SHRIKISAN Vs. SECRETARY OF STATE

JUDGEMENT

(1.) THIS is an appeal by the plaintiff, whose suit filed against the Secretary of State for India-in-Council, which was decreed by the first Court, has been dismissed by the lower appellate Court. The first point for consideration is whether the defendant's appeal to the lower appellate Court was rightly admitted being within time though filed seven days beyond time.

(2.) THE judgment of the first Court was delivered on 24th August 1926. The copies of the judgment and decree to be appealed from were applied for on 28th August 1926, i.e., when 27 days out of the period of 30 days prescribed for filing the appeal to the Court of the District Judge were still to the credit of the defendant. The copies were ready on 4th' September 1926 and delivered the same day. Thus time spent in obtaining the copies was eight days. The appeal had, therefore, to be filed before the expiry of the 38th day which fell on 1st October 1926, but as a matter of fact it was instituted on 8th October 1926.

(3.) THE Commissioner's office had despatched the papers before the expiry of the period of limitation, that is, when there were two days still to the credit of the party appealing, if we go by the date given in the forwarding endorsement. Under ordinary circumstances a letter despatched from Amraoti ought not to take two days to reach Akola, and if these papers did as a matter of fact reach Akola on or before 1st October 1926, I see no reason why the same could not have been handed over immediately to the Government Pleader to enable him to file the appeal at once within limitation. The ascertainment of the date of receipt of the papers in the Deputy Commissioner's office was absolutely necessary, before the Additional District Judge could exercise his discretion in the matter of condoning the delay. The Government Pleader had in the last line of his forwarding letter to the Deputy Commissioner, Akola, distinctly mentioned that the appeal will have to be filed the latest on 29th September 1926. I have not got before me anything to show whether any note of this warning was taken by the Deputy Commissioner when he forwarded the papers through the Commissioner to the Legal Remembrancer's Office, and whether he pointed out to the Commissioner the absolute necessity of securing from the Legal Department a prompt decision whether the appeal should, or should not, be filed and of returning the papers in sufficiently good time to enable him to instruct the Government Pleader to institute the appeal (if sanctioned by the Legal Department) before the expiry of the period of limitation. In the absence of any such material on record it is difficult to say that there was reasonable cause for the delay. I cannot understand what the Government Pleader means by urging that the agents of the Secretary of State in all departments had to do other important duties along with this duty, and so the time taken up in obtaining the sanction by the Deputy Commissioner, the Commissioner and the Legal Remembrancer as mentioned in the letters filed in the Court was unavoidable and that there was no negligence on the part of the appellant or his agents. Really speaking the sanction was given early enough.