1. It is true, as pointed out by Mr. Jagannadha rao, that it is not every error of jurisdiction that calls for interference by this Court under Section 115, Civil Procedure Code but the fact remains that there are errors and errors. Here is a case where the court below restored a copy application, which was ' struck off ' for not depositing the stamp papers within the time allowed and yet declined to take into account the date of the original application for the purpose of computing the period of limitation prescribed for filing an appeal, which, when taken into account, would show that the appeal was preferred in time and when an application was filed under Section 5 of the limitation act it dismissed the same under an erroneous understanding of the scope of its jurisdiction. The reason given is that no sufficient cause was shown for condoning the delay after having earlier held that sufficient cause was shown for restoring the copy application which was ' struck off '.
2. Mr. M.. L. Ramakrishna Rao appearing for the petitioner contended that, inasmuch as the court below condoned the delay in depositing folios and printing charges, the time taken between the date of filing the copy application and the date when the certified copies were made ready should have been excluded for purposes of computing the period of limitation in preferring the appeal and if that period is excluded, there is no delay at all in preferring the appeal.
3. The trial court pronounced its judgment on 28-3-1970 and a copy application was made on 31-3-1970. Printing charges and copy stamps were called for on 16-4-70 giving three days' time for depositing the folios and seven days for depositing printing charges. The petitioner was out of station from 14-4-1970 to 2-5-70 and on his return, he contacted his advocate on 7-5-70 and was told on 8-5-1970 by his advocate, after making necessary enquiries, that the copy application had been 'struck off ' on 6-5-1970. He then filed an application for restoration of the copy application which was 'struck off', stating the circumstances under which he could not comply with the directions of the court. That was done on 18-6-1970, the date on which the court below reopened after summer vacation. The learned Judge accepted the reasons stated in the affidavit filed in support of the application for not filing the stamp papers in time and ordered restoration of the copy application on 9-7-1970 with a direction to the office to receive the folios and printing charges. The printed copies were made ready and delivered to the petitioner on 27-10-1070 and the appeal was filed on 3-11-1970. The time prescribed for preferring an appeal to the lower appellate court is thirty days. If the period condoned by the court below in depositing the folios is excluded it is not in dispute the appeal filed by the petitioner would be in time., Then it is needless to say that the question of making an application under Section 5 of the limitation Act does not at all arise. But however, an application under Section 5 was field for condonation of the delay in preferring the appeal on the assumption that the period condoned in depositing the folios and printing charges may not be excluded while computing the period of limitation. The learned Chief Judge,. City Civil Court, held that the grounds that were taken into consideration for condoning the delay in depositing the folios and printing charges will not hold good for excluding the delay in filling the application under Section 5 of the Limitation Act, and in that view, dismissed that application. Hence this revision.
4. As early as 1895, in Ramanuja Ayyangar v. Narayana Ayyangar, (1895) ILR 18 Mad 374, it was held that an application put in explaining the circumstances which prevented the stamp being produced within the period allowed by the Court and praying for restoration of the previous application must be considered a continuation of the former one for the purpose of computing the time allowed by the Limitation Act within which an appeal should be preferred to the District Court.
5. This view again reiterated by Patanjali Sastri, J., (as he then was of the Madras High Court) in Berumull Sowcar v. Vellu Gramany, AIR 1942 Mad 369 stating that, where an application for copies is struck off for non-deposit of requisite stamp papers and a subsequent petition is put in for restoration of the previous application, the Court has power to restore the original application for the purpose of computing the time in filling an appeal.
6. It is, therefore, manifest that, not-withstanding that the original application filed for copies of the Judgment and decree was struck off by the trial Court, the fact that that application was restored on a subsequent application revives the original application for the purpose of computing the time for filing an appeal. In other words, when the copy application is restored by a subsequent application, the date for computing the period of limitation is not the date on which the second application is filed, but the date when the original application was filed. An appeal filed in time will not become one barred by time for the reason that the party who filed it came up also with an application under Section 5.
7. Thus, it is eminently a fit case to correct the error of jurisdiction committed by the court below, as otherwise it would result in injustice to a party who had a statutory right to file the appeal and had filed the appeal in time.
8. In the result, the revision petition is allowed, but in the circumstances without costs.
9. Petition allowed.