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Husaini Bgum Vs. the Collector of Muzaffarnagar and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Judge
Reported in(1887)ILR9All655
AppellantHusaini Bgum
RespondentThe Collector of Muzaffarnagar and ors.
Excerpt:
limitation - appeal--admission after-time--act xv of 1877 (limitation act), section 5--'stuffiest cause'-poverty--pardah-nastin--letters patent, n.-w. p., section 10--'judgment.' - - 244, it was held that an order admitting an appeal under section 5 of the limitation act ought not to be set aside, unless the judge had clearly acted on insufficient grounds or improperly exercised his discretion......she, on the 22nd march 1883, filed a memorandum of appeal with a prayer to allow her to proceed in formd pauperis. the time limited, giving credit for the eighty-six days spent in obtaining the necessary papers for proceeding in formd pauperis, had expired seventy-three days before the 22nd march 1883. the result of the appeal in formd pauperis was that, on the 14th february 1884, her application was rejected, the court deciding that it was barred by limitation. on the 10th may 1884, the appellant filed an application for review. that application was rejected on the 24th april 1885. nothing was done by the appellant until the 18th june of the same year, when, on her application, the late chief justice gave her leave to file an appeal on full stamped paper and extended the time for filing.....
Judgment:

John Edge, Kt., C.J.

1. Such a construction would enable the period of limitation to he expended for fifty years, if the appellant's poverty lasted the whole of that time. Why should the successful litigant be kept indefinitely in a state of uncertainty, and prevented from dealing freely with the subject-matter to which the first Court has declared him entitled

2. Straight, J., referred to Collins v. The Vestry of Paddington, L. R., 5 Q. B. D., 368; 49 L. J., N. S., (C. L.) 612.

3. It is not contended that the plea of poverty should in all eases be a sufficient reason for extending the time indefinitely. The plea must be examined with reference to the particular circumstances of each case. It is only thus that it can be determined whether any, and if so what, extension should be granted. Here there are special circumstances: the appellant was unable to furnish the necessary court-fees, and she is a pardah-nashin lady.

John Edge, Kt., C.J.

4. The law provides a special procedure for the relief of pauper appellants. Article 169 of the second schedule of the Limitation Act fixes thirty days as the period within which leave to appeal as a pauper may be applied for. The view you contend for would make that provision useless.

5. In Fatima begam v. Bansi, ante, p. 244, it was held that an order admitting an appeal under Section 5 of the Limitation Act ought not to be set aside, unless the Judge had clearly acted on insufficient grounds or improperly exercised his discretion.

John Edge, Kt., C.J.

6. In that case the cause of the delay was that the appellant was bond fide pursuing a wrong remedy. Here you were pursuing a remedy which was barred by time

7. Mr. G. E. A. Boss, for the Respondent, was not called upon to reply.

Edge, C. J

8. Straight and Brodhurst, JJ. concurring.--This is an appeal under Section 10 of the Letters Patent. On the 16th September 1882, the plaintiff's suit was dismissed by the Subordinate Judge of Saharanpur. It appears that for eighty-six days the plaintiff was unable to obtain the papers necessary for filing her appeal. However, having obtained the papers, she, on the 22nd March 1883, filed a memorandum of appeal with a prayer to allow her to proceed in formd pauperis. The time limited, giving credit for the eighty-six days spent in obtaining the necessary papers for proceeding in formd pauperis, had expired seventy-three days before the 22nd March 1883. The result of the appeal in formd pauperis was that, on the 14th February 1884, her application was rejected, the Court deciding that it was barred by limitation. On the 10th May 1884, the appellant filed an application for review. That application was rejected on the 24th April 1885. Nothing was done by the appellant until the 18th June of the same year, when, on her application, the late Chief Justice gave her leave to file an appeal on full stamped paper and extended the time for filing it. That is a form of order which, when made by a Judge of this Court, has never been treated as precluding the Bench before whom the matter may come from considering the propriety of the order so far as the question of limitation may he concerned. I say this from my short experience, and with the concurrence of my brothers STRAIGHT and BRODHURST, who have had long experience in this Court. On the 17th July 1885, the appeal was filed; the case came on to be heard before TYRRELL and MAHMOOD, J., when the point was raised as to the appeal being time-barred. TYRRELL, J., considered that the appellant should be allowed to proceed with her appeal, thinking that the case was one of some hardship on account of the poverty of the appellant and the fact of her being a pardah-nashin lady. MAHMOOD, J., on the other hand, considered that no case was made out for extending the time under Section 5 of the Limitation Act, and the Judges having thus differed in their judgments, the appeal stood dismissed. I have already said that the appeal in formd pauperis, after making allowance for 86 days, was 73 days out of time. Making the same allowance of 86 days, the appeal on a full stamped paper, if it had been filed on the 22nd March 1883, would have been 13 days out of time. The appellant for 55 days, between the 24th April 1885, and the 18th June 1885, did nothing; that is a period we cannot overlook. It is contended by Pandit Sundar Lal, that the fact that the appellant had not the means to appeal on full stamped paper brings the case within Section 5 of the Limitation Act. We have asked him, if that be so, what period of limitation a Court in its discretion should apply to the case of a would-be appellant who was a pauper. We have received no satisfactory suggestion from him. The framers of the Limitation Act have not overlooked the fact that a would-be appellant may be a pauper. It is enacted that an appeal in formd pauperis must be brought within 30 days. If we were to listen to this contention of the learned Pandit, we would be holding that the Limitation Act did not apply to cases of would-be appellant paupers. We agree with the judgment of MAHMOOD, J., in which he refers to Moshaullah v. Ahmedullah I. L. R., 13 Cal., 78. The principle upon which Courts should grant indulgence, at any rate as far as England is concerned, in cases which have not been brought in time, is discussed in the judgments of the majority of the Court of Appeal in Collins v. The Vestry of Padding ton, L. P., 5 Q. B. D., 368: 49 L. J. N. S., (C. L.), 612. This appeal is dismissed. Separate sets of costs are allowed to the respondents, who are separately represented here, in proportion to their interests in the subject-matter of this suit.


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