GOLAK BEHARI MITRA Vs. G S S BROTHERS

JUDGEMENT

(1.) DISPUTED question as to whether the instant appeal under clause 15 of the letters Patent is barred by limitation or not has been referred to us by the learned Additional Register for decision.

(2.) THE plaintiffs in a suit for eviction are the appellants and they have preferred the instant appeal against the judgment and decree dated April 27, 1973, passed by our learned brother s, K. Datta, J. in S. A. 847)65. The present appellants were also the appellants in the above second appeal and their appeal being allowed, the matter was sent on remand by our learned brother S. K. Datta, J. and feeling aggrieved by the said order of remand, the appellants have filed the instant appeal under clause 15 of the Letters Patent. Though our learned brother delivered is judgment on April 27, 1973 no steps fur filing the present appeal were taken by the appellants until November 23, 1973 where they filed an application for leave under clause 15 of the Letters patent on condonation of the delay before our learned brother S. K. Datta, j. On that application a Rule was issued calling upon the respondents to show cause why the delay in filing the application hourly not be condoned and on such condonation the application should not be allowed. That Rule was made absolute on April 21, 1975 and the memorandum in the instant appeal was presented on April 29, 1975.

(3.) DISTRESSINGLY enough the Stamp reporter of this court made a report only after three years on April 5, 1978, to the effect that the appeal would have been in time had it been filed on or before June 26, 1973, but was out of time by one year ten months and seven days on. the date it was so presented. The memorandum along with the said report was placed before the learned Add. Registrar for orders who, by his order dated April 28, 1978, directed the memorandum to be returned to the filing advocate. Being moved by the learned advocate for the appellants, the learned additional Registrar recalled the aforesaid order on May 26, 1978 and directed the Stamp Reporter to make a fresh report after calculating the limitation with reference to the statement made in the first paragraph of the preamble to the memorandum of appeal. Being so directed, the Stamp reporter made a second report on august 11, 1978. In this report the stamp Reporter revised his earlier views and stated that the memorandum had been filed 8 days beyond time. He reported as such as, in his view, the appeal would have been in time had it been presented in court along with the application for leave under clause 15 of the Letters Patent or had it been filed just on the very day the order of the court granting leave upon condition of delay was made. The master being placed before the learned Additional Registrar once more with this revised report, it appears that the correctness of the report was challenged by the learned advocate for the appellants who claimed that the appeal had been presented in time and hence, the learned Additional Registrar by his order dated September 8, 1978, has referred the disputed question to us for decision.