JAGANNATH PRASAD Vs. SANT HARDASRAM SEVASHRAM

JUDGEMENT

(1.) THIS is a defendants' appeal presented along with an application under S. 5 read with Section 14 of the Limitation Act. It arises out of a suit valued at Rs. 29,617.10, which was decreed by the trial Court on 2- 6-1975. Aggrieved by the decree the defendant-appellant filed an appeal on 4-8-1975 in the court of the District Judge, Varanasi, which was registered as Civil Appeal No. 495 of 1975. As early as 19/20-11- 1975, the plaintiff moved an application praying that the appeal be rejected on the ground that in view of the valuation of the original suit mentioned above, the appeal lay to the High Court. The said objection was ordered to be put up for orders on 22-1-1975. On that date the present appellant moved an application No. 160, asking for 15 days' time for replying to that objection. The case was adjourned to 6-12-1975 on which date again the Court passed an order directing the objection 15 (c) to be put up on 3-1-1976. It appears that on that date, respondent No. 3 (a co-defendant) also filed an objection saying that the Court in which the appeal had been filed was possessed of jurisdiction to hear the same and the appeal was not required to be filed in the High Court. Thereafter the case was taken up again on 7-2- 1976 on which date Sri M. L. Khatri, the senior counsel appearing on behalf of the appellant conceded that the appeal should have been filed in the High Court and prayed for return of the memo of appeal. In these circumstances, the learned Ist Addl. District Judge, Varanasi, who was seized of the application, passed an order on 24-2-1976 that the memo of appeal be returned to the appellant or his counsel for presentation to the proper court, being of the view that the appeal did not lie to the District Judge. It is alleged that the appellant was able to obtain the actual return of the memo of appeal late in the afternoon of 25-2-1976 and reached Allahabad in the early morning of 25-12-1976 and on that date the appeal was presented to this Court.

(2.) ON these facts the benefit of Ss. 14 and 5 of the Limitation Act is invoked by the appellant and it is prayed that the delay in filing the appeal be condoned. The question, therefore, which falls for decision is as to whether on the above facts the appellant could be deemed to have been prosecuting bona fide and with due diligence the appeal in the court of the District Judge, Varanasi, where it is alleged to have been filed under the advice of his local lawyer.

(3.) IN short, the rule appears to be that where any mistake with regard to the forum of presenting an appeal has been committed and the court is satisfied on the facts of the case that this was either due to some forgetfulness or oversight or uncertainly as to the law regarding the forum for presenting the appeal, then it may be fit case for applying the provisions of Section 14 of the Limitation Act. On the contrary, where the law is plain and does not admit of any doubt and the appellant or his agent could not possibly have any illusion as to the appropriate forum for presenting appeal, it would be a case of palpable negligence and would not be covered by the provisions of Section 14 of the Limitation Act. All that one had to do in the instant case was to have a look at the valuation of the appeal and thereafter the forum was as clear as day light. We gave repeated opportunities to the appellants to explain to the Court by filing an affidavit of the counsel concerned, if necessary, which may throw light as to the circumstances in which this error was committed. We are constrained to remark that notwithstanding sufficient opportunity being given to the appellant no satisfactory explanation is forthcoming as to why the appeal was presented to the District Judge instead of filing it in the High Court inasmuch as the valuation of the appeal was Rs. 29,617.10. An appeal with a valuation of Rs. 20,000/- or more obviously lay to the High Court. We are rather intrigued by the silence of the pleadings on this aspect of the case which appears to be ominous. Sri H. N. Verma, one of the counsel appearing for the defendant in the court below has filed his own affidavit in which there is not a whisper to the effect that he committed any inadvertent error in filing the appeal before the District Judge or that he entertained any doubt with regard to the forum for filing the appeal. It is stated in that affidavit that Sri M. L. Khatri Advocate, was the senior counsel appearing on behalf of the defendant and Sri Verma was assisting Sri Khatri in the case and Sri A.K. Bajaj a junior lawyer was also attached to the office of Sri Khatri and had joined in signing the Vakalatnama. The affidavit proceeds to add that the memo of appeal was dictated by Sri Khatri, it was prepared through his office and presented on Sri Khatri' s behalf by his own office. Sri Verma in his affidavit says that the duly filed in and signed Vakalatnama of Sri Khatri was presented to him at his seat in the civil court and his signature was also obtained. This suggests that the actual filing of the appeal was done through the office of Sri Khatri. He however, has not filed any affidavit. The affidavit before us does not assign any role to the junior lawyer Sri Bajaj. IN view of the averments made in the affidavits filed before us we are unable to accept the submission made at the Bar that it was the wrong advice given by the counsel which led to this unfortunate error. No Counsel has either come before this Court or filed any affidavit indicating any such mistake on his part. We have already discussed that this was a case of patent and gross negligence where a mere look at the valuation of the appeal would have indicated beyond doubt the proper forum for presenting the appeal. Even more significant is the fact that soon after presenting the appeal the mistake was not realised by the appellant or his counsel. On the other hand, they appeared to have been somewhat complacent and on one occasion actually asked for time to reply to the objection filed on behalf of the respondent at a very early stage of the suit, viz., that the appeal was not maintainable in that Court. Thus, the appellant has utterly failed to show that he had been prosecuting with due diligence another civil proceeding and that he had acted in good faith. His conduct falls short of the standard of due care and attention attributed to an ordinary and prudent person. Therefore, the appellant is not entitled to the benefit of Section 14 of the Limitation Act. It is true that Section 14 in terms applies to suits and not to appeals but in substance the same principle may be applied. That is why the application has been made under Section 5 read with S. 14 of the Limitation Act. Even for successfully invoking the benefit of S. 5, the appellant has to make out sufficient cause and therefore, reckless or grossly negligent conduct of the appellant would be inconsistent with such sufficient cause. IN fact, the Division Bench case of this Court in Lala Hanuman Das v. Prithvi Nath (1956 All LJ 367) (supra) was a case under Section 5 of the Limitation Act wherein as we would be clear from the excerpts quoted above it was held that cases of negligence or carelessness would not be covered by S. 5 of the Limitation Act and the delay in such cases would not be condoned. Applying those tests to the facts of the present case, we are not satisfied that good cause has been established under Section 5 of the Limitation Act to justify condonation of delay in the instant case.