SARMUKH SINGH Vs. CHANAN SINGH

JUDGEMENT

(1.) THIS is an application under Section 5 of the Limitation Act praying that the delay in presenting Regular First Appeal No. 299 of 1959 may be condoned.

(2.) CHANAN Singh along with his three brothers instituted a suit for the recovery of Rs. 6,000/-against Sarmukh Singh in 1958. On 14th of February, 1959 it was decreed to the extent of Rs. 3,000/- only. On 3rd of April, 1959 an appeal against this decree was preferred in the Court of the District Judge, Ludhiana, and in the column of "value" in the form of memorandum of appeal, it was expressly stated, that the value of suit was Rs. 6,000/- and the value of appeal Rs. 3,000/- for the purpose of jurisdiction. In the column meant for "value of appeal for purposes of court-fee" of course Rs. 3,000/- was entered and court-fee of Rs. 394/- was affixed thereon. When this appeal came up for hearing in the Court of the learned District Judge on 18th of November, 1959, an objection was raised on behalf of the plaintiffs' respondents that the valuation of the suit for the purpose of jurisdiction being Rs. 6,000/- the appeal lay to the High Court and not to the Court of the District Judge. This objection prevailed and the memorandum of appeal was directed to the returned to Sarmukh singh appellant for presentation to the Court of competent jurisdiction. The memorandum of appeal so returned was presented in this Court on 20th of November, 1959, after Court hours and was registered on 21st of November, 1959 though it was returned on 23rd of November, 1959 with the remark inter alia that an application for extension of limitation should also be filed. It is in these circumstances that the present application under Section 5 of the Limitation Act was filed in this Court on 24th of November, 1959.

(3.) IN the petition the main ground taken for extension of period is that Shri Harbhagwan modgil, council for the appellant in the Court of the learned District Judge, had undergone an operation for cataract, and therefore, could not travel, with the result that the client did not get the message with respect to the order of the learned District Judge directing the memorandum of appeal to be returned to the appellant till 23rd of November 1959, when he came to Chandigarh to file the appeal reaching his destination in the evening. On arrival here he learnt that Shri Harbhagwan Modgil having failed to get any reply from the client had himself traveled to Chandigarh, but due to some mishap to the car he reached here late in the evening and could only present the appeal to the Deputy Registrar at 4. 25 p. m. on 20th of november. The reason for filing the appeal in the Court of the learned District Judge has been stated to be that the petitioner had "acted on the advice of counsel bona fide given". Another affidavit sworn by Shri Harbhagwan Modgil Advocate was produced before us today stating that the appeal had been filed in the Court of the District Judge as the amount of the decree was Rs. 3,000/ -. It is further explained that the learned Judge had ordered the return of the memorandum of appeal on 18th of November, 1959 and the counsel thereupon sent a message to the client at his village; on 19th of November he got back the memorandum of appeal and presented the same in this Court on 20th of November, 1959 at 4 o' clock. This, Shri Modgil has affirmed, was due to car breakdown in the way. He has also added in his affidavit that in these days he was not well and had been operated upon for some eye-trouble on 4th or 5th October, 1959.