Patna High Court
Raghunath Prasad Sahu And Anr. vs Musammat Rampiari Kuer And Ors. on 1 February, 1927
Equivalent citations: 109IND. CAS.645, AIR 1928 PATNA 118
JUDGMENT Adami, J.
1. This is an application for leave to appeal in forma pauperis. The applicant instituted a suit claiming a declaration that certain sums of money deposited with a banking business in the name of an idol were joint family property and that he was entitled to a one-sixth share of the amounts so deposited.
2. The learned Subordinate Judge decided that the applicant was not entitled to any of the sums deposited and also that the suit was barred by limitation. His suit was, therefore, dismissed on the 28th August, 1926.
3. This Court re-opened on the 27th October but it was not until the 25th November that the application was made. In that application the applicant sought leave to appeal in forma pauperis and he also asked that under Section 5 of the Limitation Act the time for making the application should be extended. On the 1st December the learned Advocate for the applicant was heard and an order was passed that notice should issue both on the respondents and the Goverment Pleader.
4. The applicant was allowed in the lower Court to sue in forma pauperis, and it is not shown before us that since permission was granted to him in the lower Court he has acquired other properties. We have not the materials before us to form any adequate opinion on that point.
5. Now, it is uncertain whether the order of this Court passed on the 1st December, 1926, referred only to the application for leave to appeal in forma pauperis or also covered the application for extension of time under Section 5. If it referred to the application to appeal in forma pauperis it would seem that under a ruling of this Court in the case of Buchan Dai v. Jugal Kishore A.I.R. 1924 Pat. 791 : 2 Pat. L.R. 153 : 8 P.L.T. 119 it is not open to us now to consider whether the proviso to Rule 1 of Order XLIV of the Code of Civil Procedure applies, that is to say we cannot examine the question whether the decree of the lower Court was contrary to law or to some usage having the force of law, or was otherwise erroneous or unjust. Even in that case, however, we have to consider the question whether the application could be received as having been filed within time and whether any extension can be granted.
6. The grounds put forward for an extension are that, after his failure in the lower Court, the applicant approached two of the Pleaders of the lower Court and asked whether he should appeal to this Court. These Pleaders advised him that he should appeal and that the time allowed by law for an appeal was ninety days. He followed their advice and within ninety days filed his application for leave to appeal in forma pauperis. He puts forward two letters written by his said Pleaders to show that he had obtained the advice from them and had bona fide believed that the advice given to him was good advice. We have seen those two letters. The Pleaders in those letters stated that the case was a fit case for an appeal and that the limitation for an appeal to this Court was ninety days; they also stated that if the applicant wished to apply for leave to appeal in forma pauperis be could do so. In neither of the letters is it stated that the time allowed for an application of the nature of the present one is ninety days; it is only stated that he time allowed is ninety days for an appeal to this Court. The letters, too, do not show that the applicant asked those Pleaders what time was allowed for an application to appeal in forma pauperis. Now it is hard to believe that the Pleaders of the District Court could have advised this applicant that he was allowed ninety days for an application to appeal in forma pauperis. It is plain to my mind that he did not ask them what time was allowed for such an application nor did they, when advising him, contemplate that he was asking the time allowed for such an application. It is incredible that the Pleaders should have thought that ninety days would be allowed for an application. Hearing that ninety days were allowed for an appeal, the applicant was contended to make no further inquiries and to take it upon himself to decide that the same period of limitation applied to the application he wished to make.
7. Various cases have been put forward before us to show that the advice given by a legal practitioner though it may be wrong advice, if given under a bona fide mistake, is sufficient cause for the grant of extension, but the cases which have been shown to us are cases in which there was some ground for doubt in the Pleaders' mind as to the period of time which should be stated. In the present case I cannot see any good reason to believe that the Pleaders were consulted as to the time allowed for an application or that they advised that ninety days was the time for an application. It is unnecessary to cite the various cases which have been put before us. Bach case must depend on its own circumstances where the question has to be decided whether there was a good and sufficient cause. In my mind there is no good justification for overlooking the delay made by the applicant in putting forward his application. He was long out of time and the explanation given by him is, in my mind, insufficient, and I would hold that this application is barred and no further extension should be given.
8. Now if we take it that the notice was issued on the respondents and the Government Pleader with regard to the application for extension of time only, it would fall upon us to consider whether the proviso to Order XLIV, Rule 1 should be applied and we should look to see whether the decree is contrary to law or to some usage having the force of law, or is otherwise erroneous or unjust. If we were to look into the judgment of the lower Court from this point of view, I would be inclined to say that there is nothing in the judgment to show that it is erroneous or unjust or that there is anything in it which is contrary to law.
9. The learned Subordinate Judge has found as a fact that though some items are mentioned in the books of the banking business of the idol, the applicant failed to show that he had a claim to any of those items, and also the Subordinate Judge has found as a fact that even if the applicant had a claim to those sums mentioned in those three books, there are entries mentioned in the fourth book which show that the applicant would be indebted to the idol to a larger amount than he could claim under the other three books. From all points of view I would hold that this application for leave to appeal in forma pauperis is an application which should not be allowed especially as it was filed too late.
10. I would reject the application. Hearing fee three gold mohurs.
11. A month's time will be allowed from this date to the applicant for extension of the time allowed by law for the filing of an appeal with the proper Court-fee.
Scroope, J.
12. I agree.