Deka, J.:— This appeal arises from the judgment and decree of the Subordinate Judge, Dhubri, dismissing the appeal filed from the decree passed by the Munsiff of Dhubri in T. Suit No. 103 of 1946.

2. The suit was for eviction of the defendants from 14 K. 15 dhurs of land within the Dhubri Municipality. It is admitted by both parties that the defendants took the land in question on lease for an indefinite period for stacking their timber and for raising such structures as may be incidental to this purpose at an annual rent of Rs. 9-8-6 in the year 1342 B.S The land forms a part of the permanently settled land belonging to the Gauripur Estate—and the plaintiff is an occupancy rayat under the said Estate. The plaintiff served a notice to quit on the defendants asking them to deliver possession within fifteen days of the receipt of the said notice and the defendants did not give up possession even after receiving the notice and hence this suit.

3. The defendants contested the suit on various grounds but the main issue was whether fifteen days notice was sufficient for the purpose Page: 101or the defendants were entitled to six months' notice as provided under the Goalpara Tenancy Act. The point for decision in other words, was whether G.T Act applied to the facts and circumstances of the case or the Transfer of Property Act applied and in the latter case, whether the notice was valid.

4. The learned Munsiff decided in favour of the plaintiff and held that G.T Act had no application to the facts of the case—one of the reasons being that the tenancy of the defendants was not for agricultural purposes. In this view he held the notice to be sufficient and decreed the suit for eviction.

5. The learned Subordinate Judge decided the appeal on a preliminary point,—namely whether the appeal was presented within time. He held that the appeal was presented out of time—and that there were not sufficient grounds for extending time under Section 5 of the Indian Limitation Act. He expressed, however, that on merits he held a view different from the Munsiff as to the adequacy of notice. According to the learned Subordinate Judge G.T Act applied to the facts of the case and not the Transfer of Property Act and that fifteen days notice was not enough.

6. It has been urged on behalf of the defendant-appellants that the learned Sub-Judge has wrongly decided the question of limitation and that the appeal was actually presented within time and that if it be regarded as presented out of time—the learned Subordinate Judge ought to have held that Section 5 of the Limitation Act applied to the facts and circumstances of the case. It was further contended on behalf of the appellants that the provision of G.T Act applied with respect to the notice to quit and not the Transfer of Property Act, having regard to the fact that although the land is included within the Dhubri Municipality the land has not been excluded as provided under Section 1(2)(ii) of the G.T Act and that whatever be the purpose of the tenancy,—the character of the original tenancy is not changed and the land having been described as agricultural at the time the tenancy was created,—it must be regarded as agricultural land to which the provisions of G.T Act were attracted—& the defendants enjoyed the rights and privileges of an under-tenant as described under Section 6(4) of the G.T Act.

7. Mr. Ghose appearing for the respondent urges that the appeal was rightly dismissed as time-barred and that even assuming that Section 5 of the Limitation Act had application to the facts of this case, there is no right of second appeal from an order refusing to extend time under Section 5 of the Limitation Act. With regard to the merits of the case he contends that the Gazette notifications relating to the territorial limits of a Municipality are sufficient for the purpose of showing the land as situated within the Municipality and so exempted from the operation of the G.T Act. His third contention is that the land according to the definition given in the Section 4(10) of the G.T Act, is land which is let out or occupied for agricultural purposes or purposes subservient thereto—and that the Act has no application to a lease of lands taken for residential or commercial purposes, as in this case.

8. In this case, the judgment of the Munsiff was delivered on 30-4-49 and the decree was signed on 30-5-49—the copies of judgment and decree were applied for on 26-5-49 and they were ready for delivery on 31-5-49 and the appeal before the Subordinate Judge was filed on 8-6-49. According to the view held by this Court the last date for filing the appeal was 5-6-49 and the appeal was therefore presented three days out of time. According to the practice followed by the Calcutta High Court the appeal was presented within time. It was contended in the Court below and before us that the Calcutta view should prevail. The learned Subordinate Judge very significantly says that

“at last the learned lawyer seeks protection under Section 5 of the Limitation Act and that he was misled by the long standing practice of the Calcutta High. Court which excluded the period from the date of the judgment to the date of signing the decree as the time requisite for copies under Section 12 of the Limitation Act.”

