DEBABRATA MUKHERJEE Vs. KALYAN KUMAR ROY

JUDGEMENT

(1.) This application under section 5 of the Limitation Act, 1963 for condoning 8 days delay in preferring the connected First Miscellaneous Appeal has been heard with notice to the respondent. The appellant, being aggrieved by the order dated 7th July, 1980 of the learned Judge, 2nd Bench, City Civil Court at Calcutta, dismissing his application for temporary injunction presented the appeal on 26th Aug., 1980. According to the report of the Stamp Reporter dated Dec. 11, 1980, the appeal was out of time by 8 days. On 11th Dec., 1980 the appellant filed the present application under Sec. 5 of the Limitation Act for condoning the delay.

(2.) The appellants case is that the certified copy of the order appealed against was obtained by him on 28th July, 1980 and was handed over to Sri Debaprasad Mukherjee, an advocate of this Court on 7th Aug., 1980. Mr. Debaprasad Mukherjee, Advocate was under the impression that the prescribed time of limitation was 90 days from the date of the order of the Court below. Due to such erroneous impression the appeal was filed beyond time.

(3.) Undisputedly, under section 8(2)(a) of the City Civil Court Act, 1953 the period of limitation for an appeal from a decree or order of the City Civil Court is 30 days from the date of such decree or order. But the learned advocate for the appellant was under the erroneous impression that the prescribed period of limitation for appeal was 90 days presumably under Art. 116 of the Limitation Act, 1963. Having considered the averments made in the application under section 5 of the Act, the supplementary affidavit filed on behalf of the appellant, affidavit-in-opposition affirmed by the respondent and also the affidavit-in-reply, we believe that in the instant case the delay of 8 days in preferring the appeal has occurred only because of the mistake on the part of the learned Advocate for the appellant in computing the period of limitation for preferring this appeal. The respondent who has appeared in person has strenuously submitted that such a negligence and/or mistake on the part of the appellants Advocate was not a sufficient cause within the meaning of section 5 of the Limitation Act and, therefore, the instant application under section 5 of the Limitation Act ought to be dismissed.