Back
IN THE HIGH COURT OF ALLAHABAD
S. C. Manchanda, J.
HIRALAL - Appellant
Versus
JHUNNILAL - Respondents
Civil Revn. 821 Of 1962
Decided On : 04/29/1963
LIMITATION ACT - SECTION 5 - CONDONATION OF DELAY - EACH DAY'S DELAY NEED NOT BE CONCLUSIVELY ESTABLISHED - SUFFICIENT CAUSE - LIBERAL CONSTRUCTION - PECULIAR CIRCUMSTANCES - MISREADING OF SUPREME COURT JUDGMENT - FAILURE TO EXERCISE JURISDICTION - REVISION - MAINTAINABILITY - DECREE DRAWN UP SUBSEQUENT TO REJECTION OF APPLICATION FOR CONDONATION OF DELAY - NOT A BAR.
Fact of the Case:
Applicant's father and respondents 4-9 filed a suit for cancellation of a sale deed. The suit was partly decreed and partly dismissed. Applicant's father applied for a copy of the judgment and decree on the last working day before the Courts closed for summer vacation. The Courts reopened on 4th July, 1961. A day prior thereto, on 3rd July, 1961. Applicant's father was murdered. On 4th August, 1961, the copy of the judgment and decree was ready. The clerk of applicant's counsel took delivery only on 24th August, 1961. No information was sent by the clerk or the counsel that the copy was ready, or that delivery had already been taken, till 26th October, 1961. Applicant came to know about the judgment or decree passed in the suit on 26th October, 1961. Applicant filed the appeal on 6th November, 1961, along with an application for condonation of delay under Section 5 of the Limitation Act. The application was rejected by the Additional District Judge.
Finding of the Court:
The Additional District Judge erred in reading the Supreme Court judgment in Ram Lal v. Rewa Coal Field Ltd., AIR 1962 SC 361, as requiring each day's delay to be conclusively established. The Supreme Court held that the failure of the appellant to account for his non-diligence during the whole of the period of limitation prescribed for the appeal does not disqualify him from praying for the condonation of the delay under Section 5. In the present case, the period of limitation ran out, not as a result of the negligence or inaction of the applicant but, because of the misconduct of the clerk of his counsel who had failed to inform the applicant about the judgment and decree of the trial Court till 26th October, 1961. The applicant had furnished a reasonable explanation for the delay. The Additional District Judge failed to exercise jurisdiction in not condoning the delay.
Issues: 1. Whether each day's delay must be conclusively established for condonation of delay under Section 5 of the Limitation Act? 2. Whether the applicant had furnished a reasonable explanation for the delay? 3. Whether the Additional District Judge erred in rejecting the application for condonation of delay? 4. Whether the revision application is maintainable in view of the decree drawn up subsequent to the rejection of the application for condonation of delay?
Ratio Decidendi: 1. The Supreme Court held in Ram Lal v. Rewa Coal Field Ltd., AIR 1962 SC 361, that the failure of the appellant to account for his non-diligence during the whole of the period of limitation prescribed for the appeal does not disqualify him from praying for the condonation of the delay under Section 5. This does not mean that each day's delay must be conclusively established. It is sufficient if a reasonable explanation is furnished. 2. In the present case, the applicant had furnished a reasonable explanation for the delay. The period of limitation ran out, not as a result of the negligence or inaction of the applicant but, because of the misconduct of the clerk of his counsel who had failed to inform the applicant about the judgment and decree of the trial Court till 26th October, 1961. 3. The Additional District Judge erred in rejecting the application for condonation of delay. He misread the Supreme Court judgment in Ram Lal v. Rewa Coal Field Ltd., AIR 1962 SC 361, and failed to exercise jurisdiction. 4. The revision application is maintainable. The decree drawn up subsequent to the rejection of the application for condonation of delay is not a bar to the exercise of the powers of the High Court under Section 115 of the Code of Civil Procedure for curing manifest injustice.
Final Decision: The order of the Additional District Judge rejecting the application for condonation of delay is set aside. The application is allowed and the case is remanded to the District Judge for disposing of the appeal on its merits.
( 1 ) THIS is a revision against the order of the learned Additional District Judge, Allahabad dated the 2nd of June, 1962, rejecting the application of the applicant under Section 5 of the Indian limitation Act praying that the delay in the filing of the appeal be condoned.
( 2 ) THE facts briefly are these: Ram Chandra, father of the present applicant, since deceased, and respondents Nos. 4-9 brought a suit No. 390 of 1959 for Cancellation of a sale-deed executed by kesho Das deceased, then living, in favour of defendant-respondents Jhunni Lal, Deep Narain and Raj Narain on the 3rd of June, 1961. The suit was partly decreed and partly dismissed. That was the last working day before the Courts closed for summer vacation. The applicants father on that very day through his counsel Mr. A. P. Tiwari, applied for a copy of the judgment and decree of the trial Court. The Courts reopened on the 4th July, 1961. A day prior thereto, on the 3rd July, 1961. Ram Chandra was murdered. On the 4th August, 1961, the copy of the judgment and decree was ready. This had been applied for promptly before by the applicants father before his death. The clerk of Mr. A. P. Tiwari, however, took delivery only on the 24th August, 1961. No information, whatsoever was sent by the said clerk or the counsel, that the copy was ready, or that delivery had already been taken, till the 26th of october, 1961. That was the day when the applicant happened to come to Allahabad to appear as a prosecution witness regarding the murder of his father. The applicant was cross-examined by the aforesaid Sri A. P. Tewari who had accepted the Vakalatnama en behalf of the murderers of the applicants father. After he had appeared as a witness the clerk handed ham a copy of the judgment. According to the affidavit of the applicant that was the first time that be came to know about the judgment or decree passed in the suit. The applicant was naturally disturbed at his counsel going over to defend the accused in the murder case against his father. He is said to have taken advice, gone home and having failed to obtain the support of respondents 4-9 who were plaintiffs with his father in the suit, for filing an appeal he returned to Allahabad and filed the appeal on the 6th of November, 1961. The appeal was accompanied with an affidavit and an application praying for the condonation of the delay under Section 5 of the Limitation Act. Before hearing the appeal fresh affidavits and counter-affidavits were permitted to be filed by the learned Additional district Judge. In the counter-affidavit which was filed by the opposite party no attempt was made to controvert the facts alleged in the affidavit by the applicant that Mr. A. P. Tiwari had accepted Vakalatnama on behalf of the accused in the case of the murder of Ram Chandra, nor that the copy was applied for the very day the judgment was delivered by the trial Court. It was also not denied that the copy of the judgment was not delivered to the applicant till the 26th October, 1961, when limitation had already expired. The learned Additional District Judge was sympathetically inclined to extend the time and to condone the delay, but he considered that the Supreme Court decision, to be noticed hereinafter, tied his hands. He took a serious view of the conduct of the clerk of Mr. A. P. Tewari who had retained the certified copies from the 24th August, 1961, to 26th October, 1961, when he must have known that it would lead to the appeal getting time barred and that would amount to professional misconduct. He further went on to observe : "when we find further that Sri A. P. Tewari accepted Vakalatnama on behalf of the alleged murderers of Ram Chands father, this delayed delivery of the copy takes an ugly look. The fact that other plaintiffs do not choose to appeal would be a circumstance but for the allegations in the affidavit that they are on the side of the murderers of his father. The allegations also are that th
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
