1. The plaintiff is the appellant before me. The suit out of which this appeal arises was brought for a declaration of a right of way and for a perpetual injunction restraining the defendants from causing any obstruction to the plaintiff's use of the pathway. The defendants denied the plaintiff's right as claimed.
2. The Court of first instance dismissed the suit. The plaintiff then applied for a review of the judgment of the learned Munsif. Notice was issued upon the defendants to show cause why the review should not be admitted. On the application of the defendant the application for review was taken up before the date fixed for the hearing in the notice, and was ultimately dismissed. I ought to have stated that the application for review was based upon the ground of discovery of fresh evidence. After the application for review was dismissed the plaintiff filed an appeal to the District Judge against the original judgment of the Munsif dismissing the suit. The learned Judge has dismissed the appeal on the ground that it was barred by limitation. The appeal, undoubtedly, was filed long after the time allowed by law for an appeal to be filed before a District Court. But the plaintiff prayed that the time occupied by the application for review should be deducted in calculating the' period of limitation.
3. The learned District Judge confines himself only to the question of limitation in filing the appeal; and although his judgment contains some observations on questions as to the merits of the case discussed by the Munsif, the observations of the learned District Judge were only in reference to the question as to limitation on account of the delay in filing the appeal and not for the purpose of deciding the case on the merits. The learned District Judge says in his judgment: 'He was in fact prosecuting review application with what appears to have been quite adequate diligence for a time which if credited to him would render his appeal timely.' The learned Judge, therefore, finds that the application for review was filed and prosecuted with due diligence. He then says: 'What is urged against him is that the review petition was not a proper one, being one, which had no reasonable prospect of success.' Later on the learned Judge says: 'The question for decision, therefore, is whether there were reasonable and proper grounds of review in this case.' And after discussing the merits of the application for review the learned Judge says: 'Regarding this part of the case, therefore, the review petition never had any prospect of success whatsoever.' Then he concludes his judgment by observing 'I accordingly decide that there were no reasonable or proper grounds of review and that the appeal must be rejected as time-barred.'
4. The question no doubt primarily is a question of fact. The contention of the plaintiff was that in the circumstances of this case the Court should, in the exercise of its discretion, have held that the appellant had sufficient cause for not preferring the appeal within such period. The question as to the exercise of discretion is no doubt also a question which is ordinarily a question of fact. But such discretion must not be exercised arbitrarily but upon sound legal principles which govern the exercise of such discretion. Their Lordships of the Judicial Committee laid down the following rule in the case of Brij Indar Singh v. Kanshi Ram 42 Ind. Cas. 43 : 45 C. 84 at p. 106 : 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. L.R. 866 : 3 P.L.W. 313 : 26 C.L.J. 572 : 104 P.R. 1917 : (1917) M.W.N. 811 : 22 C.W.N. 168 : 127 P.L.R. 1017 : 44 I.A. 218 (P.C.): 'It was strenuously urged by the learned Counsel for the respondents that inasmuch as the power in Section 5 is admittedly a discretionary power, this Board ought not to interfere with the discretion exercised by Mr. Justice Johnstone, and he cited cases of which Sharpe v. Wakefield (1891) A.C. 173 : 60 L.J. 11. C. 73 : 64 L.T. 180 : 39 W.R. 551 : 55 J.P. 197 may betaken as a type. In reality, however, that case is against him. For it laid down that discretion there as here must be a judicial and not an arbitrary discretion. Now if the Judge who purports to exercise the discretion does so under the view-that there is no general rule, when in fact there is one, if he has, to use an expression often' used in another class of cases, misdirected himself as to the law to be applied to the case he cannot exercise a judicial discretion and the Superior Court in this case this Board--must either remit the case or exercise the discretion themselves.' Now the learned Vakil for the appellant has contended before me that in exercising his discretion the learned Judge has apparently recognized no principle or general rule that, exists as regards the exercise of discretion. Their Lordships of the Judicial Committee referred with approval to the rule which was laid down by the Full Bench of this Court in the case of In re Brojender Coomar Roy B.L.R. Sup. Vol. 728 : 7 W.R. 529. The rule so approved by their Lordships of the Judicial Committee runs thus: 'If a party presents an application for review of judgment within the ordinary period limited for appealing, the time occupied by the Court in disposing of such application will not be reckoned among the days limited for appealing, but will be added thereto and a memorandum of appeal presented within such extended period will be received as presented within time.' It is not disputed in the present case that if the time occupied by the application for review is deducted the appeal would be in time. The only question is as to whether the application for review fulfilled the conditions laid down by their Lordships of the Judicial Committee. The question was also discussed at considerable length by Mr. Justice Mukerji in the case of Gobinda Lal Das v. Shiba Das Chatterjee 33 C. 1323 : 10 C.W.N. 986 : 3 C.L.J. 545. After discussing the Full Bench case referred to by their. Lordships of the Judicial Committee and exhaustively discussing all the cases on the point he laid down the rule as follows (at page 1329 Pages of 33 C.