SAHAI Vs. DEVI CHAND

JUDGEMENT

(1.) THIS is an application under section 5 of the Limitation Act praying that the delay of 37 days in presenting the civil second appeal No. 76 of 1966 be condoned.

(2.) IT appears that after the decision of appeal No. 51 entitled Sahai Versus Devi Chand and others, the petitioner applied on 28 -9 -1966 for the copies of the judgments of the court of first instance and the lower appellate court as also for a copy of the decree sheet prepared on the basis of the judgment of the lower appellate court. The requisite stamps by way of costs for preparation of the copies were filed by the petitioner in the Copying Department at Udhampur on 29 -9 -1965 and the copies were actually delivered to him on 1 -10 -1966. About six days thereafter, the petitioner presented the present appeal from the judgment dated 28 -2 -1966 of the learned District Judge Udhampur to the District Judge, Jammu, for being forwarded to the High court which on that date was sitting at Srinagar. Along with the appeal the petitioner also filed an application for condonation of delay alleging that he was advised that as the High Gout was closed at Jammu, the period of limitation for presenting the appeal stood extended upto its re -opening at this place. To support his theory, the petitioner has also filed an affidavit of Shri Jagan Nath Vakil, Udhampur. Excluding the period spent in obtaining the copies and giving the benefit of the double period of limitation as provided in Explanation to Article 156 -A of the State Limitation Act, the appeal is still barred by 37 days .As stated earlier, the reason assigned in the application under section 5 of the Limitation Act for filing the appeal beyond time is the mistaken legal advice given in regard to the period of limitation.

(3.) I have given my careful consideration to the matter and I am of the opinion that there has not been that due care and attention which is required in filing the appeal. Though bonafide mistake on the part of a pleader may be sufficient cause for extension of time in filing the appeal, no mistake can be deemed bona fide unless made with due care and attention. In the present case, the provisions of Article 156 -A of the State Limitation Act are so clear that there could be no reason for doubt that an appeal from the decision of the District Judge, Udhampur, should have been preferred within 180 days from the delivery of the said judgment. If the learned counsel would have cared to open Volume III of the Laws of J & K, containing the Limitation Act, he would have at once found that the period of limitation was 180 days as provided in the Explanation to Article 156 -A of the Act. It cannot, therefore, be maintained that the question of limitation was a matter of justifiable doubt. In these circumstances I cannot extend the period of limitation.