9. The question for our consideration is whether the appellants were misled by the practice prevailing at the time of the presentation of the appeal. The learned Subordinate Judge did not put any reliance on the plea that they were actually misled by the prevalent practice.

10. It appears that there was no application for extension of time under Section 5 of the Limitation Act when the appeal was filed or even at the time it was heard. On the contrary there is a specific statement made in the memorandum of appeal to the effect that this appeal though presented on 8th June, 1949, was within time because of the decree being signed on 30-5-49:

“Be it noted that the decree of the lower Court Suit No. 103 of 1946, was prepared and signed by the Munsiff on 30-5-49 and as such the period of limitation has been extended and hence the appeal though filed today the 8th June, 1949 is not barred by limitation.”

11. This fends to show that the appellants were aware at the time of filing the appeal that this High Court had in the meantime held that the time for filing an appeal runs from the date of the judgment and not from the date of signing the decree. The decision of this High Court on the point might have been reported later but there is no reason to suppose that it was not known to the members of the bar earlier.

12. It was for the appellants to satisfy the Court of appeal below that they were actually misled by the practice prevailing, which they failed to do. The learned Subordinate Judge has rightly refused to accept the appellants' plea that he was not aware of the decision of this High Court pronounced nine months earlier than the date of the filing of the appeal.

13. With regard to the contention raised on behalf of the appellants that a fresh gazette notification under the G.T Act, is necessary to exclude any parcel of land situated within a Municipality from the operation of this Act,—I think there is substance in this contention. Section 1, sub-section (2) of the Goalpara Tenancy Act runs as follows:

“It extends to the district of Goalpara, except (i) any area which is not permanently settled, Page: 102(ii) any area constituted or deemed to have been constituted a municipality under the provisions of the Assam Municipal Act, 1923, or part thereof, when such area or part is specified in a notification in this behalf by the (Provincial Government).”

14. It has been urged on behalf of the respondent that ‘notification in this behalf’ means not a notification under the G.T Act, but under the Assam Municipal Act of 1923. This contention is clearly untenable. It was known at the time of the passing of the G.T Act, 1929, that certain areas had been already incorporated into Municipalities in the District of Goalpara and those areas had been already notified. There was, therefore no purpose in having them notified once again; what was meant was that if any portion of such lands constituting the Municipality was intended to be taken out of the operation of the G.T Act, the Local Government could do so by having that area specified in a notification published under the G.T Act.

15. Section 1(3)(iii) of the Bengal Tenancy Act is almost identical to the terms of Section 1(2)(ii) of the G.T Act & it has been held by the Calcutta High Court consistently in a series of decisions that a fresh Gazette notification is necessary under the Bengal Tenancy Act to exclude any portion of the Municipal land from the operation of the said Act.

16. Section 14(2) of the Goalpara Tenancy Act runs as follows:

“The exclusion from the operation of this Act, by a notification under Cl. (ii) of sub-section (2) of S. 1, of any area referred to in that clause shall not affect any right, obligation or liability previously acquired, incurred or accrued, in reference to such area or part thereof.”

17. The opening lines make it clear that the exclusion from the operation of this Act has to be done by a notification under Cl. (ii) of sub-section (2) of S. 1, and that the notification under the Municipal Act would not appear to be enough. In this case it has been admitted by the respondent that there was no notification issued by the Local Government excluding the area in dispute from the operation of the G.T Act. The respondent relied on the Gazette notification dated 2nd January, 1917, giving the boundaries of the Municipality of Dhubri. It is, therefore, clear that the G.T Act has application to the locality where the disputed area lies in the absence of any notification under the G.T Act to the contrary.

18. The word land has been described in the G.T Act as follows:

““Land” means land which is let out or occupied for agricultural purposes or purposes subservient thereto, and includes the sites of buildings appurtenant to such land.”

19. The defendant claims to be an under rayat under the plaintiff. The word under-rayat is described in the G.T Act as a ‘tenant holding land immediately or mediately under a rayat’. To attract the operation of this section the land in suit must be as described in Section 4(10) of the G.T Act.

20. It has been found by both the Courts that the tenancy of the defendants was not for agricultural purpose but for residential purpose and for stacking timber—a commercial purpose and not for the purpose of agriculture as defined in the G.T Act. The purpose for which a tenancy is created is very material to determine the nature of tenancy and its incidents. Under similar circumstances, it was held by the Calcutta High Court in ‘Harendra Kumar v. Harakishore Pal’, 26 Cal WN 389, following a series of earlier decisions of that Court, that when the tenancy is not for agricultural or horticultural purpose but for residential and allied purposes, the tenancy was governed by the provisions of the Transfer of Property Act and not by the B.T Act. This ruling has been further strengthened by a later decision of the Calcutta High Court reported in ‘Munshi Alauddin Ahmed v. Tamizuddin Ahmed’, 41 Cal WN 1001, where it has been held that the Bengal Tenancy Act does not apply to a lease for non-agricultural purpose even though it be a lease of agricultural lands or tenanted by cultivating tenants and such a lease would be governed by the Transfer of Property Act. This ruling applies with all force to the circumstances of the present case, the connotative interpretation of land being identical in the B.T Act and the G.T Act.

21. The case reported in ‘Arun Kumar Sinha v. Durga Charan Basu’, 45 Cal WN 805, on which the appellants rely is not of much assistance to them, the learned Judges having observed in that case, that

“unless the letting was for purposes of agriculture the Tenancy would not be governed by the B.T Act even if the superior interest was vested in the holder of a tenure to which the B.T Act was applicable.”

22. It is, therefore obvious that the G.T Act had no application to the tenancy in dispute and that it was the Transfer of Property Act which applied. In this view the notice to quit was quite proper & valid under Section 106 of the Transfer of Property Act & the plaintiff was entitled to get a decree for eviction against the defendants.

23. The result is that the appeal is dismissed with costs.

Thadani, C.J:— I agree.

Ram Labhaya, J.:— It is not necessary to re-state the facts. They have been fully stated in the judgment of my learned brother Deka J., I agree with him in the conclusion which he has reached but as some important questions are involved and I have found it difficult to see eye to eye with him on the question of limitation. I am stating my views on all the questions that arise in the case.

24. One contention raised by the learned counsel for the appellant is that since the area in which the land is situate has been included within the municipal limits of Dhubri by a notification of the Provincial Government issued under the Municipal Act, the Goalpara Tenancy Act has got no application to it and therefore the notice issued to the defendant-respondent was invalid in law.

25. In my opinion this contention should not prevail. The relevant part of the provision which requires to be interpreted is as follows:

“This Act extends to the District of Goalpara except

(ii) any area constituted or deemed to have been constituted a municipality under the Page: 103provisions of the Assam Municipal Act, 1923, or part thereof, when such area or part is specified in a notification in this behalf by the Provincial Government.”

26. The requirements of Cl. (ii) of sub-section (2) of S. 1, are that the area in question should be constituted or deemed to have been constituted a municipality under the provisions of the Municipal Act & in addition to this the area or part should be specified in a notification “in this behalf by the Provincial Government.” It is apparent that the mere fact that the area has been constituted or deemed to have been constituted a municipality would not be enough to bring the case within the purview of Cl. (ii) of sub-section (2). The second requirement is an essential pre-requisite to the application of the clause to the area. The requirement that such area or part should be specified in a notification in this behalf is significant as well as imperative. It cannot be dismissed as a surplusage or something redundant. That would be opposed to a well-recognised canon of interpretation according to which an interpretation that leads to redundancy is to be voided. A notification under S. 1, sub-section (2) is therefore, contemplated and this intention of the legislature is clear from the plain language of the section. I can discover no justification for ignoring a very important portion of sub-clause (ii), embodying a distinct requirement, in addition to the fact that the area has been constituted or deemed to have been constituted a municipality.

