HAJI MAHDA BHAT Vs. AHAD MIR

JUDGEMENT

(1.) THIS is a revision application presented by one Haji Mahda Bhat plaintiff against Ahad Mir non -applicant defendant in a suit for rendition of accounts and dissolution of partnership brought by the plaintiff against the defendant -respondent in the court of fhe Musiff Sopore. The valuation of the suit was tentatively fixed at Rs.1000 by the plaintiff. After the preliminary decree a final decree was passed by the trial court on 14 -3 -59 for Rs.3203 in favour of the plaintiff against the defendant in that case. The defendant presented an appeal in this Court against the decree of the trial court on 13 -659 which was decided by a Division Bench of this Court on 7 -10 -59, holding that the appeal did not lie to this Court but to the district court. The appeal was returned on 7 -10 -59 to the defendant non -applicant and was presented by him the same day with an application supported by an affidavit under S. 14 of the Limitation Act to the district court. Later on the defendant appellant put in an application on 22 -9 -60 stating that his application of 7 -lO -59 may be deemed to be an application under S. 5 of the Limitation Act. It was stated in the application for extension of time by the defendant that he had been misled by the amount of the final decree passed by the trial court which was more then Rs.2500, and as such the defendant bonafide believed that the appeal would lie to the High Court and not to the District Judge. He further stated that the defendant was not at fault at all and he had believed honestly that the forum was the High Court and he had honestly and with due diligence pursuing the appeal before the High Court. The court of the District Judge by its order dated 25 -4 -63 allowed this application, for extension of time on payment of Rs.35 as costs. It is against that order that the present revision has been presented by the plaintiff -petitioner.

(2.) IN this revision petition it has been contended by Mr. Sunder Lal learned counsel for the petitioner, that the lower appellate court was not right in allowing the application for extension of time because there was want of bonafides or at any rate good faith on the part of the non -applicants learned counsel Under S 34 of the Civil Courts Act the ordinary forum of appeal against a decree passed by a Munsiff is the Court of the District Judge. The learned counsel for the defendant had acted without due care and attention and ignored this clear provision of law. The point whether in such a suit the forum of appeal would be determined according to the original valuation put by the plaintiff in his plaint or according to the sum ultimately decreed was decided by this court previously in some other cases and, therefore, the omission of the learned counsel to take note of those authorities amounted to gross negligence on his part and as such the presentation of the appeal to the High Court was the result of carelessness and negligence on the part of the learned counsel. The delay thus caused could not be condoned. Mr. Sunder Lal cited the following authorities in support of his contention: -

(3.) MR . Sunder Lal further said that the affidavit presented should have been by the learned counsel for the defendant because he was the proper person to state under what circumstances he had preferred the High Court as the forum of the appeal to the district court which was the ordinary forum. Therefore the affidavit of the defendant should be ignored.