KASIMKHAN Vs. CHANDRATAN

JUDGEMENT

(1.) This is a second appeal in a suit for ejectment and arrears of rent.

(2.) The respondent Chandratan sued the appellant Kasirokhan for ejectment and arrears of rent in respect of a house and a 'bara' situated at Bikaner on the basis of two rent-notes Exs. P-1 and P-2 dated 21-9-1947 alleged to have been executed by the defendant. The defendant denied execution of these rent-notes or having been put in possession of the property by the plaintiff. He alleged that one Isak was the owner of the property and was in possession of the same. According to the plaintiff, Isak had mortgaged the house and the bara for Rs. 10,000/- by a registered deed of mortgage dated 18-9-1947. The trial Court after evidence held that the execution of the rent-notes had not been proved and the suit was dismissed. On appeal, the learned District Judge reversed that finding and decreed the suit in favour of the plaintiff. The defendant has filed this second appeal.

(3.) Learned counsel for the appellant argued that the appeal which had been filed by the plaintiff in the lower appellate Court was barred by time and the Court had committed error in giving the benefit of Section 5, Limitation Act to the plaintiff respondent. The Rajasthan Law of Limitation which came into force in the State on 24-1-1950 provides limitation of 30 days for an appeal to be presented to the court of District Judge. The judgment in the present case was pronounced by the Court of Munsif on 21-11-1950 and the appeal was filed in the Court of the District Judge on 19-1-1951, i.e., on the 59th day. After allowing the period for obtaining copies of judgment, the appeal was barred by 6 days. The plaintiff had urged in the lower Court that according to the Bikaner Law of Limitation prior to the enforcement of Rajasthan Limitation Act, the period provided for an appeal to the District Judge was 60 days. The plaintiff had asked his lawyer to present an appeal but he said that there should be no hurry about it as the period for appeal was 60 days. Plaintiff's submission was that under the erroneous advice of his lawyer, the appeal came to be barred by 6 days. The lower appellate Court granted the benefit of Section 5, Limitation Act to the plaintiff. Learned counsel for the appellant argued that the Rajasthan Law of Limitation having been brought into force on 241- 1950 the advice given by the lawyer of the plaintiff could not be said to be bona fide and must be treated as having been negligently given and in that case the benefit of Section 5, Limitation Act, could not be given to the plaintiff.