ISHWAR PRASAD Vs. BABU BISHUNATH PRASAD SINGH

JUDGEMENT

(1.) These appeals arise out of three suits brought by the present plaintiffs- respondents for the ejectment of certain tenants from their holdings on the allegation that they were non-occupancy tenants. The defendants pleaded that they were not the tenants of the plaintiffs and that they cultivated the land on behalf of Ishwar Prasad and Kuber Prasad the Mukararidars or inferior proprietors of the village and paid rent to them. An application was made by Ishwar Prasad and Kuber Prasad to be made parties to the suit, on which they were asked to file their written statements. Their defence was that they had an under-proprietary right to the whole village, in which the disputed land was situated and that they had been realising rents from the tenants from the settlement of 1289 F. as Mukararidars or inferior proprietors. The trial Court framed an issue on the point and came to the conclusion that the defendants intervenors had no rights in the village of a proprietary nature and that the plaintiffs were entitled to eject the tenants from their holdings.

(2.) As the trial Court had passed no express order, directing that the intervenors should be added as defendants, their names did not appear in the decrees, which were prepared in those cases. The decrees passed were merely decrees for the ejectment of the tenants, an appeal from which would ordinarily lie to the Commissioner, and the affidavit filed by the defendants-appellants shows that with a view to file the appeal to the Commissioner of Benares they took the papers to M. Bhairon Prasad but he returned the papers saying that as a question of proprietary title was in issue, the appeal would lie to the District Judge. The appeal was then filed in the Court of the District Judge of Benares from those decrees, but the office of the District Judge, Benares, reported that the defendants intervenors were not mentioned in the decree and no appeal by them could be entertained. The trial Court was therefore asked to explain the situation and the result of that enquiry was that by an order of the 1 February 1923, passed on the application of the defendants-appellants, the names of the defendants intervenors were added to the plaint and the decrees in each of the three suits. The decrees were passed on the 26 September, 1922. The only persons who were mentioned in the decrees as defendants were the tenants, who could have filed an appeal within 60 days to the Commissioner. The names of the defendants intervenors were not entered in the decrees and they could not have filed any appeal anywhere. They eventually filed the appeal on the 22nd December, 1922 and on an objection being taken that they had no right to file the appeal, because they were not parties to the decrees, their names were subsequently added to the decrees on the 1st February, 1923. The right of the defendants intervenors to appeal from those decrees if they had any right to appeal-arose when the decrees were amended by the addition of their names; and in that view of the matter, the appeals could not be regarded as having been filed beyond time. It is however, possible to look at the matter from another stand-point. The decrees as they stood were passed against the defendants tenants, who could have appealed to the Commissioner within 60 days. The defendants intervenors may have honestly believed that they could have instituted the appeal in the Court of the Commissioner within the same period. As held in Brij Mohan Das V/s. Mannu Bibi (1897) 19 All. 384 an honest mistake could be made in good faith and a bona fide mistake might be taken into consideration in suitable cases.

(3.) In Brij Indar Singh V/s. Kanshi Ram A.I.R. 1917 P.C. 156 their Lordships of the Privy Council held that the judicial discretion given by Section 5 of the Indian Limitation Act to admit an appeal after the prescribed period of limitation should be exercised, if the appeal has been prosecuted with due diligence, and when in the exercise of a judicial discretion a Judge fails to apply the rule, the appellate Court should either remit the case or itself exercise the discretion.