1. This is a defendants' second appeal arising out, of a suit for ejectment. The plaintiffs sued the defendants for ejectment under the provisions of Section 58, old Agra Tenancy Act, 1901. The case set up by the plaintiffs was that the two plots in suit were their sir and that the defendants had been holding them as their sub-tenants. On the refusal of the defendants to vacate the plots, the plaintiffs instituted their suit.
2. The defendants pleaded that the relationship of landlord and tenant did not exist and that they themselves were the proprietors of the two plots. The learned Assistant Collector found that the plaintiffs were the owners of the plots in suit and that the defendants were holding them as trespassers. In his opinion, a trespasser could not be ejected under the provisions of Section 58, of the old Tenancy Act, 1901. He therefore dismissed the suit. The plaintiffs preferred an appeal against the decision of the Assistant Collector to the Court of the Commissioner. During the pendency of the appeal in his Court, Bindra Rae, one of the respondent's, died. More than 90 days after his death, an application was made by the plaintiffs to the Commissioner praying that as Bindra Rae had died, the names of his legal representatives should be brought on record. No objection was taken by the respondents that as the application had been made more than 90. days after the death of Bindra Rae it could not be entertained. Eventually, the Commissioner held that he had no jurisdiction to hear the appeal as a question of proprietary title was involved in the case. He returned the appeal to the plaintiffs for presentation to the Court having jurisdiction to entertain it. The plaintiff-appellants presented their appeal to the District Judge. Along with the appeal an application was made praying that the time spent in carrying on. proceedings in the Court of the Commissioner under a bona fide belief that the appeal lay in that Court should be excluded in computing the period of limitation. It appears that the Office Report made on this appeal was that it had been presented within time.
3. It would appear that when the appeal came up for hearing before the learned District Judge, the plea that the appeal had been filed in Court after the expiry of the period of limitation was not taken up specifically. On the other hand a preliminary objection to the hearing of the appeal was taken by the respondents that the appeal had abated because No. application had been, made to the Commissioner to bring on. record the names of the legal representatives of Bindra Rae within a period of 90 days of his death. The learned District Judge repelled this objection. He held that as the respondents had not taken his objection in the Court of the Commissioner, when he ordered on the application of the plaintiffs that the names of Bindra Rae's legal representatives should be brought on record, they could not be permitted to raise this plea in the appeal before him. The learned District Judge held that the plaintiffs were entitled to a decree for ejectment against the defendants. The appeal was decreed. The defendants have come up to this Court in second appeal. The plea about the abatment of appeal raised on behalf of the defendant-appellants has no force. The Commissioner in whose Court the appeal of the plaintiffs had been filed held that he had no jurisdiction to entertain it. So there can be no question of abatement. The question of abatement can only arise when the appeal is pending in a Court which has jurisdiction to entertain it.
4. In the case before us the appeal was properly filed only when it was presented to the Court of the learned District Judge who had jurisdiction to entertain it. In view of the fact the Commissioner had no jurisdiction to hear the appeal it will be deemed, for the purpose of deciding the question of abatement, that no appeal had been pending in his Court. Now, when the appeal was filed in the Court of the District Judge, Bindra Rae had already died. So, there could be no question of an abatement of the appeal. When before filing an appeal, a respondent dies then all that the appellant can do is to inform the Court the names of the legal representatives of the deceased respondent and to ask that their names be brought on record. In the case before us, the real question for the determination, before the appeal could be heard on merits, was whether the appeal had been presented in the Court of the learned District Judge within time. The suit was decided by the trial Court on 9th April 1929. Admittedly, the appeal was filed in the Court of the District Judge long after the period of 30 days within which it should have been presented. The Office of the learned District Judge made a wrong note to the effect that the appeal was filed within time. We have already mentioned that when the appeal was presented it was accompanied by an application by the appellants in which it was prayed that the period during which the appeal had been prosecuted in the Court of the Commissioner should be excluded in computing the period of limitation. It is possible that the Office of the District Judge may have thought that the appellants were entitled to exclude the aforesaid period under the provisions of Section 14, Limitation Act. But it does not appear that any order was passed by the learned District Judge on this point.
5. Section 14, Limitation Act, is not applicable to appeals. But under Section 5, Limitation Act, it is competent to a Court to admit an appeal after the expiry of the period of limitation if the appellant satisfied the Court that he had sufficient cause for not preferring an appeal within the prescribed time. When the appellants presented, their appeal to the District Judge, it was open to him to admit it, having regard to the provisions of Section 5, on being satisfied that the appellants had shown good cause for not filing the appeal within the time allowed by law Now, we find that this aspect of the case was not at all considered by the lower appellate Court. Very probably, the point was not raised before the learned Judge, but having regard to the provisions of Section 3, Limitation Act, it was I the duty of the Court to see that an appeal which had not been filed within time should be dismissed even if the defence did not take up such a plea unless sufficient cause was shown by the appellant for its admission under the provisions of Section 5.
6. In our opinion, it is necessary that the case should be sent back to the lower appellate Court for consideration of the question whether it is a fit case in which having regard to all the circumstances, it should give the benefit of Section 5, Limitation Act, to the appellants. We accordingly remand the case to the lower appellate Court with directions that it should re-admit the appeal on its original number and permit the appellants to make an application under Section 5, Limitation Act. The respondents will be given an opportunity to put in their objections. The lower appellate Court will then decide whether sufficient cause for the admission of the appeal though filed beyond time has been made out by the appellants. If it finds this point in the affirmative, then it will re-hear the appeal and dispose of it according to law. The appellants will be entitled to a refund of the court-fee paid in this Court. As the appellants in this Court never raised the point on which the case is being remanded, we direct that both parties should bear their own costs in this Court.