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M.T. Cherian Vs. the Pankal Vittal Naik and Co. (P) Ltd., Mattancherry and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKerala High Court
Decided On
Case NumberC.M.P. No. 8591 of 1971 in A.S. No. 357 of 1971
Judge
Reported inAIR1972Ker117
ActsLimitation Act, 1963 - Sections 5
AppellantM.T. Cherian
RespondentThe Pankal Vittal Naik and Co. (P) Ltd., Mattancherry and anr.
Appellant Advocate C.S. Ananthakrishna Iyer, Adv.
Respondent Advocate J. Renganathan Kamath and; S. Parameswaran, Advs.
DispositionApplication allowed
Cases ReferredMaung Daw Na v. Ma Kaya.
Excerpt:
.....delay - section 5 of limitation act, 1963 - application under section 5 to condone delay for not filing appeal within prescribed period - first defendant applied for copies of judgment on 8th day of judgment - application for review filed 8 days after obtaining copies - appeal filed two days after decision of court which set aside order of trial court on review application - first defendant acted bona fide in filing review application and present appeal - held, fit case for condoning delay. - - i consider that it is well established on the decisions of the privy council referred to above that what is material is not whether there were reasonable grounds to take the earlier proceeding which ultimately did not succeed, but whether the party acted bona fide in taking the said..........account these two sums and give credit for the same was an error on the face of the record. the review application also stated that the first defendant's advocatehad prepared statements showing the particulars of the amounts credited in the plaintiff's books, that he deposed in his evidence that the said statements had been filed in court on the impression that his advocate had done so. but by oversight the advocate had not actually filed them and that if the said statements had been filed the above error would not have perhaps occurred. the first defendant's advocate also filed an affidavit confessing his mistake in not filing the above statements in court, and produced them along with the review application. it is obvious from the deposition of the first defendant that himself and.....
Judgment:
ORDER

M.U. Isaac, J.

1. This is an application by the appellant under Section 5 of the Limitation Act. 1963 to condone the delay of not filing the appeal within the prescribed period and to admit the same as there is sufficient ground for not pre-fering it within the time.

2. The appellant is the first defendant in a suit which was filed for recovery of money due under a simple mortgage. The first defendant contended among other things, that the mortgage was executed for amounts that would be found due to the plaintiff on account of forward contracts in cocoanut oil carried on between the parties, that the said transactions were illegal, that the plaintiff was not. therefore, entitled to recover any amount under the mortgage, that these transactions continued between the parties after the execution of the mortgage and that the first defendant was in any event entitled to get credit for the amounts due to him on account of subsequent transactions. In his evidence he stated that he had paid to the plaintiff in the account of his father Rs. 6,651/- from 20-3-1952 till 16-3-1956, and Rs. 21,381.5.7 in his own account from 23-4-1952 till 29-6-1957, that all these payments are seen in the plaintiff's books of account, which were produced before the Court, that all the payments had been made in cash and by cheques, that he had filed statements in Court showing the said payments, and that he was entitled to get credit for the same. The trial court held that the dealinPS between the parties in cocoanut oil were wagering contracts, and that the plaintiff was entitled to recover only the price of copra sold to the first defendant after deducting the payments which the first defendant was found to have made to the plaintiff. Accordingly the trial court gave a decree for the value of the copra after deducting therefrom the subsequent payments made by the first defendant, which the trial court fixed at Rs. 4,549.10 on the basis of Ext. P15 which is an English translation of the relevant folio of the plaintiff's ledger for the year 1951-52.

3. Eight days after the first defendant obtained certified copies of the judgment and the decree, he made an application in the trial court for review of the iudgment and decree on the ground that in the light of the findings the trial court should have given him credit not only for Rs. 4,549.10 but also for the two amounts of Rs. 6.651/- and Rs. 21,381.5.7, which are credited in the plaintiff's books of account as deposed by the first defendant and that the omission to take into account these two sums and give credit for the same was an error on the face of the record. The review application also stated that the first defendant's advocatehad prepared statements showing the particulars of the amounts credited in the plaintiff's books, that he deposed in his evidence that the said statements had been filed in court on the impression that his advocate had done so. but by oversight the advocate had not actually filed them and that if the said statements had been filed the above error would not have perhaps occurred. The first defendant's advocate also filed an affidavit confessing his mistake in not filing the above statements in court, and produced them along with the review application. It is obvious from the deposition of the first defendant that himself and his advocate proceeded on the assumption that the said statements had been produced in Court. The trial court accepted the first defendant's case and allowed the review application.

4. The plaintiff filed an appeal from the order of the trial court. This Court took the view that the facts alleged by the first defendant did not constitute proper ground for review and that in so far as the plaintiff's books of account had not been duly proved by producing translations of the relevant folios, it was not open for the trial court to rely on the statements produced by the first defendant on the basis of tha entries in the said books. Accordingly the appeal was allowed by judgment dated 25th March 1971. Thereupon the first defendant filed the present appeal on 27-3-1971 along with the present application for condonation of the delay. He states that he was bona fide prosecuting the review application and that the period of pendency of that application and of the appeal in this Court may be excluded in reckoning the time for filing of the appeal. The application is opposed by the plaintiff.