27. The view finds support from the language of S. 14, Cl.(2), which provides that the exclusion from the operation of this Act, by a notification under Cl. (ii) of sub-section (2) of S. 1, of any are referred to in that clause shall not affect any right and obligation previously acquired. The intention of the legislature is made manifest here. The express notification under Cl. (ii) of S. 1, sub-section (2). is apparently contemplated for the exclusion of any area within the district of Goalpara from the operation of the Goalpara Tenancy Act. The words “notification in this behalf” bring out the necessity of a notification under the Act, providing for the exclusion of the area from the operation of the Goalpara Tenancy Act if such an area has already been constituted or deemed to have been constituted a municipality.

28. In ‘Kali Sahu v. Girdhari Misri’, 50 Ind Cas 778 (Pat), Das J., of the Patna High Court held that lands situated within a Munipality are within the scope of the Bengal Tenancy Act, unless they are gazetted out of its operation by a notification duly published by the Local Government. The learned Judge in that case was interpreting the provisions contained in the Bengal Tenancy Act as amended. The language used in the provision is identical with that employed in cl. (ii) of sub-s. (2) of section 1. In ‘Iswar Chandra Agradani v. Jogendra Lal’, AIR 1927 Cal 126, a Division Bench of the Calcutta High Court also placed the same interpretation on Section 1 of the Bengal Tenancy Act which corresponds to Section 1, sub-section (2), clause (ii) of the Assam Goalpara Tenancy Act. It was emphasised in this case that in the absence of any notification as is contemplated by Section 1 of the Bengal Tenancy Act, the mere fact that the land is situate within the Municipal area is not sufficient for holding that Chapter 10 of the Bengal Tenancy Act does not apply to it. These two cases fully support the view that I take of the matter and I am in respectful agreement with the learned Judges who had occasion to interpret the language used in the Goalpara Tenancy Act. My conclusion therefore, is that the mere fact that an area has been included in a municipality by a notification under the Municipal Act, does not automatically exclude it from the operation of the Goalpara Tenancy Act.

29. The Goalpara Tenancy Act, however, should not apply to the land in question on the second ground urged by Mr. Ghose. His contention is that the subject-matter of the suit is not land as defined in the Goalpara Tenancy Act. The lease also was not for agricultural purposes. The Tenancy Act in these circumstances cannot regulate the relationship of the parties as evidenced by the Amolnama, dated 9th April, 1936 (Ex. 1). Here Mr. Ghose is on solid ground. The land in the Goalpara Tenancy Act is defined as follows:

“Land means the land which is let out or occupied for agricultural purposes or purposes subservient thereto, and includes the sites of buildings appurtenant to such land.”

30. It is clear that land in order that it should be treated as land for purposes of the Goalpara Tenancy Act, must have been let out or occupied for agricultural purposes or for purposes subservient thereto. The nature of the land is not at all the determining factor. That land may be agricultural in nature but if it is not let out for agricultural purposes or for purposes subservient thereto, it would not be land within the meaning of the Goalpara Tenancy Act. A person taking land for purposes other than agricultural would not be a raiyat within the meaning of the definition of the word “raiyat” given under S. 6(3).

“Raiyat” is primarily a person who has acquired from the proprietor or a permanent tenure holder of a jotedar, or from the holder of an ‘ijara’ under any of these persons, a right to hold land for the purposes of cultivating it by himself, or by the members of his family, or by servants or labourers or with the aid of partners, and includes also the successors in interest of a person who has acquired such a right. Even a ‘raiyat’ must hold the land as defined in the Act for purposes of cultivation. Similarly, an under-raiyat who is defined in S. 6(4) means a “tenant” holding land (as defined in the act) immediately or mediately under a raiyat, etc. Since an under-raiyat must hold land the land must be land which fulfils the requirements of S. 4(10) which defines land. If a sub-tenant holds land but not for agricultural purposes, he would not be a under raiyat for the purposes of the Goalpara Tenancy Act. His case would not be covered by the definition of an under-raiyat. He can claim that status only if he is holding land for agricultural purposes or for purposes subservient thereto.

