HIRALAL Vs. JHUNNILAL

JUDGEMENT

(1.) This is a revision against the order of the learned Additional District Judge, Allahabad dated the 2nd of June, 1962, rejecting the application of the applicant under Section 5 of the Indian Limitation Act praying that the delay in the filing of the appeal be condoned.

(2.) The facts briefly are these: Ram Chandra, father of the present applicant, since deceased, and respondents Nos. 4-9 brought a suit No. 390 of 1959 for Cancellation of a sale-deed executed by Kesho Das deceased, then living, in favour of defendant-respondents Jhunni Lal, Deep Narain and Raj Narain on the 3rd of June, 1961. The suit was partly decreed and partly dismissed. That was the last working day before the Courts closed for summer vacation. The applicant's father on that very day through his counsel Mr. A.P. Tiwari, applied for a copy of the judgment and decree of the trial Court. The Courts reopened on the 4th July, 1961. A day prior thereto, on the 3rd July, 1961. Ram Chandra was murdered. On the 4th August, 1961, the copy of the judgment and decree was ready. This had been applied for promptly before by the applicant's father before his death. The clerk of Mr. A.P. Tiwari, however, took delivery only on the 24th August, 1961. No information, whatsoever was sent by the said clerk or the counsel, that the copy was ready, or that delivery had already been taken, till the 26th of October, 1961. That was the day when the applicant happened to come to Allahabad to appear as a prosecution witness regarding the murder of his father. The applicant was cross-examined by the aforesaid Sri A.P. Tewari who had accepted the Vakalatnama en behalf of the murderers of the applicant's father. After he had appeared as a witness the clerk handed ham a copy of the judgment. According to the affidavit of the applicant that was the first time that be came to know about the judgment or decree passed in the suit. The applicant was naturally disturbed at his counsel going over to defend the accused in the murder case against his father. He is said to have taken advice, gone home and having failed to obtain the support of respondents 4-9 who were plaintiffs with his father in the suit, for filing an appeal he returned to Allahabad and filed the appeal on the 6th of November, 1961. The appeal was accompanied with an affidavit and an application praying for the condonation of the delay under Section 5 of the Limitation Act. Before hearing the appeal fresh affidavits and counter-affidavits were permitted to be filed by the learned Additional District Judge. In the counter-affidavit which was filed by the opposite party no attempt was made to controvert the facts alleged in the affidavit by the applicant that Mr. A.P. Tiwari had accepted Vakalatnama on behalf of the accused in the case of the murder of Ram Chandra, nor that the copy was applied for the very day the judgment was delivered by the trial Court. It was also not denied that the copy of the judgment was not delivered to the applicant till the 26th October, 1961, when limitation had already expired. The learned Additional District Judge was sympathetically inclined to extend the time and to condone the delay, but he considered that the Supreme Court decision, to be noticed hereinafter, tied his hands. He took a serious view of the conduct of the clerk of Mr. A.P. Tewari who had retained the certified copies from the 24th August, 1961, to 26th October, 1961, when he must have known that it would lead to the appeal getting time barred and that would amount to professional misconduct. He further went on to observe : "When we find further that Sri A.P. Tewari accepted Vakalatnama on behalf of the alleged murderers of Ram Chand's father, this delayed delivery of the copy takes an ugly look. The fact that other plaintiffs do not choose to appeal would be a circumstance but for the allegations in the affidavit that they are on the side of the murderers of his father. The allegations also are that the respondents were acting on behalf of the alleged murderers. The counsel for the opposite party is not prepared to deny that Sri A.P. Tewari accepted Vakalatnama for the murderers of Ram Chand and he is not prepared to refute the allegations in the affidavit that the copy was delivered to the present applicant on 26-10-1961.

(3.) The learned Additional District Judge, however, as already observed, considered that the decision of the Supreme Court in Ram Lal v. Rewa Coal Field Ltd., AIR 1962 SC 361, required each day's delay to be explained conclusively, and as this had not been done he found himself helpless to condone the delay. This reading of tile said judgment, manifestly, was erroneous, and because of that erroneous reading he failed to exercise the jurisdiction of condoning the delay which vested in him. The decision of the Supreme Court nowhere lays down that each day's delay must be conclusively established. The case had gone to the Supreme Court because there was a conflict between the decisions of the various High Courts as to whether the applicant who applies under Section 5 is obliged to explain the delay during the entire period of limitation or only from the time that the limitation had expired. This conflict was set at rest by their Lordships of the Supreme Court and it was held: "That the failure of the appellant to account for his non-diligence during the whole of the period of limitation prescribed for the appeal does not disqualify him from praying for the condonation of the delay under Section 5."