Skip to content


Debendra Nath Sinha and ors. Vs. Raja Nagendra Nath Sinha Sahas Roy - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in95Ind.Cas.245
AppellantDebendra Nath Sinha and ors.
RespondentRaja Nagendra Nath Sinha Sahas Roy
Cases ReferredBrij Indar Singh v. Kanshi Ram
Excerpt:
bengal tenancy act (viii of 1885), section 158 (3), schedule iii, clause (4) - limitation act (ix of 1908), section 5--order under section 158(3)--appeal--limitation, commencement of--delay in filing appeal due to erroneous legal advice--reasonable diligence--extension of time. - .....be reckoned from the dates of the decrees. no enquiry was held into this allegation, but the learned judge being of opinion that the appellants were not justified in relying upon the advice of the pleader rejected the applications, and in the result dismissed the appeals as filed out of time. on this part of the case the learned judge made the following observations:---'the substantial ground urged in these applications is that the respective appellants having been informed by their pleaders that limitation would run from the date of the decrees, acted bona fide in filing the appeals within 30 days from the dates of the decrees. it is, however, impossible for me to hold that the appellants' belief was formed with due care and attention.' the learned judge apparently by this.....
Judgment:

Suhrawardy, J.

1. We regret very much that the unsatisfactory nature of the judgment passed by the learned District Judge has necessitated a remand for a re-hearing of the matter. These four appeals arise out of four suits under Section 158, Bengal Tenancy Act. The suits were decreed by the Subordinate Judge by his order dated the 24th July, 1922. On the 10th August 1922 decrees were prepared embodying the results of the decision of the Court. The appeals were filed before the District Judge on the 11th September 1922, and admittedly they were within time under Clause (4), Part II of Schedule III of the Bengal Tenancy Act, if time is calculated from the dates of the decrees. At the hearing of the appeals an objection was taken that the appeals were filed out of time inasmuch as they should have been filed within 30 days from the dates of the orders and not from the dates of the decrees. The learned District: Judge held that it should have been so. The Pleader appearing for the appellants then applied under Section 5 of the Limitation Act for extension of the period on the ground that the clients were advised by their Pleaders that the time for filing the appeals should be reckoned from the dates of the decrees. No enquiry was held into this allegation, but the learned Judge being of opinion that the appellants were not justified in relying upon the advice of the Pleader rejected the applications, and in the result dismissed the appeals as filed out of time. On this part of the case the learned Judge made the following observations:---'The substantial ground urged in these applications is that the respective appellants having been informed by their Pleaders that limitation would run from the date of the decrees, acted bona fide in filing the appeals within 30 days from the dates of the decrees. It is, however, impossible for me to hold that the appellants' belief was formed with due care and attention.' The learned Judge apparently by this expression of opinion means that though the appellants might have bean advised by their Pleader that the appeals could be filed within 30 days from the date of the decrees they should have taken due care and attention to verify that advice; and since they did not do so, they were not entitled to the extention of time under Section 5 of the Limitation Act.

