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KamiruddIn Mallik Vs. Sm. Bishupriya Chowdhurani - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Reported inAIR1929Cal240
AppellantKamiruddIn Mallik
RespondentSm. Bishupriya Chowdhurani
Cases ReferredBrij Indar Singh v. Kanshiram A.I.R.
Excerpt:
- .....evidence. on 18th may 1925, an appeal was taken from this decision of the revenue officer to the special judge being special appeal no. 2 of 1925. this appeal was disposed of by the special judge on 31st october 1925. the learned judge holding that the appeal was not competent as it had been, filed against that portion of the order of the revenue officer by which he had rejected the appellant's application for an opportunity to adduce further evidence. he, however, held that an appeal as against the order making the correction would be maintainable and to use his own words, he said 'can appeal against the entry now that it is against him'. acting upon this last-mentioned observation of the learned special judge, the appellant preferred an appeal on 18th november 1925. it is this appeal.....
Judgment:

Mukerji, J.

1. The question that arises for consideration in this appeal is whether the appeal which the appellant had filed in the Court below was time barred. The facts necessary to be set out for the purposes of this appeal are these : After a good deal of litigation in connexion with an application under Section 105, Ben. Ten Act, the final order was passed on 18th April 1925 by which the Revenue Officer made certain corrections in the record as against the appellant after rejecting an application which the appellant had made for an opportunity to adduce some further evidence. On 18th May 1925, an appeal was taken from this decision of the Revenue Officer to the Special Judge being Special Appeal No. 2 of 1925. This appeal was disposed of by the Special Judge on 31st October 1925. the learned Judge holding that the appeal was not competent as it had been, filed against that portion of the order of the Revenue Officer by which he had rejected the appellant's application for an opportunity to adduce further evidence. He, however, held that an appeal as against the order making the correction would be maintainable and to use his own words, he said 'can appeal against the entry now that it is against him'. Acting upon this last-mentioned observation of the learned Special Judge, the appellant preferred an appeal on 18th November 1925. It is this appeal that has been dismissed by the learned District Judge upon the ground that it was time barred.

2. In the application which the appellant filed for getting an extension of the time prescribed for the filing of an appeal, the appellant appears to have relied both upon Sections 5 and 14, Lim. Act, though noither of these sections was expressly mentioned in the application. Section 14, no doubt, is not in its terms applicable to the present case, the case being one of appeal. But, as has been pointed out by the Judicial Committee in the case of Brij Indar Singh v. Kanshiram A.I.R. 1917 P.C. 156, the provisions of Section 14 are not altogether irrelevant for the purpose of considering a case under Section 5, Lim. Act. It has been held in that case that, though Section 14 may not be applicable to any particular ease in its terms, if the circumstances mentioned in Section 14 are made out, they would constitute sufficient cause within the meaning of Section 5. The present ease, therefore, has got to be looked at from the point of view both of Sections 14 and 5, Lim. Act. Looking at it from the point of view of Section 14, it seems to me that the learned Judge was right in holding that all that the appellant was entitled to got as deduction of the amount of time taken by him in preferring the appeal was the period during which he was prosecuting with diligence the Special Appeal No 2 of 1925. The argument of the appellant that he is entitled to a deduction of the time that was necessary for the purpose of obtaining a copy of the order which he had to obtain in order to prefer Special Appeal No. 2 of 1925 does not appear to me to be well-founded. It was distinctly laid down by their Lordships of the Judicial Committee in the case to which I have already referred that, upon the current of decisions in this country, the period during which a suit or proceeding was prosecuted is the period of which the appellant would be entitled to a deduction. Section 14, however, is not exhaustive of all the circumstances that may go to constitute 'sufficient' cause within the meaning of Section 5, Lim. Act. In order to consider the matter from the point of view of Section 5, the finding of the learned Judge would have to be taken into account. The learned Judge held that the appellant acted bona fide in preferring an appeal from that part of the order of the Revenue Officer by which his application for an opportunity to adduce further evidence was rejected and that the said advice that had been given by the pleader to the appellant was also bona fide. In other words, the learned Judge was prepared to hold that there was sufficient cause on the part of the appellant for not preferring the appeal within the time prescribed by law. Now, under Section 5, Lim. Act, two matters have got to be considered : (1) whether there was sufficient cause for not preferring the appeal within the prescribed period and (2) whether there are circumstances which would justify the Court in exercising the discretion that is granted to it under that section for extending the time for preferring the appeal.

3. Upon the findings of the learned Judge inasmuch as the appellant's appeal from a part of the order of the Revenue Officer was bona fide, it goes without saying that the appellant thought that he, would be able to get all the redress that he wanted, by preferring that appeal and that it was not necessary for him to prefer another appeal from the other part of the order by which the correction was made. Sufficient cause, therefore, upon the findings of the learned Judge, has, been made out in the case.

4. Now the other question whether the discretion should or should not have been exercised in favour of the appellant turns upon the view that the learned Judge has taken of the appellant's conduct subsequent to the date on which the Special Appeal No. 2 of 1925 was dismissed and before he filed the present appeal. As I have already stated, the special appeal was dismissed on 31st October 1925 and the present appeal was filed on 18th November 1925. The appellant, therefore, has got to account for the period of 17 or 18 days that intervened. The learned Judge, aa appears from his judgment, was prepared to make an allowance in favour of the appellant as regards three days that were taken in obtaining a copy of the order from which the appeal was preferred. He was prepared also to allow the appellant a deduction of 2 or 3 days for taking advice from Calcutta as to whether that appeal should be filed or whether a second appeal should be filed as against the decision of 31st October 1925. He was prepared also to grant the appellant a further deduction of 2 or 3 days for the preparation of the grounds of appeal. These periods added up together would account for 9 or 10 days. There would remain a balance of 8 days which, according to the learned Judge, has not been sufficiently accounted for. Now, in making these calculations, I am of opinion that the learned Judge has applied to the case far too exacting a standard and, although the discretion which a Court exercises in connexion with an application under Section 5, Lim. Act, should not be lightly interfered with, I am of opinion that the delay of 17 or 18 days, under the circumstances aforesaid, is not one that can be considered as unreasonable or in other words, I am not satisfied [that, in point of fact, there was any want (of diligence on the part of the appellant in preferring the appeal.

5. For these reasons, I am of opinion that the view which the learned Judge has taken of this matter is not right. I would, therefore, allow the appeal, set aside the decree from which it has been preferred and direct that the appeal be sent back to the lower appellate Court to be heard and disposed of in accordance with law.

6. There will be no order as to the costs of this appeal.

Rankin, C.J.

7. I agree.


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