RUKMONY AMMAL AND ANR. Vs. GANESA MUDALIAR

JUDGEMENT

(1.) THE plaintiffs are the petitioners in this Civil Revision Petition. Their suit O.S. No. 209 of 1963 on the file of the Court of the District Munsif, Poonamallee, having been dismissed, and they not having filed an appeal, which they intended to file, in time, and their application for excusing the delay in the presentation of the appeal having been dismissed by the lower Court, the plaintiffs have now come up in revision against the order of the learned District Judge, Chingleput. The learned District Judge found that there was no sufficient cause for the petitioners in not preferring the appeal in time. In this Civil Revision Petition, however, learned Counsel for the petitioners submits that there is not only sufficient cause for the petitioners not having filed the appeal in time, but that substantial injustice would be caused to them if the delay in filing the appeal is not excused. Mr. Balasubramaniam for the petitioners contends that as the matter in issue involves the question of limitation, it ought to be liberally construed and the petitioners' right, of further relief by way of appeal ought not to be shut out merely on technical grounds. He also urged that the point of limitation in any list involves a substantial question of jurisdiction and that therefore in this Civil Revision Petition under Section 115, Civil Procedure Code, such a matter can be gone into as it virtually relates to a question whether the jurisdiction of the lower Court has been rightly exercised. He relied upon the decision reported in Ramlal Motilal and Chotelal v. Rewa Coalfields ltd., (1961) 2 M.L.J. 131 wherein their Lordships of the Supreme Court held that if sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. Apparently reliance was placed on this decision for the contention of the learned Counsel for the petitioners that the provisions of Section 5 of the Limitation Act ought to be liberally construed. One other decision which was brought to my notice by the learned Counsel for the petitioners is that reported in P.D. Chougule v. M.H. Jadhav, (1966) 1 S.C.J. This is relied upon in support of the submission that a plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the Court which tries the proceedings.

(2.) LEARNED Counsel for the respondent contended contra. He strongly relied upon the decision of Ayling, J., in Thandayuthapani Sethuram v. Chinnathal, A.I.R. 1914 Mad. 149. The following observation of the learned Judge is apposite:

(3.) MR . Balasubramaniam also contended that in fact the appeal was presented in time and there is, therefore, an apparent error in the record of the lower Court when it states that the appeal is out of time. This particular point was neither argued in the lower Court nor does it find a place in the memorandum of grounds filed by the petitioners. I am not inclined to entertain this plea in the revision stage.