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Sheo Mohan Pande and ors. Vs. Kaliprasad Shukul - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1920All290; 59Ind.Cas.937
AppellantSheo Mohan Pande and ors.
RespondentKaliprasad Shukul
Cases ReferredKura Mal v. Ram Nath
Excerpt:
limitation act ix of 1908), section 5 - sufficient cause--mistake of counsel's clerk--letters patent appeal--court, power of, to go behind order of judge. - interpretation of statutes definition clause: [markandey katju & h.l. dattu, jj] meaning given to an expression in one statute cannot be applied to another statute. - 218 is precisely in point......no. 191 on the same date. in that appeal the issue raised was the amount or consideration. a learned judge of this court admitted appeal no. 1102 from the appellate court's decree in appeal no. 162 of 1917, it being within time but he held that the other appeal against the appellate decree in appeal no. 191 of 1917 was beyond time, and that there was nothing in the affidavit filed along with the memorandum of appeal which disclosed any ground for admitting it out of time, and he consequently rejected that appeal. we have read the affidavit which has been filed in the case and it satisfies us that the clerk of the learned advocate who was engaged to file these appeals made a mistake is calculating the time within which he had to file the appeal. the mistake arose from the fact that,.....
Judgment:

1. This appeal arises out of the following circumstances. A suit for pre-emption was brought in the Court of the Munsif of Bansi on the allegations that, (1) the custom of pre-emption prevailed in the village, and (2) the consideration had been exaggerated. The defence was that there was no such custom and that the consideration was as given in the sale-deed. The learned Munsif found for the plaintiff and gave him a decree on the basis that the consideration for sale was Rs. 1,181-4-0. From this judgment and decree there were two appeals, one by the vendee in which be contested the issue of custom and the other, a cross appeal by the plaintiff as to the real amount of consideration. The learned Subordinate Judge dismissed the vendee's appeal but held that the consideration which passed was really Rs. 800. The defendant appealed to this Court, and as two decrees had been passed by the learned Subordinate Judge he had to file two appeals in this Court. Appeal No. 1102 of 1917 was from the decree of the learned Subordinate Judge in which he held that the custom ok pre emption had been proved, namely, Appeal No. 162. Along with that appeal was filed another appeal against the decree of the Court below in Appeal No. 191 on the same date. In that appeal the issue raised was the amount or consideration. A learned Judge of this Court admitted Appeal No. 1102 from the Appellate Court's decree in Appeal No. 162 of 1917, it being within time but he held that the other appeal against the appellate decree in Appeal No. 191 of 1917 was beyond time, and that there was nothing in the affidavit filed along with the memorandum of appeal which disclosed any ground for admitting it out of time, and he consequently rejected that appeal. We have read the affidavit which has been filed in the case and it satisfies us that the clerk of the learned Advocate who was engaged to file these appeals made a mistake is calculating the time within which he had to file the appeal. The mistake arose from the fact that, in the first instance, he was provided only with one certified copy of the judgment and decree of the Subordinate Judge. He not unreasonably assumed that the time required for obtaining one copy would be the same as that required for obtaining the second copy. However, on the 7th of August 1917, on checking the second certified copy he found that four days less had been required for obtaining that copy than the first. The consequence was that the second appeal was four days beyond time. This was no fault of the appellant. It seems to us that we have the power to go behind the order of the learned Judge of this Court if we think, on the whole, that it would be reasonable to do so. The case of Kura Mal v. Ram Nath 28 A. 414 : A.W.N. (1906) 67 : 3 A.L.J. 218 is precisely in point. We may add that our action will only result in saving possible future litigation because we find, as a matter of fact, that Second Appeal No. 1102 of 1917 of this Court has been decreed and it was held is that appeal that the custom of pre emption did not prevail in the village with the result that the plaintiff's suit stood dismissed with costs. If this order stands, we have this anomalous position that there is still outstanding a judgment of the Subordinate Judge which decrees the plaintiff's suit for pre-emption on payment of Rs. 800. On the whole we think we are justified in holding that there was sufficient cause to extend the period of limitation under Section 5 of the Indian Limitation Act. We, therefore, allow the appeal, set aside the order of the learned Judge of this Court, and direct that the appeal be admitted, and notice will go returnable before the Special Bench dealing with pre emption cases. We make no order as to costs as this appeal has been beard ex parte.


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