SHIB DAYAL Vs. JAGANNATH PRASAD

JUDGEMENT

(1.) In this case the appellant applied under Section 5 of the Limitation Act and asked that a time barred appeal night be heard on the ground that there was sufficient cause for his having failed to comply with the rules When a second appeal is presented to this Court, there is no doubt that the copy of the First Court's judgment and a copy of the judgment and decree of the lower Appellate Court must be filed. The appellant waited until almost the last day for the admission of his appeal, and then, on May 2nd, 1921, filed the judgment and decree only of the lower Appellate Court. The last day of limitation expired on May 3rd, 1921. The appellant having learnt that tie appeal could not be admitted without the judgment of the First court subsequently obtained it and then asked that time should be extended and the appeal admitted. It is stated that his failure to comply with the rules was due to the error of the Vakil, in the district who had informed him that the judgment and decree of the lower Appellate Court were alone necessary.

(2.) We believe that this is what actually happened, and, therefore, the question arises whether that explanation can in the year 1922 he accepted an sufficient cause. There is no doubt it was the practice in past years to allow applications of this kind and between 1903 and 1907 distinguished Judges of this Court did absolve the applicant from the consequences of an error on the part of his legal practitioner. See Wazr Ali Khan V/s. Zainob A. W. N. (1903) 32, Kura Mal V/s. Ram Nath 28 A. 414 : 3 A L J 218 : A. W. N (190(sic)), 37 and Anjora Kunwar V/s. Babu 29 A. 628 : 4 A L J. 515 : A. W. N. (1907) 2(sic)9.

(3.) In 1914 the case of Dewan V/s. Buddhu 25 Ind. Cas. 30 : 12 A. L. J. 837 came before Sir Surder Lal on appeal from the District Judge who Lad admitted a time barred appeal. The circumstances under which the omission to file the appeal within time took place, "were not very clearly put forward by the applicant but it was not suggested that there was any misapprehension on the part of Mr. Weston (the Counsel employed to file the appeal, as to the time within which the appeal ought to have been lodged." Sir Sunder Lal thinking that the explanation of the delay was "utterly inadequate," overruled the decision of the District Judge. That ease if, therefore, clearly distinguishable from the present one, and notably from the decision of Stanley, C. J. and Banerji, J., in Kura Mal V/s. Ram Nath 28 A. 414 : 3 A L J 218 : A. W. N (190(sic)), 37. On appeal a Bench of this Court upheld the decision of Sir Sunder Lal on the ground that the lower Appellate Court had no materials upon which a discretion could ha exercised, Budhu V/s. Dewan 28 Ind. Cas. 265 : 13 A. L. J. 286 : 37 A. 267.