SUBEDAR BAMAN RAM Vs. MASTI

JUDGEMENT

(1.) This is an appeal by Subedar Baman Ram against the order of the learned Senior Subordinate Judge, Mandi, directing that a sum of Rs. 946.87nP. be recovered from him (the appellant), as court-fee under O. 33, Rule 10, Civil P.C.

(2.) A preliminary objection was taken by the learned counsel for the respondents to the effect that this appeal is time-barred. There is an office objection also to this effect, i.e., that the appeal is beyond time by nine days. To get over this difficulty, a petition under Section 14 of the Limitation Act (Civil Misc. Petn. No. 6 of 1959) has been filed by the appellant, wherein I have been requested to exclude the time spent in prosecuting the appeal in the Court of the District Judge, Mandi, while reckoning limitation. Although Section 14 does not in terms apply to an appeal, nevertheless, its principles would apply by analogy to appeals also, i.e. the circumstances contemplated in Section 14 might, and ordinarily would, constitute a sufficient cause within the meaning of Section 5 (see Rajendra Bahadur v. Rajeshwar Bali, AIR 1937 PC 276). The order under appeal was passed by the Senior Subordinate Judge, Mandi, on 2-9-1958. An appeal was presented to the District Judge on 16-10-1958, i.e., well within limitation. The memorandum of appeal was, however, returned on 26-12-1958 on the ground that since the order under anpeal was passed in a suit, the valuation of which exceeded Rs. 5,000/-, he (the District Judge) had no jurisdiction to hear the appeal. Thereupon, the appeal was presented to this Court on 27-12-1958. If the time during which the appeal remained pending in the Court of the District Judge (from 16-10-1958 to 26-12-1958) be excluded, on the analogy of Section 14 of the Limitation Act, this appeal would be within limitation. Learned counsel for the respondents submitted that the appellant was not entitled to the benefit of the provisions of Section 14, Limitation Act, because the appeal to the District Judge was not instituted or prosecuted in good faith, as defined in Section 2(7), Limitation Act. It was vehemently urged that since the valuation of the suit was well above Rs. 5,000/-, counsel should have had no difficulty in realizing that an appeal from the order, sought to be set aside, lay directly to this Court, vide paragraph 31 (b), Himachal Pradesh (Courts) Order, 1948. Reliance was placed on Dina Nath v. Munshi Ram, AIR 1953 Punj 298, where a Division Bench of that High Court observed that "The appeal would lie to this Court. No question of bona fide mistake arises nor does it show any good faith because if the legal advisers of the appellant had only taken the trouble of looking up any elementary book on Court-fees and Suits Valuation Act, they would have discovered this. Good faith has been defined in the law of Limitation in Section 2(7) as follows: 'good faith': nothing shall be deemed to be done in good faith which is not done with due care and attention."

(3.) On behalf of the appellant, my attention was invited to AIR 1937 PC 276, Devi Das v. Bushahr Sangh, AIR 1953 Him-Pra 110 and Triama a Bhaskara Rao Naidu v. Panasa Narayanamma, (S) AIR 1956 Orissa 124. In the Privy Council decision, their Lordships were pleased to hold that :