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Balmakund Vs. Kundan Lal - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in13Ind.Cas.943
AppellantBalmakund
RespondentKundan Lal
Excerpt:
limitation act (ix of 1908) section 5 - appeal filed one day beyond time--delay in office of court to deliver copy--sufficient reason--misapprehension of fact--second appeal--right of appellant to raise question. - - in this, he was clearly wrong......by post to cawnpore to the address given on the appellant's application. the cover containing the copies reached the appellant sometime on the 11th. his pleader says it was on the evening of the 11th. the appeal was filed on the 12th. the judge of the court of small causes has declined to hold that the appellant has shown sufficient cause for not presenting his appeal within time. he says that the appellant took delivery of the copies on the 10th of november. in this, he was clearly wrong. an examination of the record shows that the appellant did not take delivery on the 10th, for the copies were sent to him by post. had the cover been posted on the evening of the 10th, as it might and ought to have been, it would have reached the appellant on the morning of the 11th, and he could have.....
Judgment:

1. The only question in this appeal is whether the lower Appellate Court was right in dismissing the appeal to that Court as barred by limitation. The decree to the first Court was passed on the 29th September 1910. The Courts were closed from the 30th of September to the 4th of November and re-opened on the 5th of November The appellant applied for the necessary copies on the 29th of September, but the folios could not be obtained. He applied again on the 5th of November, and on the 10th of November the usual notice was posted on the notice-board. On the evening of the 10th or the morning of the 11th, the Munsif's office despatched the copies by post to Cawnpore to the address given on the appellant's application. The cover containing the copies reached the appellant sometime on the 11th. His Pleader says it was on the evening of the 11th. The appeal was filed on the 12th. The Judge of the Court of Small Causes has declined to hold that the appellant has shown sufficient cause for not presenting his appeal within time. He says that the appellant took delivery of the copies on the 10th of November. In this, he was clearly wrong. An examination of the record shows that the appellant did not take delivery on the 10th, for the copies were sent to him by post. Had the cover been posted on the evening of the 10th, as it might and ought to have been, it would have reached the appellant on the morning of the 11th, and he could have filed his appeal on that date. We decline to hold that the appellant is guilty of negligence in applying to the Court to send the copies to him by post. If they were sent on the 10th, they ought to have reached him on the 11th, in time for him to file his appeal on that day. If they were despatched on the 11th, the appellant is not to blame. The learned Judge has not apprehended the facts correctly. On the facts as we now find them, we think this was eminently a case for the exercise of the Court's discretion under Section 5 of the Limitation Act. We cannot hold that the appellant is debarred from raising the question here, when we find that the learned Judge of the lower Appellate Court has misapprehended the facts. We allow the appeal, set aside the decree of the lower Appellate Court and remand the case for trial on the merits according to law.


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