GOPI NATH PANDEY Vs. BHUKHAN

JUDGEMENT

(1.) This application is directed against an order of the District Judge of Shahabad admitting an appeal against a decree passed in a Title Suit. The suit had been instituted by one Bhukhan Pandey, and it was disposed of by the 3rd Additional Subordidate Judge of Arrah on 15-12-1951. The suit had been instituted in forma pauperis, and by his judgment dated 15-12-1951 the learned Subordinate Judge dismissed the suit with costs.

(2.) Thereafter, an application accompanied by a memorandum of appeal was filed in this Court by the plaintiff according to the provisions of Rule 1 of Order 44. But the copy of the judgment and the copy of the decree of the trial court were not filed along with the application, and the application was ultimately withdrawn on 22-8-1952. On 4-9-1952 the plaintiff filed an application for permission to appeal in forma pauperis before the District Judge of Shahabad, and on 6-9-1952 the learned District Judge held that the findings arrived at by the learned Subordinate Judge being neither erroneous nor unjust within the meaning of the proviso to Rule 1 of Order 44, the applicant was not entitled to appeal in forma pauperis. The application to prosecute the appeal in forma pauperis was, therefore, rejected, and the applicant was called upon to pay court-fee by 17-9-1952. On 17-9-1952 the applicant applied for time and stated that he was going to move this Court against the order refusing permission to prosecute the appeal in forma pauperis. Time was allowed till 23-10-1952 and on this date the applicant deposited the entire amount of court-fee, payable on the memorandum of appeal. The court then fixed 29-10-1952 for hearing on the question of limitation, and on 29-10-1952 the respondent 5, who is the petitioner before this Court, appeared and prayed that the memorandum of appeal should be rejected as time-barred. The court thereafter heard the parties on the question of limitation, and by its order dated 24-11-1952, which is the order under appeal, it condoned the delay and admitted the appeal. The learned District Judge has observed that "If the memo, of appeal is rejected now, it will amount to penalising the appellant for want of rudimentary knowledge on the part of the advocate Mr. Ranijee Sharma as to where such an appeal was to be filed", and he says that there are several authorities which lay down that such an. appellant should be given the benefit of Section 14, Limitation Act. The operative part of his judgment is in the following words: "I would, therefore, condone the delay under Section 14, Limitation Act and admit this appeal".

(3.) The learned District Judge was in error when he passed such an order, inasmuch as there could not be any condonation of the delay under Section 14 Limitation Act. If there could be any condonation, it could be only under Section 5, Limitation Act. Section 14, Limitation Act is not in terms applicable for the purpose of computation of time for filing appeals. What has been held in several cases, is only this much that the principle of Section 14 may be applied. The question for determination is whether sufficient cause has been made out within the meaning of Section 5, Limitation Act for not presenting the appeal in time. Sub-section (1) of Section 14 refers to suits, and Sub-section (2) refers to applications. Obviously, therefore, for the purpose of computing the period of limitation for filing an appeal this section has not to be taken into consideration. As I have already said, the authorities lay down only this much that although Section 14 does not apply to appeals, the principle embodied in the provision of this section is considered as relevant for the purpose of considering a case under Section 5. The Judicial Committee in -- 'Brij Indar Singh v. Kanshi Ram', AIR 1917 PC 156 (A), were inclined to take this view, and this Court has in a recent Full Bench decision, -- 'Lal Behari Lall v. Bani Madhava Khatri', AIR 1949 Pat 293 (B), considered Section 14 and has come to the conclusion that the circumstances contemplated in Section 14, Limitation Act should ordinarily constitute a sufficient cause within the meaning of Section 5.