SHANGARAM NARASIMLU Vs. JANGAM ISTALIAH

JUDGEMENT

(1.) The appellants are plaintiffs and they are aggrieved by the decision of the lower appellate Court refusing to give them the benefits of section 5 of the Limitation Act. It appears that the decree of the trial Court is, dated 30.11.1950, and appeal in the lower appellate court was filed on 02.04.1951, in other words, the appeal was barred by nearly three months. The case for condoning the delay is that the 2nd appellant (plaintiff) had appointed Sri K.V. Narasingarao, a pleader practising at Karimnagar to file appeal on 30.12.1950. He (2nd appellant) had paid him Rs. 80 for the Court-fee together with the copies of the judgment and was assured by the pleader that the appeal would be filed. The appellant's affidavit further alleges that after waiting for one month he went to the pleader's house who was then under treatment at Hyderabad and that one Yusufuddin who was a colleague of Narasingarao assured him that summons would be issued. Thereafter, a letter from Narasingarao, dated 10.03.1951, was received that the appeal had been filed. Finally another letter from Narasingarao, dated 24.03.1951, was received that the appeal could not be preferred as the period of appeal had already expired when the case was given to him. The concluding part of the appellant's case for condoning the delay is that he immediately came to Karimnagar on 30.03.1951, took away the papers from Narasingarao, the next day was spent in consulting other pleaders, 01.04.1951, was public holiday, and that the appeal was filed on the next day. The two letters from Narasingarao. The contents of pleader's affidavit as well as an affidavit from Narasingarao. The contents of the pleader's affidavit are important. They are that the appellant, came to him iether in the end of December, 1950 or in the beginning of 1951 for preferring the appeal. As he was seriously ill, the file was handed to Yusufuddin for necessary action. The pleader went away for treatment to Hyderabad. He returned to Karimnagar in March, 1951. Balakrishna, a relative of the appellant, came to enquire about the appeal. He made enquiry from the pleader's father and as Yusufuddin was away to Nirmal the first letter was written. The explanation for the last letter is that after Yusufuddin back he informed Narasingarao that the appeal had not been filed because the file was received in their office after the expiry of the period and the letter, dated 24.03.1951, was written. The lower appellate Court has correctly reached the conclusion concerning the agent being negligent and has held the case not to be a fit one for condoning the delay.

(2.) Apart from the view of the Allahabad High Court, there is concurrence of authorities of other High Court that negligence of the agent is no ground for condoning the delay. In Maung Po Chein v. Po Tha, A.I.R. 1931 Rang. 80 , it has been that the lower conferred on the Court under section 5 may justifiably be exercised where there is a bona fide mistake on the part of the pleader but gross negligence on his part cannot be condoned. The observation of the Master of Rolls in Highton v. Treherne (1878) 48 L.J. Ex. 167: 39 L.T. 411 , was quoted in support of the above view. The same view was taken by Jackson, J., in Poongavana Gramani v. Manicka Goundan, 1932 M.W.N. 328 . Here an application for copies was returned for some requisition to be complied with. The vakil's clerk who took the return did not represent the application. He had no good reason for doing so and the application was dismissed in due course. Failing to get restoration and after getting copies of the judgment and decree on second application for copies. the appeal was filed along with a petition under section 5 of the Limitation Act. It was held that the delay cannot be excused as no sufficient cause has been shown by the appellant. The learned Judge observed at page 329 thus:-

(3.) Having regard to the aforesaid authorities the pleader's negligence in the case would be fatal to the appellants notwithstanding their conduct being free from blame.