Rajendra Nath Mittal, J. - (1.) THE Petitioners have filed an application under Sections 5 and 14 of the Limitation Act, 1963 (hereinafter referred to as 'the Act') for condonation of delay in filing the appeal to this Court.
(2.) BRIEFLY the facts are that the Plaintiffs Respondents instituted a suit for partition of the property in dispute, which was decreed on October 11, 1977. The Defendants -Appellants applied for a certified judgment and decree on October 12, 1977, which was prepared on December 30, 1977 and was delivered to them on January 5, 1978. It is alleged that under the advice of the counsel the appeal was filed by them against the preliminary decree in the Court of District Judge, Amritsar, on January 9, 1978. The appeal was within limitation on that day and was duly entertained. The District Judge, Amritsar, assigned the appeal to the Additional District Judge, Amritsar, for disposal. It came up for hearing before him on February 29, 1978. At that time, it is further stated, it was pointed out by the learned Additional District Judge that the jurisdiction value of the suit was Rs. 30,000/ -and therefore the appeal should have been filed in the High Court. The appeal was, consequently, returned to the appellants for presentation to the proper Court. It is is then stated that the Appellants without losing any time filed an appeal in this Court on March 5, 1979. In the aforesaid circumstances they have prayed that the period January 9, 1978 to February 26, 1979, during which the appeal remained pending in the Court of the Additional District Judge, Amritsar, be excluded for the purpose of determining the limitation and the delay in filing the appeal in this Court he condoned. Smt. Raminder Kaur one of the Petitioners, filed an additional affidavit on May 11, 1979, stating that on February 26, 1979, when the memorandum of appeal along with other documents was returned for presentation to the proper Court, the copy of the order of the Additional District Judge ordering return of the memorandum of appeal was not supplied to her. Her counsel Mr. Darshan Singh Arora, Advocate, prepared a copy certified it to be a true copy, gave that to her and she came to Chandigarh along with the aforesaid papers and engaged Mr. Dharam Vir Sehgal as counsel for filing the appeal. She handed over all the papers to him for doing the needful. She was told by her counsel Mr. Dharam Vir Sehgal that the true copy of the order dated February 26, 1979 of the Additional District Judge was not sufficient and that the deponent should obtain a certified copy there of for filing the appeal. On the advice of her counsel she went back to Amritsar for obtaining the certified copy of the order. She contacted Mr. Darshan Singh, Advocate, on March 1, 1979, who moved an application before the Additional District Judge for supply of a certified copy of the order dated February 26, 1979. The copy was, however, not available on March 2 and March 3, 1979. Consequently, she again came to Chandigarh on March 4, 1979 and explained the position to Mr. Dharam Vir Seghal, who field an appeal in this Court on March 5, 1979, along with an application for dispensing with the requirement of filing the certified copy of the order dated February 26, 1979. She further states that she again went to Amritsar on March 5, 1979 and contacted Mr. Darshan Singh Arora, Advocate, who was able to procure the certified copy of the order dated February 26, 1979 from the Court of the Additional District Judge, Amritsar, on March 7, 1979, which was sent by her to Mr. Dharm Vir Sehgal by post, who later on filed the said attested copy of the order in this Court.
(3.) THE Petitioners also filed an affidavit dated April 29, 1980, of Mr. Darshan Singh, Advocate. He stated therein that he was the counsel for the Defendants in the suit for partition filed by Surinder Singh etc. against the Petitioners, where in preliminary decree was passed. On the plaint a Court -fee of Rs. 19.50 was fixed. In view of the aforesaid fact, inadvertently he advised the Defendants -Appellants that the appeal was maintainable before the District Judge. Amritsar. The fact that jurisdiction value mentioned in the suit was Rs. 30,000/ - escaped his notice. He further stated that the advise was given by him to the Petitioners bona fide.;