MUKHTIAR AHMED Vs. HIMAT LAL BHATT

JUDGEMENT

(1.) The short point which falls for determination in this case is whether the appeal presented in the Court of the learned Senior Subordinate Judge, Delhi, from the decree ot the trial Court dated 22nd May, 1961 was within time and if not, then whether sufficient ground was made out for the condonation of delay and extension of time under section 5, Indian Limitation Act. .

(2.) .The facts which are undisputed are that the decree to ba appealed ] from was made on 22nd May, 1961- According to the calculations, the appeal could have been filed on 24th June, 1961 when the lower Courts were closed for the summer vacation. An application for a certified copy of the judgment and the decree was made on 29th May, 1961. However, two days after the impugned decree, the appellant had presented the appeal in the Court of the Senior Subordinate Judge on 24th May, 1991, but the memorandum of appeal was not accompanied by certified copies of the judgment and the decree. Instead he had attached with it uncertified copies thereof. At the bottom of the grounds of appeal, there was a note that certified copies of the judgment and decree had been applied for and would be filed as soon as received from the copying department. I am now informed that originally an application for copies was made on 24th May, 1961, but the same was returned and re presented on 29th May, 1901. But be that as it may, the fact remains that on 31st May, 1961, the learned Senior Subordinate Judge in the presence of Shri Radhay Shyam Tandon, counsel for the appellant, and Shri Radhay Mohan Gupta, counsel for respondent No. 3, directed the record of the case to be Sent for and also made an order that Padam Singh, respondent No. 3, should not take possession of the premises and the business in the meantime. This shows that the lower Appellate Court actually entertained the appeal and registered it and started proceedings for the purpose of disposing of the appeal on the merits. It is unfortunate that the learned Senior Subordinate Judge did not pay heed to the fact that the certified copy of the decree was not with the memorandum of appeal.The copy of the judgment could certainly be dispensed with but not the copy of the decree against which alone the appeal lies. The office of the lower Appellate Court clearly .did not perform its duty as enjoined by law and, interalia, by Chapter 14-D, Volum I, High Court Rules and Orders.

(3.) At the final hearing of the appeal, the learned Senior Subordinate Judge dismissed it because the certified copies of the judgment and decer were presented in Court on I/th July, 1961 and not on 15th July, 1961, when the Court reopened after the summer vacation. The explanation given for this delay is that 15 July, 1961 was a Saturday and when the clerk of the counsel went to the copying agency, it was too late because the office had closed at 11.30, and copies were, as a matter of practice, not supplied after 11.30 on Satu;days. It is not understood what was the sanction behind this practice, but certainly it cannot be described to be a matter of gross negligence on the part of the counsel or his clerk to have gone to the copying agency after 11.30 to get copies for the purpose of filings them in Court, 16th July, 1961, was a Sunday and on l7th July, 1961 the copies were actually presented in Court. On these facts, it is surprising that the learned Senior Subordinate Judge should not have found has way to exercise his judicial discretion in favour of the appellant and should have dismissed the appeal as barred by time.