BIKHA SINGH Vs. CH BIRBAL

JUDGEMENT

(1.) THE facts leading to this appeal which has been referred to this Bench by one of us as it was felt that it raised important questions relating to the interpretation of section 34 of the Jammu and Kashmir State Civil Courts Act, 1977 (1920 A. D.) as also the applicability of Articles 151 -A and 152 of the Limitation Act, 1995 (1938 A. D.) of the State are:

(2.) CHOUDHARY Bir Bal, respondent No. 1 herein, instituted a suit in the court of Munsiff, Hiranagar, against Anant Ram and Kaka, respondents Nos: 2 and 3 herein, as also against Bikha Singh, Ghuman, Jamiat Singh and Udho, appellants herein, for possession of land aggregating 14 marlas situate in village Wand Manahas with the allegations that he was an occupancy tenant of the land comprised in khasra No. 67 situate in the said village i.e. Wand Manahas, and that the defendants who were self cultivating proprietors of the lands comprised in khasra Nos. 68, 70, 66 and 65 (which were continguous to khasra No. 67) had encroached upon the aforesaid land in his possession, broken its boundaries and thereby annexed 14 marlas out of it with their own lands comprised in the aforesaid khasra Nos. 68 and others. The valuation of the suit for purposes of court fees and jurisdiction was fixed at Rs. 100/ - by the plaintiff, while the appellants contested the claim of the plaintiff, respondents Nos: 2 and 3 herein admitted his claim. After a regular trial the suit was however decreed against all the defendants by the trial court vide its judgment dated 19 -8 -1964. Against this decree of the trial court the appellants preferred an appeal to the District Judge, Kathua on 28 -10 -1964. Before the learned District Judge, respondent No. 1 herein raised a preliminary objection regarding the competency of the appeal contending that as the valuation of the suit for purposes of court fee and jurisdiction was Rs. 100/ - only, the appeal by virtue of the High Court notification No. 7 dated 5 -1 -1959 issued under Section 34(5) of the Civil Courts Act, 1977 (1920 A. D.) lay to the Sub Judge, Kathua, and not to the District Judge, Kathua. The preliminary objection prevailed with the learned District Judge who returned the appeal for presentation to the proper court vide his order dated 3 -4 -1965. The appeal accordingly was presented on 5 -4 -1965 before the Sub Judge, Kathua, who, as already indicated, was invested with the power of hearing civil appeals from decrees or orders passed by the Munsiff, Hiranagar, valuation whereof did not exceed Rs. 300/ -. The appeal remained pending for some time in the court of the Sub Judge, Kathua, but on issue by the High Court of notification No. 35 dated 26 -8 -1966 (in consequence of the posting of a District Judge at Kathua) with -drawing the appellate jurisdiction of the Sub Judge, Kathua, the appeal was forwarded by the Sub Judge on 25 -9 -1966 to the District Judge, Kathua, for disposal. On the appeal coming up for hearing before the learned District Judge, Kathua the same was this time dimissed by him as time barred vide his judgment dated 13 -2 -67. It is against this judgment that the appellants have come up in appeal to this court.

(3.) WHEN the appeal came up second time before the learned District Judge the appellants conceded that on 19 -8 -1964 when the suit was decreed by the trial court, the Subordinate Judge, Kathua, was empowered to hear appeals from the decrees and orders passed by the Munsiff, Hiranagar, valuation whereof did not exceed Rs. 300/ -and that under Article 151 -A of the Limitation Act, 1995 (1933 A. D.) the period of limitation for filing an appeal to a Subordinate Judge was 60 days from the date of the decree or order appealed from but it was contended on their behalf that though the appeal lay to the Subordinate Judge, Kathua, yet as he i.e. the Subordinate Judge was away on leave on the date the appeal was in the first instance presented before the District Judge, Kathua, so it should be treated as being within time. This contention was however rejected by the learned District Judge, who characterised it as incorrect and untenable. The learned District Judge found that there was a Subordinate Judge working at Kathua in the month of October, 1964, and the appeal could be presented in his court. The further contention advanced on behalf of the appellants that in computing the period of limitation for the appeal the time spent by them from 6th October, 1964, to 24th October, 1964, in obtaining the requisite copies should be excluded under section 12 of the Limitation Act was also repelled by the learned District Judge with the finding that there was no evidence to show that any application for copies was made on 6th October, 1964, and although the copy of the judgment of the trial court accompanying the memo of appeal was affixed with 75 paisa stamps (on account of part payment of the copying charges) which bore the date 6th October 1964, the material on the record only showed that the application for requisite copies was made on 13th October 64 and the balance of copying charges in the form of stamps were deposited on 24th of October 1964 and on that very date the copies were delivered to the appellants. The learned District Judge further found that the appellants had not been careful and diligent in the matter of obtaining copies; that they had not taken reasonable and proper steps in that behalf and that the delay was entirely due to their negligence, and that even as it was, the appeal could have been easily presented on 26th October 1964. The learned District Judge also found that the last date for filing the appeal before the subordinate Judge was 18th October, 1964, and since it had been presented before the District Judge, Kathua, on 27th October 1964 it was clearly time barred. The learned District Judge also rejected the prayer of the appellants for condonation of the delay in filing the appeal.