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1978 DIGILAW 893 (MP)

Virendra Bahadursingh v. Abdeali

1978-11-28

S.R.VYAS

body1978
Short Note : 1. Along with this memo of appeal so returned by the Court of the Additional District Judge and filed in the Court of the District Judge, the appellant submitted an application (I. A. No. 1) under section 14 of the Limitation Act both for extension of time as also for correcting the memo of appeal. In this application it was stated that the valuation was wrongly stated as Rs. 200 instead of Rs 6.432.50; that the appeal on such valuation should have been filed in the Court of the District Judge that the appellant was diligently prosecuting the appeal in the Court of the Third Additional Judge from 9-1-1967 to 3-4-1967 and that the said period should be excluded for the purposes of computation of the period of limitation under section 14 of the Limitation Act. It may be mentioned here that no application under section 5 of the Limitation Act was made by the appellant for the condonation of delay in filing the appeal before the District Judge, Ujjain. Held: From the language of section 14 it would be clear that it does not apply to appeals but applies to suits only. According to this explanation to section 14 a plaintiff or an applicant resisting an appeal has to be deemed to the plaintiff prosecuting the proceedings for the purposes of section 14 of the Limitation Act. Section 5 of the Limitation Act. however, provides that an appeal may be admitted after the prescribed period if the appellant satisfies the Court that he had sufficient cause for not preferring an appeal within such period From aforesaid provisions of sections 5 and 14 of the Limitation Act. it becomes clear that although section 14 in terms does not apply to appeals still the circumstances mentioned in that section (section 14) may be considered sufficient Cause within the meaning of section 5 so that time during which an appeal has been preferred and remained pending in the Court may be excluded for the purposes of calculating time and the Court may exclude the delay in preferring the appeal to the proper Court. 2. For the purposes of section 5 the appellant had to satisfy the District Judge that there was sufficient cause for not preferring an appeal within the prescribed period of limitation. 2. For the purposes of section 5 the appellant had to satisfy the District Judge that there was sufficient cause for not preferring an appeal within the prescribed period of limitation. For the purpose of section 14 the appellant had to satisfy that he was prosecuting the appeal before the Third Additional District Judge with due diligence and in good faith. Having considered the grounds taken in the said application I am clearly of the view that the appellant was not entitled to exclusion of time either under section 5 or under section 14 of the I imitation Act. 3. In support of the application made under section 14 on 4-4-1967, the appellant did not file any affidavit either of himself or of his counsel to explain as to why the valuation of the appeal was made at Rs. 200 and not at Rs. 6432.50 as it was in the trial Court. All that has been stated in the application was that he was prosecuting the appeal bona fide in the Court of the Additional District Judge and on that ground he was entitled to the exclusion of time spent by him in that Court. How the valuation was scaled down from Rs. 6432.50 at Rs. 200 for filing the appeal in the Court of the Additional District Judge was not explained in the said application. The counsel who filed the appeal in the Court of the Additional District Judge did not even sign the application and also filed no affidavit to explain as to how the appeal was valued. As stated above, the respondent put in their appearance before 6-3-1967 and by way an application, raised a specific objection that under-valuation is not only bona fide but deliberate also and that considering the correct valuation of the appeal, it should have been filed in the Court of the District Judge. The appellant's learned counsel received a copy of this application on 1-3-1967 but took no steps to correct the valuation and pray for the return of the appeal memo so that the same could have been filed in the proper Court. The appellant's learned counsel received a copy of this application on 1-3-1967 but took no steps to correct the valuation and pray for the return of the appeal memo so that the same could have been filed in the proper Court. Even before taking back the memo of appeal from the Court of the Additional District Judge, the appellant submitted an application to that Court that he was moving the District Judge for the transfer of this appeal from that Court to his Court and that pending orders on his transfer application, the hearing of the appeal may by stayed. All these facts, therefore, go to show that the appellant not only desired that his appeal should continue to remain pending in the Court of the Additional District Judge, but also failed to explain as to how the appeal was undervalued. To cause no objection has been raised by the respondents in the Court the Additional District Judge on 1-3-1967 or the appellant's counsel had not been aware of the objection raised by the application dated 1-3-1967 it could be urged that the appellant was not aware of the objection regarding jurisdiction taken by the respondents and under a bona fide belief thought that the appeal filed was in the proper Court. This is however, not so. No sooner the objection was specifically raised by the respondents, the appellant should have taken a note of it and should have taken immediate action in making a prayer for the return of the memo of appeal for being presented to proper Court. The appellant's learned counsel, who received copy of the respondents' application dated 1-3-1967 has not come forward to explain the circumstances as to why no action was taken by him in the face of the objection raised regarding the jurisdiction of the Court of the Additional District Judge. On these facts, it cannot be said that the appellant has either made out a case for exclusion of time under section 14 or has made out a sufficient cause for condonation of delay under section 5 of the Limitation Act. 4. It has been held in Nanulal Krishanlal v. New Malwa Transport Co. On these facts, it cannot be said that the appellant has either made out a case for exclusion of time under section 14 or has made out a sufficient cause for condonation of delay under section 5 of the Limitation Act. 4. It has been held in Nanulal Krishanlal v. New Malwa Transport Co. ( 1972 JLJ 397 ) that the Court of the Additional District Judge is distinct from the Court of the District Judge after the coming into force of the Madhya Pradesh Civil Courts Act, 1958 The appellant was, therefore, bound to take a note of the order passed by the District Judge under section 15 of the M. P. Civil Courts Act and file his appeal in the Court of the District Judge only as according to this order the appeal should have been filed in his Court. If inspite of an objection being raised, the appellant not only kept quiet but on the contrary insisted that he will apply to the District Judge for the transfer of the appeal and till then the appeal may be kept pending in the Court of Additional District Judge, then it cannot be said that he Was either acting in good faith or he was prosecuting his appeal before the Additional District Judge diligently or that there was any sufficient cause for not making a prayer for the return of the memo of appeal for being presented to the proper Court. AIR 1937 PC 276 , 1972 JLJ 397 , AIR 1972 SC 730 and AIR 1958 SC 767 relied on. AIR 1971 SC 2312 , 1971 JLJ 551 and 1966 JLJ 543 , distinguished. Appeal dismissed.