J.V. Gupta, J. - (1.) This appeal has been filed by the decree-holder against the order of the Additional District Judge, Karnal, dated 4th May, 1978 whereby his appeal against the order dismissing his execution application has been dismissed as time-barred.
(2.) Kishan Chand, appellant, got an order of ejectment passed against the tenant-respondents from the Court of Rent Controller, on 30 Dec., 1972. The order of the Rent Controller was maintained up to the High Court. Execution of the said order was sought when an objection petition was filed on behalf of the tenant-respondents, claiming that after the order of ejectment, new tenancy has been created by enhancing the rent. This objection petition was accepted by the executing Court on 15th September. 1975. Appeal against this order was filed in the Court of Additional District Judge. When the appeal came up for final hearing, an objection was taken by the tenant-respondents that the forum of appeal was the Court of the Senior Subordinate Judge, and, therefore, the appeal should have been filed in that Court. This objection prevailed with the Additional District Judge and be vide his order dated 15th Jan., 1976, directed the Memorandum of Appeal to be returned to the appellant for presentation to the competent Court, 22nd of Jan., 1976 was the date fixed to receive back the necessary documents. After the documents were returned on that date, on that very day the appeal was filed along with an application under section 5 rent with section 14 of the Limitation Act, before the Senior Subordinate Judge, with enhanced appellate powers. Meanwhile by an administrative order, the said appeal was transferred to the Court of Additional District Judge When the appeal came up for final hearing before him, an objection was taken on behalf of the tenant respondents that the appeal filed before the Senior Subordinate Judge was time-barred and there was no sufficient reason to condone the delay as prayed by the appellant. After hearing the learned counsel for the parties, the appellate Court came to the Conclusion that there is no sufficient cause for condonation of the delay caused in prosecuting the appeal in a wrong Court, and, consequently, dismissed the appeal as barred by time. Feeling aggrieved against this order, the decree-holder has come up in appeal to this Court.
(3.) The sole question to be decided in this appeal is whether there was a bona fide mistake on the part of the counsel for the appellant, who filed the appeal in the first instance in the Court of Additional District Judge, Karnal. In the application under section 5 and section 14 of the Indian Limitation Act, dated 15th Jan., 1976, in para 7 thereof. It has been stated, that the appellant and his counsel filed the said appeal with due diligence and bona fide and prosecuted the said appeal in good faith in those Courts. Earlier, in para 4 thereof, it has been averted. That my counsel consulted the commentaries of the said Act by Jugal Kishore Goenka in which it was laid down that the order passed in execution would be appealable under section 47 of the Code of Civil Procedure to the Court of District Judge and in other authority of our own High Court it was so held. Moreover, the appeals from the order of Rent Controller were used to he filed before the District and Sessions Judge. This fact also lead my counsel to believe that the appeal lay before District Judge. Another factor that the Court held rent @ Rs. 80./- p.m. also contributed to this belief." In reply thereto, it has been stated in para 7 that "para No 7 is wrong and hence denied. In view of the circumstances and judgment of the Honourable High Court, in fact the applicant was not diligent in choosing the forum. The ignorance of law and the negligence of the counsel or party is not sufficient ground for indulgence " As regards para 4 in reply, it has been stated that "para No. 4 is wrong and hence denied. The order of ejectment was being executed by Civil Court as decree and the forum for appeal is to be determined taking the same if the decree was passed by Civil Court in ejectment suit brought by landlord against tenant." On these averments the lower appellate Court took the view that it cannot be said to be a case of bona fide mistake, so as to constitute sufficient cause for condonation of the relay caused in prosecuting the appeal in a wrong Court.;