LAKSHIRAM MANDAL Vs. SONATUN BASAR

JUDGEMENT

(1.) We are invited in this Rule to set aside an order made under Rule 9 of Order IX of the Code of 1908. The suit commenced by the plaintiff opposite party was dismissed for default on the 10 March 1909. The judgment was delivered on that date, but the formal order was not drawn up till the 7 April following. Meanwhile with a view to prefer an appeal, the plaintiff had, on the 6 April, applied for copies of the judgment and order, which were delivered to him on the 16 April. On the next day, he lodged his appeal against the order of dismissal for default. This appeal was heard on the 18 September 1909 and was dismissed on the ground that it was incompetent because the order of dismissal for default was not a decree within the meaning of Section 2 of the Code of 1908. On the 21 September, 1909, the plaintiff made the present application under Rule 9 of Order IX and prayed that the order of dismissal for default might be set aside and the suit restored. The application was granted on the 4th February 1910. We are now invited to discharge this order on the ground that the application made on the 21 September 1909, was obviously barred by limitation, under art. 163 of the second Schedule of the Limitation Act, IX of 1908, which provides that an application by a plaintiff for an order to set aside a dismissal for default of appearance must be presented within thirty days from the date of the dismissal. In answer to this objection, it has been contended by the learned Vakil for the plaintiff opposite party that he is entitled under Section 14 of the Limitation Act to a deduction of the period between the 6 April and 18th September 1909, when he was prosecuting with due diligence another Civil proceeding in a Court of appeal against the defendant for the same relief, which proved infructuous because the Court had no jurisdiction to hear the appeal. The learned Vakil for the defendant has not disputed that under Section 14 of the Limitation Act, the plaintiff is entitled to a deduction of the period between the 17 April 1909 when he lodged his appeal and the 18 September 1909 when the appeal was dismissed; but he has argued that the plaintiff is not entitled to a deduction of the period between the 6 April and 17 April, which was taken up by his effort, to obtain certified copies of the. judgment and order of dismissal--papers which, though essential for the purposes of the appeal, were not needed for the purposes of the application to set aside the order. The substantial question in controversy between the parties, consequently, is whether the plaintiff can be said to have been "prosecuting another Civil proceeding" within the meaning of Section 14, sub-section (2), of the Limitation Act during the period when he was taking the indispensable preparatory steps in Court for the institution of the appeal which, ultimately proved infructuous. The learned Vakil for the plaintiff has invited us to interpret the expression "prosecuting" liberally and to answer the question in the affirmative. In our opinion, this argument is well-founded and ought to prevail. The Limitation Act does not define what is meant by prosecuting a Civil proceeding within the meaning of Section 14, sub Section 15 W. R. 125 and we are not prepared to adopt the narrow interpretation suggested by the defendant. In our opinion, there is no good reason why a person should be deemed as prosecuting a Civil proceeding only after he has instituted the proceeding in a Court and during the time that it is actually pending there. The time, during which he has been taking the necessary preliminary and preparatory steps in Court for the institution of the proceedings, may very well be regarded, without any undue stretch of language, as time during which he has been prosecuting the proceeding. The view we take is supported to some extent by the decision of the Judicial Committee in the case of Luckhi Narain Mitter V/s. Khettropal Singh Roy 20 W.R. 380 : 13 B.L.R. 146 : 24 W.R. 407, where their Lordships affirmed the decision of this Court in the case of Khetter Paul Singh V/s. Luckhee Mitter 15 W.R. 125. In that case the plaintiff was allowed a deduction of the whole time during which he had been fruitlessly engaged in prosecuting a suit from the Court of first instance to the Court of ultimate appeal. This included not merely the interval between the presentation of plaint in the Court of first instance and the decree of that Court, and similar period in the successive Courts of appeal but also the period between the decree of the original Court and the presentation of the appeal in the first appellate Court as also the period between the dismissal of the first appeal and the institution of the second appeal. If we were to adopt the restricted view suggested by the defendant, we could not justify the deduction of the two intervening periods because, according to his contention, a party can be said to prosecute a proceeding in a Court only after he has actually instituted the proceeding in the Court and during the time that it remains pending. In our opinion, upon a reasonable construction of Section 14 and with a view to give full effect to the object which the Legislature intended to accomplish, we may hold that when a plaintiff has applied for a copy of the judgment and decree or order in order to enable him to prefer an appeal against that order, lie may be deemed to have been prosecuting a Civil proceeding at least during the period occupied in the preparation of the certified copies. Tested in the light of these principles, the order of the Court below is unquestionably right. There is no room for controversy that the plaintiff has shown the utmost diligence possible. In fact he has not lost a single day between the dismissal of his suit for default and the rejection of his appeal as incompetent; and only three days intervened between the dismissal of the appeal and the presentation of the application for restoration of the suit.

(2.) Nor is there any dispute that the appeal was perfectly bona fide; in fact, the erroneous step was due to the fact that the Civil Procedure Code of 1908, which had then recently come into force, had introduced an alteration in the law in this respect, the full effect of which was not appreciated by the legal advisers of the plaintiff. This by itself is sufficient proof of bona fides, and justifies the application of Section 14 of the Limitation Act [Balaram V/s. Sham Sunder 25 C. 526].

(3.) The result, therefore, is that the order made by the Court below must be affirmed and is Rule discharged with costs, We assess the hearing fee at one gold mohur.