(1) The short question to determine in this appeal is whether the defendant-appellants should have been granted extension of time under section 5 of the Indian Limitation Act?
(2) The suit filed by Baru Ram respondent for possession of the suit property was decreed in his favour by the Court of Shri M. R. Sikka, Subordinate Judge 1st Class, Patiala, on 31st of October, 1960. The defendants through Shri Lajpat Raj Palli, Advocate, Patiala, filed an appeal on 18th of November, 1960 in the Court of the Senior subordinate Judge. The Senior Subordinate Judge on 6th of February, 1961 returned the memorandum of appeal for presentation to the District Judge as the subject-matter being landed property exceeded the pecuniary jurisdiction of that Court of Rs. 250/-. The memorandum was presented before the District Judge on the following day, namely 7th of February 1961. It cannot be disputed that if the memorandum of appeal is deemed to have been presented on 7th of February, 1961 before the District Judge, Patiala the appeal is barred by time.
(3) In an affidavit filed by Biru Ram, clerk of Shri Lajpat Raj Palli, it was stated that the memorandum of appeal had been presented before the Senior Subordinate Judge on the advice of the Office Superintendent. The District Judge made an oral inquiry from the Superintendent who denied this allegation. On this material the District Judge came to the conclusion that there was no sufficient cause for extension of time. Normally, I would have been bound by the decision of the lower appellate Court who had undoubted discretion to allow or not the extension of time prayed for under section 5 of the Indian Limitation Act. As held by a Division Bench of Chief Justice Mootham and Agarwala, J. in Hanuman Dass v. Pirthvi Nath AIR 1956 All 677, the Courts below must have the discretion to decide the question whether a certain set of facts amounts to sufficient cause or not within the meaning of section 5 of the Limitation Act, and unless it can be said that it has taken a perverse or absurd view, the exercise of the discretion by it will not be interfered with in appeal and much less in revision. Reliance was placed on the observations of Lord Justice Asquith in Bellenden v. Satterthwait, 1948-1 All ER 343, to this effect:
' We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong that an appellate body is entitled to interfere. That is, I think the principle which emerges from the decision of the House of Lords in Evens v. Bartlam, 1937 AC 473, and Osenton and Co. v. Johnston, 1942 AC 130.'
The same principle has been affirmed by Falshaw, J., (as the Chief Justice then was) in Governor-General in Council v. Mr. D. E. Rivett, 1953-55 Pun LR 224, where it was stated that a Court of appeal should he most reluctant to interfere with the discretion exercised by the Court below in extending limitation under section 5 of the Indian Limitation Act, even though on the same facts it would have been minded to act differently. In that case, discretion had been exercised by the lower appellate Court in favour of the appellant by granting time. The principle, however, would apply even where it has been found by the lower appellate Court that no sufficient cause has been shown for extension of time as in the present case.
(4) It seems to me, however, that in the instant case the lower appellate Court acted arbitrarily and somewhat injudiciously when he disbelieved the affidavit filed on behalf of the appellant of basis of information which he received from his Superintendent who neither filed an affidavit nor came into the witness-box. There is intrinsic evidence to indicate that the plea taken by the appellant is not without substance. In the memorandum of appeal, which is typewritten and on which the signatures of the counsel, Shri Lajpat Rai Palli, are appended at the end it is mentioned at the top 'In the Court of the District Judge, Patiala' as the forum of appeal. The word 'District' has been erased and the words in vernacular 'Senior Subordinate Judge' have been substituted in ink. The clerk of the counsel deposed that the substitution was made on the advice of the Office Superintendent. Whether or not that be so, it is certainly apparent that the mistake was not that of the counsel.
The learned District Judge has made no mention of the fact that the word 'District' had been substituted for 'Senior Subordinate Judge' and whether it was done on the advice of the office or on the clerk's own initiative the matter deserved investigation. It is not a sufficient answer to this allegation to say that the District Judge made private inquiries from the Superintendent who disclaimed having given any such advice to the clerk of the counsel concerned. It a statement made on oath by a person is to be discredited, it is in breach of the principles of natural justice to rely for such rebuttal on a private inquiry made by the District Judge from his Superintendent. Even if the Superintendent or any other official had given advice it is unlikely that he would have made an admission of it to the District Judge. In any event, I do not think that the reply given by the Superintendent should have been accepted as the last word on the subject without the person giving it being put to oath.
There is, thus, a very grave error in the judicial discretion which has been exercised by the learned District Judge, Patiala. Even the mistakes advice of a legal practitioner may in the circumstances of a particular case give rise to sufficient cause within the meaning of section 5, Limitation Act, as held by their Lordships of the Privy Council in Rajendra Bahadur Singh v. Rajeshwar Bali, AIR 1937 PC 276, and on the facts of the case all that emerges is that the clerk of the counsel on his own altered in effect the forum of the appeal and this according to him was done on the advice of the office, an allegation which has not been property rebutted, and certainly without the consultation of his master.
(5) In this view, of the matter, I consider that the appellant had gone a considerable way to establish the existence of sufficient cause for extension of time. I would accordingly allow this appeal and set aside the judgment and decree of the District Judge, who will hear the appeal on merits. The parties have been directed to appear before the District Judge, Patiala, on 21st of February, 1962. There would be no order as to costs of this appeal.
(6) Appeal allowed.