--[Ed.]) 'where, on the other hand, a party has bona fide presented an application for review of judgment and upon such application notice has been issued to the opposite party, the applicant ought not to be deprived of the benefit of the principle laid down in the Full Bench cases, because after hearing both sides, the Court comes to the conclusion that there are no good grounds for a review.' Later on the learned Judge says (at page 1330 Pages of 33 C.--[Ed.] ). 'Taking all the cases together, the rule, which may be fairly deduced therefrom, appears to be that a bona fide application for review of judgment presented and prosecuted with due diligence should, except in special cases, be regarded as a sufficient cause for not presenting the appeal within the prescribed period.' It appears, therefore, all that the appellant has to show is that he prosecuted the review application with due diligence and that there were reasonable grounds for filing such an application for review. If these conditions are fulfilled and the Court either ignores this rule and decides the questions upon the grounds which are in disregard of or are inconsistent with the rule so laid down then, in the words of the Judicial Committee in the case which I have already cited, the learned Judge has misdirected himself as to the law to be applied to the case. And although the question to be decided was a question as to the discretion to be exercised under Section 5 of the Limitation Act, that discretion must be a discretion exercised not arbitrarily but on principles which govern the exercise of judicial discretion. The learned Judge, as I have pointed out, does not exercise his discretion, because he was unable to find that there were reasonable or proper grounds of review. As I read his judgment what he really means to say is that in his opinion the application for review had no prospect of success. But that is not the criterion for the decision of the question. If the petitioner exercised due diligence in filing and prosecuting his application and if it is shown that his application was bona fide and is based on reasonable ground then, according to the authority I have cited, he ought to have been allowed a deduction of the time occupied in prosecuting the review. In the present case, as I have already stated, after the application was filed notice was issued upon the opposite party, the time occupied from the date of the notice until the final disposal of the matter; by the learned Munsif was entirely beyond the control of the appellant. So far as I know the practice of this Court, it has been always considered that the issue of notice by the Court upon the opposite party was sufficient evidence of the reasonableness of filing the application for review, and in such cases the time occupied in prosecuting the review has been deducted from the time which had elapsed between the date of the decree and the date of filing the appeal. This is also the rule which Mr. Justice Mukerji deduced from the cases. It is not necessary for the applicant for review to show as the learned Judge seems to me to demand that his application for review had a prospect of success as demanded by him. In fact the whole judgment of the learned Judge is devoted to a discussion of the merits of the review application. All that is needed is to find whether the application was bona fide and that applicant for review had reasonable grounds for filing the application for review; and that is all that the rule demands. It should be observed that an application for review of judgment on discovery of fresh evidence stands on a different footing than an application for review on the same materials. In a case like that the matter cannot be disposed of without hearing both parties. I think, therefore, that the judgment of the learned District Judge is erroneous, and he has failed to exercise his discretion oh sound principles which govern the exercise of such discretion.
5. The learned Judge has found that 'he (the appellant) was in fact prosecuting review application will what appears to have been quite adequate diligence for a time which if credited to him would render his appeal timely.' Then notice was issued upon the opposite party and after hearing both parties the application was refused. Applying the principles above referred to, the appeal should have been held not barred and the learned Judge ought to have heard the appeal on the merits. I set aside, the decree of the learned District Judge remit the appeal to him to he heard according to law.
6. I think the appellant is entitled to the costs of this appeal. The other costs will abide the result.