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Ramasami Kichilappa Naick and ors. Vs. Ramanujam Pillai - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtChennai
Decided On
Reported in(1901)11MLJ406
AppellantRamasami Kichilappa Naick and ors.
RespondentRamanujam Pillai
Cases ReferredKrishna Bhatta v. Subraya I.L.R.
Excerpt:
- - the plaintiff presented this appeal to the district court on 4th january 1899. after stating the facts as above, the subordinate judge expressed his belief that the proceedings taken by the plaintiff before the deputy collector and collector were taken bona fide, and that his failure to appeal against the district munsif's order within the time allowed by law was in consequence of his pursuing the remedy pointed out by the district munsif as the proper remedy. 'we think that section 5 gives the courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood ;the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when.....benson, j.1. the first ground of second appeal taken, before us is that the subordinate judge ought not to have admitted the appeal to him under section 5 of the limitation act.2. in 1893 the plaintiff was dismissed by the zemindar (1st defendant) from his office of karnam in his zemindari. in 1894 he endeavoured to establish his right to the office before the deputy collector and the collector, but he was referred by them to the civil courts. he accordingly filed the present suit for a declaration fend for recovery of the office and of the emoluments of the office before the district munsif who dismissed the suit on 29th january 1898 on the ground that section 3 of madras act ii of 1894 ousted his jurisdiction. the plaintiff applied for copy of judgment and decree on the same day, and.....
Judgment:

Benson, J.

1. The first ground of second appeal taken, before us is that the Subordinate Judge ought not to have admitted the appeal to him under Section 5 of the Limitation Act.

2. In 1893 the plaintiff was dismissed by the Zemindar (1st defendant) from his office of Karnam in his Zemindari. In 1894 he endeavoured to establish his right to the office before the Deputy Collector and the Collector, but he was referred by them to the Civil Courts. He accordingly filed the present suit for a declaration fend for recovery of the office and of the emoluments of the office before the District Munsif who dismissed the suit on 29th January 1898 on the ground that Section 3 of Madras Act II of 1894 ousted his jurisdiction. The plaintiff applied for copy of judgment and decree on the same day, and copies were delivered to him on 18th February. Agreeably to Act II of 1894, on which the District Munsif relied, the plaintiff moved the Deputy Collector on 5th March 1398, and his petition was rejected on 13th June. The plaintiff got copy of that order on 14th July and appealed to the Collector on 25th July. The Collector rejected the appeal on 25th November. He obtained copy of the Collector's order on 7th December and the return of records on 28th December. These dates are not disputed. The plaintiff presented this appeal to the District Court on 4th January 1899. After stating the facts as above, the Subordinate Judge expressed his belief that the proceedings taken by the plaintiff before the Deputy Collector and Collector were taken bona fide, and that his failure to appeal against the District Munsif's order within the time allowed by law was in consequence of his pursuing the remedy pointed out by the District Munsif as the proper remedy. The Subordinate Judge found that under the circumstances there was sufficient cause shown for admitting the appeal, and the first question for our decision is whether we ought in second appeal to set aside that finding and dismiss the plaintiff's appeal to the Subordinate Judge. I do not think that we ought. It will be seen that the case is a somewhat peculiar one. The Revenue Courts had referred the plaintiff to the Civil Courts and when plaintiff sued in the Civil Court, the District Munsif declined jurisdiction. In this the District Munsif was wrong, as, point ad out by the Subordinate Judge. However, the plaintiff, acting on the ruling of the District Munsif, again applied to the Revenue Courts and on the 25th November 1898, the Collector referred the plaintiff again to the Civil Court. The plaintiff obtained a copy of the Collector's order on the 7th December, and filed his appeal against the District Munsif's order in less than a month after that date notwithstanding the intervention of the Christmas holidays.

