BUTA SINGH Vs. CHAND ALIS CHANDA SINGH

JUDGEMENT

(1.) IN a suit for redemption of mortgages by the Plaintiff, the preliminary decree, was made by the trial Court on February 9, 1968, and the final decree on May 27, 1968. Buta Singh Defendant filed two appeals, one against each decree, in the District Court. He proceeded on the basis that the valuation for purposes of jurisdiction stated by the Plaintiff in the suit had been Rs. 4,350, though in defence he had claimed a much higher amount. On that basis he filled both the appeals in the District Court. The appeals were heard by the Second Additional District Judge of Ludhiana, who, by his Judgment and order of April 7, 1969, purporting to follow Banu Mal v. Mehta Nathu Lal , AI.R. 1960 P&h. 357. came to the conclusion that the appeals were not competent before him, being beyond his pecuniary jurisdiction and that the same should properly have been filed in the High Court. The appeals were actually returned by the Court of the Second Additional District Judge to the defendant on May 1, 1969, and on that vary day the same were present in this Court.

(2.) THE office in this Court made three objections on the appeals on May 2, 1969, the objections being (a) opening sheet is blank, (b) explanation should be given how value has been fixed and court -fee paid and (c) memo of parties is not forthcoming. The appeals were returned to the counsel for the Defendant, to be re -filed within a week after compliance. The appeals were re -filed on June 9, 1969, but the office again noted that there had been no reply to the first objection, and on June 11, 1969, the appeals were again returned to the counsel, to be re -filed within a weak. The appeals were again filed on June 21, 1969, and this time the first objection was complied with.

(3.) IT is settled that section 14 of the Limitation Act of 1963 applies to suits and not to appeals. In substance, the application, with each appeal, by the Defendant is one under section 5 of that Act, and reference to section 14 is only by way of providing sufficient cause for not having filed the appeals within limitation in this Court. The argument on the side of the Defendant in the two miscellaneous applications with the appeals is that although in terms section 14 has no application to appeals, but the principles of the same have been applied in situation as obtains in these applications, and the whole of the period spent by the Defendant from the date each one was filed in the District Court to the date each was returned to him, has to be excluded. In this he is supported by the decision of their Lordships of the Privy Council in Brij Indar Singh v. Lala Kanshi Ram, A.I.R. 1917 PC. 156. On the contrary, the learned Counsel for the Plaintiff refers to Randal v. Rewa Coal fields Ltd. : A.I.R. 1962 S.C. 361. and contends that their Lordships considered Brij Indar Singh's case, A.I.R. 1917 P.C. 156, but did not precisely approve what was decided in that case, and rather held that where section 14 does not directly apply but is only an aid in explaining the sufficiency of the cause for the purpose of section 5, then it is not to be applied exactly as if it applies literally to a suit, but only to the extent it goes to explain why the appeal could not be filed and thus to explain sufficiency of the cause. The learned Counsel refers to the observations of their Lordships, first at page 365 to this effect - -"It is, however, necessary to emphasise that even after sufficient cause has been shown, a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by section 5. If sufficient cause is not proved, nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it. In this connection we may point out that considerations of bona fides or due diligence are always material and relevant when the Court is dealing with applications made under section 14 of the Limitation Act. In dealing with such applications, the Court is called upon to consider the effect of the combined provisions of sections 5 and 14. Therefore, in our opinion, considerations which have been expressly made material and relevant by the provisions of section 14 cannot to the same extent and in the same manner be invoked in dealing with applications which fall to be decided only under section 5, without reference to section 14." and then again at page 366 - -"The next case on which reliance has been placed by the Respondent is Brij Indar Singh v. Lala Kanshi Ram, A.I.R. 1917 P.C. 156. The principle point decided in that case had reference to section 14 read with section 5 of the Limitation Act. 1908, and the question which it raised was whether the time occupied by an Applicant in good faith for review although made upon a mistaken view of the law, should be deemed as added to the period allowed for presenting an appeal. As we have already pointed out, when the question of limitation has to be considered in the light of the combined operation of sections 14 and 5 of the Limitation Act, the conditions expressly imposed by section 14 have to be satisfied. It would, however, be unreasonable to suggest that the said conditions must to the same extent and in the same manner be taken into account in dealing with applications falling under section 5 of the Limitation Act." Earlier, their Lordships had explained that in the case of section 5 when sufficient cause is shown, delay of each single day has to be explained. Now, it is clear from Ramlal's case : A.I.R. 1962 S.C. 361 that where an application is under section 5 alone, as is the case here, the only assistance that can be derived from the principle behind section 14 is that the period spent in good faith in a wrong forum may be taken to be sufficient cause for the duration of that period for not filing the appeal, but the whole of the period cannot be calculated and excluded in computing the period of limitation for filing on appeal exactly to the same extent and in the same manner as under section 14, because that section does not directly apply. Applying this to the facts of the present case, down to May 1, 1969, the Defendant has shown sufficient cause for not filing the appeals in this Court, although the same had been barred long time before by the expiry of ninety days from the date of decree of the trial Court in each case. He has yet to explain the delay between May 2 and June 21, 1969. It is this period which cannot under section 14 be given benefit of to the Defendant in view of the decision of their Lordships in Ram Lal's case : A.I.R. 1962 S.C. 361, though Brij Indar Singh's case, A.I.R. 1917 P.C. 156, might lend support to this argument on the side of the Defendant, but obviously the decision of the Supreme Court must prevail,