Basant Ram and Another vs Hari Ram

R.S. Thakur, J.—This revision petition is directed against the order of the learned District Judge, Hamirpur, dated March 9, 1979.

The facts of this case are that the Respondent Hari Ram filed an appeal before the learned District Judge on 14-8-1978 against the judgment and decree of the Sub-Judge, First Class Nurpur, dated 25-2-1978, whereby his suit against the present Petitioners was dismissed. Along with this appeal he also filed an application u/s 5 of the Indian Limitation Act, (hereinafter called as ''the Act''), wherein he everred that after the judgment appealed against was delivered by the lower Court on 25-2-1978, the Petitioner applied for copy of the same on 27-2-1978 and thereafter he visited the copying agency on 14-6-1978 and 24-7-1978 for obtaining the copies of the judgment and decree but the same were not supplied to him and they were ultimately supplied to him on 11-8-1978 and in these circumstances, therefore, he prayed for condonation of this delay in filing the appeal. The Petitioners contested this application and asserted that the Respondent intentionally and negligently failed to obtain the copies which were ready for delivery much earlier and the petition, therefore, being mala fide, cannot be allowed and the delay in filing the appeal could not be condoned. The learned District Judge then vide impugned order held that the appeal itself was filed within limitation in his Court and that the application of the Respondent for condonation of the delay u/s 5 of the Act was, therefore, misconceived and dismissed the same as such. The Petitioners have challenged this order in the revision before this Court.

It has been contended by the learned Counsel for the Petitioners in this Court that the learned District Judge erred in holding that there was no warrant for filing an application u/s 5 of the Act for condonation of delay and that in these circumstances the learned District Judge acted with material irregularity. The learned Counsel for the Respondent on the other hand has contended that the revision itself was not competent in view of the fact that the learned District Judge had full jurisdiction to record a finding as to whether the appeal was within limitation and therefore, his act cannot be challenged in revision. His alternative contention was that even if the learned District Judge has wrongly exercised jurisdiction while holding the appeal to be within limitation, even this action on his part cannot be challenged in revision. He has supported his contention by a ruling of the Supreme Court The Managing Director (MIG) Hindustan Aeronautics Ltd. and Another, Balanagar Vs. Ajit Prasad Tarway,

I have considered the arguments and gone through the record of the case carefully. The copy of the judgment shows that the Respondent applied for these copies on 27-2-1978 and his application was registered in the copying agency register at serial No. 616/C. It further shows that it was ready for delivery after comparison on 9-6-1978. The Respondent, however, took the delivery of the same on 11-8-1978. The learned District Judge in the impugned order then found that since the Respondent applied for the copies of the judgment and decree on 27-2-1978 and they were delivered to him on 11-8-1978, this entire period of 166 days should be excluded for the period of limitation and thus he could file this appeal before him within 196 days as the limitation for filing the appeal was 30 days (90 days have been wrongly written therein) and since this appeal was filed by the Respondent just after 170-days, the same was, therefore, within limitation. He placed reliance for coming to this conclusion on a single Bench judgment of this Court in Masadi Ram v. Joban Dass, Indian Law Reports 1975 Him. 237.

In view of these facts and circumstances of this case the only question that arises for the determination of this Court is whether this order on the part of the learned District Judge was free from the taint of any illegality or material irregularity and the present revision petition challenging the order is not competent.

The jurisdiction of this Court to interfere with an order of this nature is governed by the revisional powers of this Court enunciated in Section 115 of the CPC which may be reproduced as under:-

Section 115. Revision- (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,

the High Court may make such order in the case as it thinks fit:

Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceedings except where-

(a) the order, if it had been made in favour of the party applying for revision would have been finally disposed of the suit or other proceedings, or

(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.

(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.

Thus while construing the provisions of this section, it will be clear that this Court can interfere with an order of this nature only in case it appears to this Court that the lower Court had exercised a jurisdiction not vested in it by law or it failed to exercise a jurisdiction so vested in it or it acted in the exercise of its jurisdiction illegally or with material irregularity. After careful considration, I have come to the conclusion that the lower Court in this case has acted in the exercise of its jurisdiction with material irregularity and as such the answer to the poser (supra) is in the negative. As I have already observed, the copies in this case were ready for delivery on 9-6-1978 whereas the Respondent took delivery thereof only on 11-8-1978, that means after a period of over two months of the point of time when they were ready for delivery and in these circumstances it was incumbent upon the Respondent to have explained as to how he made such an inordinate delay of over two months in obtaining the delivery of these copies. The Respondent obviously was alive to this and it was in these circumstances that he, while filing the appeal also moved an application u/s 5 of the Act for condonation of this delay in filing the appeal, wherein he had categorically averred that although he visited the copying agency on 14-6-1978 and 24-7-1978 but the copies were not supplied to him despite the fact that they were ready for delivery on 9-6-1978 and even on 11-8-1978, the copies were supplied to him after he had kicked up some row in the copying agency as to why so much time was being taken in the delivery of the same. The Petitioners herein, however, had categorically denied these assertions on the part of the Respondent and had asserted that this was a mere concoction on the part of the Respondent and. in fact the Respondent was negligent in obtaining the copies within reasonable time.