3. This Court has always shown an inclination to construe Section 5 liberally. The High Court of Bombay Sitaram Paraji v. Nimbavalad Harishat I.L.R. 12B. 320 has no doubt held that a mistake of law is not a 'sufficient cause' within the meaning of Section 5 and Mahmood, J. concurred in that opinion in the case reported in Bechi v. Ahsan-Ullah Khan I.L.R. 12 A. 461 but this Court (following a Calcutta case, Euro Chunder Roy v. Surnamoyi I.L.R. 13 C. 266 has expressly held that, under certain circumstances, a mistake of law may be sufficient and that 'the true rule is, whether under the special circumstances of each case, the appellant acted under an honest though mistaken, belief formed with due care and attention. Section 14 of the Limitation Act indicates that the Legislature intended to show indulgence to a party acting bona fide under a mistake'. (Krishna v. Chathappan I.L.R. 13 M. 269. It is, I think, clear that up to the 25th November the plaintiff was pursuing the remedy indicated to him by the District Munsif with diligence and bona fides. It is, however, contended that after the Collector's order of the 25th November, the plaintiff ought at once to have filed his appeal against the decree of the District Munsif, and that there was no need for him to get a copy of the Collector's order of the return of the records from the Collector before doing so. If the appellant had been appealing against the order of the Collector, he would have been entitled, as of strict right under Section 12 of the Act, to deduct the time requisite for obtaining a copy of that order. He was not, however, appealing against that order, and it was therefore not necessary for him to get a copy of that order, but considering the conflict between the various authorities and the real difficulty surrounding the question, it seems to me that it was a natural and reasonable thing for the plaintiff to arm himself with these papers before seeking further legal advice and filing his appeal. It must be observed that there is a wide distinction between the law of limitation in respect of suits and in respect of appeals. In the case of the former, the rules are rigid and are laid down with exactness, nothing being left to the discretion of the Court. But in the case of appeals, Section 5 gives the Court a discretion to admit the appeal after the prescribed time if the appellant.' satisfies the Court that he had sufficient cause for not presenting the appeal' within the prescribed period. 'Sufficient cause' is evidently something more than 'legally sufficient' or 'sufficient according to the rules laid down in the law of limitation' for if any case fell within these rules it would be governed thereby as in the case of suits, and there would be no scope for the application of Section 5. 'Sufficient cause' seems to mean not only those circumstances (such as the Courts being closed, or time being spent in obtaining copies, or the party being a minor or insane) which the law expressly recognizes as extending the time but also such circumstances as are not expressly recognized but which may appear to the Court to be reasonable, looking to all the facts of the case. In the case already referred to I.L.R. 13 M. 269 the late Chief Justice and Muthusami Iyer, J. construed the section in these words: 'We think that Section 5 gives the Courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood ; the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no neligence nor inaction nor want of bona-fides is imputed to the appellant.' I do not think that in this case negligence or inaction or want of bona fides can fairly be imputed to the appellant, and substantial justice undoubtedly requires that the District Munsif's order should be reversed. Moreover, this matter comes before us in second appeal and in my judgment, we ought not to set aside the decision of the Court below in a matter within its discretion, unless it has failed to exercise any discretion at all, or has exercised it in a manner that is clearly wrong. This was well laid down by Mahmood J., in the case reported in Bechi v. Ahsan-Ullah Khan I.L.R. 12 A. 485 and his judgment was concurred in by the Full Bench. Dealing with the very question now before us as to Section 5 he said: 'This, then, is the exact scope of the rule laid down by the learned Chief Justice in that case; it does not repudiate the jurisdiction of the second appellate Court to interfere, but points out that, when discretion has been actually exercised, it must not, upon light grounds and in the absence of strong reasons, be disturbed in appeal. In the principle thus expressed I fully concur, because, in matters of this kind, as indeed in matters of conclusions on the weight of evidence, the appellate Court should always act cautiously antic not disturb findings of the lower Court, unless it is absolutely satisfied that the conclusions at which the lower Court arrived were erroneous'.