2. Two points have been urged before us by the learned Vakil for the appellants. It is argued in the first place, that appeals filed within the time reckoned from the dates of the decrees must be taken to be competent as filed within 30 days from the dates of the decrees. It is maintained that though the order passed under Section 153, Bengal Tenancy Act may be treated as a decree, when the decrees were prepared by the Court, time should run from the date of such decrees; and in support of this contention reliance is placed on the case of Kamala Dasi v. Tarapada Mukerji 14 Ind. Cas. 1004; 15 C.L.J. 498. In that case the appeal arose out of proceedings under Section 47, C. P. C. Subsequent to the order passed under that section by the lower Court, a decree was passed in which the costs payable by the judgment-debtor to the other parties were set out---the previous order having only directed that the judgment-debtor should pay costs to the respondent. The learned Judges held that in an appeal from such an order it was necessary to file not only the order passed under Section 47, C. P. C. but the decree that was prepared in pursuance of that order showing the amount of costs payable by the judgment-debtor; and they were of opinion that as it was necessary to file the decree, the time for filing the appeal might be counted from the date of such decree. In that case also there was an application before the learned Judges for extension of time under Section 5. After an expression of this opinion, the learned Judges further proceeded to hold that the appellants' application should succeed also under Section 5 of the Limitation Act The learned Judges made the following remark: ' We desire to add that even if time be taken to run from the date of the judgment ample grounds have, in our opinion, been made to justify an order in favour of the plaintiff under Section 5 of the Limitation Act.' The opinion expressed by the learned Judges with regard to the necessity of filing the decree in a case like that before them and the calculation of time from the date of the decree and not from the date of the order, therefore, becomes an obiter dictum. It is due to the high respect to which the judgment of the learned Judges is entitled that, I have given my best consideration to this matter. But I am unable to accept the view expressed therein. Under Section 158, Clause (3), Bengal Tenancy Act, the order on any application made under that section shall have the effect of and be subject to, the like appeal decree. The plain meaning of the section is that such an order should be regarded as a decree under Schedule III, Clause (4) and time should run from the date of the order. I am conscious that in the Courts below in cases where the order itself is a decree, formal decrees are drawn up in order to show the result of the litigation. But lam unable to hold that such decrees must be filed along with the memorandum of appeal and that time for presentation of appeals ought to be calculated from the dates of such decrees. It is rot necessary in the present case to pursue the matter further and I propose to leave it with the expression of the above opinion, because I think that the appellants ought to succeed on the second ground.

3. The second ground urged by the learned Vakil for the appellants is that the learned Judge in the circumstances of this case should have held that the appellants were able to make out a proper case for the exercise of the Judge's discretion under Section 5 of the Limitation Act. They filed a verified application before the District Judge in which they stated that they were advised by their Pleader that they would be within time if the appeals were filed within 30 days from the date of the decrees. The learned Judge, from his remark which I have quoted above, seems to think that the language of Section 158, Bengal Tenancy Act is so plain that the appellants' belief in the correctness of the advice of their Pleader was not formed with due care and attention. I cannot say that in the present state of the law either the appellants or their Pleader acted without due diligence. If the Pleader was aware of the ruling in Kamala Dasi v. Tarapada Mukerji 14 Ind. Cas. 1004 : 15 C.L.J. 498. referred to above he was not wrong in advising his clients that the appeals would be competent if filed within 30 days from the dates of the decrees; and I think his clients would also be justified in believing that the advice given to them was correct. Apart from it, it has been held by their Lordships of the Judicial Committee in the case of Sunderbai v. Collector af Belgaum 52 Ind. Cas. 897 : 43 B. 376 : (1919) M.W.N. 254 : 23 C.W.N. 753: 21 Bom. L. R. 1148 : 46 I.A. 15 (P. C.), that if a party files an appeal in a wrong Court under the advice of his Pleader, he is not precluded from showing that it was owing to the reliance placed on such advice that he could not present the appeal in the proper forum within the proper time; and their Lordships relied on the previous decision of theirs in the case of Brij Indar Singh v. Kanshi Ram 42 lad. Cas. 43 : 45 C. 94 : 26 C.L.J. 572 : 33 M.L.J. 486 : 22 M.L.T. 362 : 6 L.W. 592 : 126 P.W.R. 1917 : 15 A.L.J. 777 : 19 Bom. I.R. 866 : 3 P.L.W. 313 : 104 P.R. 1917 : (1917) M.W.N. 811 : 22 C.W.N. 169 : 127 P.L.R. 1917 : L.I.A. 218 (P. C). where they laid down the general rule, that the true guide is whether the appellant acted with reasonable diligence in the prosecution of the appeal. In. view of this decision and in view of the facts of this particular case, it cannot be said that the appellants were not justified in relying on the advice of their Pleader and filing the appeals within 30 days from the dates of the decrees. But it appears that the learned Judge in this case has not enquired as to whether such advice was given by the Pleader, and it is, therefore, necessary that a further enquiry should be made in this matter. I, therefore, propose to send the appeals back to the District Judge of Midnapur for enquiry into the allegations made in the petition presented by the appellants under Section 5 of the Limitation Act and if they are found to be correct to give effect to such plea.

4. The result is that the decrees passed by the District Judge dismissing the appeals before him should be set aside and the matter enquired into in the light of the observations made above.

5. Costs to abide the result. We assess the hearing-fee at one gold mohur in each case.

Mukerji, J.

6. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //