SIRAJUDDIN Vs. SONILAL

JUDGEMENT

(1.) THIS is an appeal by plaintiff-appellant. It arises oat of a suit instituted by plaintiff which after a long trial was dismissed by the Subordinate Judge, 2nd Class, Akot, on 12th December 1925. The plaintiff, therefore, preferred an appeal to the Court of the District Judge, Akola, on 18th February 1926; but the presiding officer, Mr. R.D. Pande, District Judge, returned the memorandum of appeal for presentation to the proper Court with the following endorsement: The jurisdictional value of the claim is below Rs. 1,000. Appeals over Rs. 1,000 come to this Court. The memorandum of appeal presented to this Court by Mr. S.M. Rahman, pleader for appellant, on 18th February 1926 is returned to him to day the 25th day of February 1995 for presentation to the proper Court.

(2.) THE memorandum of appeal was, therefore, re-presented the same day to the 1st Additional Judge of the District Court. The learned Additional District Judge, on 2nd March 1926, passed an order fixing the case for hearing the appellant on the point of limitation, as the Deputy Clerk of Court had reported at the time of initial presentation that it was barred by limitation by three days. Subsequently the report was modified so as to make the appeal barred by time by one day only. As a result of the enquiry held, the learned Additional District Judge found that there was sufficient cause for condoning the delay of one day. Ha thought that this was not, however, the only thing for him to decide. As the memorandum of appeal was re-presented on 25th February 1926, he considered himself called upon to decide the further question whether the delay of eight days between 18th February 1928, and 25th February 1926 could be condoned. He observed that the value of the appeal for purposes of jurisdiction being stated in the memorandum of appeal itself to be Rs. 895-3-9, the appeal should have been filed in this Court as, according to the distribution memo, this Court takes up appeals in cases up-to Rs. 1,000.

(3.) NO decree was, however, drawn up on the basis of this rejection of the appeal as barred by time. The appellant could consequently apply for a copy of the order only on 25th August 1926; he filed his memorandum of second appeal in this Court on 8th November 1926 with only a copy of order attached thereto. But this Court ordered him to obtain and file a copy of decree. Since no decree was drawn up, the appellant had to move the lower appellate Court as pointed out in Mahu v. Kishan [1912] 8 N.L.R. 92 (95-96) to draw up a formal decree in the appeal. A decree was thereafter drawn up in due course on 2nd April 1927, and on its copy being filed in this Court, on 25th April 1927, the second appeal was conditionally declared as duly presented that day. The respondent was served with a notice to show cause why the conditional order should not be made absolute, and after hearing both parties on the point that order was made absolute. It is, therefore, no longer open to the respondent to raise the question that since the memorandum of second appeal was unaccompanied by a copy of the decree it was incompetent, and that it could not be validly admitted on 25th April 1927 when the copy of decree was supplied.