4. It has been suggested that the Subordinate Judge did not exercise a real discretion or. bring his mind to bear on the interval between the Collector's order on the 25th November and the filing of the appeal on the 4th January, but I do not think that this plea can be sustained. He refers to the plaintiff getting the copy of the Collector's order on the 7th December and the return of the records on the 28th December; and I do not think that, in the face of this, we have any ground for saying that he did not apply his mind to this interval as well as to the time before, the 25th November. In this case, I would adopt the words used in another case under this same Section 5, reported in Parvati v. Ganpati I.L.R. 23 B. 513 and say that I cannot hold that the Subordinate Judge 'acted capriciously or arbitrarily or not in accordance with the rules of reason or justice, or that he came to his decision without any proper legal material to support it, or that his discretion was not exercised within the limits to which an honest man, competent to the discharge of his office, ought to confine himself, or that there was in fact, no real judgment exercised in the matter' The lower appellate Court exercised its discretion so as to advance substantial justice and I certainly cannot say that (to adopt the test of the Allahabad High Court already quoted) I am 'absolutely satisfied that the conclusions at which it arrived were erroneous''. I would therefore in this second appeal decline to interfere with the Subordinate Judge's discretion in having admitted the appeal.

5. As regards the second question, viz., in what Court does the plaintiff's suit lie, I am of opinion that the Subordinate Judge has taken the correct view. The suit is one under Section 11 of Regulation XXV of 1802. That Regulation was in force until the notification of Government was issued in 1897 bringing Act II of 1894 into force. The present suit, which was filed in 1896, therefore, was not brought under Act II of 1894 or Act III of 1895 and the District Munsif was wrong in supposing that his jurisdiction was ousted by Act II of 1894.

6. I would therefore dismiss this second appeal with costs.

Boddam, J.

7. In this second appeal two questions were raised before us by the appellants:

1. Whether the appeal was rightly admitted, and

2. Whether the Subordinate Judge was right in holding that the District Munsif had no jurisdiction to hear the suit.

8. Upon the second question we are agreed that the Subordinate Judge was right in holding that the District Munsif had no jurisdiction to hear the suit as the suit was for satisfaction for wrongful dismissal under Regulation XXV Section 11, and was not brought under Regulation Xxix, Section 7 as in Jagannatha Pillai v. Subbaraya Pillai I.L.R. 22 M. 340. So far, therefore, as this question is concerned, I agree that the appeal should be dismissed with costs.

9. Upon the first question raised, I regret that I am unable to agree with my learned colleague. The question turns upon the, interpretation to be put upon Sections 4 and 5 of the Limitation Act (Act XV of 1877) and more particularly upon the meaning of the 2nd clause of Section 5. The material part of that clause is as follows-- 'Any appeal...may be admitted after the period of limitation prescribed therefor when the appellant...satisfies the Court that he had sufficient cause for not presenting the appeal...within such period'. The period allowed for an appeal under the Limitation Act is 30 days. In this case the appeal was presented on the 4th January 1899 from a decree, dated the 29th January 1898. The question before us is whether the lower appellate Court was light--or rather was justified in the circumstances --in admitting the appeal under Section 5.

10. The suit was to establish the appellant's (the plaintiff's) right to the office of Karnam from which he had been dismissed by the 1st respondent (1st defendant) in 1893, the 2nd respondent (2nd defendant) being appointed in his place. In 1894 the plaintiff brought his action before the Deputy Collector in the Revenue Court and in April 1894 his suit was dismissed and he was referred to a Civil Court. He appealed to the Collector who dismissed his appeal and affirmed the decision of the Deputy Collector. In February 1896 he brought his action in the Court of the District Munsif and on the 29th January 1898 the District Munsif dismissed his suit, holding that the Revenue Court was the proper tribunal. The appeal now in question is from this decree of the District Munsif.

