Messrs. Daya Chand Sham Lal vs Sheikh Mohd. Amil and Others

Shamsher Bahadur, J.—The only point for determination in this appeal is whether there was sufficient cause for the lower appellate Court to grant extension of time u/s 5 of the Indian Limitation Act.

In a suit for ejectment a decree was passed in favour of the landlord by the trial Court on 17th of September, 1959. The appellants aggrieved by this order made an urgent application for copies of the judgment and decree on 18th of September, 1959. The certified copy of the judgment was ready for delivery almost three months later on 16th of December, 1959 while a certified copy of the decree was not ready for delivery even till 12 days thereafter viz. 28th of December, 1959. Taking into reckoning the time requisite for obtaining the copies, the appeal should have been filed before the lower appellate Court on 27th of January, 1960. The certified copies of the judgment and decree were delivered to the appellants on 2nd of February 1960 on which date they were filed in Court. The memorandum of appeal with an uncertified copy of the judgment had already been filed on 28th of October, 1959 with the object of obtaining an order for stay of ejectment.

In an application u/s 5 for extension of time, the appellant pleaded illness for a period of six weeks from 28th of December 1959. The lower appellate Court after a consideration of this evidence came to the conclusion that the appellants had "miserably failed to prove that from 28th of December, 1959 to 1st of February 1960 Sham Lal remained ill and was incapable of obtaining copies of the judgment and the decree. On the other hand, I am convinced that this plea of ill-ness is false and is rejected without any hesitation". The appeal was accordingly dismissed on the preliminary question of limitation.

Mr. Gurbachan Singh, the learned counsel for the appellants, has made no attempt to challenge the finding of the lower appellate Court and has conceded that on the evidence he is not in a position to say that the conclusion of the Court is unreasonable.

The matter, in the counsel''s submission should rot, however, be permitted to rest there. On 23rd of October 1959, an application was presented to the District Judge for stay of dispossession and it was stated therein that the certified copies of the judgment and decree had not been obtained till then and permission was sought to file uncertified copies of the judgment and decree. It was stated in this application that repeated efforts had been made to obtain certified copies. It is true that the appellant has not established that he made any further enquiries about the certified copies from the copying Department. This negligence on the part of the appellant pales into insignificance as compared to the appalling delay which has been occasioned in the preparation of the certified copies by the Copying Department. While the judgment of the Court was delivered on 17th of September 1959, the copies were not ready for delivery by the Copying Department till the 28th of December 1959. It would be placing an intolerable burden on the litigants to expect them to make day enquiries for certified copies from the Copying Department for such a protracted period. There is authority for the proposition that where there is delay in preparation of certified copies, some intimation ought to be given to the applicant when these are actually ready for delivery. In Madan Singh and others v. Puran Singh AIR 1954 S.C. 411 it was held by Raoof J. that "where the delay in producing a copy of the decree was due to the office not informing the applicant of the date when the copy would be ready, limitation was extended u/s 5. Even the lower appellate Court realized that the Copying Department had some duty to give intimation about the copies being ready for delivery. As observed by him, "the important date is not the date on which the appellant takes delivery but the date on which the copy is ready for delivery provided he had notice that the copy would be ready on that date."

It has to be borne in mind that the delay in the present instance was only of a few days The appeal should have been filed on 27th of January 1960 and the certified copies were actually produced in Court on the same day when they are delivered to the appellants, that is to say, the and of February 1960. In the background of these facts, I am not appeared to say that the negligence of the appellants merited a dismissal of their appeal on ground of limitation. On the other hand, I consider that it, was a fit case in which discretion should have been exercise in their favour, their being sufficient cause for doing so. As held by their Lordships of the Supreme Court in Dinabandu Sahu v. Jadumoni Mangaraj AIR 1954 S.C. 411, "the words ''sufficient cause'' should receive a liberal construction so as to advance substantial justice when negligence nor inaction or want of bona fides is imputable to the appellant". That the appellant was making enquiries for certified copies till October cannot be denied and this allegation in the application of 23rd of October has not been controverted. No inaction could be attributed to the appellants at any rate till the 28th of December 1959 when the copied were actually ready for delivery. In view of the inordinate delay for which the Copying department is responsible, it could not be guessed by the appellant when the copies would be actually ready for delivery unless it is expected that he should have visited the Copying Department every second or third day for a long period of more than three months.

The learned counsel for the respondents has urged that the memorandum of appeal should be taken to have been actually filed on 19th of May 1960. The certified copies, which were filed in Court on 2nd of February 1960, were not stamped with the proper court-fee and it was only on the objection of the respondents that this deficiency was made up under the orders of the Court on 19th of May 1960. Mr. Mittal, the Additional District Judge, at that time permitted the appellants to make up the deficiency with the observation that it would not prejudice any objection which the respondents may make. The learned Judge who heard the appeal, understood the order of Mr. Mittal to mean that the delay had actually been condoned under the provisions of section 149 of the Code of Civil Procedure. The learned Judge could have condoned the delay himself and the adequate court-fee having been received by the Court on 19th of May 1960. I do not see much force in this technical objection.

In the result, I would allow this appeal and hold that the memorandum of appeal was filed within time. The case would now go back to the additional District Judge, Delhi, for hearing on merits of above the parties to bear their won costs. The parties have been directed to appear before the Additional District judge on 20th of November, 1961.