Patna High Court
Janki Prasad Choudhary And Ors. vs Ram Kripal Pandey And Ors. on 19 December, 1950
Equivalent citations: AIR1951PAT486, AIR 1951 PATNA 486, ILR 30 PAT 131
Author: B.P. Sinha
Bench: B.P. Sinha
JUDGMENT B.P. Sinha, J.
1. This is an application under section 5 of the Limitation Act for condoning the delay in making the application for review of a judgment of this Court.
2. During the course of the argument, it appeared to me that this was really not a case for condonation of delay under section 5 of the Limitation Act. I pointed out to Sir Sultan Ahmad that the application really turned on the interpretation of section 14 of the Limitation Act. If the case could come within the purview of section 14, the application would be in time, and, the petitioners need not have taken recourse to the provisions of section 5 of the Limitation Act: if, on the other hand, the case did not attract the provisions of section 14, it will be necessary for the petitioners successfully to bring the case within the purview of section 5, as will presently appear.
3. The facts relevant to the present application are stated below. On the 10th of May, 1949, this Court delivered the judgment. On the 8th of June, 1949, the decree of this Court was sealed and signed. On the 14th of June, 1949, an application was made to this Court for leave to appeal to the Federal Court. This application stood dismissed on the 25th of January, 1950. On the 25th of February, 1950, an application for special leave was made to the Supreme Court, which rejected the application on the 9th of May, 1950. The application for review of judgment was made on the 19th of July this year, just on the re-opening day after the long vacation. It will be observed, on a reference to the dates aforesaid, that, if the time occupied in prosecuting the application for leave to appeal in this Court and for the special leave to appeal in the Supreme Court were excluded, the last date for making the application for review of judgment would fall during the long vacation, and that, therefore, the application presented on the 19th July, 1950, would be in time.
4. Hence, it is necessary to consider the provisions of section 14 (2) in this connection. There can be no doubt that the applicants had been prosecuting, with due diligence, their application for leave to appeal filed in this Court and the application for special leave filed in the Supreme Court against the same party. But the question is : Were the petitioners prosecuting those applications "for the same relief" for which he has made the application for review of judgment ? In my opinion the relief prayed for in the application for review of judgment is substantially the same as that prayed for in the application for leave to appeal the objective in each case being the reversal of the judgment of this Court. Though it may be said that the immediate relief in the application for leave to appeal in this Court or in the Supreme Court was for permission to lodge the appeal, the ultimate objective certainly was the reversal of the judgment to be appealed from.
5. But it has been argued on behalf of the respondents opposite party that it cannot be said that those applications, which proved in-fructuous, were being prosecuted in good faith, because, it was argued, according to the definition of "good faith" in Section 2 of the Limitation Act, the application was not being prosecuted with due care and attention. In this connection, it was urged that the valuation of the relief sought in this case was under ten thousand rupees, and that, therefore, the petitioners could have known that they could not succeed in getting the necessary leave without making out a substantial question of law. But, in my opinion, there is no substance in this contention. The petitioners were out to make out substantial questions of law. It is true they failed in doing so; but the ultimate result of the proceedings cannot determine the bona fides of the party. The petitioners were being advised by eminent counsel, and had left no stone unturned to obtain the relief asked for. The petitioners may have been too optimistic; but that consideration cannot affect their bona fides.
6. The most serious controversy in this case arises on the interpretation and application of the last clause of Sub-section (2) of Section 14, that is to say--Can it be said in the present case that the application for leave to appeal either in this Court or in the Supreme Court was not entertained on account of "defect of jurisdiction or other cause of a like nature" ?
7. The petition in the present case is that the suit had been found to have been properly valued at a sum less than ten thousand, rupees. The judgment of this Court on appeal partly reversed the decision of the trial Court, and, therefore, if the value of the subject-matter of the suit and the appeal were ten thousand or above--and later twenty thousand or above-- the appeal would have been admitted as a matter of course. But, as the valuation was less than the minimum prescribed for an appeal as a matter of course, the petitioners for leave to appeal had to make out that substantial questions of law were involved in the appeal. This they failed to do, in the opinion of the Courts concerned, though they may have been advised that they had a reasonable chance of getting their application for leave to appeal allowed. But this Court, when it refused the application for leave to appeal, or when the Supreme Court rejected the application for special leave to appeal, did so apparently on the ground that the petitioners had failed to satisfy the conditions precedent to the granting of the leave asked for. Can it be said in these circumstances that this Court, or the Supreme Court, was unable to entertain the application from a defect of jurisdiction? The term "jurisdiction" has been used in several senses. In a limited sense, it may include the power of a Court to do a certain thing. It may be argued on behalf of the petitioners that this Court, or the Supreme Court, was powerless to entertain the appeal, as the necessary conditions precedent had not been satisfied. On behalf of the opposite party, it may be argued that the application aforesaid had been dismissed by this Court or by the Supreme Court on their merits. But the fact remains that the appeal was not entertained. The broad principle underlying the provisions of Section 14 of the Act is, naturally, the protection against the bar of limitation of a litigant honestly pursuing his remedies, or supposed remedies, to get his case tried on merits, and failing to get his relief on account of the inability of the Court to give him a hearing on merits--see in this-connection the observations of their Lordships of the Full Bench of the Allahabad High Court in the case of Mathura Singh v. Bhawani Singh, 22 ALL. 248 at p. 253 : (1900 A. w. N. 64). There is no doubt that the petitioners failed twice in their attempt to have their appeal entertained on its merits in this Court and in the Supreme Court, though their application for leave to appeal at both the stages was dismissed on its merits. Hence, in my opinion, the facts and circumstances of this case are within the terms of the last clause of Section 14 (2). But, even assuming that I am not right in holding that the petitioners' appeal was not entertained from a defect of jurisdiction, in my opinion, their case would be covered by the alternative clause "or other cause of a like nature". These words, of course, have got to be construed ejusdem generis with defect of jurisdiction, that is to say, the defect must be of such a character as to make it impossible for the Court to entertain the suit or application, and to decide it on its merits--see in this connection the observations of their Lordships of the Full Bench of the Lahore High Court in the case of Bhai Jai Kishun Singh v. Peoples Bank of Northern India, A. I. R. (31) 1944 Lah. 136 : (I. L. R. 1944 Lah. 451 F. B.). It has also been repeatedly held that the words of this section, and particularly the words "or other cause of a like nature", should be liberally construed : vide Mathura Singh v. Bhawani Singh, 22 ALL. 248 : (1900 A. W. No. 64 F. B.) and the Full Bench decision of this Court in the case of Lal Bihari Lall v. Bani Madhava, 30 P. L. T. 201 : (A. I. R. 1949 Pat. 293 F.B.) where the decisions of their Lordships of the Judicial Committee in the cases of Ramdutt Ramkissendas v. E. D. Sassoon & Co., 56 I. A. 128 : (A. I R. (16) 1929 P. C. 103) and Brij Indar Singh v. Kanshi Bam, 44 I. A. 218 : (A. I. R. (4) 1917 P. C. 136) have been referred. In my opinion, these words are wide enough to cover a case like the present.
8. For the reasons given above, I would hold that the petitioners' application is cover-ed by the provisions of Section 14 of the Limitation Act, and that, therefore, the application for review of judgment is not barred by time. Though this application has been vehemently opposed by the opposite party, in all circumstances of this case, I would direct each party to bear its own costs in this proceeding.
C.P. Sinha, J.
9. I agree.