GH RASOOL WANI Vs. NOOR-UD-DIN

JUDGEMENT

(1.) CONTROVERSY in this civil 2nd appeal lies in a narrow compass, though the contentions raised at the bar are of considerable importance.

(2.) THE appellant, herein, is a defendant in a suit for ejectment which was brought in the court of city Munsiff Srinagar by the plaintiff -respondent herein, on 27 -12 -71. The suit was valued at Rs.150/ -. The suit was decreed by the trial court on 15 -5 -76. The appellant preferred an appeal against the said decree in the court of District Judge on 1 -7 -76. The District Judge vide his order dated 27 -3 -78 returned the memo of appeal to the appellant to be presented to the court of Sub Judge, C. J. M. Srinager on the ground that the appeal infact lay to the latters court. The decree appealed against having been passed by Munsiff in a suit, the value whereof did not exceed Rs.500/ - Before Sub Judge, CJM, a preliminary objection was taken on behalf of the respondent that the appeal was barred by time as not having been preferred within sixty days from the date of the decree i.e. the period prescribed for filing such appeals. It was, however, urged on behalf of the appellant that the appeal was bonafide preferred before the District Judge on the mistaken advice of his counsel. This plea did not find favour with the lower appellant court, which consequently dismissed the appeal as barred by time. The appellant is aggrieved of this order, hence this second appeal.

(3.) MR . Farooqui appearing for the appellant has raised two contention in support of the appeal one that the appeal was not barred by time as the District Judge had concurrent jurisdiction with Sub Judge, CJM, Srinagar to hear and dispose of the appeal, and two that even if he had no such jurisdiction, the appeal was still within time as it had been preferred in his court bonafide on the mistaken advice of the appellantâ„¢s counsel and the appellant had been all along prosecuting the same in that court, till the defect of jurisdiction was pointed out and was, as such, entitiled to this period being excluded in computing the period of limitation under section 14 of the Limitation Act.