(1) This is a regular second appeal by the defendants from the judgment and decree of the learned District Judge, Ferozepore, accepting the appeal of the plaintiff and dismissing that of the defendants and after reversing the judgment and decree of the Court of first instance passing a decree in favour of the Plaintiff with costs of both the courts.
(2) Harnam Singh Plaintiff (respondent in this Court) had instituted the suit out of which this appeal arises for a declaration that he was the sole owner of the land specified in the heading of the plaint and situated in Tehsil and District Rahim Yar Khan Bahawalpur State (now in Pakistan) and that he alone was entitled to 57 standard acres and 13 1/2 units of land to be allotted by the Rehabilitation Department in lieu of the land left in Pakistan and that the defendants had no connection whatsoever with the said land. The Plaintiff claimed to be the owner of 1306 kanals 11 Marlas situated in village Sarbhori Chaks Nos. 101/P and 103 in Bahawalpur State in lien whereof 57 standard acres and 13 1/2 units were allotted to him in village Jalalbad, Tehsil Zira. The defendants had also preferred a claim in respect of the same land namely, Chaks Nos. 101/P and 103 situated in village Sarbhori and got allotment of land in lieu thereof in Jullundur district. On a complaint having been made by Ladha Singh, and Wadhawa Singh that double allotment had been made in lieu of the aforesaid land left in village Sarbhori, the allotment in favour of the defendants was cancelled in its entirety and the plaintiff's allotment was cancelled to the extent of 14 standard acres and 13 units which was allotted to the defendants. Both the parties took the matter in appeals to the Deputy Constodian General But without any success though the Deputy Custodian General observed that the parties could have their rights decided by the Civil Courts.
(3) According to the Plaintiff's allegations he had purchased the aforesaid land situated in Pakistan from its owners somewhere in 1919 and had also taken possession thereof but regular sale deeds were only executed in the year 1933. The necessary mutations were sanctioned in the plaint that mutation was in the first instance made in favour of Gian Singh but the same was corrected later in favour of the plaintiff. It is on this basis that he claimed ownership of the said land.
(4) The defendants contested the suit on the merits and also raised some preliminary objections The jurisdiction of the Civil Court to try the suit was contested and it was further pleaded that the Civil Court of Rahim Yar Khan had decided the question of ownership of the said land which decision operated as res judicata between the parties. The suit was also pleaded not to be maintainable in the form is which it was framed as the defendants claimed the be is in possession of a major portion of the suit land.
On the merits sole ownership of the land was claimed by the defendants on the allegation that Gian Singh, father of the plaintiff, who was the sole owner of the land measuring 1445 kanals and 16 marlas of land, had sold it for Rs. 5,900/- to the ancestors of the defendants by means of an oral sale the mutation whereof was entered in 1923; in chakbandi that land was included in village Sarbhori Chaks Nos. 101 to 103 and the vendees remained in possession thereof from the date of the aforesaid sale till the partition of the country. Plea of Limitation was also raised in defence. The preliminary objections were disposed of and Civil Court was held to have jurisdiction to proceed with the suit. On the merits the following issues were settled.
1. Whether the plaintiff was the owner of the land situated in Bahawalpur State as described in the plaint?
2. Whether the suit is barred by O. 2, R. 2 Civil Procedure Code?
3. Whether the plaintiff had subsisting right in the land mentioned in issue No. 1 and the suit is within time?
4. Whether the defendants had acquired any right in the land in question by adverse possession for more than 12 years?
5. What land has been allotted in lieu of the land Mentioned in issue No. 1?
6. Whether the suit for declaration does not lie?
On Issue No. 1 the learned Subordinate Judge came to the conclusion that the plaintiff had 4/7th share in the land left in Bahawalpur State, the remaining share belonging to the defendants, Issue No. 2 was decided against the defendants and on issues Nos. 3 and 4 the plaintiff's right was held to subsist only to the extent of 4/7th share in the land left in Bahawalpur, and the defendants' ancestors were found to have become owners by adverse possession to the extent of 3/7th share. Issue No. 5 was not considered material for the purposes of the suit and on issue No. 6 the Court held that the plaintiff can only sue for a declaration as relief by way of possession could only be granted by the Rehabilitation department. On these conclusions a decree for declaration was granted to the plaintiff to the extent of 4/7th share only in the land mentioned in clauses A to C in the heading of the plaint. The parties were, however, left to bear their own costs.
