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Shambhu Nath Vs. Lala Badri Das - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1921All210(1); 61Ind.Cas.410
AppellantShambhu Nath
RespondentLala Badri Das
Cases ReferredMohammad Ali Khan v. Ashram
Excerpt:
limitation act (ix of 1908), section 5 - appeal--presentation by pleader whose name omitted from power of attorney signed by pleader--authority to present appeal validity of--discretion of court--extension of time. - - two days before the date on which the appeal was decided, a petition was filed by the appellant supported by an affidavit in which he stated that the names of the pleaders had been omitted from the tahalutnama through an oversight, that the same pleaders bad appeared for him in the court of first instance, and that when the petition of appeal was presented he aosompanied the pleaders and presented the petition of appeal to (he misaim of the court, in that petition he further asked that, if this presentation was net deemed to be sufficient, the me nonrandom of appeal might..........ought to have exercised its discretion under section 5 of the limitation act, and admitted the appeal as presented on the 19th of december 1917. the court refused to apply section 5 not because, in its opinion, there were no valid reasons for admitting the appeal after time, but simply because the court thought that the petition of appeal was rot in proper form. as a matter of fact, it was in proper form. it was signed by the pleaders who were given an authority to appear at least on the 19th of december 1917. we think that the court below should have admitted the appeal under section 5 of the limitation act and heard and decided it on the merits. we direst that the appeal to the court below be admitted under section 5. we allow the appeal, set aside the decree of the court below and.....
Judgment:

1. This was a suit for the demolition of a certain construction alleged to have been made by the defendant. It was decreed by the Music on the 26th of February It 1917. On the 2nd of April 1917 the defendant preferred an appeal to the Distrait Judge from the decree of the Court of first instance. The memorandum of appeal was danced and presented by two Pleaders who held a vakulatnarna, in the bady of whish their names were not mentioned but at the foist of which there was an acceptance of the vakalainama by both the Pleaders. When the appeal case on for hearing en objection was taken to the fleet that as the names of the Pleaders had not been mentioned in the body of the vakalainama the presentation of the appeal by those Pleaders was an invalid presentation and the appeal could not be entertained. Two days before the date on which the appeal was decided, a petition was filed by the appellant supported by an affidavit in which he stated that the names of the Pleaders had been omitted from the tahalutnama through an oversight, that the same Pleaders bad appeared for him in the Court of first instance, and that when the petition of appeal was presented he aosompanied the Pleaders and presented the petition of appeal to (he Misaim of the Court, In that petition he further asked that, if this presentation was net deemed to be sufficient, the me nonrandom of appeal might be deemed to have been prevented on the date of the application and that, in view of the facts stated in the affidavit, the appeal might be admitted by the Court in the exercise of its powers under Section 5 of the Limitation, Act. With that application a fresh vahalatnama obtaining the names of the same Pleaders and adopted by them was filed. The learned Subordinate Judge dismissed the appeal holding that it had not been properly presented and purported to follow the ruling of this Court in the case of Muhammad Ali Khan v. Sukhu 19 Ind. Cas. 674 : 11 A.L.J. 458 which was affirmed in Letters Patent Appeal vide Mohammad Ali Khan v. Ashram 23 Ind. Cas. 464 : 11 A.L.J. 1015 : 36. It does not appear whether in that case the takalatnama had been accepted by the Pleader. If the vahalatnama had been Accepted by the Pleader, as was the case in the present suit, we think it would be too technical to hold that the vahalatnama was not a valid authority to the Pleader to appear because his name did not appear in the body of it. However, in the present case it is not necessary to enter into that question inks-mush as, is our opinion, the Court ought to have exercised its discretion under Section 5 of the Limitation Act, and admitted the appeal as presented on the 19th of December 1917. The Court refused to apply Section 5 not because, in its opinion, there were no valid reasons for admitting the appeal after time, but simply because the Court thought that the petition of appeal was rot in proper form. As a matter of fact, it was in proper form. It was signed by the Pleaders who were given an authority to appear at least on the 19th of December 1917. We think that the Court below should have admitted the appeal under Section 5 of the Limitation Act and heard and decided it on the merits. We direst that the appeal to the Court below be admitted under Section 5. We allow the appeal, set aside the decree of the Court below and remand the case to that Court with directions to restore the appeal to its original number and to depose of it assorting to law. The parties will bear their own costs of this appeal.


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