ABDUL GHAFFUR Vs. RAM SARAN KASHYAP

JUDGEMENT

(1.) This rule was issued under Section 5 of the Indian Limitation Act. It seeks condonation of delay in the filing of a pauper appeal. The delay to be condoned is of a period of about two weeks.

(2.) The original pauper Appellant Abdul Gaffur died after the presentation of the appeal along with the application for leave to file and prosecute the same in forma pauperis and his cousin sister Bivan Bibi was substituted in his place and stead as his heiress and legal representative for continuing the above proceedings. Both Abdul Gaffur and Bivan Bibi have been found to be paupers and so the substituted Appellant Bivan Bibi is entitled to prosecute this appeal in forma pauperis provided the question of limitation is decided in her favour and the delay in the filing of the appeal by the Original Appellant is condoned under Section 5 of the Indian Limitation Act. That is the only question under consideration "before the appeal can be entertained and registered and that question falls to be decided in this rule.

(3.) The original pauper Appellant Abdul Gaffur was a Defendant in the court below. The Plaintiff's suit against him was decreed by the trial court on January 9, 1957. The decree was signed on the 16th following. Abdul Gaffur applied for certified copies of the judgment and decree on the February 8, 1957, and he obtained the same on the 19th and, on the same day, he approached his pleader Syed Nazmul Huda for advice as to whether an appeal should be filed and if so, whether it could be filed without court fee and also as to when and where such appeal should be filed. The pleader, it appears, advised him that an appeal pan and should be filed in this Court in forma pauperis within 90 days from the -date of the decision of the trial court. The pleader further assured him (Abdul Gaffur) that he would take him to an Advocate of this Court in time. Thereafter the pleader Syed Nazmul Huda took his client, the pauper Abdul Gaffur, to the filing Advocate Mr. Makhan Chandra Dev on March 11, 1957, when it transpired that the time for filing an appeal in this Court in forma pauperis, that is, for filing the application for leave to- appeal in forma pauperies, which must accompany the memorandum of appeal in the case of pauper appeal, was 30 days from the date of the trial court's decree and not 90 days. On the next day, that is, on March 12, 1957 the memorandum of appeal was presented to the Stamp Reporter along with the necessary application for leave to appeal in forma pauperis. But, as the time for filing this application, namely, the period of 30 days from the trial court's decree, had expired on February 26, 1957, the application along with memorandum of appeal was returned to the filing Advocate for presentation in court. The application, in which there was also a prayer for condoning the delay in its presentation, was then presented to court on March 13, 1957, along with the memorandum of appeal and, on that application, the present Rule was issued. The application was supported by an affidavit of the applicant Abdul Gaffur and the basic statements in it, relevant to the question of condonation of delay, were also supported by a affidavit of the Pleader Syed Nazmul Huda.