GHULAM MOHAMMAD BATO AND ORS. Vs. TAJA BIBI AND ORS.

JUDGEMENT

(1.) This application under section 14 of the Limitation Act, hereinafter referred to as the Act, has been filed by the appellants for exclusion of the time which they spent in the prosecution of appeal before the learned Additional District Judge, Srinagar, and arises in the following circumstances of the case.

(2.) The respondents filed a suit for ejectment and recovery of rent in respect of a shop in the Court of the learned Sub-Judge (Judge of Small Causes Court), Srinagar, which came to be decreed in their favour on 21-9-1987. The appellants filed an appeal against the judgment and decree passed by the learned Judge Small Causes which came to be transferred to the learned Addl. District Judge by the learned District Judge on 3-10-1987. The appeal got adjourned for a few hearings and on 9-4-1988 when it came up for hearing, the respondents counsel raised a preliminary objection to its maintainability on 30-5-1988 the appellants filed an application for permitting them to deposit the decretal rent amount of Rs. 3,825.00 and confining their appeal only to decree for ejectment. This was done to obviate the difficulty of higher valuation of the appeal fixed at Rs. 6,375.00 and to bring it within die pecuniary jurisdiction of the learned Addl. District Judge. An objection came to be raised that the said court having no jurisdiction to hear the appeal, it had no power to grant any relief to the appellants for relinquishment of part of the claim. After hearing the learned counsel for the parties, the learned Addl. District Judge returned the appeal to the appellants on 9-6-1988 for its presentation before the appropriate form, which they filed in the High Court on that very day alongwith the instant application for exclusion of the time in presentation of the same, which they had spent in the said court.

(3.) It is stated in the application that the appellant have been prosecuting the appeal in the court of the learned Addl. District Judge in good faith and with due diligence, and therefore, the period spent by them in the said court deserves to be excluded as envisaged under Sec. 14 of the Limitation Act. After exclusion of the said period, the appeal was within time. Two affidavits in support of the application have been filed by the two counsel who were prosecuting the appeal in the Court of the learned Additional District Judge. In the affidavit filed by Mr. M.A. Riaz, it is stated that he filed the appeal in the Court of Additional District Judge under a bona fide belief that he had jurisdiction to hear the same, that he filed an application also before the learned Additional District Judge for withdrawing a part of the claim in the appeal, so as to given him jurisdiction to hear the same that there was no mala fide intention on his part to present the same in the said Court. In the affidavit filed by Mr. Mohammad Ashraf, it is stated that he too appeared for the appellants in the court of the learned Additional District Judge; that the appeal was filed in the said court under a bona fide belief that he had jurisdiction to hear it; that when an objection was raised by the other side to its maintainability, he inquired from Mr. Riaz as to how he had filed it in the said court; that Mr. Riaz told him that the Additional District Judge could hear the appeal and had jurisdiction to hear the appeals upto the value of Rs. 10,000.00; that he made an enquiry from the Registry of the High Court as to whether the appellate jurisdiction of the District Court has even been raised that he was told there that the matter was under process; that on coming to know that the District Judge had no power to bear appeal of the value of Rs. 10,000.00 he filed an application for relinquishment of part of the claim to make it maintainable in the said Court; that the said application was made by him in the good faith that from the date the appeal was filed in the said court he prosecuted it sometimes with Mr. Riaz and sometimes without him but always in good faith; that both of them were under the impression that the Addl. District Judge had jurisdiction to hear appeals upto the value of Rs. 10,000.00 till it transpired otherwise.