(5) Both the parties took the matter on appeal to the Court of the learned District Judge and Shri B. L. Goswamy first addressed himself to the question of limitation. It appears that arguments in the trial Court were heard at Zira on the 15th of May, 1958, when the learned subordinate Judge ordered that the judgment would be announced on 23-5-1958 at Fazilka, the head-quarters of the Court. The judgment was actually announced on that date at Fazilka but neither the parties nor their counsel were present. Out of abundant caution, as the District Judge has himself put it, the court caused were present. Out of abundant caution, as the District Judge has himself put it, the court caused the counsel for the parties to be informed of the judgment and as a matter of fact they were both so informed on 16-6-1958. Both the parties preferred appeals to the Court of the learned District Judge and it is not disputed that computing the period of limitation from 23-5-1958 both the appeals in the lower Appellate Court were barred by limitation, the plaintiff's appeal by one day and the defendants' by 18 days. In case, however, the pried of limitation were to be computed from 16-5-1958 then both the appeals would be within limitation. The plaintiff filed in the lower Appellate Court an application under Section 5 of the Indian Limitation Act praying for extension of time on the ground that he had approached the clerk of his counsel and had been advised by the said clerk that the period began to run from 23-6-1958 (sic). The learned District Judge after stating these facts in his judgment extended limitation in both the appeals in the following words:
'Considering all the facts and circumstances surrounding this matter, I would think that the limitation actually started on 23rd May, 1958 and both the appeals are barred by time. I would, however, extend limitation under Section 5 of the Limitation Act in favour of both the parties and would decide the appeals on merits of the matter.'
(6) On the merits, the learned District Judge came to the conclusion that the plaintiff had established his title to the suit land and, as already observed, allowing his appeal and dismissing that of the defendants decreed the plaintiff's suit in toto. It is in these circumstances that the defendants have approached this Court on second appeal.
(7) The learned counsel for the appellant Shri Har Bhagwan Khunger has submitted that the learned District Judge committed a serious error in extending the period of limitation in the case of the plaintiff's appeal under Section 5, Indian Limitation Act. It is contended that the learned District Judge has given no reasons for extending the time and the counsel describes the order of the learned Judge to be contrary to the well-recognised Principles on which discretion under Section 5, Indian Limitation Act is to be exercised and, therefore, arbitrary and capricious. The affidavit filed in support of the petition under S. 5, Indian Limitation Act, according to the learned counsel, does not disclose any sufficient cause which comes up to the standard laid down by decided cases. In support of this contention Shri Khunger has relied on some reported decisions.
In Mst. Pana Bibi v. Mahla, AIR 1928 Lah 488 Bhide J. observed that mistake on the part of counsel's clerk cannot be considered to be a sufficient ground for extension of time under Section 5 Limitation Act. For this observation, the learned Judge relied on Shahadat v. Hukam Singh, AIR 1924 Lah 401.
In Sarmukh Singh v. Chanan Singh, AIR 1960 Punj 512, a decision by a Division Bench of this Court to which I was a party, it has been observed that it is incumbent on a litigant seeking relief under Section 5, Indian Limitation Act, to place material before the Court from which it is possible to deduce that the counsel acted in' good faith' in other words, 'with due care and attention.' In the reported case a Senior Advocate had advised an appeal to be filed in the Court of the District Judge, an advice which on the clear language of section 39 of the Punjab Courts Act was contrary to law and in considering whether such a wrong advice constituted a sufficient cause, the Bench observed that a mistake due to negligence or want of reasonable skill can by no stretch be considered to fall within the definition of 'good faith' as contained in Section 2(7) of the Limitation Act. It was further observed in the reported case that the view taken by the legal adviser, if reasonable, though mistaken, might have justified protection under Section 5 but where the view taken is wholly unsupportable on the express language of a well-known provision of law, it is difficult to apply Section 5 to such a case.
In Tola Ram v. Jaffer Khan, 38 Ind Cas 464 : (AIR 1917 Sind 52), a Division Bench of the Sind Judicial Commissioner's Court held the delay of the day in presenting an appeal after the ex piry of the period of limitation prescribed therefore to be per se wholly insufficient for extension of time under Section 5, Limitation Act, and considered such delay to be as fatal as a longer delay.
