RAIZADA SANWAL DAS Vs. KANHYA LAL

JUDGEMENT

(1.) This execution second appeal is directed against the order of the learned Additional District Judge, Delhi, dismisring the appeal from the order of a learned Subordinate Judge 1st Class dated 17th May, 1963 as barred by time and also as improperly filed.

(2.) The facts on which the conclusion of the court below is founded are that the order of the executing court was made on 17th May, 1963. Application for copy was made on 20th May, 1963 and the same was ready on 5th July, 1963. Its delivery was taken on 15th July, 1903. In the meantime, an appeal had been filed on 1st June, 1963 without a duly attested copy but with an unattested true copy. It is' conceded before me that aftertaking into account the time spent inobtaining the certified copy, the limitation for the appeal was to expire on 23rd July, 1963, However, on 20th July. 1963, the appeal was taken up for hearing and dismissed in default of appearance by the appellant. An application was made for its restoration on the same day which was allowed on 20th August, 1963. It is asserted on behalf of the appellant and not disputed on behalf of the respondents that the certified copy of the order was produced in court on 20th August, 1963, the day the appeal was restored. At the Bar before me It has been stated by the learned counsel for the appellant that on the day when the appeal was dismissed in default and an application for restoration was made, on that very day an oral request_ wag also made to the learned Additional District Judge I for permitting the appellant to place on the record the certified copy of the order of the trial Court, but the learned Additional District Judge declined this request with the remark that the appeal having been dismissed in default, there was no point in placing this copy on the record. It may also be mentioned that the order of the trial court was apparently insufficiently stamped. I am told that the certified copy of the judgment bore court-fee of the value of Rs. 1.25 paise whereas the court-fee required wai of the value of Rs. 265 paise. The court below has observed that an order determining the question failing within section 47 or section 144, Code of Civil Procedure, being ineluded in the definition of the term decree, the order of the executing court had the force of a decree and, therefore, it required court-fee stamp of the value of Rs. 2.65 paise. On both these points, the decision was given against the appellant and the appeal dismissed.

(3.) On second appeal, it has been argued that the learned Additional District Judge has gone wrong in law in holding the appeal both as barred by time and imoroperly filed and I am inclined to agree with the submission. It is conceded that the time for filing the appeal against the impugned order of the executing court was to expire on 23rd July, 1963 On 20th July, 1963, the appeal was dismissed in default. The certified copy could be produced on the record at: any lime upto 23rd July, 1963, or at least upto the hearing of the appeal on 27th July, 1963 without any risk of the appeal being held barred by time. The only default committed by the appellant was that he did not apply for placing the order on the record between 20th July, 1963 and 20th August, 1963. i am assuming that the statement from the Bar that on 20th July, 1963 an oral request was made to the Additional District Judge for taking on the record the certified copy is of no avail to the appellant. The question is: do these facts not constitute a sufficient cinse for extending the time within the meaning of section 5. Indian Limitation Act? In my opinion, it does, and nothing has been shown on behalf of the respondents that there are any mala fides or gross negligence or otherwise serious laches on the part of the appellant which would justify penalising the appellant or declining a hearing on the merits of this appeal. It I may be pointed out that under the law, a written application for claiming relief under section 5, Limitation Act, is not essential and in a fit case, it is open to a court without a written application to give relief under this section if the interests of justice so require. The matter pertains to the discretion of the court, albe it judicial discretion, but the term 'sufficient cause has to be liberally, construed in order to promoted the cause of substantial justice holding the scales even beween the contesting litigants. Had the appeal not been dismissed in default on 20th July, 1963 and had the appellant at' the hearing on that day placed the certified copy on the record, no fault could have been found with the appeal. And if the copy bore insufficient court fee the deficiency could, on its being pointed out by the office of the Additional District Judge entertaining it, have immediately been made good. The default in the appearance of the appellant's counsel on 20th July, 1963, in face of the order dated 20th August, 1963, setting the dismissal aside, can no longer be considered fatal. The appellant was apparently held by virtue of the order dated 20th August, 1964 to have been prevented by sufficient cause from appearing on the hearing on 20th July, 1963. In these circumstances which are undoubtedly peculiar, production of the certified copy on 20th August, 1963, the date when the dismissal was set aside, too, cannot be considered to be inexcusably belated. In so far as the .question of insufficiency of stamp on the copy is concerned, again, it is not disputed that the office of the learned Additional District Judge accepted the copy without any objection, If that is so, then it is not understood why the Court below did not consider it a fit case for taking action under section 149 Code of Civil Procedure, and permitting the appellant to make good the deficiency in court-fee on the copy. Courts in this Republic must always bear in mind that it is their first duty to take care that their acts and the acts of their office do no injury to any suitor. Rule 5, Chapter 1-B, Vol. I, High Court Rules and Orders, imposes a duty on the Superintendent of the District & Sessions Judge, Clerks of Court of the Senior Subordinate and Judges of Small Cause Courts and Readers of all other Subordinate Judges to see that appeals, plaints and petitions etc. received in the courts, to which they are attached, are properly stanmped; and when they are in doubt what court fee is due on any document, it is their duty to refer the matter to the Presiding Officer for orders. This provision made it incumbent on the office of the learned Additional District Judge to scrutinise the copy which was presented by the appellant on 20th August, 1963 and acceptance of the copy by the office without any objection cannot be ignored as wholly irrelevant. Had the office of the additional District Judge pointed out to the appellant the deficiency in the court fee affixed on the copy and declined to accept it on this ground, the deficiency would, in all probability, have been made good. If the office could also not be sure about the insufficiency of the court-fee stamp, then judicial discretion demanded that the court below allowed time to the appellant to make good the deficiency. J should like to make it clear that I do not at all mean to lay down that the appellant was under no duty to stamp the copy with court fee of appropriate value. All that I desire to say is that the circumstance that the office of the court of the Additional District Judge was also not sure if the copy was insufficiently stamped and considering it to be properly stamped, accepted it, is a factor of some importance in determining whether or not to grant time under section 149, Code of Civil Procedure, for making good the deficiency. I am, therefore, unable in the circumstances to hold that the appellant was guilty of such gross negligence or grave carelessness that dictates of justice ruled out action under section 149 of the Code. The respondents referred to roe to a number of decisions including Balwant Singh v. Jagjit Singh, Ghulam Mohammad v. Barkal AH and others, Mehr Chand v. Secretary of State', Shahadat v. Hukam Singh, Ramji Lal v. Shibba, and Custodian Evacuee Property v. Prabhu Dayal, for the submission that an appeal can only be held to be properly filed when all documents bear proper court-fee. With this proposition, there can be no dispute. The question, however, is whether on the facts and circumstances of the present case, was it not a proper exercise of judicial discretion for the court below to allow the appellant to make good the deficiency in court-fee of the value of Rs. 1/40 on the certified copy of the impugned order. As discussed above, I am inclined to think it was, and the court below acted illegally and arbitrarily in not applying its mind to this aspect and dismissing the appeal as improperly filed.