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Hiralal Vs. Jhunnilal and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 821 of 1962
Judge
Reported inAIR1964All190
ActsLimitation Act, 1908 - Sections 5; Code of Civil Procedure (CPC) , 1908 - Sections 115
AppellantHiralal
RespondentJhunnilal and ors.
Appellant AdvocateK.N. Singh and ;Sant Bux Singh, Advs.
Respondent AdvocateG.P. Bhargava and ;C.S.P. Singh, Advs.
Excerpt:
.....on the last day of the limitation. the present case is one where on the findings of the learned district judge the period of limitation ran out, not as a result of the negligence or inaction of the applicant but, because of the misconduct of the clerk of his counsel who had failed to inform the applicant about the judgment and decree of the trial court till the 26th october, 1961, he having kept the order and decree with him for a period of over two months, 24th august, 1961, till the 26th october, 1961, in a peculiar case, such as the present, it would be sufficient if each day's delay is not established conclusively but by furnishing some general reasonable explanation. this, therefore, was eminently a fit case for the condonation of the delay and the failure of the additional..........not to be entertained as subsequent to the rejection of the application for the condonation of the delay a decree pursuant to the dismissal of the appeal had come to be drawn up. he has relied on several authorities but these authorities are not apposite and in any event are clearly distinguishable. if the drawing up of the decree was merely the result of the rejection of the application by the additional district judge, under section 5 of the limitation act, then manifestly that decree depends for its validity upon the very order which is now being impugned before me. the decree passed was not as a result of the decision on merits and, therefore, it is difficult if not impossible to contend that the passing of the decree renders the revision application in the present case infructuous......
Judgment:
ORDER

S.C. Manchanda, J.

1. This is a revision against the order of the learned Additional District Judge, Allahabad dated the 2nd of June, 1962, rejecting the application of the applicant under Section 5 of the Indian Limitation Act praying that the delay in the filing of the appeal be condoned.

2. The facts briefly are these: Ram Chandra, father of the present applicant, since deceased, and respondents Nos. 4-9 brought a suit No. 390 of 1959 for Cancellation of a sale-deed executed by Kesho Das deceased, then living, in favour of defendant-respondents Jhunni Lal, Deep Narain and Raj Narain on the 3rd of June, 1961. The suit was partly decreed and partly dismissed. That was the last working day before the Courts closed for summer vacation. The applicant's father on that very day through his counsel Mr. A.P. Tiwari, applied for a copy of the judgment and decree of the trial Court. The Courts reopened on the 4th July, 1961.

A day prior thereto, on the 3rd July, 1961. Ram Chandra was murdered. On the 4th August, 1961, the copy of the judgment and decree was ready. This had been applied for promptly before by the applicant's father before his death. The clerk of Mr. A.P. Tiwari, however, took delivery only on the 24th August, 1961. No information, whatsoever was sent by the said clerk or the counsel, that the copy was ready, or that delivery had already been taken, till the 26th of October, 1961. That was the day when the applicant happened to come to Allahabad to appear as a prosecution witness regarding the murder of his father. The applicant was cross-examined by the aforesaid Sri A.P. Tewari who had accepted the Vakalatnama en behalf of the murderers of the applicant's father. After he had appeared as a witness the clerk handed ham a copy of the judgment.

According to the affidavit of the applicant that was the first time that be came to know about the judgment or decree passed in the suit. The applicant was naturally disturbed at his counsel going over to defend the accused in the murder case against his father. He is said to have taken advice, gone home and having failed to obtain the support of respondents 4-9 who were plaintiffs with his father in the suit, for filing an appeal he returned to Allahabad and filed the appeal on the 6th of November, 1961. The appeal was accompanied with an affidavit and an application praying for the condonation of the delay under Section 5 of the Limitation Act. Before hearing the appeal fresh affidavits and counter-affidavits were permitted to be filed by the learned Additional District Judge.

In the counter-affidavit which was filed by the opposite party no attempt was made to controvert the facts alleged in the affidavit by the applicant that Mr. A.P. Tiwari had accepted Vakalatnama on behalf of the accused in the case of the murder of Ram Chandra, nor that the copy was applied for the very day the judgment was delivered by the trial Court. It was also not denied that the copy of the judgment was not delivered to the applicant till the 26th October, 1961, when limitation had already expired.

The learned Additional District Judge was sympathetically inclined to extend the time and to condone the delay, but he considered that the Supreme Court decision, to be noticed hereinafter, tied his hands. He took a serious view of the conduct of the clerk of Mr. A.P. Tewari who had retained the certified copies from the 24th August, 1961, to 26th October, 1961, when he must have known that it would lead to the appeal getting time barred and that would amount to professional misconduct. He further went on to observe :-

'When we find further that Sri A.P. Tewari accepted Vakalatnama on behalf of the alleged murderers of Ram Chand's father, this delayed delivery of the copy takes an ugly look. The fact that other plaintiffs do not choose to appeal would be a circumstance but for the allegations in the affidavit that they are on the side of the murderers of his father. The allegations also are that the respondents were acting on behalf of the alleged murderers. The counsel for the opposite party is not prepared to deny that Sri A.P. Tewari accepted Vakalatnama for the murderers of Ram Chand and he is not prepared to refute the allegations in the affidavit that the copy was delivered to the present applicant on 26-10-1961.

