BRIJLAL GANERIWALLA Vs. GIREENDRASHEKHAR BASU

JUDGEMENT

(1.) This is an application made on behalf of the plaintiffs-appellants, for an order that the memorandum of appeal, which has been tendered and rejected on the ground that it is out of time, be filed, and, in the alternative, that, if necessary, the time for filing the memorandum of appeal be extended. The time, within which an appeal has to be filed from this Court in its Ordinary Original Civil Jurisdiction, is 20 days from the date of the judgment or order appealed against, as is wellknown, and the question which arises in this case is whether the appellants are within time, having regard to the terms of Section 12(2), Lim. Act.

(2.) The circumstances and relevant dates are as follows: Shortly before the suit came on for hearing and on 15 June 1933, an order for amendment of the plaint was made and, on the same day, the requisition to have the order completed was filed. On 16 June, that order was settled and passed. Nothing remained to be done but to make and verify the amendments and have the order signed, sealed and filed. Hariprasad Ganeriwalla, one of the plaintiffs, attended at the office of the Registrar for the purpose of verifying the amended plaint. He was not however allowed so to do, because he proposed to sign the verification at the Court house, whereas the verification of the amendment stated that the verification had been signed at No. 9, Old Post Office Street. This has been referred to in affidavits filed as "a defect in the petition," though it is common ground that the defect was as I have stated. But, for this I have little doubt that the completion of the order for amendment of the plaint would have gone through at once, and the question which now arises for determination would not have arisen. On 19 June, the suit came on for hearing, and, on 20 June, a decree was made, the decree against which it is desired to appeal. Between 22 June, and 31 July, all proper steps to have the decree drawn up and filed appear to have been taken and nothing turns upon anything that happened or that was omitted to be done between those dates.

(3.) On 31 July, the draft decree was settled and passed and it could, in the normal course of events, have been signed and filed within a day or two. A difficulty however arose, because the plaint had not been amended in accordance with the Court's order of 15 June and, until that had been done, the decree could not be completed. On 7 August, Mr. A.N. Das, the solicitor for the respondent Gireendrashekhar Basu, wrote to the Registrar a letter, in which he set out the facts and the circumstances up to that time, complaining that he was informed by the decree department that, unless the order of 15 June had been filed and the cause title and register had been amended, the decree of 20 June could not be filed and no office copy thereof could be issued. He, being the solicitor for the successful party, as he wrote, required office copies of the order and the decree, for the purpose of taxing his bill of costs to be realized from the plaintiffs, and, accordingly, he requested the Registrar to take whatever steps might be necessary to fill the order and the decree.