D.V. Sehgal, J. - (1.) THIS regular second appeal has been filed by the Union of India through the Ministry of Rehabilitation, New Delhi, against the judgment and decree of the learned Senior Sub Judge (with enhanced appellate powers), Karnal, whereby an appeal filed by it against the judgment and decree dated 22.4.1975 of Sub Judge Second Class, Karnal, decreeing a suit for declaration filed by Raghumandan and others, the Respondents herein, was dismissed on the ground that it was barred by time. Since, after hearing the learned Counsel for the parties, I am of the view that the appeal has wrongly been dismissed on the ground of limitation, it is not necessary to get down to brass tacks of the litigation between the parties.
(2.) IT is not disputed by the learned Counsel for the Respondents that the Appellants filed the appeal against the judgment and decree dated 22.4 1975 of the learned Sub Judge Second Class, Karnal, in the Court of the learned Second Class, Karnal, within the prescribed period of limitation. The Appellants also do not dispute the fact that keeping in view the suit the appeal ought to have been filed in the Court of the learned Senior Sub Judge with enhanced appellate powers, Karnal, and that it was wrongly filed in the Court of the learned District Judge. It is, however, contended by the learned Counsel for the Appellants that filing of the appeal in the Court of the learned District Judge was the result of a mistake and it was so done in good faith. The Appellants were prosecuting the appeal in that Court bona fide. The appeal was admitted by the learned District Judge and it was fixed for further hearing on 12.9.1975. It was on that date that it came to light that the jurisdiction for entertaining the appeal was with the learned Senior Sub Judge with enhanced appellate powers. The Appellants moved an application before the learned District Judge to transfer the appeal to the learned Senior sub Judge. However, he returned the appeal to the Appellants on 16.9.1975, for presentation to the proper Court and it was filed on the same date in the Court of the learned Senior Sub Judge with enhanced appellate powers. A request was also made for condonation of delay and for excluding the period the appeal remained pending in the Court of the learned District Judge. This request was, however, not accepted and the appeal was dismissed as barred by time by the learned Senior Sub Judge with enhanced appellate powers, Karnal. The learned Counsel for the Appellants has relied on Badlu and Anr. v. Shiv Charan, 1980 P. L. J. 214 and Hardayal v. Muni Lal, (1981) 83 P. L. R. 142, to contend that since the appeal was filed in the Court of the learned District Judge and was entertained by the said Court, the period from the date of filing the appeal till the date it was returned by the said Court for presentation to the proper Court ought to be excluded for computing the period of limitation for presenting the appeal before the learned Senior Sub Judge with enhanced appellate powers and if the aforesaid period is excluded the appeal was well within time. In Badlu's case (supra) the appeal, which ought to have been filed in the Court of the Senior Sub Judge was wrongly filed in the Court of the Additional District Judge and when it was returned for presentation to the proper Court and was refiled in the Court of the Senior Sub Judge a delay of 105 days had taken place. The Supreme Court held thus, - There could be no doubt that if the Appellants filed an appeal before the Additional District Judge due to mistake of law or fact resulting from an bona fide but mistaken advice given to them by their lawyer, this would be a good ground for condoning the delay. Moreover, it is well settled that if a litigant is pursuing a bona fide civil proceeding with due diligence and in good faith in any appeal or revision he is entitled to the exclusion of the time taken in such proceeding. The combined effect of Sections 5 and 14 of the Limitation Act would, therefore, undoubtedly entitle the Appellants to exclude the time taken by them while the appeal was pending before the Additional District Judge.
(3.) THE learned Counsel for the Respondents, on the other hand, relied on Uttam Chand v. Vishan Das Bhagwan Das : A. I. R. 1933 Lah. 568 and Brij Bhushan and Ors. v. Madan Mohan Lal, (1973) 75 P. L. R. 104, to contend that mistake of the course] is no justification for extending the period of limitation. I find no force in this contention. The case is fully covered by the Supreme Court judgment in Badlu's case (supra). The learned Senior Sub Judge fell in error in dismissing the appeal treating it as barred by time.;