MUKAND RAO DESHMUKH Vs. RAGHO MALI

JUDGEMENT

(1.) THE appeal of the present plaintiff in the Court of the District Judge, Nagpur, against the judgment and decree, dated 15th of August 1925, of the Subordinate Judge, 2nd class, Saoner, dismissing the plaintiff's suit for possession of an abadi site, has been held by the District Judge to have been time barred and has been dismissed accordingly. The original judgment and decree bore the date of the 15th of August 1925, while the decree was actually signed on the 19th idem. The appeal was filed on the 29th of September 1925, and allowing for twelve days spent in copying, it was thus two days over time. The learned District Judge was of opinion that the decision of Kinkhede, A.J.C., in Panda v. Rajeshwar A.I.R. 1924 Nag. 271 was not applicable in the circumstances of the present case as the decree had actually been signed within the period of limitation.

(2.) THE accuracy of the District; Judge's conclusion in this connexion wag contested in the grounds of appeal in this Court, but, on the appeal coming on for hearing, the pleader for the appellant stated that he did not desire to press this point in view of the fact that meanwhile the decision of Kinkhede, A.J.C., has been reconsidered by a Full Bench of this Court consisting of Kotval, O.J.C., Prideaux and Mitchell, A.J.Cs., in Umda v. Rupchand A.I.R. 1927 Nag. 1 ). It is a matter of common knowledge that before 'this Full Bench's decision was given, considerable doubt prevailed as to the exact extent to which Kinkhede, A.J.C., proposed to lay down the law in Pandu v. Rajeswar A.I.R. 1924 Nag. 271. That matter is, however, in my opinion and speaking with all deference, properly set at rest by the Full Bench decision in question.

(3.) ON behalf of the respondents it is urged that the plaintiff obviously did not act with due diligence, that copies were not applied for until the 12th of September 1925, and although they were despatched on the 23rd idem, the appeal was not filed until six days later. It is impossible for this Court, however, on these facts to hold that the plaintiff did not show due diligence. He is a resident of an outside village in the Nagpur District and time must inevitably be lost in his communicating with his pleader, whether personally or by letter. The fact remains that in this case there is every reason for supposing that the plaintiff was misled by the judgment of Kinkhede, A.J.C., already referred to, and in these circumstances, I think the present case is one where it was the duty of the District Judge, who does not seem to have considered this aspect of the case at all, to have exercised his discretion under Section 5 of the Limitation Act in favour of the appellant.