CHATER SINGH Vs. BIRJU SINGH

JUDGEMENT

(1.) THIS appeal has been filed against an appellate order of the Divisional Commissioner, Bikaner, dated 29. 12. 54 rejecting the appeal preferred before him on the ground of limitation and refusing benefit of secs. 5 and 14 of the Indian Limitation Act to them.

(2.) WE have heard the learned counsel appearing for the parties and have examined the record as well. The learned Divisional Commissioner does not appear to have applied his mind to the facts of the case for he has disposed of the controversy by observing that the appellants' counsel failed to disclose any reasons which may entitle the appellants to the benefit of secs. 5 and 14 of the Limitation Act. On going through the record we find that in para 1 of the memorandum of appeal, the appellant has clearly stated that he claimed the benefit of secs. 5 and 14 of the Limitation Act and simulataneously with the memorandum he filed a detailed statement of facts on which he based his claim. All this appears to have not been considered by the lower appellate court. The order which forms the subject matter of appeal before the lower court was passed on 21. 4. 53 and on 23. 4. 53 the appellant filed a suit contesting the validity of the order and claiming correction of entries in the Settlement record. In connection with the grant of a stay order the case came up before the Board which by its decision dated 31. 7. 54 held that as long as the order dated 21. 4. 53 was allowed to stand, the grant of stay order would not be appropriate. On 9. 8. 54 the appellant filed this appeal before the lower appellate court. It is clear, therefore, that the appellant had been prosecuting with due diligence another proceeding in good faith and this would amount to a sufficient cause within sec. 5 of the Limitation Act. A. I. R. 1930 Patna 307 may be cited in support of this view. WE would, therefore, allow this appeal, set aside the order of the lower appellate court and remand the case back to it with the direction that the appeal filed before it be reheard and disposed of on merits in accordance with law. .