LEELA WATI (SMT.) Vs. OM PARKASH AND ORS.

JUDGEMENT

(1.) This is a revision against the order of the Additional District Judge, Ambala, dismissing the appeal as time barred after rejecting the application filed by the appellant under section 5 read with Section 14 of the Limitation Act.

(2.) The trial Court by order dated 4th June, 1977, dismissed the application of the plaintiff for grant of temporary injunction after vacating the ex parte order pased by him earlier. Against the aforesaid order, the plaintiff filed an appeal in the Court of Senior Sub Judge on 7th June, 1977, alongwith an application for temporary injunction. On the same day the learned Senior Sub Judge issued temporary injunction restraining the respondents from alienating the property in dispute till further orders. On the application of the respondents that the Court of Senior Sub Judge had no jurisdiction, the stay order was vacated by him by order dated 7th October, 1977, and the memo of appeal was order to be retuned to the appellant for presentation to the proper court. Thereafter the appeal was presented before the District Judge, Ambala, on 10th October, 1977, alongwith an application under section 5 read with section 14 of the Limitation Act for extention of time from 7th June, 1977 to 10th October, 1977. By the impugned order the learned Additional District Judge, Ambala, has dismissed the application for extension of time and has refused to condone the delay after reference to some decisions of this Court and after giving a finding on the basis of these decisions that due to the mistaken advice of the counsel, no extension of limitation can be granted.

(3.) The counsel for the petitioner has submitted that the view of this Court contained in the judgment referred to by the learned Additional District Judge has not been approved by the Supreme Court and in fact has been reversed and he has invited my attention to Balbir Singh v. Bagh Singh, 1974 AIR(SC) 650, and has urged that the reported case went to the Supreme Court from Punjab and the Supreme Court upset the view of Punjab and after condonation of delay remanded the case for decision on merits. In the Supreme Court case the jurisdictional value of the suit was Rs. 21,000 and there was no doubt in law whatsoever that an appeal against the decree of the trial court lay to the High Court and instead of filing appeal in the High Court, an appeal was filed before the District Judge. When the appeal was filed before the District Judge, the matter escaped scrutiny by the office of the District Judge at the time of its institution and also when it came up for preliminary hearing before the Court itself. In that case even at the final hearing before the District Judge this point was not noticed by the Court and for those reasons the Supreme Court held that if the office of the District Judge who entertains the appeal and the Judge when he hears the case is not able to detect the mistake then it cannot be said that the institution of the appeal before the District Judge was mala fide. In this case also when appeal was presented to the Clerk of Court of the Senior Sub-Judge, he did not point out the mistake, nor the mistake was noticed by the Judge when he issued temporary injunction after the appeal alongwith the application was placed before him for orders. Hence for the reasons given by the Supreme Court in the aforesaid judgment it cannot be said that there was any mala fide intention on the part of the counsel for the appellant in wrongly presenting the appeal and if such a patent mistakes cannot be noticed by the office of the Senior Sub Judge nor by the Senior Sub Judge himself then why cannot it be presumed that such a mistake can be committed by the counsel for the plaintiff and why it should be termed as mala fide intention so as to take away the discretion of the Court for condonation of delay on the basis of such a mistake. If the aforesaid judgment of the Suprme Court had been brought to the notice of the Learned Additional District Judge, I have no doubt that the learned Additional District Judge on consideration of that decision would have condoned the delay and would have admitted the appeal as within limitation. For the above view of mine, I find support from the various unreported judgments of this Court, one of which is delivered by Harbans Lal, J., in R.S.A. No. 180 of 1978, decided on 3rd March, 1978.