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Musammat Mahtab Kuer Vs. Musammat Birhmo and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1924All176; 75Ind.Cas.254
AppellantMusammat Mahtab Kuer
RespondentMusammat Birhmo and ors.
Cases ReferredSarat Chander Bose v. Saraswati Debi
Excerpt:
limitation act (ix of 1908), section 5 - appeal filed beyond time, admission of--negligence of appellant's agent or of pleader's clerk, whether 'sufficient cause. - - he has failed to satisfy me that the application should be allowed. he failed to file it and returned the papers to the client after the period of limitation had expired......is imputable to the appellant.4. in my opinion the ground alleged for admitting the appeal beyond time in this case is inadequate, and i, therefore, reject the appeal as time-barred.
Judgment:

Daniels, J.

1. This is an application for admission, under Section 5 of the Limitation Act, of an appeal which was filed on the 6th July, three days beyond time. As the reasons given by the defendant appeared to me, on the face of them, insufficient, I have heard appellant's Counsel in support of the application. He has failed to satisfy me that the application should be allowed.

2. The appeal was decided on the Court below on the 28th March. About six weeks later, according to the facts stated in the affidavit, the. appellant's agent went to a Pleader's clerk and deposited Rs. 6 with him to obtain copies. He does not say that he gave any instructions to the Pleader himself. A week later, the Subordinate Court dosed for thirty days for the vacation. The copies were not applied for till 27th June, a week after the Courts re-opened, and were obtained on July 3. Even then the copy of the judgment of the Trial Court was not applied for and this was obtained between July 3 and July 5.

3. This is not a case of an appeal being filed too late or in the wrong Court owing to a bona fide mistake of law or to wrong advice given by a pleader. It is a case of gross negligence on the part of the plaintiff's agent and of the Pleader's clerk whom the latter employed to get the copies for him. A Pleader's clerk in this country is not a person to whom obtaining of copies could be safely left without any supervision. The plaintiff, through her agent, appears to have taken no steps to find out Whether the copies had been obtained until almost the very day that limitation would in the ordinary course expire. Even if the negligence was that of the Pleader himself, it would make no difference. as Mr. Rustomji says on Page 43 of his limitation Act of 1922 (3rd Edition) 'Negligence of counsel or Solicitor stands on the same footing as that of any other person and nogligence by him is not sufficient cause.' A somewhat similar casa to the present is that of Budhu v. Devon 28 Ind. Cas. 265 : 37 A. 267 : 13 A.L.J. 286 decided in fetters Patent Appeal. There a fee and Some papers were left with a legal Practitioner in order to file an appeal. He failed to file it and returned the papers to the client after the period of limitation had expired. It was held that this was not a sufficient ground for admitting the appeal beyond time under Section 5. Even the case on which the appellant chiefly relies Sarat Chander Bose v. Saraswati Debi 34 C. 216 : 5 C.L.J. 380 is really against him. The words on which he relies are that the expression ''sufficient cause' should receive a liberal construction when no negligence or inaction or want of bona fides is imputable to the appellant.

4. In my opinion the ground alleged for admitting the appeal beyond time in this case is inadequate, and I, therefore, reject the appeal as time-barred.


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