31. The amolnama executed on 9th April, 1936 contained recitals to the effect that the delendant-company applied to the plaintiff for settlement of the land in dispute. According to the amolnama, the land was owned and possessed Page: 104by the plaintiff and her husband who executed the amolnama on behalf of the plaintiff settled the land with the defendant company and allowed it to construct houses as a tenant under his wife. The execution of the regular lease deed later was also contemplated. This appears from the terms of the amolnama. Whether this amolnama creates a fresh tenancy or not is not material. It is evident that whatever the nature of the land before this amolnama was, at this stage there was an agreement between the plaintiff and the defendant by which the defendant was permitted to construct houses on the said land. If the land was agricultural before its nature was permitted to be changed.

32. The purpose of the occupation was not agricultural is also clear. The lease was in favour of Messrs Himatsingka Timber Limited. It was presumably for the timber business that the land was taken. Defendant's witness No. 2 deposed that houses had been erected on the suit land about 10 or 12 years before 9th March, 1949, the day on which he gave the evidence. D.W 3, admitted that though he had been seeing the locality for a long time, he had never seen any one ploughing the land. D.W 4, an employee of the defendant also admitted that cultivation in the land was only up to 1936 and never afterwards. It is clear from defendants evidence that the land was not taken for purposes of agricultural or subservient thereto. The trial Court came to a definite finding that the tenancy was for residential and business purposes. The deft-company got land for residential and business purposes and it was probably this circumstance which prompted them to obtain the permission of the landlord for building on it though they had acquired tenancy rights from Mst. Kumudini Datta, the previous tenant. The appellate Court also agreed with the trial Court that deft-company got land for residential purposes. This according to the appellate judge was clear from the documents relied on by the deft. There thus can be no question that the deft-company got the land in dispute for non-agricultural purposes. Since the amolnama, it has never been used for agricultural purposes. The subject-matter of the suit therefore, is not land within the definition of the word as given in the Goalpara Tenancy Act, nor is deft, an under-raiyat for purposes of the Act. He cannot, therefore, claim that the Goalpara Tenancy Act, should regulate his relationship with the plff. in this case.

33. Mr. Ghose in support of his contention has relied on four authorities from the Calcutta High Court. Of these, the first case, ‘Banowari Lal v. Gopal Chandra’, 37 Cal WN 471, is distinguishable. In this case it was held that the fact that superior holding was an agricultural holding does not entail the consequence that the subordinate holding created thereout must be governed by the incidents of that holding (i.e by the Bengal tenancy Act) when the subordinate holding was created prior to the Bengal Tenancy Act and after the Transfer of Property Act and created expressly, for residential purposes. It is clear that the case will be an precedent where the holding was created before the Bengal Tenancy Act came into force. If, therefore, the cases were otherwise applicable, the tenancy in this case should have been created before the Goalpara Tenancy Act came into force. This is not the case. This case, therefore, does not assist him.

34. ‘Alauddin Ahammad v. Tomizuddin Ahammed’, 41 CWN 1001, is the next easel on which he has placed reliance. This lays down the principle that “the Bengal Tenancy Act does not apply to a lease for a non-agricultural purpose, even though it be a lease on agricultural lands or lands with cultivating tenants thereon. Accordingly, the true test to determine whether a lease for collection on rents does or does not come under the Bengal Tenancy Act is not whether the lands comprised in it are or are not agricultural lands but whether or not the letting was for agricultural purposes.”

35. His next case ‘Radhanath v. Krishna Chandra’, 40 Cal WN 722, goes a little further. It lays down that whether a tenancy is governed by the Bengal Tenancy or by the Transfer of Property Act depends upon the purpose for which the tenancy was created. User of the land for agricultural purposes where the tenancy is shown to have been created for residential purposes does not bring the tenancy under the Bengal Tenancy Act, According to this view, where the purpose oil the tenancy was non-agricultural, its use even for agricultural purposes would not bring it within the purview of the Bengal Tenancy Act.

