SHYAM SINGH Vs. SANWALI

JUDGEMENT

(1.) This is a plaintiff's second appeal against a decision of the District Judge, Kumaun, rejecting his appeal as time-barred. The facts of this case are peculiar. In 1953 the Munsif of Pauri in the district of Garhwal had the jurisdiction to sit and hear cases at Chamoli about 70 miles away. The case which has resulted in this appeal was tried and heard by the learned Munsif at Chamoli. The following facts are revealed by entries in the order-sheet of the Court. On 7-9-1953, the hearing of the case concluded and the court informed the parties that judgment would be delivered at Pauri on the 11th September. On that day judgment was pronounced at Pauri and the plaintiff's suit dismissed. No party was present and the Court directed that information of the decision was to be sent to counsel which appears to have been done on 15th September. After the expiry of 30 days, the appeal became time-barred on 12th October. On that date an application was made on behalf of the plaintiff for a certified copy of the judgment and decree which were delivered on 2nd November. The appeal was filed on the 9th November. It was accompanied by an application praying that the appeal be treated as within time as counsel received information of the delivery of judgment on 10th Oct. and limitation should be computed from that date. The appellant contended that limitation did not begin to run before the receipt of the court's Parwana that judgment had been delivered in the case. The learned Judge, however, observed that in view of the fact that the date of the judgment had been previously announced, it was the duty of the plaintiff and his counsel to find out on that date what the court's decision was and if they did not care to do so, they were themselves to blame. The learned Judge did not attach any legal significance to the fact that the trial court had intimated to the parties on the 7th Sept. that they would be informed of the judgment, and observed that this was only by way of extra precaution but did not affect the law of limitation. He, therefore, held that the appeal was not filed within time and rejected it. Aggrieved by this order the plaintiff has come to this Court in second appeal.

(2.) Mr. R.C. Ghatak, learned counsel for the appellant urged two points in favour of this appeal. First, he contended that the limitation in this case began to run on 10th Oct. only when counsel received the Parwana from the Munsif's court that judgment had been delivered. Learned counsel stated that in view of the peculiar conditions prevailing in the Kumaun hills, information is always sent by the Court to counsel whenever judgment is delivered. He pointed out that the courts are moving from place to place and means of communication are not easy. Therefore, this long standing practice prevails and is invariably followed. Even assuming that this is true, I do not think that this practice can affect the legal position as regards limitation. The period of limitation is prescribed by statute and the law of limitation cannot be modified by any local practice, however, just and convenient it may be in the interests of the bar and the litigant public. The limitation prescribed for an appeal before the District Judge is 30 days from the date of the decree. The law provides for the exclusion of the period which the litigant spends in obtaining certified copies and for other reasons. Sec. 5 makes no provision for any alleged local practice in the hills or elsewhere. The argument that the law of limitation should be modified in the district of Kumaun because of any local practice adopted by the courts for the convenience of counsel or the litigant public must be rejected. I, therefore, hold that the limitation in this case commenced from the date when the judgment was delivered and not when information was received by the plaintiff's counsel.

(3.) But the Court has the power under Sec. 5 of the Limitation Act to condone the delay if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the prescribed time. Learned counsel argued in the alternative that the learned Judge should have condoned the delay under Sec. 5 on the ground that there was sufficient cause for it, and that his approach to the local Practice prevailing in the District of Kumaun was erroneous.