11. The plaintiff (though it was entirely unnecessary to do so) applied at once for a copy of the District Munsif's judgment and decree which he obtained on the 18th February and on the 5th March he presented his petition to the Deputy Collector which was rejected on the 13th June. On the 14th July he got a copy of that order and on the 22nd July appealed to the Collector. The Collector dismissed his appeal on the 25th November. He obtained a copy of the Collector's order on the 7th December and the return of the records on the 28th December On the 4th January 1899 he presented his appeal to the District Court from the decree of the District Munsif, dated the 29th January 1898.

12. In his judgment in this appeal the Subordinate Judge says: 'It appears to me that the plaintiff last his time in following the course pointed out by the District Munsif in his judgment and I believe the proceedings he was taking before the Deputy Collector and the Collector were bona fide. Under the circumstances 1 find that sufficient cause was shown for admitting the appeal'.

13. The question now to be determined is whether we can, or should, in the circumstances, interfere in second appeal, or whether the facts justify us in holding that the Subordinate Judge has exercised his judicial discretion and whether there were any sufficient legal materials to support this finding. I quite agree that it is right and proper that Section 5 should be liberally interpreted. I.L.R. 13 M. 269. I also agree that the mere fact that the Court above would have come to a different conclusion is no sufficient ground per se for interference I.L.R. 23 B. 513 and Fatima Begam v Hansi I.L.R. 9 A. 244 but this case has been practically overruled I.L.R. 12 A 461. The duty of the second appellate court and the interpretation of Section 5 of the Limitation Act has been laid down in the judgment of Mahmood J., in the Pull Bench case reported in I.L.R. 12 A. 461 This case overrules Fatima Begam v. Hansi I.L.R. 9 A. 244. The reference was by Edge C.J., and Young J, because of 'their doubts as to the accuracy of the ruling of this Court in' that case and Edge, C.J., was a member of the Court in both cases. He says at page 492, with reference to I.L.R. 9 A. 241: 'I need only say that I am now and have long been satisfied that on the facts of that case Mr. Justice Oldfield and I ought to,, have given effect to the objection that the appeal when it was admitted by the District Judge of Allahabad was improperly admitted, no sufficient cause having been made out for the delay'. In his judgment (with which all the other Judges agree) Mahmood, J., says: ''It seems to me...that it is the duty of the second appellate Court to see whether the duty...cast upon the judge of the lower appellate Court has been properly 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 adjudications of District Judges in this respect that 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. What would under such circumstances become of the laws of limitation which have justly been denominated as ' statutes of repose'? I cannot but hold that the imperative requirements of Section 4 of the Limitation Act not only justify us but require us as a Court of second appeal to satisfy ourselves whether the appellate Court has properly applied the provisions of Section 5 of that enactment and if the discretion has been wrongly exercised, to undo ' its effect by interference in second appeal...' He then proceeds to deal with the principles enunciated in the decision of the Court in I.L.R. 9 A. 244 and says at page 485: 'according to my view of that case I should have held that the District Judge had exercised an improper discretion in admitting the appeal after limitation and I should, by my decree, have undone the effects of such wrong admission of the appeal.'

14. I have quoted this judgment at- some length because it expresses my view of the duty of this Court and of the proper mode of dealing with a case such as this.

15. Turning now to the facts again: Between the date of the decree appealed from (29th January 1898) and the petition to the Deputy Collector (5th March) 35 days elapsed and apart from Section 5, Limitation Act, the appeal was barred. The copies of the judgment and decree of the District Munsif were not necessary before the petition to the Revenue Court could have been put in, nor were they of any avail when it was put in, 'so the whole of that time was wasted and was not 'lost in following the course pointed out by the District Munsiff in his judgment' and the fact that the proceeding were bona fide does not affect the question.

