SOMNATH BANERJEE Vs. VIVEK SALVI

JUDGEMENT

(1.) These are two applications praying that the two concerned First Miscellaneous Appeals filed beyond the period of limitation be admitted either by excluding, under S.14 Limitation Act, the period taken in prosecuting similar appeals in the court to the District Judge or by extending the period of limitation for sufficient cause under S.5 of the Act.

(2.) S.14 of the Limitation Act no doubt provides for exclusion of the period taken in prosecuting with diligence and good faith another civil proceeding against the same parties in respect of the same matter in another Court which is unable to entertain the same for want of jurisdiction or other causes of a like nature. In terms, however, S.14 ex facie applies in computing the period of limitation for suits and applications only and not to appeals. But the Privy Council decision in Brij Indar Singh v. Kanshi Ram, AIR 1917 PC 156 appears to be a sufficient authority for the view that even in the case of an appeal, prosecution of another civil proceeding in the circumstances contemplated in S.14 may constitute sufficient case for extension of the period of limitation for the appeal under S.5 of the Limitation Act. In fact, this Privy Council decision in Brij Indar Singh (supra) as well as the two later decisions of the Board in Sunderbai v. Collector of Belgaum, AIR 1918 PC 135 and in Kunwar Rajendra Bahadur v. Raj Rajeshwari Bali, AIR 1937 PC 276 purport to lay down that although S.14 of the Limitation Act is not applicable to appeals ex proprio vigore, the principles underlying the Section should be applied also in considering an application under S.5 of the Act in respect of appeals. In the Division Bench decision of this Court in Purna Chandra v. Mabub Baksh, AIR 1923 Cal 291, the principles under S.14 appear to have been applied in condoning the delay in filing appeals. It is true that even though S.14 in terms does not apply to appeals, yet, as pointed out by the Supreme Court in Ram Lal v. Rewa Coalfields Ltd., AIR 1962 SC 361 at p.365 invocation of its principles while considering an application under S.5 would very often solve the hardship that would have otherwise resulted because of non-application of S.14 to appeals in terms. But even then, we have every reason to respectfully agree with the view of the Law Commission of India in its 89th Report on the Limitation Act, 1963, submitted in 1983 (para 14.12, page 35) to the effect that "a right should be given to an appellant to exclude the time taken in proceeding bona fide in a Court without jurisdiction, rather than leaving the matter to the discretion of the court under S.5 to be exercised for 'sufficient cause' ", because "while interpreting the expression 'sufficient cause', the Courts may take conflicting views which appear to be worth avoiding on such matters". The Law commission has in fact recommended the extension of S.14 to appeals by express phraseology and has suggested (para 14.23, page 38) insertion of a new Sub-Sec. (2A) applying the Section to appeals in express terms. But until that is done (and sooner the better and better late than never), in appeals, we would have to go by the S.5 way. Now to the facts.

(3.) The two appeals were initially filed in the Court of the District Judge. But even though those were appeals from orders, the suit in which the orders were passed having been valued at more than Rs. 25,000/-, the appeals were required to be filed in the High Court under the provisions of S.21 of the Benal, Agra and Assam Civil Courts Act, 1887 read with S.106 of the Civil P.C. It appears from the certified copy of the relevant order-sheet that the respondents also lodged Caveat in the District Court and the appeals were admitted by the District Judge in the presence of and after hearing the parties. The respondents subsequently moved this Court in revision against such admission and those appears were then withdrawn by the appellants from the District Court and have thereafter been filed in this Court. It is not disputed that if the delay caused by the time taken in prosecuting those appeals in the District Court is condoned or excluded then the present appeals in this Court would be within time. The only question for our determination, therefore, is whether there is sufficient cause to condone the delay and extend the time under S.5 of the Limitation Act.