In Karora Singh v. Kartar Singh, ILR (`1951) Punj 136 : (AIR 1951 Punj 170), Harnam Singh J. observed that the existence of sufficient cause for not filing the appeal within time is a condition precedent to the exercise of the Court's power to grant or refuse extension of time under Section 5 of the Limitation Act.
In Bechi v. Ahsan-Ullah Khan, ILR 12 All 461, a Full Bench of that Court observed as follows:
'This being so, it seems to me to follow that it is the duty of the second appellate Court to see whether the duty thus cast upon the Judge of the lower appellate Court has been property discharged by him, and to interfere, if by a wrong, improper and judicially unsound exercise of discretion under Section 5 of the Act, he has admitted an appeal which was barred by limitation. To hold otherwise would be to confer an amount of finality and conclusiveness upon the adjudication of District Judges in this respect which the law could never have intended for the logical result of such a view would be to paralyse the hands of this Court, even in a case where the lower appellate Court by a grossly improper and unsound exercise of discretion under Section 5 of the Act had admitted, and heard, and determined an appeal which had for a century or more been barred by limitation.'
In Chunder Doss v. Boshoon Lall Sookul, ILR 8 Cal 251, a Division Bench of the Calcutta High Court ruled that the High Court, sitting on second appeal, had power to look into the grounds which a Judge had given for admitting an appeal after the lapse of the period allowed by the Limitation Act.
(8) On the other hand on behalf of the respondent, it has been contended that the learned District Judge having considered all the facts and Circumstances surrounding the matter and having extended the time under Section 5, Limitation Act, this Court has no power to go into the merits and substitute its own opinion for that of the learned District Judge. Emphasis has been laid by the counsel on the fact that although the Curt of first instance had on 15-5-1958 positively directed that the judgment would be announced at Fazilka on 23-5-1958, when orders were actually announced on 23-5-1958, the Court caused to counsel for the parties to be informed of the judgment The Court, having while announcing orders, by way of abundant caution, caused the counsel for the parties to be informed of the judgment, and both the counsel having actually been informed of the judgment on 16-6-1958, this should be considered to be a sufficient cause for the extension of the under Section 5, Limitation Act.
Support has been sought for this contentions from Bur Singh v. Firm, Jodha Ram-Hannu Ram AIR 1926 Lah 542 (2) where it is observed that the Court of second appeal cannot consider the sufficiency or otherwise of the reasons given by the Court of first appeal for declining to exercise his discretion under Section 5 of the Indian Limitation Act. These observations, in my opinion, must be construed in the context in which they were made. In the reported case an appeal filed in the Court of the District Judge was admittedly barred by time and no affidavit showing sufficient cause for not presenting the appeal within the prescribed period was filed in the Dist. Court. The learned Judge consequently held that there was no ground for extending the period. An affidavit was, however, filed in the High Court giving grounds in justification of the delay and it was in this context that the aforesaid observations were made It is clear that this decision is no authority for the proposition that this Court on second appeal is completely debarred from considering the question of the extension of time by the lower Appellate Court.
Rura Mal v. Ram Chand, AIR 1936 Lah 200 is the next decision on which Shri Gujral has placed reliance in support of his contention. In this case, Agha Haidar J. observed that once a discretion has been exercised in the matter under Section 5. Limitation Act by the lower appellate Court, the High Court should not interfere. These observations too, in my opinion, have to be read in their own context. In the reported case, the Court of first appeal and given a finding that the defendants-respondents there had sufficient cause for not filing the appeal within the period of limitation on account of the erroneous practice prevailing in the district and this finding was upheld by the High Court to be correct. The decision is also thus of no assistance to the respondent.
The third decision relied upon is Azam Ali v. Akhtar Hussain, 33 Ind Cas 808 : (AIR 1916 Lah 202), in which Sir Donald Johnstone, Chief Judge of the Punjab Chief Court, observed that the discretionary power given to Courts by Section 5 of the Limitation Act should be interfered with in exceptional cases only. In that case in consequence of the change from the old to the new District Judge the appellant through mistake off his legal adviser failed to presented his appeal within thirty days prescribed by the new Punjab Courts Act, and the Court held that there was a sufficient cause entitling the appellant to the indulgence of Section 5. This case also, in my opinion, proceeds on its own peculiar facts as owner to the re-organization of the judicial arrangement in the new Punjab Courts Act the legal adviser took a mistaken view which was held not to be wholly inexcusable. On this premise the Chief Court did not consider it proper to interfere with the discretion of the lower Appellate Court.