3. The learned Additional District Judge, however, as already observed, considered that the decision of the Supreme Court in Ram Lal v. Rewa Coal Field Ltd., AIR 1962 SC 361, required each day's delay to be explained conclusively, and as this had not been done he found himself helpless to condone the delay. This reading of tile said judgment, manifestly, was erroneous, and because of that erroneous reading he failed to exercise the jurisdiction of condoning the delay which vested in him.

The decision of the Supreme Court nowhere lays down that each day's delay must be conclusively established. The case had gone to the Supreme Court because there was a conflict between the decisions of the various High Courts as to whether the applicant who applies under Section 5 is obliged to explain the delay during the entire period of limitation or only from the time that the limitation had expired. This conflict was set at rest by their Lordships of the Supreme Court and it was held:-

'That the failure of the appellant to account for his non-diligence during the whole of the period of limitation prescribed for the appeal does not disqualify him from praying for the condonation of the delay under Section 5.'

4. In that case there was a delay of one day as the appellant had fallen ill on the last day of the limitation. It was held that want of diligence till the last day of limitation will not disqualify him from applying for the excusing of delay. That was, therefore a case where the appellant had had due notice but had slept over his rights till the last day of limitation when unfortunately he was taken ill and yet it was held that his non-diligence during the period when limitation was running for the filing of an appeal was not a bar to his asking for the delay to be condoned. The Supreme Court, accordingly allowed the appeal and set aside the order of the Judicial Commissioner refusing to excuse the delay.

It was also pointed out by their Lordships of the Supreme Court that the words 'sufficient cause' must receive a liberal construction so as to advance substantial justice when no negligence, inaction, nor want of bona fides is imputable to the appellant, of course having regard to the fact that a valuable right had accrued to the opposite parties by the order refusing to condone the delay. The case before the Supreme Court does not show that each day's delay must be conclusively established. In any event, that was a case in the ordinary run of cases where the appellant has had notice but has allowed time to lapse till the last day when he was taken ill and was unable to file the appeal in time.

The present case is one where on the findings of the learned District Judge the period of limitation ran out, not as a result of the negligence or inaction of the applicant but, because of the misconduct of the clerk of his counsel who had failed to inform the applicant about the judgment and decree of the trial Court till the 26th October, 1961, he having kept the order and decree with him for a period of over two months, 24th August, 1961, till the 26th October, 1961, In a peculiar case, such as the present, it would be sufficient if each day's delay is not established conclusively but by furnishing some general reasonable explanation.

It was laid down in Raj Malik v. Dr. Susanta Sen, AIR 1951 Punj 209 by a Division Bench of the Punjab High Court that the dictum does not mean that the applicant must conclusively establish each and every day's delay in the filing of the appeal; it merely means that he must give some reasonable explanation. The learned Additional District Judge did not consider whether the applicant had furnished a reasonable explanation. A period of 10 days from the date of knowledge of the decree and order cannot be said to denote any inaction or negligence on the part of the applicant in the peculiar circumstances of this case which were that his father who was looking after the case had been murdered, one day before the Courts reopened after the summer vacation. This, therefore, was eminently a fit case for the condonation of the delay and the failure of the Additional District Judge to do so was the result of a misreading of the judgment of the Supreme Court and as such there was failure to exercise jurisdiction.

5. Mr. G.P. Bhargava, learned counsel for the opposite party has strenuously contended that a revision would not lie and in any event it ought not to be entertained as subsequent to the rejection of the application for the condonation of the delay a decree pursuant to the dismissal of the appeal had come to be drawn up. He has relied on several authorities but these authorities are not apposite and in any event are clearly distinguishable. If the drawing up of the decree was merely the result of the rejection of the application by the Additional District Judge, under Section 5 of the Limitation Act, then manifestly that decree depends for its validity upon the very order which is now being impugned before me. The decree passed was not as a result of the decision on merits and, therefore, it is difficult if not impossible to contend that the passing of the decree renders the revision application in the present case infructuous. The acceptance of the present revision application and its remand would ex-necessitate result in the supersession of the decree which depended wholly for its validity upon the order rejecting the application under Section 5 of the Act. The existence of an alternative remedy can never be an absolute bar to the exercise of the powers of this Court under Section 115 of the Code for curing manifest injustice.

6. For the reasons given above, the order of the Additional District Judge is set aside. The application is allowed and the case is remanded to the District Judge for disposing of the appeal on its merits. Costs to abide the event.


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