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 might 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 the 2nd of May, 1921 filed the judgment and decree only of the lower appellate court. The last day of limitation expired on the 3 of May, 1921. The appellant, having learnt that the 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 be accepted as 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 Wazir Ali Khan V/s. Zainab Weekly Notes 1903 p. 32 Kura Mal v. Ram Nath (1906) I.L.R. 28 All. 414 and Anjora Kunwat V/s. Babu (1907) I.L.R. 29. All. 638.

(3.) In 1914 the case of Dewan V/s. Buddhu (1914) 12 A.L.J. 837 came before Sir Sunder Lal on appeal from the District Judge who had 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 case is, 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 (1906) I.L.R. 28 All. 414. 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 be exercised: Buddhu V/s. Diwan (1915) 13 A.L.J. 268.