Kanhaiya Lal, J.
1. These appeals arise out of three suits brought by the present plaintiffs-respondents for the ejectment of certain tenants from their holdings on the allegation that they were non-occupancy tenants. The defendants pleaded that they were not the tenants of the plaintiffs and that they cultivated the land on behalf of Ishwar Prasad and Kuber Prasad the Mukararidars or inferior proprietors of the village and paid rent to them. An application was made by Ishwar Prasad and Kuber Prasad to be made parties to the suit, on which they were asked to file their written statements. Their defence was that they had an under-proprietary right to the whole village, in which the disputed land was situated and that they had been realising rents from the tenants from the settlement of 1289 F. as Mukararidars or inferior proprietors. The trial Court framed an issue on the point and came to the conclusion that the defendants intervenors had no rights in the village of a proprietary nature and that the plaintiffs were entitled to eject the tenants from their holdings.
2. As the trial Court had passed no express order, directing that the intervenors should be added as defendants, their names did not appear in the decrees, which were prepared in those cases. The decrees passed were merely decrees for the ejectment of the tenants, an appeal from which would ordinarily lie to the Commissioner, and the affidavit filed by the defendants-appellants shows that with a view to file the appeal to the Commissioner of Benares they took the papers to M. Bhairon Prasad but he returned the papers saying that as a question of proprietary title was in issue, the appeal would lie to the District Judge. The appeal was then filed in the Court of the District Judge of Benares from those decrees, but the office of the District Judge, Benares, reported that the defendants intervenors were not mentioned in the decree and no appeal by them could be entertained. The trial Court was therefore asked to explain the situation and the result of that enquiry was that by an order of the 1st February 1923, passed on the application of the defendants-appellants, the names of the defendants intervenors were added to the plaint and the decrees in each of the three suits. The decrees were passed on the 26th September, 1922. The only persons who were mentioned in the decrees as defendants were the tenants, who could have filed an appeal within 60 days to the Commissioner. The names of the defendants intervenors were not entered in the decrees and they could not have filed any appeal anywhere. They eventually filed the appeal on the 22nd December, 1922 and on an objection being taken that they had no right to file the appeal, because they were not parties to the decrees, their names were subsequently added to the decrees on the 1st February, 1923. The right of the defendants intervenors to appeal from those decrees if they had any right to appeal-arose when the decrees were amended by the addition of their names; and in that view of the matter, the appeals could not be regarded as having been filed beyond time. It is however, possible to look at the matter from another stand-point. The decrees as they stood were passed against the defendants tenants, who could have appealed to the Commissioner within 60 days. The defendants intervenors may have honestly believed that they could have instituted the appeal in the Court of the Commissioner within the same period. As held in Brij Mohan Das v. Mannu Bibi (1897) 19 All. 384 an honest mistake could be made in good faith and a bona fide mistake might be taken into consideration in suitable cases.
3. In Brij Indar Singh v. Kanshi Ram A.I.R. 1917 P.C. 156 their Lordships of the Privy Council held that the judicial discretion given by Section 5 of the Indian Limitation Act to admit an appeal after the prescribed period of limitation should be exercised, if the appeal has been prosecuted with due diligence, and when in the exercise of a judicial discretion a Judge fails to apply the rule, the appellate Court should either remit the case or itself exercise the discretion.
4. In Maqbul Ahmad v. Murla (1916) 14 A.L.J. 212 it was held that where under a bona fide mistake an appeal was filed in time in a wrong Court an appellant who might otherwise suffer loss of rights and injustice, ought to be allowed to put the mistake right, and to appeal unless there was some conduct disentitling him to do so, and that if an application made to admit an appeal beyond time was rejected on the ground which was not really material then it must be taken that no real judicial discretion had been exercised and the lower Appellate Court could deal with the order with a free hand. In Shib Dayal v. Jagannath Prasad A.I.R. 1922 All. 490 an honest mistake made by a litigant upon incorrect advice was treated as sufficient cause for extending the period of limitation within the meaning of Section 5 of the Indian Limitation Act.
5. An honest mistake appears to have been made in the present case by the defendants-appellants in thinking that the appeals from the decree for ejectment passed against the tenants alone would lie to the Commissioner, and as soon as they were dispossessed of that idea by Mr. Bhairon Prasad Vakil, they filed the appeal before the District Judge. The learned District Judge observes that the defendants-appellants had not shown bona fides by taking their appeals to the Court of the Commissioner, as was usual in such cases; but they stated that they were disabused by Mr. Bhairon Prasad, who advised them to file the appeals before the District Judge and that they filed their appeals before the District Judge accordingly. There is sufficient reason therefore on either of the above grounds for admitting the appeals under Section 5 of the Indian Limitation Act. A question has also been raised as to whether any appeal could have lain to the District Judge at the instance of the defendants-intervenors; but that point does not really arise for consideration share.
6. The appeals are therefore allowed and the oases remanded to the District Judge with a direction to re-admit the appeals under their original numbers and to dispose of them in the manner required by law. The parties will bear their own costs of these appeals.