Vidya Kaur and Another vs Dalip Singh and Others

V.K. Jhanji, J.—This is defendant''s second appeal directed against the judgment and decree of the first appellate Court whereby appeal filed by them has been dismissed being barred by time and consequently, decree passed by the trial Court has been affirmed.

In brief, the facts are that plaintiffs (respondents herein) filed suit for declaration with permanent injunction as a consequential relief regarding the suit land against the defendants. Suit on contest, was decreed. Defendants preferred an appeal within the period of limitation but instead of filing the appeal with the District Judge, Hoshiarpur, with whom the-appeal lay, the appeal was filed with the Senior Sub Judge, Hoshiarpui having enhanced appellate powers. On finding that his Court was not competent to hear the appeal beyond the pecuniary jurisdiction of Rs. 250/-, the Senior Sub Judge returned the appeal for presentation before a Court of competent jurisdiction. It is the case of the defendants that the appeal was then presented to the District Judge, without any delay, alongwith an application under Sections and 14 of the Limitation Act for excluding the period the defendant had been prosecuting the appeal with due diligence before the Senior Sub Judge. The learned Additional District Judge vide judgment dated 12.3.1979 dismissed the application filed under Sections 5 and 14 of the Limitation Act and consequently, dismissed the appeal being barred by-time. Hence, the second appeal by the defendants.

Before the learned Additional District Judge, it was urged by the defendants that their counsel by mistake filed the appeal with the court of Senior Sub Judge, Hoshiarpur, under the bona-fide belief that the court of Senior Sub Judge was a competent Court of jurisdiction. Herein, it has been contended by the counsel that the suit was valued at Rs. 113.40P, but by wrong valuation the suit was valued at Rs.340.20P for the purpose of jurisdiction and. this mistake regarding pecuniary jurisdiction led to the filing of appeal before the Senior Sub Judge who had jurisdiction to try appeals arising out of suits, upto the pecuniary jurisdiction of Rs. 250/-. I find from the order of the first appellate Court that the action on the part of the counsel was not termed as male-fide. But at the same time it was also held that the counsel had not acted with due diligence, care and attention In my view, mistake on the part of the counsel was inadvertent. It is not denied that the appeal was filed with the Court of Senior Sub Judge within the period of limitation and on return, was immediately presented to the Court of District Judge who had the pecuniary jurisdiction to try the appeal. Thus, in these circumstances, the application for condoning the delay ought to have been allowed. Reference in this regard may be made to a judgment of the Supreme Court in Balbir Singh Vs. Bogh Singh, . In the case before the Apex Court, a first Appeal against the judgment of the trial Court lay directly to the High Court but it was filed in the court of District Judge under some bona-fide mistaken belief and the matter escaped scrutiny by the office at the time of presentation or even in course of hearing before Court which had no pecuniary jurisdiction. A Second appeal was filed before the High Court against the judgment of that Court and when the mistake was pointed out it was converted into first appeal and condonation of delay was sought. On the said facts, it was held that the appellant had sufficient cause for the delay in filing the first appeal in the High Court and he was entitled to the deduction of the period during which he prosecuted the appeal before the District Judge. On identical facts, this Court in Ajaib Singh and another v. Pritam Singh 1988 PLJ 404 held feat a litigant, in absence of any mala-fides, cannot be penalised for mistake of law committed by his counsel in filing the appeal before the wrong Forum. Consequently, the delay in filing appeal before the first appellate Court, is hereby condoned and judgment and decree for the first appellate Court is set side. The case is remanded to the court of District Judge, Hoshiarpur, for a deciding the appeal in accordance with law. This appeal is accordingly allowed, with no order as to costs.

Defendants through their counsel are directed to appear before the District Judge, Hoshiarpur, on 15.10.1997.