1. In this case an appeal was filed in the Court of the Commissioner. When filed it was within time. It was returned for presentation to the proper Court, and was presented in the Court of the District Judge promptly. The appeal was there dismissed on the ground of limitation, and the plaintiff has come up here in second appeal. I am loath to engraft on to Section 5, Lim. Act, restrictions which do not appear in that section. That section only requires that the Court should be satisfied that the applicant 'had sufficient cause' for not preferring the appeal within the period of limitation. It is quite easy to refer to certain of the pleas and the issues in the judgment of the trial Court and to certain phrases in the judgment itself, and on those passages to say that it is quite clear that a question of proprietary rights arose.
2. On the other hand, the suit was one primarily under Section 150, and with reference to Section 159 and group C of the Schedule I do not think that an adviser in the lower Court could be held to have been culpably negligent in advising that the appeal should be filed in the Court of the Commissioner In view of the spirit underlying the Full Bench ruling reported in Shib Dayal v. Jagarnath Prasad A.I.R. 1922 All. 490 (F.B.), I am definitely inclined to hold that this is a case for the exercise of the discretion given by Section 5. It does not escape me of course that the immediate cause of the mistake which the Full Bench had to consider is different in character from the cause of the mistake which I have now to consider. The one was a mistake due to ignorance of the rules governing a higher Court's procedure of which the lower Court practitioners could not always be expected to be aware. The present mistake concerns the interpretation of provisions of the Tenancy Act. But, taking into consideration the particular facts of this particular case, and that is all I am concerned to do in a matter under Section 5, Lim. Act, I think the present case comes within the spirit of the Full Bench ruling.
3. I, therefore, set aside the decree of the lower appellate Court and return the case with the direction to the learned Judge of the lower appellate Court to re-admit the appeal and to hear it in due course of law. Costs in the case hitherto and in this Court will abide the result.