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Lucy Vs. Francis Furtado and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal Nos. 541 and 542 of 1950-51
Judge
Reported inAIR1954Kant86; AIR1954Mys86; ILR1953KAR416
ActsLimitation Act, 1908 - Sections 5; Code of Civil Procedure (CPC), 1908 - Order 7, Rule 11
AppellantLucy
RespondentFrancis Furtado and anr.
Appellant AdvocateV. Krishnamurthy, Adv.
Respondent AdvocateR.V. Srinivasaiya, Adv.
Excerpt:
.....the ground that it is not in accordance with the order of the lower court, the question that arises would be whether the trial court has any jurisdiction to allow it at all, as its decree has been confirmed by the decree of the appellate court......swearing to what is not true. the learned subordinate judge has given a flimsy reason that the out-patient register has not been summoned. according to him the lady doctor admits that she usually enters in the out-patient's register the names of the out-patients. considering that the appellant had an abortion, it would not be strange if her name does not find a place in the register of the out-patients though the doctor might have attended on her in her house as in that state of her health, the appellant must necessarily have been confined to bed. if at all, she could have been an in-patient in the hospital, but that is nobody's case. even if she was an in-patient, her name could not have found a place in the outpatient register. on the other hand if the abortion took place in her house.....
Judgment:

1. These two appeals have been filed against the order of the learned subordinate Judge dismissing R. A. 55 and 56 of 50-51 on the file of his Court and refusing to condone the delay of a few days in filing these appeals.

2. The case of the appellant is that she Had an abortion and severe haemorrhage on 9-5-50 and was not able to move about till a day prior to 24-5-50 on which day these appeals were filed. The appeals ought to have been filed on 15-5-50 and the application was for condonation of delay of nine days under the circumstances referred to above. That the appellant had an abortion on 9-5-50 and that consequently she suffered from severe hemorrhage and was not able to move about for a fortnight is supported by the evidence of a respectable witness Mrs. Bhaghyamma Samuel Lady Assistant Surgeon at Jog. There is absolutely no reason suggested in her cross-examination to show that she is interested in swearing to what is not true. The learned Subordinate Judge has given a flimsy reason that the out-patient Register has not been summoned. According to him the lady Doctor admits that she usually enters in the out-patient's register the names of the out-patients. Considering that the appellant had an abortion, it would not be strange if her name does not find a place in the register of the out-patients though the doctor might have attended on her in her house as in that state of her health, the appellant must necessarily have been confined to bed. If at all, she could have been an in-patient in the hospital, but that is nobody's case. Even If she was an in-patient, her name could not have found a place in the outpatient register. On the other hand if the abortion took place in her house as sworn to by the lady doctor who attended on her, it cannot be said that the patient could have attended the hospital as an outpatient and it is unlikely that her name could have found a place in the out-patient register. In fact it is elicited in the cross-examination of the witness that, the appellant was not able to go to the Hospital. In these circumstances, it is difficult to understand why the delay was not condoned. It is no doubt true that it is in the discretion of the Courts below to refuse to condone the delay and that discretion should not be lightly interfered with by appellate Courts. I am, however, inclined to think that no better case for condoning the delay can be found than in a case like this where the appellant was prevented from filing the appeals on account of her having had an abortion and consequent haemorrhage and the delay is only one of nine days. I am inclined to think that the order of the learned Subordinate Judge is, to say the least, perverse. His order dismissing the two appeals is, therefore, set aside and the delay in filing the two appeals condoned. They will be taken on file and proceeded with according to law. No order as to costs.

3. It was also contended during the course of arguments that no appeal lies in cases of this kind and a decision reported in -- 'Kamaraja Kantulu v. Balla Saramma' AIR 1942 Mad 604 (A) was relied on. King J, in that case observed that the appeal he was dealing with was not really an appeal against the orders of the District Judge dismissing the appeal, but an appeal against the orders of the District Judge refusing to excuse the delay against which no second appeal is provided. It is contended in this case also that no second appeal is maintainable. There is no reported case of our Court on this aspect of the matter, though it is conceded that numerous appeals have been filed against such orders and disposed of as appeals in this Court. However, an unreported case to the contrary was brought to my notice. But what is to be remembered in cases of this kind is that when an appeal is filed and is given a number and it is later on dismissed on the ground of limitation, along with the application to condone the de-lay, it cannot but be said that the appeal stands dismissed. In fact decrees have been drawn up in these appeals and if any amendment of the decree for any good reason is to be sought on the ground that it is not in accordance with the order of the lower Court, the question that arises would be whether the trial Court has any jurisdiction to allow it at all, as its decree has been confirmed by the decree of the appellate Court. When a suit is filed and it is dismissed after a number is given to it on the ground that it is barred by time, can it be said that, no appeal lies against the judgment and decree of the trial Court? In fact a plaint could be rejected under Order 7, Rule 11, Civil P. C. But even against such an order of rejection, which amounts to a decree, an appeal can be filed. It must, however, be stated that the cases now under consideration have to be distinguished from the case which King J. had to deal with, as in that case no number to the appeal had evidently been given, as has been done in the regular appeals now under consideration, and the order passed in that case was one of rejecting the appeal as barred by time and refusing to condone the delay. I do not, therefore, find any substance in the contention that the second appeals do not lie in cases of this kind.

4. Appeals allowed.


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