In these circumstances, in my opinion, it was incumbent upon the learned District Judge to have held an enquiry as to how far the assertions on the part of the Respondent explaining the delay in obtaining the copies were sustainable before coming to the conclusion as to whether this delay was condonable or not. Obviously the learned District Judge failed to embark upon such an enquiry and this has resulted in the commission of material irregularity on his part. Even according to the learned District Judge, the appeal had been filed after a period of 170 days and prima facie having regard to the dates noted in the copy of the judgment by the copying agency there was delay in filing the appeal so as to make it barred by limitation and a material benefit had accrued, prima facie, to the Petitioners which could not be over-looked in such a summary fashion, especially when the Respondent himself was conceding that the appeal was prima facie barred by limitation and was asking for condonation of delay.

I also feel that the reliance on Masadi Ram''s case (supra) by the learned District Judge was misplaced. In that case when the revision petition was filed before the learned single Judge in this Court, a preliminary objection was raised on behalf of the Respondent that the same was barred by limitation. The learned single Judge then held an enquiry into this question during the course of which he was pleased to call for the record of the copying agency at Jubbal and it was only after the learned Judge was satisfied that there was no order passed by the copying agency as to when the copy would be ready for delivery so as to fix the knowledge on the part of the Petitioner to go and collect the copy on that particular date and no rules were shown to him as to which is the requisite time for supplying the copy, that is, whether it is the date on which the copy is ready or it is the date on which the copy actually was delivered to or collected by the Appellant, that he came to the conclusion that the entire period from the date of the application to the date of the delivery of the copy must be excluded as the time for obtaining the copy. The learned Judge in the course of this order also observed:

In my opinion, if the Petitioner was instructed to attend the Court (sic) copying agency on a particular date to ascertain whether the copy was ready and the Petitioner did not attend to obtain the copy on that date then it must be held that the day beyond that cannot be deducted from the limitation period as time requisite for obtaining the copy.

Now, in the instant case, bad the learned District Judge held similar enquiry and then come to the conclusion that there were no dates mentioned in the application or the ''chit'' supplied to the Respondent, as to on which dates he was required to attend the copying agency for obtaining the copies nor were their any rules as to from what date the period is to be taken as the time taken for the preparation of the copies so as to exclude that period for the purpose of computing the period of limitation for appeal, then, in that case the learned District Judge would have been justified in coming to the conclusion as he did in the impugned order but without holding such an enquiry and thus jumping to this conclusion on the basis of the judgment of this Court, was, in my opinion, not proper and amounts to material irregularity in passing the impugned order.

The judgment of the Supreme Court The Managing Director (MIG) Hindustan Aeronautics Ltd., Hyderabad and Anr. (supra) cited by the learned Counsel for the Respondent, does not have any bearing on the facts of this case. The facts of that case were that the Respondent in that case being servant of the Appellant company was placed under suspension by the company after certain charges were framed against him and the enquiry was orderd to be held into those charges. The Respondent then filed a civil suit for declaration that the charges framed against him were mala fide and as such the order of enquiry into those charges as also the order of his suspension were illegal. He also obtained an ad-interim order restraining the company from suspending the Respondent and also from enquiring into the charges against him but, after hearing the company the, trial Court vacated the ad-interim order. The Respondent then went up in appeal and the appellate Court (Distt. Judge ) then modified this order of the lower Court to the extent that the company was restrained from proceedings with the enquiry ordered till the decision of the suit but as regards suspension of the Respondent it sustained the order of the trial Court. The High Court then in revision held that the first appellate Court had no jurisdiction to make such an order. The Supreme Court while setting aside this order of the High Court in revision observed:-

The High Court should not interfere even if the order is right or wrong or in accordance with law or not, unless it has exercised its jurisdiction illegally or with material irregularity.

In the instant case, as I have already held, the learned District Judge exercised jurisdiction with material irregularity since he failed to hold an enquiry as to whether there were sufficient grounds for condonation of delay in filing the appeal.

In view of the above discussion, I accept the revision petition, set aside the order of the first appellate Court dated March 9, 1979 and remand the appeal to the appellate Court with the direction that it should hold an enquiry into the question whether there are sufficient grounds for condonation of delay in filing the appeal as asserted by the Respondent in his application u/s 5 of the Act and thereafter dispose of the appeal in accordance with law. The records of the case be sent to the Court concerned forthwith.