5. There is no dispute that Sec-tion 5 of the Limitation Act 1963 would apply to the case. The only contention is that there was no ground for filing a review application, as was ultimately held by this Court and that the prosecution of such an ill-advised proceeding would not constitute a sufficient ground for condoning the delay of not filing the appeal within the proper tune. Counsel for the first defendant contended that he filed the review application and prosecuted it on the bona fide belief that it was the Droner remedy, that the trial court granted him relief and the fact that the appellate court took a different view does not affect the bona fide character of the action taken by him, that he has acted diligently in the matter of filing the review application and filing the appeal, and that the non-filing of the appeal during the period of the pendency of review application would be for sufficientground within the meaning of Section 5 of the Act A number of decisions were cited by counsel for both parties in support of their respective contentions.

6. Counsel for the first defendant referred me to the decision of the Privy Council in Brij Indar Singh v. Kanshi Ram. ILR 45 Cal 94 = (AIR 1917 PC 156). In that case, the plaintiff applied for review of an order dismissing a suit as abated. The review was allowed. But the High Court set aside the order of the trial court on the ground that the review was not maintainable and that the proper remedy was appeal. Then the plaintiff filed an appeal which was resisted on the ground of limitation. The High Court dismissed the appeal holding that the time spent for prosecution of the proceedings arising out of the review application cannot be excluded in reckoning the period of limitation. In reversing the decision of the High Court, the Privy Council approved the following statement as laying down a general rule applicable in such cases:--

'If a party presents an application for review of judgment within the ordinary period of limitation for appealing, the time occupied by the court in disposing of such application will not be reckoned among the days limited for appealing, but will be added thereto and a memorandum of appeal represented within such extended period will be received as presented within time.'

In Rajendra Bahadur v. Rajeshwara Ball AIR 1937 PC 276 the Privy Council followed the principle laid down in the above decision, and applied it to a case, where by mistake a party filed an appeal in a wrong court and the question arose whether the time spent for prosecuting the appeal in that Court can be excluded in reckoning the period of limitation of the appeal filed in the proper court. The Supreme Court has also held in Lala Mata Din v. A. Narayanan. (1969) 2 SCWR 428 -- (AIR 1970 SC 1953) that Section 5 of the Limitation Act would be attracted under similar circumstances.

7. As against the above authorities, counsel for the plaintiff invited my attention to the decision of the Bombay High Court in Seshgiri Narayan v. Venketesh Laxman. AIR 1927 Bom 221. In that case, the petitioner first applied for a review of the judgment. When that was dismissed he applied for leave to appeal from the judgment to the Privy Council; and also for condonation of the delay occurred in filing the said application. The court rejected the application holding that the period spent for prosecuting the review application cannot be excluded in reckoning the period of limitation. A reading of this decisionwould show that the court was not laying down any such general proposition; but it was a decision on the particular facts of the case. Firstly, the application was time barred, even after excluding the period of pendency of the review application. Secondly, the court found that there was no scope for thinking that review would have been a proper remedy in the case, and that the same was filed without bona fides for protracting the litigation. This decision does not. therefore, support the plaintiff.

8. Another decision relied on by counsel for the plaintiff is that of the Chief Court of Oudh in Muhamud AH v. Wajid All, AIR 1940 Oudh 310. Counsel relied on the following passage in that decision.

'An appellant who desires to be excused the delay must satisfy the court that there were sufficient circumstances existing in the case to account for the delay: and therefore the appellant must satisfy the court that there were reasonable grounds for review'. Counsel for the plaintiff also cited the decision of the Rangoon High Court in Maung Daw Na v. Ma Kaya. (1922) 64 Ind Case 516. In that case, the count quoted with approval the following statement as laying down the correct law: 'The true guide is whether the appellant has acted with reasonable diligence in the prosecution of his appeal. He aught to be deemed to have so acted, where after deducting the tune spent in prosecuting with due diligence a proper application for review of judgment, the period between the date of the decree appealed from and the date of presenting the appeal does not exceed the period prescribed for preferring an appeal.'

9. I, respectfully agree with the above statement of the law; but I am unable to accept the proposition stated in the Oudh case. If there are sufficient and reasonable grounds for the review, the review would have been allowed, and there would be no scope for filing an appeal and the question of condoning any delay would not arise at all. I consider that it is well established on the decisions of the Privy Council referred to above that what is material is not whether there were reasonable grounds to take the earlier proceeding which ultimately did not succeed, but whether the party acted bona fide in taking the said proceeding, and acted diligently in prosecuting the same and in filing the appeal after the termination of the proceeding. If he did so. It would be sufficient ground for not filing the appeal in time; and the, delay would be excused.

10. In the instant case, the first defendant applied for copies of the judgment and decree on the 8th day of thejudgment, the application for review was filed 8 days after obtaining the copies, and this appeal was filed two days after the decision of this Court which set aside the order of the trial court on the review application. Therefore, he has acted with extreme diligence in filing the review application, in prosecuting it and hi filing this appeal. I have already referred to the circumstances under which the petitioner happened to file the review application. He acted under competent legal advice. The trial court took the view that it was the proper remedy on the facts and circumstances of the case; and it allowed the application. Therefore, there can be no doubt that the first defendant acted bona fide in filing the review application. The fact that the appellate court took a different view is not relevant in deciding the bona fides of the action taken by him. The subject-matter of the dispute involves a fairly large amount; and an appeal filed by the plaintiff from the same decree is pending in this Court. This is, therefore, an eminently fit case for condoning the delay and admitting the appeal. This application is accordingly allowed; and the appeal is admitted. I make no order as to costs.


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