(9) After giving my most earnest thought to the arguments addressed at the bar, in my opinion appellate jurisdiction being statutory, there is no limitation about appeals form discretionary orders and in matters of discretion no one case can generally speaking be an authority for another. It is correct that under Section 5 of the Indian Limitation Act it is the Court of appeal in which the appeal in which the appeal has been filed which has to be satisfied that the appellant had sufficient cause for not preferring the appeal within the period prescribed therefor and, therefor, the discretion initially lies with that Court but it can hardly be disputed that the discretion vested in that Court has to be judicial and where it is not so the Appellate Court should and indeed in may opinion must interfere. In other words normally speaking a the Appellate Court would be slow to substitute its own exercise of discretion for that of the Court below but when it is shown that the Court below has in exercising its discretion acted unreasonably or capriciously or has ignored relevant facts and adopted an unjudicial approach, then the Appellate Court would be entitled--and perhaps also bound--to interfere with the lower Court's discretion. In such cases the discretion exercised by the Court below can properly be described to be contrary to law and improper justifying interference by the Appellate Court. I am also of the view that in cases of discretion it is risky to appeal to precedents though reference to other decided cases may be made by way of illustration. That the higher Court is entitled to interfere with the exercise of discretion of the Lower Appellate Court when the latter has misdirected itself as to the law applicable to the case or when it has not been exercised judicially, is clear from the observations of the Privy Council in Brij Indar Singh v. Kanshi Ram, ILR 45 Cal 94 : (AIR 1917 PC 156). It would be instructive to reproduce the following observations of Lord Dunedin in the reported case:
'The learned Judge says that each case depends on its own circumstances. This is true. But he seems to treat this truism as if it was destructive of the idea that that there can be a general rule. There is no inconsistency in the position. There may be a general rule as to the exercise of discretion, but each case must, nevertheless, be examined as to its own circumstances to see whether they make it fall within or without the terms of the general rule.'
In Arura v. Karam Din, AIR 1947 Lah 76 Abdur Rahman j. interfered on second appeal with the exercise of the direction of the Court below with the observations that the inference drawn by a Court as to whether certain facts found by it to have been established amount to sufficient cause or not is one of law. For this view reliance was placed on the English decision King v. Port of London Authority, 1920 AC 1. Now, it is incontrovertible that it is the duty of a litigant to know the last day on which he can present his appeal, and if there is delay on his part, it becomes necessary for him to ask the Court to exercise in his favour the power contained in Section 5 of the Indian Limitation Act. The burden rests on him of adducing distinct proof of the sufficient cause on which be relies. (See Krishnasami Panikondar v. Ramasmi Chettiar, AIR 1917 PC 179) It is equally well-settled that it is incumbent on the appellant in order to have the benefit of Section 5, Limitation Aft, to explain the delay of every day that lapses beyond the period allowed by the Limitation Act for filing an appeal.
(10) In the present case the only reason given in support of the prayer for extension of time is that the plaintiff had approached the clerk of the counsel, who had to file the appeal, and he was advised that the time would run from 16-6-1958. The learned District Judge has not found that the plaintiff had acted with due care and attention when he approached the counsel's clerk. It is also not shown as to why the plaintiff did not take the advice of the counsel himself and did not disclose even to the clerk that on 15-5-1958 the learned Subordinate Judge actually informed the parties that orders would be announced at Fazilka on 23-5-1958. In Mst. Husaina v. Mst. Sahib Nur, 20 Ind Cas 3 (Punj), Rattigan and Chevis JJ. observed that a litigant who takes action without going to the trouble and expense of taking legal advice cannot be said to have exercised due diligence and must take the consequences if he makes a mistake and further that a litigant who consults a legal practitioner of inferior standing and little experience is in no better position. It is obvious that in the present case even if we believe that the plaintiff had asked the counsel's clerk about the date when the appeal could be filed, in my opinion, it would not constitute a sufficient cause for not preferring the appeal within time. No reason has been assigned as to why the counsel was not consulted and then there is also no explanation as to why full facts were not disclosed even to the lawyer's clerk namely, that on 15-5-1958 at the conclusion of the arguments the case had in the presence of the parties' counsel been adjourned to 23-5-1958 for announcement of judgment at Fazilka. I am not oblivious or unmindful of the rule that the words 'sufficient cause' should, normally speaking, be given a liberal interpretation; but consistently with this rule it has to be kept in view that these words can only be interpreted in accordance with the recognized judicial principles and with due regard to the respondent's rights. As has often been stated when the time for preferring an appeal has once expired a very valuable right accrues to the successful party and the Court must be satisfied of the legal justification of the grounds on which the extension of time is sought for attacking the decree and thereby perhaps depriving the successful litigant of the advantage secured by him. The Legislature having fixed the period for preferring appeals, Courts cannot extend that period at their own whim with, out finding the existence of sufficient cause. Merely parties is being extended does not, by itself, as this learned District Judge in the case in hand seems to have thought, absolve the Court of its judicial duty in considering the question of sufficient cause in each of the appeals before him. The judgment of the Court below on this point is thus clearly based on ignorance of the well recognised basic rule governing the exercise of judicial discretion under Section 5, Indian Limitation Act, and, therefore, liable to be set aside and reversed. In view of the foregoing discussion the appellants' contention must prevail and the plaintiff's appeal in the lower Appellate Court must be held to be barred by time.
