DEVI DAS Vs. BUSHAHR SANGH

JUDGEMENT

(1.) This is a first appeal by the plaintiff Devi Das Mahajan against the judgment and decree of the learned Subordinate Judge of Rampur Bushahr, dated 28 12 1950, whereby his suit as agent for rendition of accounts and recovery of Rs. 100/ , or whatever be found due on the taking of accounts, was dismissed, and a decree for Rs. 22,081/ /6 was passed against him and in favour of the principal, the defendant Co operative Society known as the Bushahr Sangh of Rampur.

(2.) THE appeal, filed on 31 7 1951, being prima facie time barred under Article 156, Limitation Act (hereinafter referred to as the Act), which prescribes a period of 90 days from the date of the decree appealed from, the plaintiff appellant filed along with the appeal an application for extension of period under Section 5 read with Section 14 of the Act. It appears that well within the 30 days period prescribed under Article 152 of the Act the plaintiff filed an appeal against the aforesaid judgment and decree in the Court of the District Judge Mahasu on 22 1 1951. On a preliminary objection taken on behalf of the defendant respondent that the appeal did not lie in that Court but in the Court of the Judicial Commissioner, the learned District Judge upheld the objection by his judgment and order dated 13 7 1951 and directed that the appeal be returned to the appellant for presentation to the proper Court. The appeal was actually returned on 18 7 1951, and, as adverted to above,, it was presented in this Court on 31 7 1951. Section 14 no doubt applies in terms only to suits, but as held in ' Munshi Ram v. Raghubir Chand', AIR 1953 Him P 15 (A), relying upon 'Rajendra Bahadur v. Rajeshwar Bali', AIR 1937 PC 276 (B), the principle of that section is applicable by analogy to appeals also to ascertain sufficiency of cause for extension of period under Section 5 of the Act. The cause of action for the proceeding of appeal before the District Judge was the same as that for the present appeal, and the District Judge was unable to entertain that proceeding for want of jurisdiction. In order that the plaintiff appellant may be entitled to the benefit of Section 14 all that remains to be seen therefore is whether he prosecuted the appeal before the District Judge with due diligence and in good faith.

(3.) THE learned counsel for the defendant respondent, however referred to the notification No. J. 79 22/48, dated 3 11 1948, published in Part II A of the Gazette of India, dated 13 11 1948, passed by the Judicial Commissioner with the previous sanction of the Chief Commissioner under the proviso to para 31, Himachal Pradesh (Courts) Order, 1948, where under appeals from decrees and orders of Subordinate Judges in unclassed suits of value not exceeding Rs. 100/ have to be preferred to the Senior Subordinate Judge. The present is no doubt an unclassed suit, and it was, therefore, argued that, if Rs. 100/ was taken, by the appellant as the value of the suit, the appeal should under the said notification have been filed in the Court of the Senior Subordinate Judge and not in that of the District Judge. It was further contended, relying upon 'Brijmohandas v. Sadashiv', AIR 1940 Bora 5 (G), that a proceeding contrary to a clearly expressed provision of law cannot be regarded as prosecuting another civil proceeding in good faith under Section 14. The history of the Court at Rampur Bushahr is, however, afl extremely chequered one. When the present suit was filed on 7 12 1948 the presiding officer of the Court was Sri Dina Nath, who exercised the powers of a Senior Subordinate Judge. In between that date and 28 12 1950, when the suit was eventually decided, there were many changes of officers and their powers.