Judgment

GAJENDRAGADKAR, J. : The short question which falls to be considered in this appeal relates to the construction of S. 5 of the Indian Limitation Act IX of 1908. It arises in this way. The respondent Rewa Coalfields Limited is a registered company whose coal-mines are situated at Burhar and Umaria. Its registered office is at Calcutta. The appellant is a firm, Chaurasia Limestone Company, Satna, Vindhya Pradesh, by name and the three brothers Ramlal, Motilal and Chhotelal are its partners. The appellant prepares and deals in limestone at Maihar and Satna and for the use in their lime-kilns it purchased coal from the respondent s coalmines at Umaria by means of permits issued to it by. Coal Commissioner, Calcutta. According to respondent s case the appellant purchased from it 3,307 tons of coal at the rate of Rs. 14-9-0 per ton between January 1952, and March 1953. The price for this coal was Rs. 48,158-4-0, Since the appellant did not pay the price due from it the respondent filed the present suit in the Court of the District Judge, Umaria, and claimed a decree for Rs. 52,514-14-0 including interest accrued due on the amount until the date of the suit.

2. A substantial part of the respondent s claim was disputed by the appellant. It was urged by the appellant in its written statement that the amount claimed by the respondent had been arbitrarily calculated and that for a substantial part of the coal purchased by the appellant from the respondent due price had been paid. The appellant pleaded that for some time past it had stopped purchasing coal from the respondent and it was obtaining its supplies from Messrs. Sood Brother, Calcutta, to whom payments for the coal supply had been duly made. The appellant admitted its liability to pay Rs. 7,496-11-0 and it expressed its readiness and willingness to pay the said amount.

3. On these pleadings the learned trial judge framed seven issues. It appears that on the date when the respondent led its evidence and the appellant s turn to lead its evidence arrived an application for adjournment was made on its behalf to produce additional evidence which was granted on condition that the appellant should pay to the respondent Rs. 200/- as costs. On the subsequent date of hearing, however, the appellant did not appear nor did it pay costs to the respondent as ordered. That is why the trial Court proceeded exparte against the appellant. On the issues framed trial Court made findings in favour of the respondent in the light of the evidence adduced by the respondent and an ex parte decree was passed against the appellant to the tune of Rs. 52,535-7-0 with proportionate costs. The appellant was also ordered to pay interest at 6 per cent per annum from October 6, 1953, which was the date of the suit until the date of payment. This decree was passed on November 9, 1954.

4. Against this decree the appellant preferred an appeal in the Court of the Judicial Commissioner, Vindhya Pradesh, Rewa, on February 17, 1955 (Appeal No. 18 of 1955). The main contention raised by the appellant in this appeal was that the ex parte decree should be set aside and the case remanded to the trial Court with the direction that the appellant should be allowed to lead its evidence and the case disposed of in accordance with law in the light of the said evidence. On February 19, 1955, the appellant filed an application under S. 5 of the Limitation Act and prayed that one days delay committed by it in filing the appeal should be condoned because Ramlal one of the partners of the appellants firm, who was in charge of the litigation, fell ill on February16, 1955, which was the last date for filing the appeal. This application was supported by an affidavit and a medical certificate showing that Ramlal was ill on February16,1955. The learned Judicial Commissioner, who heard this application, appears to have accepted the appellant s case that Ramlal was ill on February16 and that if only one day s delay had to be explained s