GUGANRAM Vs. DALURAM

JUDGEMENT

(1.) This revision petition came to be heard by our Division Bench in pursuance of the order of the learned Member Shri B.C. Mukerji dated the 10th of January, 1968, raising the question whether in the facts and circumstances of the case. Rule 17 (d) of Revenue Courts Manual is to be regarded as invalid as being in conflict with Sec. 5 of the Indian Limitation Act.

(2.) This revision petition arises out of an application under Sec. 251 of the Rajas -than Tenancy Act. On 10 -10 -1965, the Panchayat ordered the non - applicants not to obstruct the passage leading to the fields of the applicant. The same day the non -applicants were notified of the aforesaid order. The period of limitation for filing the appeal was 30 days, but the non -applicants filed the appeal before the Collector on 2 -12 1965. The applicant raised the question of limitation before the Collector, but the Collector over -ruled the same vide his order dated 20th of April, 1966. In attacking this order, it is argued on behalf of the applicant that the Collector has ignored the provisions of rule 17 (d) of the Rajasthan Courts Manual, which prescribes that in the case of memorandum of appeal which is filed after the expiry of the period of limitation, an application supported by an affidavit for extension of the period of limitation under Sec. 5 of the Indian Limitation Act will accompany the memo of appeal. It is pointed out that no application under sec. 5 of the Indian Limitation Act was submitted for condonation of delay before the Collector. Thus the order of the Collector is invalid. On the other hand, the non -applicants rely on the memo of appeal which contains a long narration supported by an affidavit as to how the copy of the Panchayats order was not made available to them, inspite of their best efforts. It is urged that under these circumstances, the filing of the appeal was inevitably delayed. The Colleotor duly took into consideration the allegations of the non -applicants and held that there was sufficient cause for extending the period of limitation and that the appeal should be deemed to be within limitation.

(3.) The learned counsel for the applicant relies on the rule laid down in Sohanlal Chhaju Lal vs. Bolya (1965 RRD 17.) wherein Bench of this Board has held that R. 17 of the Revenue Courts Manuar is mandatory and that any appeal or revision must be accompanied by the certified copy of judgment and decree or order and also a copy of judgment of original court where remedy is sought against appellate decree or order, together with application under Sec. 5 of the India Limitation Act, where limitation has expired, unless dispensed with by Court on sufficient cause. It was held that an appeal or revision not accompanied by the documents mentioned in Rule 17 was defective and incomplete, and the failure to cure the defect within limitation where sufficient cause was not shown, was fatal. We fail to see how this authority can help the applicant. In the present case, sufficient cause exists for the failure to attach the copy of the order of the lower court with the memo.