the appeal in the Court of the District Judge. This endorsement was dated 14-1-1966. Thereupon the Mukhtarkhas came back to Azamgarh and presented the appeal on the 17th of January, 1966, with an application under Section 5 of the Limitation Act praying for the condonation of delay. In the application for the condonation of delay the facts, as stated above, were narrated and the same were supported by an affidavit. The learned District Judge accepted the case of the plaintiff that he was advised by the clerk of his counsel to go to the High Court for presenting the appeal within a period of 90 days and acting on his advice the Mukhtarkhas had gone to Allahabad, but he did not consider that this was a sufficient ground for the condonation of delay; as such the learned District Judge dismissed the application under Section 5 of the Limitation Act and also the appeal as time-barred.
(3.) THE plaintiff filed Civil Revision No.9 of 1967 against the order refusing to condone the delay and also filed Second Appeal No. 825 of 1967 against the dismissal of his appeal as time-barred. In my opinion, if the plaintiff had filed only the second appeal, the purpose would have been served. However, as a precautionary measure, when he has filed the second appeal as well as the revision, it should not prejudice his case.;