KIRPA RAM Vs. MALHA

JUDGEMENT

(1.) This second appeal is directed against the decision dated 11-12-1968 of the District Judge Simla, wherein the decision of the Senior Sub-Judge Chamba in a suit for declaration and possession relating to 35 bighas and odd land situate in Mohal Balana. Pargana Bhatti Tikri of District Chamba, has been set aside and the suit has been decreed. Accordingly the defendants have come up in second appeal in this Court.

(2.) The second appeal was filed on 18-3-1969. It is admitted on all hands that the appeal was time barred by three days. On 19-3-1969 the Deputy Registrar made a note signifying (a) that the correct provision of law under which the appeal was filed was not stated, (b) that the valuation for purposes of jurisdiction was not given, (c) that the appeal was time barred by three days, (d) that the judgment of the trial Court was not filed, and (e) that the application was given under Section 5, Limitation Act. which also contained the prayer for permission to file a copy of trial Court's judgment. The application was. however, not supported by an affidavit. The Deputy Registrar accordingly ordered the memorandum of appeal to be returned and to be re-filed within one week.

(3.) I would like to make it clear at the outset that the Deputy Registrar was acting on behalf of the Court and whatever orders he made were more or less of a ministerial nature and could be stated to be the order of the Court subject to modification by any learned Judge to whom the said order might have been put up for reconsideration. Since no reconsideration took place of this order, it should be deemed to have been the order of the Court and the appellants were required to comply with the shortcomings pointed out by the Deputy Registrar within one week with effect from 19-3-1969. The appellants got their affidavit prepared and sweared on 30-3-1969 and on 10-4-1969 the learned counsel representing the appellants answered the shortcomings pointed out by the Deputy Registrar. He pointed out. inter alia, that the time spent in taking the copy of judgment of the trial Court was also to be reckoned and as such the appeal was within time and could not be stated to be time barred by three days Apart from that, he stated that the copy of the judgment of the trial Court was somewhere misplaced by him and hence could not be tiled in time. Regarding the application under Section 5 of the Limitation Act, he made a note that the application was not called for and was given "as a precautionary measure." Thereafter the matter was laid to rest and no orders were made on the application under Section 5. nor any notice was taken of the non-compliance committed by the appellants of the order of the Deputy Registrar, as obviously he did not fulfil the shortcomings pointed out in the appeal within a period of one week.