(11) In this view of the matter, it is hardly necessary to express any considered opinion on the other points on the merits of the appeal raised before us. They may, however, be briefly mentioned. The learned counsel for the appellant has frankly conceded that on the existing record it is difficult to find fault with the decision of the Court below on the merits. He has, however, contended that the Court below was wrong in refusing to permit additional evidence. It is urged that the documents which were sought to be produced as additional evidence. It is urged that the documents which were sought to be produced as additional evidence had to be obtained from the office of the High Commissioner in Pakistan. The trial Court did not afford sufficient time with the result that those documents could not properly be placed on the record. In the alternative, it has been contended that at least copies of the judgments given by competent Courts in Bahawalpur State, being foreign judgments, were admissible under Sections 13 and 14 of the Code of Civil Procedure and the trial Court had committed a serious error of law in refusing to look at them. According to those judgments, so argues the counsel, the plaintiff had only 4/7th share in the property in dispute.
(12) On behalf of the respondent this argument has been sought to be met by the contention that the Code of civil Procedure does not deal with the admissibility of evidence and that, therefore, those judgments were not admissible in evidence. It has also been contended that even until today the appellants are not ready with the documents and that they have not yet got them properly attested and there is not cogent ground for interference with the exercise of the discretion of the Court below. Emphasis had further been laid on the contention that the decision of the Court below is concluded by a finding of fact. In this connection reference has been made inter alia to Wali Muhammad v. Muhammad Bakhsh, ILR 11 Lah 199 : (AIR 1930 PC 91); Deity Pattabhiramaswamy v. S. Hanumayya, AIR 1959 SC 57; and Paras Nath Thakur v. Smt. Mohani Dasi, AIR 1959 SC 1204.
(13) Another point raised relates to the jurisdiction of the Civil Court, and in support of the argument of exclusion of Civil Court's jurisdiction to entertain and adjudicate upon the present suit reliance has been placed on Section 46 of the Administration of Evacuee Property Act and S. 36 of the Displaced Persons (Compensation and Rehabilitation) Act. This point was decided in favour of the plaintiff and against the defendants by Shri H. S. Bhandari, Additional District Judge, Ferozepore, in December 1959 and the case was remanded by him to the trial Court for decision on the merits. The aggrieved party did not choose to come to the Court against that order. I have also not been persuaded to hold that the view taken by Shri Bhandari, the Additional District Judge, is by any means erroneous or contrary to law and indeed reliance by the learned Additional District Judge in support of his view was placed on some decisions of this Court. Shri Gujral has in addition drawn our attention to three more decisions of this Court in which jurisdiction of Civil Courts is similar cases has been upheld: See Lt. Gurbachan Singh etc. v. Gur Iqbal Singh, 63 Pun LR 17; Charanji Lal v. Smt. Inder Devi, 63 Pun LR 479 : (AIR 1961 Punj 466) and Narain Singh v. Deputy Secretary, Rehabilitation, L. P. A. No. 277 of 1958 (Punj). As at Present advised, I have not been persuaded to hold that these decisions do not lay down a correct view of law.
(14) For the reasons given above this appeal succeeds and allowing the same I set aside the judgment and decree of the learned District Judge and restore those of the Court of first instance with proportionate costs throughout.
Tek Chand, J.
(15) I agree with the conclusion of my learned brother that this appeal be allowed and the judgment and decree of the learned District Judge be reversed restoring that of the learned District Judge be reversed restoring that of the trial Court with proportionate costs throughout.
