1. This is an appeal from the judgment and decree of the Subordinate Judge of Julpaiguri, dismissing an appeal from the decree of the Munsif of Jalpaiguri on the ground that the appeal had been filed out of time. The Munsif's decree in the suit is dated the 23rd December 1913. It appears that on the 4th February 1914 the appeal from the Munsif's decree was filed in the Court of the District Judge of Dinajpur and Julpaiguri. The appeal was admitted in that Court and a date was fixed for the hearing. Then the question seems to have been raised whether under the rules the appeal should have been filed in the Court of the District Judge or in the Subordinate Judge's Court. Time was taken to consider that question and on the 1st May 1914, the District Judge having in the meantime informed himself of the rule in force, the appeal was returned to be presented in the proper Court, the Court of the Subordinate Judge. On the same day the appeal was filed in that Court. It has been rejected by the Subordinate Judge, on the ground that the prescribed period of limitation had been exceeded and there was no sufficient cause for extending it. In coming to that conclusion the learned Subordinate Judge has said that Section 14 of the Act does not apply. That no doubt is true. But the principle of that section has been recognised by the Courts as applicable to appeals, in this sense that the bona fide prosecution of a proceeding in a wrong Court has been regarded as a proper ground or as sufficient cause within the meaning of Section 5 of the Limitation Act for extending the time for filing an appeal. It is suggested for the plaintiff-respondent that the learned Subordinate Judge has, as a matter of fact, found that the presentation of the appeal to the Court of the District Judge was not bona fide. If that is what the learned Judge meant by the language which he has used, it is difficult in the circumstances to accept the finding. All that he had before him apparently was the petition of the appellants explaining the cause of the delay which had taken place in filing their appeal in his Court. No counter-petition or counter-affidavit seems to have been filed on behalf of the respondent and the observations which the Judge has made, if they are to be regarded as a finding that the appellants' mistake in filing the appeal in the wrong Court was not a bona fide mistake, appear to rest on surmise and conjecture rather than on materials proper to support such a conclusion. It is difficult to conceive that such a mistake as was made in the present case could have been otherwise than bona fide and judging from the order-sheet it was not known even in the District Judge's office that under the notification issued by the High Court under Clause (4) of Section 21 of the Civil Courts Act the appellants had no right at all to file the appeal in the District Judge's Court and that the only Court in which it could be filed was the Subordinate Judge's Court. Apparently the impression which prevailed in the District Judge's office when the appeal was filed was that the appellants were entitled to file the appeal either in one Court or in the other, and apparently it was on that ground that the appeal was admitted and that a data was fixed for its hearing. In the circumstances, in my opinion, the discretion allowed by Section 5 of the Limitation Act has not been judicially exercised and the decree of the lower Court cannot be supported.
2. The result, therefore, is that this appeal is allowed and the case remanded to the learned Subordinate Judge in order that the appeal may be heard by him on the merits. Costs will abide the result.
3. This judgment governs Second Appeals Nos. 835 and 836 of 1916.
4. I agree. The course which this case has taken illustrates the desirability of dealing with an application for extension of time promptly. The appeal was argued and dismissed on the preliminary point more than two years after it was originally filed, with the result that more that four years will have elapsed from the date of filing before it is heard on the merits.