Patna High Court
Gopi Nath Pandey vs Bhukhan on 6 September, 1954
Equivalent citations: AIR1955PAT301, 1954(2)BLJR574
Author: Chief Justice
Bench: Chief Justice
JUDGMENT Narayan, J.
1. This application is directed against an order of the District Judge of Shahabad admitting an appeal against a decree passed in a Title Suit. The suit had been instituted by one Bhukhan Pandey, and it was disposed of by the 3rd Additional Subordidate Judge of Arrah on 15-12-1951. The suit had been instituted in forma pauperis, and by his judgment dated 15-12-1951 the learned Subordinate Judge dismissed the suit with costs.
2. Thereafter, an application accompanied by a memorandum of appeal was filed in this Court by the plaintiff according to the provisions of Rule 1 of Order 44. But the copy of the judgment and the copy of the decree of the trial court were not filed along with the application, and the application was ultimately withdrawn on 22-8-1952. On 4-9-1952 the plaintiff filed an application for permission to appeal in forma pauperis before the District Judge of Shahabad, and on 6-9-1952 the learned District Judge held that the findings arrived at by the learned Subordinate Judge being neither erroneous nor unjust within the meaning of the proviso to Rule 1 of Order 44, the applicant was not entitled to appeal in forma pauperis. The application to prosecute the appeal in forma pauperis was, therefore, rejected, and the applicant was called upon to pay court-fee by 17-9-1952. On 17-9-1952 the applicant applied for time and stated that he was going to move this Court against the order refusing permission to prosecute the appeal in forma pauperis.
Time was allowed till 23-10-1952 and on this date the applicant deposited the entire amount of court-fee, payable on the memorandum of appeal. The court then fixed 29-10-1952 for hearing on the question of limitation, and on 29-10-1952 the respondent 5, who is the petitioner before this Court, appeared and prayed that the memorandum of appeal should be rejected as time-barred. The court thereafter heard the parties on the question of limitation, and by its order dated 24-11-1952, which is the order under appeal, it condoned the delay and admitted the appeal. The learned District Judge has observed that "If the memo, of appeal is rejected now, it will amount to penalising the appellant for want of rudimentary knowledge on the part of the advocate Mr. Ranijee Sharma as to where such an appeal was to be filed", and he says that there are several authorities which lay down that such an. appellant should be given the benefit of Section 14, Limitation Act. The operative part of his judgment is in the following words:
"I would, therefore, condone the delay under Section 14, Limitation Act and admit this appeal".
3. The learned District Judge was in error when he passed such an order, inasmuch as there could not be any condonation of the delay under Section 14 Limitation Act. If there could be any condonation, it could be only under Section 5, Limitation Act. Section 14, Limitation Act is not in terms applicable for the purpose of computation of time for filing appeals. What has been held in several cases, is only this much that the principle of Section 14 may be applied. The question for determination is whether sufficient cause has been made out within the meaning of Section 5, Limitation Act for not presenting the appeal in time.
Sub-section (1) of Section 14 refers to suits, and Sub-section (2) refers to applications. Obviously, therefore, for the purpose of computing the period of limitation for filing an appeal this section has not to be taken into consideration. As I have already said, the authorities lay down only this much that although Section 14 does not apply to appeals, the principle embodied in the provision of this section is considered as relevant for the purpose of considering a case under Section 5. The Judicial Committee in -- 'Brij Indar Singh v. Kanshi Ram', AIR 1917 PC 156 (A), were inclined to take this view, and this Court has in a recent Full Bench decision, -- 'Lal Behari Lall v. Bani Madhava Khatri', AIR 1949 Pat 293 (B), considered Section 14 and has come to the conclusion that the circumstances contemplated in Section 14, Limitation Act should ordinarily constitute a sufficient cause within the meaning of Section 5.
4. The facts of the Full Bench case were of course entirely different. That was a case in which the question for consideration was whether the time spent in prosecuting a Civil Revision against an order passed on an application under Order 21, Rule 58, Civil P. C., could be deducted in computing the period of limitation for a suit under Order 21, Rule 63 of the Code. This Court held that the plaintiffs were entitled to deduct the period under Section 14 Limitation Act as they were prosecuting the Civil Revision application with due diligence and good faith. Thus, the bona fide prosecution of a proceeding in a wrong court has been regarded as a proper ground or a sufficient cause within the meaning of Section 5 for extending the time for filing the application.
5. The question before us is whether the time which was spent in prosecuting the appeal before this Court can be deducted while computing the period of limitation. The application to appeal in forma pauperis was filed before this Court on 11-1-1952. It was accompanied by a memorandum of appeal, but the copies of the judgment and the decree had not been filed. The application for permission to appeal in forma pauperis was withdrawn on 22-8-1952, and the memorandum of appeal was returned on 3-9-1952. The appeal before" the District Judge was filed on 4-9-1952 along with an application for prosecuting the appeal in forma pauperis, and the application to sue in forma pauperis was disposed of in the manner indicated above.
Now, even if the principle of Section 14, Limitation Act has to be applied for extending the time under Section 5, the question is whether it can legitimately be urged in this case that the proceeding before this Court had been prosecuted in good faith and with due diligence.
