UNION OF INDIA Vs. ROSHAN LAL

JUDGEMENT

(1.) The only question with which we are concerned a.t this stage is whether the appeal was presented in this Court within time and, if not, should the time be extended and the delay condoned.

(2.) It is not disputed that the appeal was presented in this Court on 12th January, 1967. That was the 89th day from the date of the judgment and decree after excluding the period requisite for obtaining the necessary copies. The memorandum of appeal presented on that day bore the court-fee stamp of Rs 5.00 only and an application under Sections 149 and 151, Code of Civil Procedure was made for extending the time by a fortnight for paying the full court-fee. The reason given in the petition was that sanction for withdrawing the amount to cover court fee had not till then been issued by the department concerned due to official routine inspite of best efforts by the Land Acquisition Collector, Delhi. The court-fee making up the requisite amount was fiKled in Court on 17th January, 1987 d another formal application under sections 149 and 151,Civil Procedure Code, was also presented to this Court for accepting the same. It is these applications which we are called upon to consider and dispose of. Mow, it is obvious that the memorandum of appeal was presented in this court in time. The only question which requires our decision is if it is a fit ease for extending time for making good the deficiency. On 12th January, 1967, limitation had not yet expired. Prayer was made to extend time for making good the deficiency in court-fee. The Court was closed from 13th to 15th January, 1967 on account of Id-ul-Fitr, second Saturday and Sunday. It would therefore, be clear that had the court-fee been made good on 16th January 1967, the appeal would have been amply within time and no formal order of condonation from the court would be required. However, there was delay of one day and the court-fee was made good on 17th January,1967.

(3.) The discretion conferred on a Court by section 149, Civil Procedure Code, as observed by a Full Bench of thi Lahore High Court in Jagat Ram v. Misar Kharaiti Ram, is normally expected to be exercised in favour of the litigant except in cases of contumacy, of positive mala fides or reasons of similar kind. The question of bona fides in this connection is to be construed in the sense used in the General Clauses Act and not in the Limitation Act. A thing is accordingly to be presumed to be done bona fides if it is done honestly, whether it is done negligently or not, for the purposes of judging whether the discretion under section 149. Civil Procedure Code, should or should not be exercised in favour of the litigant. On this point of view, there is no proof and no suggestion has been made in this Court that there was any mala fides on the part of the appellant.