(16) On the question of the extension of the period of limitation under Section 5 of the Indian Limitation Act and as to the extent to which a Court of second appeal can interfere with a conclusion of the trial Court, I, however, wish to express my views.
(17) The trial Courts has its headquarters at Fazilka and the presiding officer is also required to dispose of cases at Zira. In this case, arguments trial Court passed on order on that day that the judgment would be announced at Fazilka on 23rd May, 1958. On 23rd May, 1958, the judgment was announced at Fazilka, but neither the parties nor their counsel were present. By way of abundant caution, the trial Court caused information of the announcement of the judgment to be conveyed to the counsel and on 16th June, 1958, both the counsel came to know of the judgment. Both parties then made applications for the copies of judgment and decree on 17th June, 1958. On 27th June, 1958, the copy was ready for delivery to the plaintiff who filed appeal on 4th July, 1958. On 23rd June, 1958, the copy of the judgment and the decree was available for delivery to the defendants and an appeal was filed by the defendants on 18th July, 1958, in the Court of the District Judge. Both appeals would be within limitation if 16th June, 1958, was to be treated as the starting point of limitation, but as it was clearly stated in the order that the judgment would be announced at Fazilka on 23rd May, 1958, the starting point would be 23rd May, 1958; and on this reckoning, both the appeals were found time barred, the plaintiff's appeal by one day, and that of the defendants by 18 days. An application under Section 5 of the Limitation Act for extension of the period of limitation was filed by the plaintiff and the reason for the delay, which was given was, that he had come to Ferozepore on 23rd June, 1958, in connection with some other legal matter in which he had engaged Shri Hans Raj Bahl Advocate. He enquired from Sohan Lal clerk to the advocate as to the period of limitation for filing the appeal informing him that his counsel Shri Lok Raj was informed of the date of the announcement of the judgment on 16th June, 1958. Sohan Lal then advised him that he should come along with the necessary copies before 16th July, 1958. No regular application was made by the defendants under Section 5 of the Limitation Act, but there was a note under the memorandum of appeal that the judgment was announced at Fazilka in the absence of the parties and their counsel were notified on 16th June, 1958. It was stated that after deduction of the time in obtaining certified copy of the decree and judgment under appeal, the appeal was within time. There was no prayer made under Section 5 for extension of the period of limitation for filing the appeal. After stating to above facts, the learned District Judge is his judgment under appeal said:
'Considering all the facts and circumstances surrounding this matter, I would think that the limitation actually started on 23rd May, 1958, and both the appeals are barred by time. I would, however, extend limitation under section 5 of the Limitation Act in favour of both the parties and would decide the appeals on merits of the matter.'
(18) Two questions emerge, firstly, whether the discretionary power given under Section 5 of the Limitation Act was rightly exercised by the lower appellate Court; and, secondly, whether this Court would be justified in the course of special appeal to interfere with the exercise of such a discretion. The extension of period under Section 5 of the Limitation Act may be granted, on the appellant or applicant satisfying the Court that there was sufficient cause for not preferring the appeal or making the application which in the prescribed period.
It is true, that term 'sufficient Cause' is to receive liberal construction so as to advance substantial justice. The dicta of the Court in Krishna v. Chathappan, ILR 13 Mad 269, that 'sufficient cause substantial liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant', has now imprimatur of the Supreme Court in Dinabandhu Sabu v. Jadomoni mongaraj, AIR 1954 SC 411, but as pointed out by the privy Council in ILR 45 Cal 94 '(AIR 1917 PC 156), the circumstances of each case have to be examined to see, whether they fall within or without the terms of the general rule. If the delay could be avoided by the party by the exercise of due care and attention there is no sufficient cause for examining the period of limitation. If prosecution of the appeal or application has been reasonably diligent a case for the exercise of discretion will be made out.
(19) Lord Dunedin while delivering judgment of the Privy Council in Brij Indar Singh's case, ILR 45 Cal 94 : (AIR 1917 PC 156) mentioned above said:
'The learned Judge says that each case depends on its own circumstances. This is true. But he seems to treat this truism as if it was destructive of the idea that there can be a general rule. There is no inconsistency in the position. There may be a general rule as to the exercise of discretion, but each case must, nevertheless, be examined as to its own circumstances to see whether they make it fall within or without the terms of the general rule.'
