FIRM HEMRAJ DHANNALAL Vs. AMBARAM BHAWANIRAM SURAJMAL

JUDGEMENT

(1.) These are two appeals by the plaintiff from orders dismissing his restoration applications under Order 9 Rule 9 Civil Procedure Code in two suits, in both, not on merits, but on the ground that judgments of dismissal of suits had been passed under Order 17 Rule 3 (and not under Order 17 Rule 2); so that, the plaintiff should have filed regular appeals from the decrees dismissing the suit. In reply, the defendants-respondents in both the suits have raised a preliminary ground that these appeals are prima facie time barred and the delay cannot be condoned by the fact of the appellant having prosecuted the appeal's in good faith in the wrong Court, namely, that of the District Judge. Such a ground could, in a suit, be raised under Section 14 of the Limitation Act; in an appeal, this can be urged under Section 5 of that Act as "sufficient cause" why the delay should be condoned. In fact the parties have argued about this point of limitation more elaborately than the merits of the appeals. The question is whether there was want at diligence or gross negligence when counsel advised the appellant and the latter accepted that the appeal should be filed in the Court of the District Judge, and not in the High Court.

(2.) The facts of the two suits are simple. The plaintiff is the same while the defendants are different in the two suits. They were filed before the Civil Judge at Dewas on valuation respectively, of 8661A (suit No. 64 of 1949 Misc. Appeal No. 47) and 7042/- (Suit No. 79 of 1950 Misc. Appeal No. 46 of 1956). The suits were for money and there could be no doubt in the mind of the plaintiff or of anybody else in regard to valuation. While the suits were pending hearing, the plaintiff was absent on 27-11-1951, which was the date fixed in both the suits at his own request for his evidence. The Court ordered in each of the suits that "it was being dismissed for non- prosecution" (adam pairavi)". Thereupon the plaintiff filed two applications - one in each suit -- under Order 9 Rule 9 seeking restoration on grounds set Out which he pleaded were sufficient to justify this. These grounds have not yet been considered on merits so that, it is unnecessary at this stage to go into them. The two applications were themselves pending for nearly 3 1/2 years for various reasons with which we are not directly concerned, when, ultimately, they were dismissed on 26-4-1955. In both cases, the dismissal was not because the ground alleged was insufficient as, in fact, it had not been considered, but on the ground that the respective orders were really ones under Order 17 Rule 3, the Court having decided the suits forthwith, so that appeals -not applications for' restoration were the proper course for the plaintiff.

(3.) The plaintiff thereupon prepared his memoranda of appeal -- one in each case, noting the valuations already mentioned. On 28-6-1955, he tendered the two appeals in the Court of the District Judge, Dewas, which was certainly unusual, considering that he was himself giving the valuation at something over 5000/-. The office of the District Judge noted on both the memoranda that no appeal lay to the District Judge on account of this valuation. The appellant's lawyer was informed, who wanted to argue it out, and the case took several dates ostensibly, for a decision whether the appeal lay Before the District Judge or before the High Court. On 27-11-1956, this point was decided against the plaintiff and the appellate memoranda were returned on the next day for presentation to the proper Court. They were filed in the High Court on 29-11-1956, about a year and a half after the order appealed against.