RULIA RAM Vs. NIRANJAN SINGH AND OTHERS

JUDGEMENT

(1.) Briefly the facts are that the plaintiff instituted a suit for injunction against the defendants. The jurisdiction value of the suit was Rs. 130/ -. It was dismissed by the trial Court on 20th of February, 1968. He filed an appeal on 26th March, 1968 in the Court of District Judge, Ambala. The appeal, admittedly after taking into consideration the days of the copies was within limitation. It came up for hearing on 21st of November, 1568. The District Judge returned the appeal on the ground that it had no jurisdiction to hear the same as it should have been presented before the Senior Sub Judge. On the same day it was presented by the appellant before the Senior Sub -Judge with an application under Sec. 5 of the Limitation Act (hereinafter called the Act) inter alia stating that it was through the mistake of the counsel that the appeal was filed in the wrong forum. The case was transferred from the file of the Senior Sub -Judge to that of the Additional District Judge. The latter held that there was no sufficient ground for condonation of the delay. Consequently he dismissed the application under Sec. 5 of the Act as also the appeal being barred by limitation.

(2.) The only question that arises for consideration is as to whether there was sufficient ground for condonation of the delay in filing the appeal before the Senior Sub -Judge. It is now well settled that the litigant should not be allowed to suffer for the mistake of his counsel. In the present case, the appeal was filed by the counsel before the District Judge, though it was maintainable before the Senior Sub Judge. No objection was raised by the official of the District Judge while accepting the appeal. Even no objection was taken till, 21st of November, 1968 when the appeal was returned by the District Judge.

(3.) For the aforesaid reasons, I am of the opinion that the mistake of the counsel was a bona fide one and the appellant was entitled to the benefit of Sec. 5 of the Act. For the aforesaid view of mine, I am fortified by the observations of their Lordships of the Supreme Court in Balbir Singh v/s. Bogh Singh : (1974) 76 P.L.R. 321, wherein the appellant was prosecuting the appeal before the Additional District Judge, bona fide, and the matter escaped scrutiny by the office at the time of its institution and even in the course of herrings before the Additional District Judge which bad no jurisdiction to entertain the same After the dismissal of the appeal, he filed second appeal in the High Court. There an objection was taken by the office that the first appeal lay to the High Court, and not to the Additional District Judge. The appellant consequently converted the second appeal into a regular first appeal and applied for condonation of delay. The High Court refused to condone the delay. The Supreme Court held that it was abundantly clear that the appellant and his legal adviser somehow prosecuted the first appeal before the Additional District Judge bona fide and on some kind of mistaken belief for which the appellant should not suffer. Consequently, the delay was condoned.