Jagir Singh vs Basant Singh and others

P.C. Pandit, J.—There is no dispute regarding the facts giving rise to this second appeal.

Jagir Singh, appellant, had filed a suit for pre-emption which had been partly decreed by the trial court. Against that decision, ho went in appeal which, admittedly, had been filed in the court of the learned District Judge, Ludhiana. It is common ground that the last date for filing the said appeal was 12th of September 1965 and on that date it was a holiday. So the appeal could be filed on the next day i.e. 13th of September, 1965. It is again the common case of the parties that the appeal was filed on that date, but in the court of the Senior Subordinate Judge, Ludhiana, although it was addressed to the District Judge of the same place. This according to the appellant,. was due to an error on the part of the clerk of his counsel It is said that the petition box, in which the said appeal had been put in, was opened towards the fag end of the day and the learned Senior Subordinate Judge passed orders on the said appeal to this effect; ''office to check and report en 14th September, 1965''. On that very day i.e. lath September, 1985 the office note was : ''the appeal is properly stamped. It is beyond the jurisdiction of this Court.'' It appears that this mistake was defected and on the very next day i.e. 14th of September, 1965, the appeal was taken back from the court of the Senior Subordinate Judge, Ludhiana, and re-filed in the court of the District Judge, Ludhiana An application under sections 5 and 12 of the Limitation Act read with section 151 of the CPC for condoning the delay of one day in filing the appeal was also put in on the same day before the learned District Judge. It was stated therein that due to an error of the clerk of the counsel, the appeal was filed in the Court of the Senior Subordinate Judge although it was addressed to the learned District Judge, Ludhiana. The Clerk of the Court; accepted the appeal erroneously although it was not addressed to the court of the Senior Subordinate Judge. The error was bona fide. This mistake took place, because of the error of the clerk of the counsel and that of the clerk of the court. It was prayed that the delay of one day in filing the appeal be condoned and it was also submitted that the period of one day, during which the appeal remained pending in the court of the Senior Subordinate Judge, be excluded in computing the period of limitation. This application was rejected by the learned Additional District Judge who heard the case and the plaintiff''s appeal was.also dismissed on chat very ground against this decision, the present second appeal has been filed by Jagir Singh.

It is undisputed that the appeal had been addressed to the learned District Judge, Ludhiana. It appears that due to mere over sight, the clerk of the plaintiff''s, counsel-put it in the petition box attached to the court of the Senior Subordinate-Judge. If the presiding, officer of the court had noticed that fact when the appeal was placed before him, he would have immediately returned it to the appellant who could have then tiled the same in the court of the learned District Judge on that very day i.e. 13th of September 1965 within limitation. Immediately when this mistake was discovered by the plaintiff''s counsel, or his clerk, the appeal was taken back from the court of the Senior Subordinate Judge on 14th of September 1965 and re filed in the court of the learned District Judge on that very day. The counsel was also careful enough to file a petition under sections 5 and 12 of the Limitation Act in the court of the District Judge along with the appeal. All these facts show that error on the part of the clerk of the counsel was a bona fide one and due to mete oversight. The plaintiff had engaged a counsel and he should not be made to suffer on account of the oversight on the part of the clerk of his counsel. Under these circumstances, in my opinion, the plaintiff was entitled to the benefit of section 5 of the Limitation Act. It was held by a Division Banch of the Lahore High Court in AIR 1926 693 (Lahore) that where an appeal was filed a day later, through oversight of the counsel''s clerk, time might be extended u/s 5 of the Limitation Act.

I would, therefore, accept this appeal, set aside the judgment and decree of the lower appellate court and remit the case to the learned Additional District Judge for decision on merits. The parties have been directed to appear before him on 20th of November, 1967. There will, however, be no order as to costs in this Court.