16. Again if the whole time actually occupied in bona fide following the course pointed out by the District Munsif is deducted and the time up to 5th March is included in that phrase, it only applies to the periods between the 29th January and the 27th November (even if the period from the 13th June, when his petition was rejected by the Deputy Collector, to the 25th July, when he appealed to the Collector--a period of 42 days--is to be included) still the period from the 27th November .1898 to the 4th January 1899--a period of 40 days -more than sufficient to bar the appeal--was allowed to elapse and I venture to think that it can hardly be suggested that this was caused by following the course suggested by the District Munsif. All that was the natural consequence of being misled ended on the 25th November 1898. The copy of the order of the Collector was wholly unnecessary, and quite useless on an appeal from the Munsif's judgment and I am strongly of opinion that though the Subordinate Judge mentions the fact and the date on which he obtained this copy, he did not apply his mind to the length of time that was allowed to pass after the appeal was dismissed by the Collector and this appeal was entered and the utter futility of waiting to obtain a copy of the Collector's order before parting in the appeal; and if he did, I am of opinion that he has not properly applied the provisions of Section 5. To my mind this would be a judicially unsound exercise of discretion as the discretion would have been exercised wrongly and improperly--for there was no proper legal material to support it-- and therefore I think his decision is contrary to law. I say 1 think he has not applied his mind to this period because he does not refer to it. The only reason he gives for admitting the appeal is that the appellant was misled and there-fore took proceedings in the Revenue Courts bona fide. All these proceedings ended on the 25th November 1898 and he says nothing about the period that elapsed subsequently. All that was done by the appellant after that date was unnecessary and quite foreign to the appeal and the Subordinate Judge does not say anything which leads me to think that he intended to excuse it. If He did intend to excuse it, I think his decision is wrong and should be reversed. To say that the appellant might have thought it advisable to procure a copy of the Collector's order before entering his appeal and therefore the delay should be excused would be in my view an unsound exercise of judicial discretion, for it has no proper legal material to support it. One would be equally justified in excusing any delay he might think advisable in order to enter his. appeal on a 'lucky day' or for some other equally untenable reason.

17. For these reasons I think this appeal should be allowed, the decrees of the Subordinate Judge reversed and the appeal to the lower appellate Court dismissed with costs in this and in the lower appellate Court.

[Owing to the difference of opinion between their Lordships, the second appeal was again heard by their Lordships the Chief Justice and Mr. Justice Moore.]

Their Lordships delivered the following.

Arnold White, C.J.

18. In this case the Subordinate Judge admitted an appeal which was out of time. The question for consideration is whether this Court ought, on second appeal, to interfere with the finding of the Subordinate Judge that the appellant had shown 'sufficient cause' within the meaning of these words as used in Section 5 of the Limitation Act for not presenting his appeal within the prescribed period. The dates and facts are set out in the judgments of Mr. Justice Benson and Mr. Justice Boddam and are not in dispute.

19. The Subordinate Judge held that the appellant was out of time with his appeal by reason of his following the course pointed out by the District Munsif and, that his proceedings before the Deputy Collector and the Collector were bona fide. This being so he held that sufficient cause had been shown for admitting the appeal. In other words he held that the fact that the appellant had made out a case, which, if the question had been whether under Section 14 he was entitled to have the time occupied by his proceedings before the Revenue Courts excluded in computing the period of limitation prescribed for his suit, would have entitled him to have the time thus occupied excluded from the computation, was in itself 'sufficient cause' within the meaning of Section 5 for his not presenting his appeal within the prescribed period. Now Section 14 of the Act applies in terms to suits and not to appeals. It deals with the computation of time. It does not confer a discretion on the Court but gives a right to a party to have a certain period of time execuded from the computation of the period of limitation if the requirements of the section are satisfied. This being soy Mr. Desikachariar very properly did not contend that the appellant was entitled as of right to 30 days (the prescribed period for appeals) for the presentation of his appeal from the termination of his proceedings in the Revenue Courts. His contention was, first, that the appellant had, in fact and in law, shown sufficient cause for not presenting his appeal within the prescribed period, and, secondly, that in any view, the Subordinate Judge had exercised a judicial discretion in admitting the appeal and that this Court ought not, on second appeal, to interfere with the exercise of this discretion.

