RAMDHANI MUCHI Vs. KHAKSHARDAS TATI

JUDGEMENT

(1.) The plaintiff is the appellant before me. The suit out of which this appeal arises was brought for a declaration of a right of way and for a perpetual injunction restraining the defendants from causing any obstruction to the plaintiff's use of the pathway. The defendants denied the plaintiff's right as claimed.

(2.) The Court of first instance dismissed the suit. The plaintiff then applied for a review of the judgment of the learned Munsif. Notice was issued upon the defendants to show cause why the review should not be admitted. On the application of the defendant the application for review was taken up before the date fixed for the hearing in the notice, and was ultimately dismissed. I ought to have stated that the application for review was based upon the ground of discovery of fresh evidence. After the application for review was dismissed the plaintiff filed an appeal to the District Judge against the original judgment of the Munsif dismissing the suit. The learned Judge has dismissed the appeal on the ground that it was barred by limitation. The appeal, undoubtedly, was filed long after the time allowed by law for an appeal to be filed before a District Court. But the plaintiff prayed that the time occupied by the application for review should be deducted in calculating the period of limitation.

(3.) The learned District Judge confines himself only to the question of limitation in filing the appeal; and although his judgment contains some observations on questions as to the merits of the case discussed by the Munsif, the observations of the learned District Judge were only in reference to the question as to limitation on account of the delay in filing the appeal and not for the purpose of deciding the case on the merits. The learned District Judge says in his judgment: "He was in fact prosecuting review application with what appears to have been quite adequate diligence for a time which if credited to him would render his appeal timely." The learned Judge, therefore, finds that the application for review was filed and prosecuted with due diligence. He then says: "What is urged against him is that the review petition was not a proper one, being one, which had no reasonable prospect of success." Later on the learned Judge says: "The question for decision, therefore, is whether there were reasonable and proper grounds of review in this case." And after discussing the merits of the application for review the learned Judge says: "Regarding this part of the case, therefore, the review petition never had any prospect of success whatsoever." Then he concludes his judgment by observing "I accordingly decide that there were no reasonable or proper grounds of review and that the appeal must be rejected as time-barred."