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Nandalal Ganguli Vs. Dasarathi Mukerjee and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1932Cal534
AppellantNandalal Ganguli
RespondentDasarathi Mukerjee and ors.
Cases ReferredUpendra Chandra Singh v. Umesh Chandra Ghosh A.I.R.
Excerpt:
- .....father was the objector in a case in which probate of a will had been applied for by the opposite party. on 19th september 1930, the application for probate was allowed with costs by the subordinate judge, second court, at alipur. a decree in accordance with the aforesaid decision was drawn up on 22nd november 1930. on 16th december 1930, the opposite party applied for an amendment of the decree. it appears from the papers which the opposite parties have now produced before us that this application for amendment related only to the question of a certain item of costs which had been omitted from the schedule of costs appended to the decree. the application for amendment was opposed by the petitioner's father and was adjourned from time to time till at last the petitioner's.....
Judgment:

Mukerji, J.

1. This Rule has been issued to show cause why an appeal which the petitioner has filed in this Court should not be registered, though filed out of time, by availing of the provisions of Section 5, Lira. Act. The facts necessary to be stated are the following: The petitioner's father was the objector in a case in which probate of a will had been applied for by the opposite party. On 19th September 1930, the application for probate was allowed with costs by the Subordinate Judge, Second Court, at Alipur. A decree in accordance with the aforesaid decision was drawn up on 22nd November 1930. On 16th December 1930, the opposite party applied for an amendment of the decree. It appears from the papers which the opposite parties have now produced before us that this application for amendment related only to the question of a certain item of costs which had been omitted from the schedule of costs appended to the decree. The application for amendment was opposed by the petitioner's father and was adjourned from time to time till at last the petitioner's father died on 28th March 1931. The opposite party then applied for substituting the petitioner and some other persons in place of the petitioner's father and upon that an order was made allowing such substitution. Eventually, on 14th August 1931, the application which the opposite party had made for amendment of the decree was rejected. The present appeal was presented by the petitioner in this Court on 1st September 1931 and along with the memorandum of appeal and its connected papers was filed the petition on which the present Rule was issued. The question in this case is whether the petitioner has been able to establish facts which would bring his case within the words 'sufficient cause' appearing in Section 5, Lim. Act.

2. On behalf of the opposite parties it has been contended that the application for amendment related only to a particular item of costs which had been omitted from the decree that was prepared in accordance with the decision of the Court below and that it had nothing whatsoever to do with the merits of the case and that therefore there was no reason at all as to why the petitioner's father or for the matter of that after the petitioner's father's death the petitioner 'himself should have waited and not preferred the appeal which he now seeks to have registered. Reliance in this behalf is placed specially upon a decision of this Court in the case of Brojo Lal Rai v. Tara Prosanna [1906] 3 C.L.J. 188. In that case Mookerjee, J., laid down a proposition, explaining the provisions of Section 5, Lim. Act, in so far as they would apply to a case of this nature and illustrating that proposition by two subpropositions, which I shall presently quote. He says:

Every amendment made in a decree under Section 206, Civil P.C., does not necessarily entitle a party, who prefers an appeal against the decree, to claim an extension of time under Para. 2, Section 5, Lim. Act; whether there 13 sufficient cause for such extension must depend upon the circumstances of each individual case.

3. To the proposition thus laid down no objection can possibly be taken, and indeed, it I may say so, I would with the utmost respect agree with what the learned Judge has meant to say by this proposition. As regards the subpropositions, one of them is in these words:

If the grounds on which the appeal is based are intimately connected with the amendment of the decree, or if the grounds are directed against the decree only in so far as it has been amended, the Court should exercise in his (that is to say, the applicant's) favour the discretion vested in it by para. 2, Section 5, Lim. Act.

4. This also is a proposition which is absolutely correct. The other proposition however has been laid down in these words:

If the amendment has no relation to the grounds upon which the validity of the decree is sought to be challenged in appeal, such appeal should not be admitted out of time.

5. With this proposition I am afraid I cannot agree, because it means to circumscribe and limit the discretion which Section 5, Lim. Act, confers upon a Court by the terms in which that section is expressed. In my opinion, even in a case in which the amendment has no relation to the grounds upon which the validity of the decree is sought to be challenged in appeal, circumstances may appear which may justly bring the case within the meaning of the expression 'sufficient cause' which appears in that section. In addition to the case cited above two other cases have also been referred to on behalf of the opposite party. One of them is the case of Gajadhar Singh v. Basant Lal A.I.R. 1921 All. 60. In that case the case of Brojo Lal Rai Chowdhury v. Tara Prosanna Bhattacharji [1906] 3 C.L.J. 188 was followed and it being found that the appeal which was sought to be preferred did not attack the amended decree or raise any question in connexion with it, the learned Judges held that the appellant could not call in his aid the provisions of Section 5, Lim. Act.

6. The other case referred to on behalf of the opposite party is the case of Upendra Chandra Singh v. Umesh Chandra Ghosh A.I.R. 1928 Pat. 265. It is not necessary to examine the decision in that case, because the facts there were entirely different, the appellant himself having made an infructuous application for amendment of a decree and waited till that application was disposed of before he filed the appeal. I am of opinion that even though the application for amendment of the decree in the present case related only to a certain item of costs, the petitioner is not precluded from saying that it was on account of the filing and pendency of that application that he thought that he was entitled to wait until it was disposed of before he could be called upon to prefer his appeal. The circumstances do not appear to me to suggest that the petitioner was either negligent or was guilty of any such conduct as would debar him from asking the Court to exercise in his favour the discretion which it has under the provisions of Section 5, Lim. Act. In considering whether the ''sufficient cause' has been made out or not within the meaning of that section, the question of bona fides has got to be taken into account and I am unable to find that the petitioner's conduct in not preferring the appeal earlier than he has done, was actuated by anything else than a bona fide belief that he was entitled to wait, In this view of the matter, I am of opinion that the present Rule should be made absolute.

7. It is quite true that by not having preferred the appeal within time and waiting for the disposal of the application for amendment, the petitioner or his father has put the opposite party to some amount of difficulty and harassment. Because of that I would, while making the Rule absolute and directing that the appeal be now registered, further make an order that the petitioner would pay to the opposite party by 4th January 1932, the costs of this Rule, hearing fee being assessed at three gold mohurs. The payment of such costs will be a condition precedent to the registration of the appeal. If the condition is not complied with, it goes without saying that the Rule will stand discharged and the appeal will be rejected.

Mitter, J.

8. I agree.


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