(20) It is also incumbent upon the party seeking extension of limitation to furnish the facts, and to give the circumstances, on the basis of which, he wants the Court to hold, that there was a sufficient cause, for not presenting the appeal within time. As pointed out above, the defendants did not even file an application under section 5 and merely put a note below the memorandum of appeal. There was no express prayer for Condonation of the delay. It is equally desirable that the reason for admitting the appeal or application beyond time, must be recorded by the Court. In the instant case, no reason whatever, has been assigned, which led the Court to extend limitation in favour of both the parties. It is true that the words 'sufficient cause' have been left undefined and that was advisedly done for otherwise as remarked by Bowen L. J.:
'......... there is great danger........... of crystallising into a rigid definition that judicial power and discretion which the Legislature and the rules of Court have, for the best of all reasons, left undetermined and unfettered' (vide In re Manchester Economic Building Society, (1883) 24 Ch, D 488 (503)).
Mistake of lawyer's clerk in filing the appeal out of time was never deemed a sufficient cause vide, AIR 1917 PC 179 and Gopal Patwa v. Digambar Singh, AIR 1927 Pat 232. In these cases the delay in filing the appeals by appellants was attributed to the erroneous legal advice given by the lawyers' clerks. Where opinion is sought on a legal matter, a lawyer's clerk who recklessly gives wrong opinion, the party acting upon such an opinion, acts without due care and attention vide AIR 1917 PC 179. The negligence of a lawyer's clerk would not justify the Court granting indulgence to the client. This is not a case in which the Court had not given notice to deliver the judgment and therefore the parties might he said to have remained ignorant of the announcement of the decision from which they wanted to appeal.
(21) It is for the party seeking extension to bring his case within causes and conditions justifying the grant of discretionary relief, and to show, that he was without default or laches or that he was prevented from instituting the appeal within time for sufficient reasons. Circumstances excusatory of delay or exculpatory of negligence must be brought out. He has to show, that he has been prevented from preferring the appeal within time by reason of fraud, accident, mistake, or some other cause beyond his control, and that he himself had not been guilty of laches. The Court may exercise its discretion to extend limitation, where the negligence attributed to delay has been excusable but not culpable.
(22) Under Section 5 of the Limitation Act, the trial Court has no inherent power to extend the time and this cannot be done causelessly or capriciously. Where time within which the appeal may be taken has been fixed, the Court has no power to extend it as a matter of indulgence. In the exercise of the discretion which vests in the Court it has only to find out whether the conditions justifying extension exist. There is no general excusable discretion to grant relief regardless of the statutory requirements of sufficient cause.
(23) The next question is whether this Court and Court of second appeal can interfere with the exercise of discretion by the lower appellate Court in allowing or rejecting an application for excusing delay. If the discretion has been exercised on sound principles, and reasons, and not arbitrarily, fancifully or unreasonably, this Court will stay its hands. The High Court has power in second appeal to examine the grounds upon which the District Judge has admitted the appeal beyond time. It has to see that the duty of exercising discretion in a Judicial manner cast upon the lower appellate Court has been discharged properly or not. If discretion has not been exercised at all, or has been exercised whimsically or arbitrarily, the Court of second appeal will be acting within the ambit of Section 100, Civil Procedure Code, while interfering with such an order of the lower appellate Court. There is ample authority for the proposition that the question as to whether the facts and circumstances, constitute sufficient cause, is one of law and not of fact and can be raided in second appeal. vide AIR 1947 Lah 76, Kishen Chand v. Mohammad Hussain, Air 1942 Lah 94, and AIR 1942 Lah 94, AIR 1926 Lah 542.
(24) It is a universal rule that matters within the judicial discretion of lower Court are not disturbed unless there is a clear abuse thereof, but the lower Court has not an entirely free hand in discretionary matters. If the lower Court takes into account the law and the circumstances of the case and arrives at its conclusion aided by reason, the discretion will not be disturbed, as in such a case the discretion has been judicially exercised. But where a case is made out for abuse of discretion, the Court of second appeal will not hesitate to reverse the decision suffering from such an infirmity.
(25) For reasons stated above this case is clearly an instance of abuse of discretion and the period has been enlarged in both the appeals without regard to the statutory condition of sufficient cause. The error committed by the Court being that of law, it is the duty of this Court to correct it.
(26) For these reasons I agree with the conclusion arrived at by my learned brother.