Ahmed Arabi and Others vs Osman Isa and Others

Chhatpar, J.—This is an application to bring an appeal as a pauper. The application was filed on 12-6-1950 on which date the Court opened alter the Summer Vacation. It is admitted that the period of limitation for filing the application expired during the vacation. The application would be in time if it were presented as required by law on the opening day. However it seems that on 12-6-1950 the application was not presented in person by the applicants but through their Advocate Mr. V.M. Udani. The note of the Superintendent of the High Court on receipt of the application is as under:

Presented on 12-6-1950 by Shri V.M. Udani who is asked to bring the appellants in person as this should be presented by them, in person.

It is stated in the affidavit filed that Mr. V.M. Udani sent a telegram to the applicants to come to Rajkot immediately. Only applicants 1 and 2 came in person on 13-6-1950 before the Superintendent and they presented an application which is Ex. 6, wherein they prayed also that the delay of one day may be condoned. The note of the Superintendent on this application is as under:

Presented by Mr. V.M. Udani and the appellants Nos. 1 and 2 in person on 13-6-50.

The application for leave to appeal as a pauper Should be deemed to have been properly presented by the applicants 1 and 2 on 13-6-1950 on which date the period of limitation had already expired. The application is late by one day, and the question arises whether the delay should be condoned u/s 5, Limitation Act. The application to appeal in ''forma pauperis'' and for condoning delay is not opposed by the Advocate General but it is opposed by the opponents who are represented by Mr. A.R. Baxi, who has raised the following contentions: (1) That the presentation to the Superintendent was not proper as the presentation should have been to a Judge of the Court. (2) The application is time-barred and Section 5, Limitation Act does not apply. (3) That in any case no cause has been shown why the Court should extend time.

So far as the first objection is concerned, the High Court Rule 33 requires that all appeals and applications shall be presented to the Superintendents. That this rule is not ''ultra-vires'', reference is invited to the decision of the Madras High Court reported in ''Chidambaram Chettiar v. Kadar Moideen Rowther'' AIR 1924 Mad 901 wherein a similar rule authorising the Shirastedar to accept presentation was'' considered and held not to be ''ultra-vires''.

As regards the second objection, the Limitation Act of 1908 has introduced the words ''or for leave to appeal'' in Section 5 which were not in the corresponding section of the prior Limitation-Acts and it has been held that this introduction includes applications for leave to appeal as-a pauper. See the ruling of the Allahabad High. Court reported in Ram Charan Vs. Bansidhar and Others, where it was-held that the words ''for leave to appeal'' in Section 5, Limitation Act are wide enough to include art application for leave to appeal as a pauper. Mr. A.R. Baxi the learned Advocate for the opponent has relied upon a ruling of the Lucknow Chief Court reported in ''Ram Pheron v. Sri Ram'' 15 Luck 390 where it was held that Section 5, Limitation Act had no application for leave to appeal as a pauper under Order 44 1, Civil P.C. In this case it seems that the attention of the Court was not specifically drawn to the words "for leave to appeal" introduced in the Limitation Act of 1908, and there is no discussion on this point nor is the ruling of the Allahabad High Court referred to therein. I prefer to follow the Bench [ruling of the Allahabad High Court reported in Ram Charan Vs. Bansidhar and Others, In my opinion the words "leave to appeal" are wide enough to include an application for leave to appeal as a pauper.

As regards the third point whether sufficient cause has been made out for condoning the delay of one day, there is no doubt that there is some neglect on the part of the advocate in not advising the opponents to come and present the application in person in time but it is not of such gross nature that the clients should suffer for it. The Advocate was probably under the impression that since the applicants were permitted to sue as paupers in the lower Court, there was no necessity to observe the formality of personal presentation in this Court. However as soon as the Advocate became aware of this defect, he immediately sent a telegram to the applicants. Under the circumstances of the present case and specially as the claim in appeal is a very large one, I think the applicants should not suffer for this omission of their Advocate to inform them in time of the requirement of law. The Advocate General has not opposed this application on this ground. I consequently condone the delay of one day.

The application should now be fixed for preliminary hearing for consideration whether the decree appealed from is contrary to law or some usage having the force of law, or is otherwise erroneous or unjust as required by Rule 1 of Order 44, Civil P.C.