A rule requiring the deposit of typing charges prior to the filing of an appeal is directory and not mandatory, and the failure to comply with it does not defeat the right of appeal if the appeal is otherwise properly presented.

( 1 ) THIS application under section 5 of the Limitation Act and Section 151 of the Code of Civil Procedure raises the question whether the appellant was prevented by sufficient cause from filing the regular first appeal within the period of limitation and, if so, whether the delay in doing so should be condoned.

( 2 ) THE appeal was presented on 10th November, 1966 and was received without any objection. It was, however, returned to the appellants counsel on 1st December, 1966 on the ground that the typing charges of Rs. 50. 00 had not been deposited. The appellants thereupon deposited the said amount on the same day. In the meanwhile, the limitation for the filing of the appeal had expired on 12th November, 1966. The petitioner-appellants therefore pray that the delay in filing of the appeal between 12th November, 1966 and 1st December, 1966 be condoned.

( 3 ) BY a Notification No. JCIRO/1950 dated 28th June, 1950,the Judicial Commissioner in exercise of the power conferred on him by paragraph 42 of the Himachal Pradesh (Courts) Order, 1948, ordered that the Rules and Orders of the Punjab High Court relating to the preparation of paper books for hearing of appeals and the copying and typing of any such papers and the recovery of the expenses thereby incurred shall apply with modifications to all the civil and criminal Courts of Himachal Pradesh. According to the old Rule 3 (new Rule 9) of Chap- ter2-Aof Volume V of the Punjab High Court Rules and Orders as modified by the above Notification, in every appeal in which under these rules record has to be typed, the appellant shall with his appeal attach a receipt for a sum of Rs. 50. 00 which should be deposited with the treasurer of the High Court to cover the cost of typing the record. No first appeal from a decree shall be received unless it is accompanied by such a receipt. This rule has a two-fold effect. In its first part, it enjoins the appellant to file the appeal only after depositing the typing charges. In its second part, it enjoins the officer of the High Court incharge of receiving the appeals not to receive the first appeal from the decree unless it is accompanied by such a receipt.

( 4 ) THE learned counsel for the appellants has filed an affidavit to show that the practice of the Judicial Commissioner s Court was not to insist upon the paying of the typing charges prior to the filing of the appeal. A verification of the records mentioned in the affidavit, however, does not make out a case that there was such practice which could have misled the appellants counsel is not depositing the typing charges prior to the filing of the appeal. The appellants also cannot plead ignorance of the rule requiring the payment of typing charges prior to the filing of the appeal. The appellants, however, filed the appeal about 2 days before the last date of limitation for the filing of the appeal. If the officer of the Court had done his duty in not receiving the appeal without the deposit, the appellants would have in all probability deposi- ted the typing charges well within the period of limitation and the ap- peal would have then been filed within the period of limitation. This diligence on the part of the appellants can be inferred from their con- duct in making the deposit on 1st December 1966, i. e. on the same day on which it was required by the office. Unfortunately, the officer con- cerned did not do his duty under the second part of the Rule. Further, he did not return the appeal to the appellants till 1st December, 1966, i. e. about 18 days after the expiry of the limitation period. In effect, therefore, it is the negligence and dereliction of duty on the part of the Court officer which resulted in an otherwise valid appeal being deemed to have been presented after the period of limitation. Had the officer done his duty, the appeal would have been presented before the expiry of the period of limitation. It is a well known principle of law that a litigan