Raj Mohan Das vs Mirzamal Agarwalla

Deka, J.—This Rule was issued at the instance of the Petitioner for condoning the delay in filing the second appeal in question which was filed two days out of time. The last date for filing the appeal was 23-8-1952 but it was presented on 25-8-1952. The cause shown for the delay is that the Petitioner came to file this appeal to Gauhati and approached the Advocate on 17-8-1952 who after examining the papers told the Petitioner that the certified copies of the judgment and decree of the first Court were essential and they were not there.

The Petitioner, accordingly went back to Now-gong with a view to obtain the certified copies of the documents aforesaid from the Court of the Munsiff at Nowgong and he succeeded in obtaining these copies on 23-8-1952. He came down to Gauhati on 24-8-1952 which was a Sunday and filed the appeal on 25-8-1952. It has been opposed by the opposite party who is Respondent in the appeal on the ground that the Petitioner had not been diligent in the matter of obtaining necessary copies and accordingly he deserves no indulgence from the Court.

Mr. Goswami for the Petitioner has relied on the decisions of several High Courts and they are-- Banke Lal Vs. Bhola Nath, --''George Gowshala v. Balak Ram'' AIR 1927 Lah 717(B);--''Mt. Ghulam Aishan Bibi v. Mohammad Sharif'' AIR 1936 Lah 1007(C) and--''Po Aung Maung v. U. Bya'' AIR 1925 Rang 344 (D). I fully agree with the Rangoon view that where filing of the certified copies of the Judgment and decree of the first Court is required under the rules, the delay involved in obtaining those copies might be considered to be one of the valid reasons for the purpose of extending the time for registration of the appeal. Other decisions also support that view though the Lahore decisions go to the extent of favouring the extension of the time u/s 12, Limitation Act.

It, however, not being in the Act, time taken for obtaining the copies of the judgment and decree of the first Court cannot in my opinion, be taken as time requisite for obtaining copies as provided u/s 12, Limitation Act, but it can certainly come for consideration as sufficient reason u/s 5, Limitation Act for extension of time, if the Appellant is otherwise diligent and the applications for those copies are made within the time for filing the appeal.

Order 41, Rule 1, CPC dealing with appeals from original decrees provides that the memorandum of appeal should be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which It is founded. Order 42, Rule 1 which deals with appeals from appellate decrees, lays down that the rules of Order 41 shall apply so far as may be, to appeals from appellate decrees. But the Calcutta High Court which framed its own rules under the CPC made it obligatory that:

every memorandum of appeal from an appellate decree should be accompanied by a copy of the decree appealed from and also (unless the Court wishes to dispense with any or all of them) by copies of the judgment on which the said decree is founded and of the judgment and decree of the Court of the first instance.

In this case, it is admitted by both parties that the rule framed by the Calcutta High Court applies to the Assam High Court and it is necessary to file the copies of the judgment and decree of the Court of the first instance along with the memorandum of appeal from an appellate decree.

Mr. Gupta for the opposite party has contended that the Petitioner made his application for copy of the judgment and decree of the first Court on 18th August but stamps and folios necessary for the copies though notified on the 20th August there was no reason to wait for putting in these requisites till 23rd August 1952. I find. from the High Court calendar that 22nd August was really a closed day both for the Civil Court as well as the High Court and I find no negligence on the part of the Petitioner for not putting in stamps earlier than 23-8-1952.

Mr. Gupta for the opposite party has relied on some of the decisions which deal with negligence of the parties and in my opinion none of those cases has a direct bearing on the facts of this case. The cases relied on by him are--''Krishna Rao Dattatraya v. Trimbak'' AIR 1938 Nag 156 (E); ''Gaya Charan v. Jagan Nath'' AIR 1936 Oudh 9 (F) and-- Elahinewaz Khan Vs. Biseswar Baisya and Others, On a close examination of the facts leading to the delay in filing the appeal, I am of opinion that the time may be extended by two days for filing this appeal and the appeal may be registered as presented. The Rule is made absolute and the opposite party to pay costs of this Rule to the Petitioner. Hearing fee is assessed at Rs. 16/-