20. Now, although Section 14 does not in terms apply to appeals it no doubt indicates that the Legislature intended to show indulgence to a party acting bona fide under a mistake, and the 'equity' of the section may legitimately be taken into consideration in determining whether the discretion conferred by Section 5 ought to be, exercised in favor of an appellant whose appeal is out of time.

21. Accepting, as I am prepared to do for the purpose of this judgment, the view of the Subordinate Judge, with regard to the appellant's proceedings before the Revenue Courts, I assume that the appellant showed sufficient cause for not presenting his appeal within the prescribed period, that is, 30 days after February 18th; 1898 (the date when he obtained the copy of the judgment of the District Munsif dismissing his suit). Strictly speaking the first question is not. whether the appellant has shown sufficient cause for not presenting his appeal within the prescribed period, but whether he has shown sufficient cause for not presenting his appeal before January 4th, 1899. The discretion conferred by Section 5 is a discretion--in the words used by Lord Esher in a similar case, Cusuck v. London and North-Western Railway Company 1891 1 Q.B. 347-- 'which the Court cannot. exercise loosely, but which should be exercised on a consideration of the circumstances of each case as it arises.' At the same time I entirely agree that the words 'sufficient cause' should receive a liberal construction 'so as to advance substantial justice when no negligence, nor inaction, nor want of bona fides is imputable to the appellant' (see I.L.R. 13 M. 269.

22. If I had had to deal with this question in the first instance, my view would have been that the appellant had failed to show 'sufficient cause' for not presenting his appeal until January 4th, 1899. The appeal to the District Judge was not presented until 39 days after November 25th, 1898, the date of the dismissal of the appeal by the Collector. It seems to me it was entirely unnecessary for the appellant to wait until December 28th, the date when the records were returned by the Collector, before presenting his appeal to the Subordinate Judge, and I cannot adopt the view that he was entitled to wait till December 7th when he obtained a copy of the Collector's order. No doubt if he had been appealing, the law would have allowed him in computing the time within which his appeal must be presented to exclude the period requisite for obtaining a copy of the judgment upon which the decree appealed against was founded, but I fail to see how he can pray in aid a provision of law relating to the computation of the time for appeal, which involves no question of discretion, but which lays down a hard and fast rule, for the purpose of making out 'sufficient cause' for the indulgence for which he asked being granted to him. I presume the object of excluding the time requisite for obtaining a copy of the judgment in computing the period of limitation when a decree is appealed against is to give a party an opportunity for deliberate consideration of the grounds upon which the decree pronounced against him is based before making up his mind as to whether he will appeal. In the present case the appellant had been supplied with a copy of the decree against which he appealed as far back as February 18th, 1898, and neither the Collector's order nor the records in the case could tell him anything as regards the decree, which he proposed to appeal against, which he did not already know. The appellant does not attempt to offer any explanation of the delay of 39 days beyond that contained in paragraph 11 of his petition to the Subordinate Judge. He there states 'that after the receipt of the said appellate order petitioner consulted and took advice as to the course that he should take and he was told to obtain return of the material records from the Revenue Courts in which he had filed them.

23. Even assuming that the appellant was entitled to wait till ho obtained a copy of the Collector's order--December 7th--there is no attempt beyond the vague statement in the petition to which 1 have referred to explain the delay from December 7th to December 19th when the Court closed for the Christmas recess, or to account for the fact that' the appeal was not presented on the day of the reopening of the Court. If what I have termed the 'equity' of Section 14 is applied to this case, I think the appellant was not entitled to the indulgence for which ho asked, because he gave no reason and offered no explanation to account for his not having shown 'due diligence' during the period which elapsed between November 25th, 1898, and January 4th, 1899, or at any rate between December 7th and January 4th. If the proposition laid down by this Court in I.L.R. 13 M. 269 is applied, I think the appellant was not entitled to the indulgence for which he asked, because he failed to show that there had been 'no negligence, nor inaction on his part' during the period above referred to. For every day's delay after November 25th or at any rate after December 7th the onus lay on the appellant to justify or explain. He has made no attempt to discharge this onus. I am not called upon to say that a delay of a given number of days would not have disentitled the appellant to the indulgence for which he asked and that a delay of a given number of days would have disentitled him. All I say is that, on the admitted facts in this case, there is a delay which remains unexplained. That being so, I should have declined to admit, the appeal.

