S S DHAWAN Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The plaintiff-appellant was an Assistant Engineer in the State of Punjab. His services were terminated. Against the termination of his services, he brought a suit in the year 1961. His suit was dismissed under Order XVII Rule 3 of the Code of Civil Procedure by the trial Court. The appeal against the judgment and decree of the trial Court was also dismissed primarily on the ground of limitation as also on merits. Hence this second appeal by the plaintiff.

(2.) I find from the record and the circumstances of this case that the appellate Court had gone wrong in holding that the appeal was barred by limitation. The trial Court dismissed the suit on January 22, 1962. An application for obtaining copy of trial Court's order was made on February 20, 1962; copy was prepared on March 2, 1962 and the appeal was filed before the District Judge on March 3, 1962. It was returned by the office of District Judge on March 4, 1962, and on the same day it was filed before the Senior Sub-Judge. Admittedly, the appeal was within limitation when it was filed before the District Judge on March 3, 1962. The appellate Court seems to have gone wrong in not condoning one day's delay in this case. The mistake seems to be bona fide as in the decree-sheet, an amount of Rs. 5,000/- was entered instead of Rs. 500/-. In similar circumstances, their Lordships of the Supreme Court in Balbir Singh v. Bogh Singh, 1974 AIR(SC) 650 have observed as under :-

(3.) In the Supreme Court case, appeal against the judgment of the trial Court was filed before the District Judge, although it was to be filed directly in the High Court, under some bona fide mistaken belief and the matter escaped scrutiny by the office. Then against the judgment and decree of the District Judge, a second appeal was filed before the High Court. When the mistake was detected, it was converted into a first appeal; delay was condoned and it was held that the appellant had sufficient cause for condonation of delay. Similar observations were made by their Lordship of the Supreme Court in The State of West Bengal v. The Administrator, Howrah Municipality and others etc., 1972 AIR(SC) 749 which are reproduced as under :-