RAJARAM Vs. SALAGRAM

JUDGEMENT

(1.) This is a revision application under Sec. 26 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951 against an appellate order of the Additional Commissioner, Jaipur, dated 19th March, 1955, upholding the decision of the Collector Bharatpur whereby the appeal filed before him was dismissed as beyond limitation.

(2.) We have heard the counsel for the parties and have also examined the record of the case. We feel no hesitation in observing that the judgments of the lower appellate courts are clearly untenable. The decision of the trial court was announced on 24 -3 -1954. The applicant applied for a copy of the judgment on the same day which was granted to him on 29 -3 -1954. He came down to Jaipur and acting upon the advice given to him by Shri Hadi Hussain, Revenue Agent, presented his appeal before the Additional Commissioner, Jaipur on 6 -4 -1954. Subsequently the memorandum was returned to him on 5 -7 -1954 for presentation to the Collector, as the case lay before him. The applicant presented the memorandum of appeal to the Collector Bharatpur on 9 -7 -1954. It appears that during the course of the arguments, condonation of the delay under sec. 5 read with sec. 14 of the Limitation Act was prayed for but the learned Collector rejected the request on the ground that no sufficient cause was shown to exist. Reliance has been placed in this connection on the decision of Rajasthan High Court, reported in 1954 R.L.W. 425 (Qasim Khan vs. Chand Ratan). This decision can be clearly distinguished on the ground that the point involved in it was entirely different from the present case. In that case a change had taken place in the law of Limitation about 11 months before the decision of the trial court, but still the lawyer, under the impression that the old period held good, advised his client accordingly and as a result thereof the appeal was filed, after the limitation for filing appeal under the new laws had run out. It was held that the mistaken advice by the lawyer was given negligently and the delay in filing the appeal could not be condoned under See. 5 of the Limitation Act. In the present case the appeal was filed well within the limitation with the utmost promptness and diligence, but unfortunately the forum of appeal was selected wrongly and that too under the advice of an aged and experienced counsel. Thus the question in the present case is as to whether sec. 5 read with sec. 14 of the Limitation Act can be held applicable or not. On behalf of the applicant a decision of the Himachal Pradesh Judicial Commissioner, reported in A.I.R. 1953 Him. P. 15 (Munshi Ram vs. Raghuber Charan) has been produced and the facts of this case have a great resemblance with those of the present one. In that case the decree of the trial court was passed on 2 -5 -51. The defendants appellants applied for the necessary copies on 4 -5 -1951 and the same were ready and delivered on 25 -5 -51. Allowing 22 days for taking and obtaining the copies the period of appeal to the District Judge under art. 152 expired on 23 -6 -1951. Well within this period i.e. 19 -6 -1951 the defendants appellants filed an appeal in that court. An objection as to the maintainability of the appeal in that court was taken and it was allowed on 24 -8 -1951. The District Judge directed the return of the appeal for presentation to the proper court and the same was presented before Judicial Commissioner on that very day. It was alleged by the appellants that it was on account of the mistaken advice of their counsel that they filed the appeal in the wrong court. While examining the conduct of the counsel in that case it was observed that - -

(3.) In the result it was held that there was sufficient cause for or condonation of the delay. The case law on the point was discussed at length in judgment and the standards by which the good faith and diligence of a party and his counsel are to be judged are set out in detail. By applying the same to the present case we would hold that there was sufficient cause within the meaning of sec. 5 read with sec, 14 of the Indian Limitation Act for exercising the delay caused by the wrong proceeding. We would allow this revision, set aside the orders of the lower appellate courts and direct that the period from 6 -4 -1954 to 5 -7 -1954 be excluded and the appeal be treated as within limitation and be disposed of in accordance with law by the Collector Bharatpur.