S.K. Ray, J.
1. This is a second appeal preferred by the plaintiff from an order dated 19-10-62 of Sri C. Mohapatra, District Judge, Koraput-Jeypore, passed in Title Appeal No. 6 of 1962. rejecting a petition under Section 5 of the Limitation Act filed by the plaintiff-appellant before him and thereby ultimately dismissing the appeal as time-barred.
2. The only question therefore that arises in this appeal is whether the District Judge was justified in rejecting the appeal filed before him on ground of limitation by dismissing this application for condonation of delay.
3. It is not in dispute that the appeal filed before the District Judge was beyond time by five days. The appellant filed an application under Section 5 of the Limitation Act for condoning the delay. This application was supported by an affidavit. The circumstances detailed therein as the cause for delay are that the appellant was a cloth merchant and had to go to Bombay in connection with his business. He returned to Jeypore on 30th of January 1962, but found that his lawyer had left the town and gone to Cuttack in connection with some sales-tax matters. He also found that the clerk who was attached to the lawyer had left his service. He had already made arrangements for getting certified copies of the judgment and decree of the trial court in order to file the appeal and the copy had been obtained and was with the lawyer. But he could not get hold of the same as his lawyer and his clerk were both absent. He tried unsuccessfully to trace them with the help of another lawyer, Sri Sahu, from the office of his lawyer who was at Cuttack. The copies were ultimately found out on the 5th and the appeal was filed on the 6th. These averments stand unchallenged as no counter has been filed by the other side.
4. The appellant in support of his allegations in the petition examined himself and his lawyer Sri V. Ramarao, P. W. 2. There is no counter-evidence in the case.
5. The learned District Judge relying on a decision of the Patna High Court reported in AIR 1919 Pat. 503, Jahar Mal v. Pritchard, which seems to lay down that the parties should not be encouraged to defer till the very last moment the taking of steps in course of an action for which a limit of time is prescribed by rules, and that no indulgence ought to be shown to a party who so puts off taking action till the last day, if by happening of some unexpected accident he exceeds the time-limit.
The Supreme Court has ruled to the contrary in a decision reported in AIR 1962 SC 361, Ramlal v. Rewa Coalfields. They have said as follows.
'The failure of appellant to account for his non-diligence during the whole of the period of limitation prescribed for the appeal does not disqualify him from praying for the condonation of delay under Section 5. Where the appellant did not file the appeal till the last day of limitation and as he fell ill on the last day of limitation, he filed the appeal thereafter asking for the delay to be excused and it was held that his want of diligence till the last day of limitation would not disqualify him from applying for the excusing of delay.'
6. In view of this decision of the Supreme Court the rejection of the petition for condonation of delay under Section 5 of the Limitation Act filed by the appellant was erroneous. The appellant has shown sufficient cause in his petition which has been proved through him and his lawyer. In the circumstances this appeal is allowed and the case is remanded back to the District Judge to be disposed of on merits.
The appellant, however, shall pay Rs. 150/- as costs to the respondents' counsel Sri N.V. Ramdas within four weeks.