Gulam Rasool Wani vs Noor-ud-din

Controversy in this civil 2nd appeal lies in a narrow compass, though the contentions raised at the bar are of considerable importance.

The appellant, herein, is a defendant in a suit for ejectment which was brought in the court of city Munsiff Srinagar by the plaintiffrespondent

herein, on 271271. The suit was valued at Rs. 150/. The suit was decreed by the trial court on 15576. The appellant preferred an appeal against

the said decree in the court of District Judge on 1776. The District Judge vide his order dated 27378 returned the memo of appeal to the appellant

to be presented to the court of Sub Judge, C. J. M. Srinager on the ground that the appeal in fact lay to the latters court. The decree appealed

against having been passed by Munsiff in a suit, the value whereof did not exceed Rs. 500/ Before Sub Judge, CJM, a preliminary objection was

taken on behalf of the respondent that the appeal was barred by time as not having been preferred within sixty days from the date of the decree i.e.

the period prescribed for filing such appeals. It was, however, urged on behalf of the appellant that the appeal was bona fide preferred before the

District Judge on the mistaken advice of his counsel. This plea did not find favour with the lower appellant court, which consequently dismissed the

appeal as barred by time. The appellant is aggrieved of this order, hence this second appeal.

Mr. Farooqui appearing for the appellant has raised two contention in support of the appeal one that the appeal was not barred by time as the

District Judge had concurrent jurisdiction with Sub Judge, CJM, Srinagar to hear and dispose of the appeal, and two that even if he had no such

jurisdiction, the appeal was still within time as it had been preferred in his court bona fide on the mistaken advice of the appellant's counsel and the

appellant had been all along prosecuting the same in that court till the defect of jurisdiction was pointed out and was, as such, entitled to this period

being excluded in computing the period of limitation under section 14 of the Limitation Act.

The first contention raised by Mr. Farooqui even though ingenious is yet not tenable. True, sub section 2 of section 34 of the Civil Courts Act

provides that an appeal from a decree of order of a Munsiff shall lie to the District Judge, subsection 5 of the said section confers jurisdiction the

High Court to invest a subordinate judge to hear appeals which ordinarily lie to a District Judge under sub section 2 from all or any of the decrees

or orders passed in an original suit by a Munsiff The High Court in exercise of the aforesaid power conferred jurisdiction on Sub Judge, CJM

Srinagar to hear appeals from allow any of the decrees or orders passed by Munsiffs in original suits where the value of the suit did not exceed Rs.

500/. This notification was issued on 28671. The more important expression used in sub section 5 reads thus:

and the court of such Subordinate Judge shall be deemed to be a District Court for the purposes of all appeals so preferred.

Mr. Farooqi's argument is that section 15 of the code Civil Procedure applies pan pa su to appeals and even if Sub Judge, CJM Srinagar had

jurisdiction to hear the present appeal, he could hear the same only as a court of the lowest grade and this notification did not have the deflect of

divesting the District Judge, Srinagar of his jurisdiction to hear appeals from an order or decree passed by a Munsiffs. The expression above

quoted is an answer to Mr. Farooqui's contention Sec. 15 of the Civil Court Act leaves no room for doubt that only one District Judge can be

appointed for one District though the provision to this section also says that one District Judge may be appointed for more than one Civil District. If

we accept the contention of Mr. Farooqui then we would b; in effect conceiving of a situation where two District Judges are appointed for a single

civil District. This is neither intended by section 34 nor can it be intended in face of the mandatory provisions of section 15 which speaks of only

one District Judge for one District. The conclusion is thus irresistible that a subordinate Judge, who has been conferred the powers of hearing

appeals under sub section 5 of section 34 will alone be competent to hear and dispose of appeals preferred from orders of decree passed by a

Munsiff where the value of the suit does not exceed Rs. 500/.

It was next urged by Mr. Farooqui that even though Munsiffs and Sub Judges have been conferred pecuniary jurisdiction to try suits of different

pecuniary values yet the jurisdiction of the District Judge to try a Civil suit or any value cannot be deemed to have been taken away on that

account. Section 19 of the Civil Courts Act is complete answer to Mr. Farooqui contention because a District Court is the principal civil court of

original jurisdiction in the District. No provision in the civil courts Act governing appeals which is in pari materia to section 19 is contained in the

said Act. The first contention raised by Mr. Farooqi is therefore overruled.

So far as his second contention is concerned, I find considerable force in it. The appeal, as already noticed, was filed within sixty days from the

date of the decree i.e. the period provided for filling appeals before Sub Judge, CJM Srinagar. No mala fide intention can thus be imputed to the

appellant or his counsel in filing the appeal in the court of District Judge as he could have easily filed the appeal in the court of sub judge. CJM,

Srinagar also on the very same day. Mr. Langer contention, however, is that the mistaken advice is not bona fide as neither the appellant nor his

counsel had been careful enough to find out as to whether the appeal lay to the District Judge or to any other court. I have perused the memo of

the appeal. The appeal has been preferred by Mr. Kak the court for the appellant himself The appellant has not been shown to be a person

conversant with legal niceties. In all probability therefore, he must have acted on the mistaken advice of his counsel, which, I am sure, was not in

any way a mala fide one. The notification was issued merely five years before the appeal came to be filed. For aught we know whether Mr. Kak,

was aware of the latest notification but the circumstances of the case do warrant an inference that he too slipped into an error for the was not

aware of the notification. There was absolutely no rhyme or reason to file this appeal in the court of District Judge and not in the court of sub

Judge, CJM, Srinagar as already observed. The principal is now well settled that where the mistaken advice of the counsel is not vitiated by

malafides, that per see would constitute a valid ground for condonation of delay under section 5 of the Limitation Act. This error on the part of Mr.

Kak cannot be explained on any hypothesis other that the one of a bona fide mistaken leaving apart whether or not proof of due care and caution

was still necessary to invoke the provisions of section 5 or 14 of the Limitation Act. In my opinion, therefore, the appellant was justified in taking

benefit of the provision contained in sections of the Limitation Act. Section 14 applies to suits and application alone and not to appeals, though it is

now well settled that the principal embodied in Section 14 can be imported into sections of the Limitation Act to constitute a sufficient cause for

condonation of the delay.

For the foregoing reasons I allow the appeal, set aside the judgement and decree or the lower appellate court and remit the appeal back to it for

its disposal on merits.