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Maqbul Ahmad Vs. Murla and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in33Ind.Cas.546
AppellantMaqbul Ahmad
RespondentMurla and ors.
Excerpt:
limitation act (ix of 1208), section 5 - appeal to wrong court through bona fide mistake--appellant, when allowed to put mistake right--intervening period, whether allowed--judicial discretion--appellate court, when can interfere. - - the appellant would have been in precisely the same position whether he filed the appeal to the judge on the 12th of november or the 21st of november......judge namely, on the 21st of november. the appellant filed an affidavit stating that his original appeal to the commissioner was brought by mistake. it is not suggested that it was not bone fide mistake. in my opinion where there has been a bone fide mistake of that kind, namely, a mistake of jurisdiction, the appellant, who might otherwise suffer loss of rights and injustice, ought to be allowed to put the mistake right and to appeal within a reasonable time, unless there is some conduct dis-entitling him to do so. in the absence of some conduct dis-entitling him to appeal i think the just thing to do in this case is to allow, him from the date when his mistake is discovered, namely, the 3rd november the period he would otherwise have had from the original decree. the learned.....
Judgment:

Walsh, J.

1. This appeal, which is brought from a decree of the Second Additional Judge of Aligarh holding that the appeal to him was time-barred, must be allowed. I propose to state the consideration which, I think, ought to apply to an appeal which is time-barred when an application is made to admit the appeal in spite of the bar. In this case a decree was made by an Assistant Collector dismissing the plaintiff's suit on the 16th of June 1913. The plaintiff, who appears to have thought or to have been advised that his right of appeal lay to the Commissioner, had seventy-two days for appealing to the Commissioner. He appealed on the sixty-third day. The Commissioner held that the appeal was to the wrong Court and ordered the memorandum of appeal to be returned. Such order was made on the 3rd of November. After a delay of eighteen days, only nine of which are attributed to the appellant in the judgment of the learned Judge, the appellant appealed to the Judge namely, on the 21st of November. The appellant filed an affidavit stating that his original appeal to the Commissioner was brought by mistake. It is not suggested that it was not bone fide mistake. In my opinion where there has been a bone fide mistake of that kind, namely, a mistake of jurisdiction, the appellant, who might otherwise suffer loss of rights and injustice, ought to be allowed to put the mistake right and to appeal within a reasonable time, unless there is some conduct dis-entitling him to do so. In the absence of some conduct dis-entitling him to appeal I think the just thing to do in this case is to allow, him from the date when his mistake is discovered, namely, the 3rd November the period he would otherwise have had from the original decree. The learned Additional Judge who had this matter before him, had a discretion vested in him to decide whether the appeal should be admitted or not. An authority has been cited to me, the principle of which I recognise and endorse, that where the Court originally vested with such discretion has exercised it judicially, the Appellate Court as a general rule will not interfere. But where the Appellate Court sees that the Court to whom the application was made has exercised its discretion upon a ground which is not material, then no real judicial discretion has been exercised, and the Appellate Court can deal with the order with a free hand. In this case the learned Additional Judge refused to admit the appeal because of an interval which had elapsed between the 12th of November and 21st of November. To my mind that is an immaterial ground. The appellant would have been in precisely the same position whether he filed the appeal to the Judge on the 12th of November or the 21st of November. In either case he would have been out of time and the delay attributed to him appears to me immaterial. That being the case, I find myself free to deal with this application as though it had been made to me originally. In such an application where, as has been properly urged before me by the respondents' Counsel, the respondent has an order which he has a right to insist upon and the appellant is in mercy and is asking for a privilege, it is material and I think essential that the Court dealing with the application should satisfy itself that there is some substance in the appeal. In any view it is not a sound exercise of a judicial discretion to extend time in favour of a person who appears to have no substantial point to argue. It is said that the questions arising in this appeal are only questions of fact. The claim, however, has been held to be time-barred in the first Court where no such plea was raised by the defendants. Another ground for defeating the plaintiff's claim is said to be a consent obtained by the defendants, which, the plaintiff says, was given by some one whose consent is not binding upon him also. Under these circumstances there seems to be something to argue before the Judge. I think the appellant ought to have an opportunity of being fully heard, and I, therefore, allow this appeal and remand the case to the lower Appellate Court to hear the case on the merits. Costs of this appeal will abide the event.


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