24. There remains, however, a further question for consideration. Ought we, in second appeal, to interfere with the findings of the Subordinate Judge? So far as I can gather from reported cases the principles applicable to the determination of this question have not teen so fully considered by this Court as by the other High Courts. See, for instance I.L.R. 12. A. 461 in fact it would almost seem as if the rule which has been followed in this Court has been that the mere fact that the view of the Court as to the sufficiency of the cause for not presenting the appeal in time differs from that of the lower appellate Court justifies the interference of this Court in second appeal. See for instance the judgment of this Court in Krishna Bhatta v. Subraya I.L.R. 21 M. 228. In my opinion and Benson and Boddam, JJ., agree as to this) a mere difference in view as to the made in which the discretion conferred by the section ought to have been exercised is in itself no ground for interference. It seems to me that before this Court interferes, it ought to be satisfied that the exercise of the discretion was judicially unsound. The test is, has the discretion been exercised after appreciation and consideration of all the facts which are mentioned for the purpose of enabling the Judge to exercise a judicial discretion and after the application of the right principle to these facts? If a discretion is exercised under these conditions and a certain conclusion is arrived at, that conclusion, it seems to me, would be an exercise of discretion judicially sound, though an appellate tribunal might be disposed to draw a different inference from the facts.

25. Now, the first point which the Subordinate Judge has decided in this case was whether the appellant had shown sufficient cause for not presenting his appeal within 30 days of February 18th, 1898. Having satisfied himself as to this, the next point he had to consider was had he shown sufficient cause for not presenting his appeal until January 4th, 1899.

26. No doubt the fact that the appeal was not presented till 4th January 1899 was present to his mind, but can it be said that the Judge considered the question of the appellant's conduct between the time when his appeal to the Collector was dismissed and his appeal to the Subordinate Judge was presented, or if he did consider this question, can it be said that he applied the right principle in exercising his discretionary powers? The Subordinate Judge admitted the appeal as he says expressly in his judgment because the appellant 'lost his time' in following out the course pointed out by the District Munsif and because his proceedings before the Collector and the Deputy Collector were bond fide. This may have been a very good reason for holding that the appeal ought to have been admitted notwithstanding that it was not presented until some date subsequent to 25th November 1898. It is no reason for holding that it ought to be admitted, notwithstanding it was not presented till 4th January 1899. If it appeared that the Judge has considered the conduct of the appellant during the period subsequent to 25th November and had come to the conclusion upon the evidence, that in the circumstances of the case, the appellant had shown 'due diligence,' or in the words used by the Judges of this Court in I.L.R. 13 M. 269 'that there had been no negligence nor inaction on his part', I think his conclusion as an exercise of his discretion would have been judicially sound, and that,, even if we did not agree with it, we ought not to interfere. It seems true that the judge did not consider all the facts which were material for him to exercise a judicial discretion--viz., the facts in connection with the period referred to--and that if he did consider these facts he applied the wrong principle. The question he ought to have asked himself was--was the appellant diligent during this period? The question which he appears to have asked himself was--was the appellant misled by the Munsif and were his proceedings before the Revenue Courts bond fide?

27. I think this appeal ought to be allowed on the ground that the appellant's appeal to the lower appellate Court was time-barred.

Moore, J.

28. I concur.

29. This appeal is allowed and the decree of the Additional Subordinate Judge's Court is set aside with costs in this Court and in the lower appellate Court.


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