The provisions of Order 41, Rule 1, Civil P. C., are imperative, and according to this rule a memorandum of appeal shall be accompanied by a copy of the judgment and a copy of the decree appealed against. The provisions of Order 44, Rule 1, Civil P. C., are even more stringent, inasmuch as this rule lays down that the court shall reject the application to prefer an appeal in forma pauperis unless, upon a perusal thereof and of the judgment and decree appealed from, it sees reason to think that the decree is contrary to law or to some usage having the force of law, or is otherwise erroneous or unjust. Thus, Rule 1 of Order 44 makes it incumbent upon the applicant to show to the court that prima facie the decree appealed against is contrary to law, erroneous or unjust, and if the applicant has to show that just when he presents the application, it is necessary that he should file the copies of the judgment and the decree along with the application.
6. It was never intended that it was for the court to call for the copies of the judgment and the decree and then to consider whether the application could be entertained. Thus, there cannot be any valid application for leave to appeal without the presentation of the copies of the judgment and the decree. During the course of the argument my Lord the Chief Justice pointed out to the Counsel for the parties that even after the copies of the judgment and the decree had been obtained by the appellant he did not file them promptly. It appears that the copy of the judgment became ready for delivery on 24-1-1952, and it was actually delivered to the appellant on 24-1-1952. Similarly, it appears that the copy of the decree became ready for delivery on 13-2-1952, and it was actually delivered to the appellant on 13-2-1952.
But on 22-2-1952 a Bench of this Court had to pass an order that a certified copy of the judgment would be accepted if it was filed on the following Monday, and on this very date three weeks' time was allowed to file a certified copy of the decree. The copy of the judgment was actually filed on 26-2-1952 and one does not find any explanation why this copy of the judgment was not filed in this Court soon after it had been obtained. On 20-3-1952 there was another order passed that the certified copy of the decree should be filed within two weeks failing which the application would stand-rejected without further reference to a Bench. The certified copy of the decree was actually filed on-9-4-1952.
Then on 12-5-1952 there was a stamp-report inviting the attention of the Court to the fact that the petition for leave to appeal had been filed without the copies of the decree and the judgment and that the copies of the decree and the judgment had actually been filed on 25-2-1952 and 2-4-1952, respectively. The Stamp Reporter pointed out that by 2-4-1952 the period of limitation had expired, and, as such, the application was time-barred. It was also pointed out by the Stamp Reporter that the Miscellaneous Judicial case would not lie here but in the court of the District Judge as the valuation was below Rs. 5000. The valuation was only Rs. 4500, but still the appeal and the application had been presented to this Court.
On 25-7-1952 this Court allowed 21 days' time to consider the stamp-report regarding limitation, and on 19-8-1952 the petitioner in the Miscellaneous judicial case, prayed before the court for permission to withdraw the application. The Registrar ordered that the matter should be placed before the Benoh for orders, and on 22-8-1952 a Bench of this Court permitted the Counsel for the petitioner to withdraw the application.
7. There are very important factors to be considered in order to judge whether the application that had been presented to this Court can be deemed to have been presented in good faith and can also be deemed to have been prosecuted with due diligence. The first factor is that though it is very well known that the District Judge has got the power to entertain an appeal from a decree or order of a Subordinate Judge where the value of the original suit does not exceed Rs. 5000, this application along with the memorandum of appeal was presented to the High Court. The second factor is, as was so clearly pointed out by my Lord the Chief Justice during the course of the argument, that the applicant did not file the copies of the judgment and the decree before this Court even after he had obtained them. The third factor is that when the petitioner was called upon to show cause, after the stamp-report, as to how the application was to be treated as in time, instead of showing cause and offering explanation he withdrew the application, In my opinion, these three factors should lead us to hold that the appeal and the application had not been presented to this Court in good faith, nor were they prosecuted with due diligence. The words "good faith" do connote "with due care and attention", and according to Section 2(7), Limitation Act, nothing shall be deemed to be done in good faith which is not done with due care and attention. I do not think it can be urged with any show of reason that even though the District Judge has got the power to entertain appeals up to the value of Rs. 5000, the petitioner acted in good faith when he presented this appeal to this Court, and when the defects were pointed out the petitioner (O. P. in this case) had no other option but to withdraw the application. And it can by no means be said that the petitioner had acted with due diligence when it is manifest that not only he did not file the copy of the judgment along with the application or the memorandum of appeal but that even after the copies of the judgment and the decree had been obtained, they were not promptly filed before this Court.
There was no exercise of due care and attention, and when we proceed to consider how far it was a bona fide conduct on the part of the petitioner (opposite party in this application) to have selected this Court as the forum, our answer must be in the negative. The benefit of Section 14 cannot be claimed where the good faith of the party prosecuting his remedy in a different proceeding is open to grave doubt. In the circumstance, I am of opinion that even if we apply the principle of Section 14 in this case, it cannot be held that the application and the memorandum of appeal had been presented to this Court in good faith and were prosecuted with due diligence. The learned District Judge completely misdirected himself when he said that he was condoning the delay under Section 14, Limitation Act.
8. In the result, therefore, I would allow this Application with costs and set aside the order of the learned District Judge condoning the delay and admitting the appeal. Hearing fee Rs. 48/-.
Imam, C.J.
9. I agree.