AHMAD HUSAIN Vs. MUHAMMAD FASIH-ULLAH

JUDGEMENT

(1.) The facts out of which this appeal has arisen are as follows. The plaintiff brought a suit in the court of the Subordinate Judge of Ghazipur or the 15 of January, 1920. After the evidence had been recorded arguments were heard on the 16 of December, 1920, and judgment was reserved. Judgment was delivered on the 21 of March, 1921, dismissing the plaintiff's suit. We presume that the court adopted the proper procedure prescribed in Order XX, Rule I, and gave the parties, or their pleaders, notice of the date on which the judgment was to be delivered, but, in any case, it is admitted by the appellant that he knew, as a matter of fact, that his suit had been dismissed, on the 27 of March, 1921. The decree was not signed by the presiding officer until the 2nd of April. No application was put in for a copy until the 13 of April. An application was then filed in the court of the Subordinate Judge. It was returned, apparently on the 18 of April, on the ground that the record had been sent to the District Judge's record room, and on that date it was presented in the court of the District Judge. The copy was ready on the 20 of April and posted on the notice board. It was not taken delivery of until the 25 of April which was the last day of limitation. The memorandum of appeal was filed on the 3 of May, 1921, ton days beyond time. The appellant applied to the District Judge to extend the time under Section 5 of the Indian Limitation Act and his application was accompanied by an affidavit. The learned District Judge considered the affidavit and came to the conclusion that even if it was true, as the appellant said. that from the 19 of April until the 1st of May he and his karinda were both seized with illness which incapacitated them from doing any business, nevertheless, the appellant had shown such laches in attempting to procure the copy of decree which it was essential for him to obtain before he could file his appeal, that as he did not apply for the copy until three days before the period of limitation expired, it was his own risk that lie delayed so long; and the learned District Judge in the exercise of his discretion refused to extend the period and dismissed the appeal.

(2.) From this order of dismissal the plaintiff comes here in second appeal, and, although it has been laid down in several rulings of us Court that where the lower appellate court exercises a judicial discretion in such matters and decides not to extend the time, this Court will not interfere in second appeal, even if it might have, had it been the lower appellate court, taken another view, it has been argued that in this case there really has been no exercise of discretion on the part of the District Judge and reliance has been placed on Buddhu V/s. Diwan (1915) I.L.R. 37 All. 267 and on the recent Privy Council ruling in Brij Indar Singh v. Kanshi Ram (1917) I.L.R. 45 Calc. 94. In that case it was said that where a Judge purporting to exercise such discretion does so under the view that there is no general rule when in fact there is one which he ought to follow as being binding on him, he misdirects himself as to the law to be applied to the case; he cannot exercise a judicial discretion, and an appellate court should either remand the case or exercise the discretion itself. It seems to us there is no conflict at all between these rulings, and having regard to the judgment of the learned District Judge in this case, we think he has exercised a discretion and dismissed the application on its merits.

(3.) In this view of the case the appeal fails and is dismissed with costs.