36. The fourth case cited by him was ‘Narendral Kumar v. Harakishore Pal’, 26 Cal WN 389. In this case, the raiyat was occupying his homestead within the limits of a municipality as part of his non-transfer able occupancy holding. He first sold the entire holding excepting the homestead and then sold his homestead for the purpose of residence and for non-agricultural purposes. The transfer was recognised by the plaintiff landlord who received salami and granted rent receipts to the defendant, the transferee of the homestead. It was held that the tenancy originated in fresh settlement with the plaintiff and that in view of the purpose for which the new tenancy was created, it was governed by the provisions of the Transfer of Property Act. The last three cases enunciate the principle that it is the purpose of the lease which determines whether it is the tenancy Act that should govern the relationship of the landlord and tenant or the Transfer of Property Act. This principle is not open to exception and I am in respectful agreement with the learned Judges who laid it down.

37. Mr. Lahiri, has distinguished these cases on the ground that they do not deal with the cases of sub-tenant or under-raiyats, and has produced a string of authorities in support of the proposition that where the land included in the holding of an agricultural raiyat consisted partly of agricultural and partly of homestead land and the portion used as homestead was let out for use as homestead the undertenant was under-raiyat under the Bengal Tenancy Act and the Transfer of Property Act did not apply. The first case in which this proposition was laid down is reported in ‘Babu Ramroj v. Mahendra Nath’, 8 Cal WN 454. It was followed in ‘Pankajini Debi v. Satish Behara’, 40 Cal WN 35, and ‘Rampado Sirkar v. Alore Dome’, 40 Cal LJ 307 at p. 309. In all these three cases, the proposition that if a raiyat holds land partly Page: 105agricultural and partly homestead the incidents of the holding would regulate the incidents of the sub-lease created by the raiyat was recognised. The ratio decidendi was that it is the nature of the original tenancy and not the nature of the tenancy with reference to a particular piece of land that has got to be looked to for determining whether the case is governed by the Tenancy Act or the Transfer of Property Act. The last case relied on by Mr. Lahiri in this connection is ‘Arun Kumar v. Durga Charan’, 45 Cal WN 805. In this also, the view that prevailed in ‘8 Cal WN 454’ was followed. The judgment however, is very revealing. The previous authorities in which this view was recognised were considered and the learned judges observed as follows:

“Had the matter been res integra we might have some hesitation in accepting the view enunciated in them. In the Bengal Tenancy Act the raiyat is defined to be a person who acquires land primarily for purposes of cultivation; unless the letting was for purposes of agriculture the tenancy would not be governed by the Bengal Tenancy Act even if the superior interest was vested in the holder of the tenure to which the Bengal Tenancy Act was applicable. We do not think also that any real anomaly would arise if as between a raiyat and his sub-lessee the rights were governed by the Transfer of Property Act.”

38. The objection that difficulties would arise in enforcing the provisions of Chap. XIV of the Bengal Tenancy Act was overruled. But the reasons which induced the learned Judges in spite of their hesitation to accept the view to which they ultimately adhered was the definition of the expression “under-raiyat” as given in Section 4 of the Bengal Tenancy Act. In that Act an “under-raiyat” has been defined to be a tenant who holds immediately or mediately under a raiyat. It is not stated in this definition as in the case of a raiyat that he must hold also for purposes of cultivation. The wording of this definition was considered to be wide and the learned Judges did not think that they would be justified in upsetting the long series of decisions even though it was possible to argue that the implication in the case of the under-raiyat also was that he should hold land for purposes of cultivation.

39. If the Bengal Tenancy Act had applied to the present case, I should have shared the hesitation of the learned Judges of the Division Bench who decided the cases reported in ‘Arun Kumar v. Durgacharan’, 45 Cal WN 805 and even though I would have preferred to interpret the definition of under-raiyat in that Act as implying necessarily that the under-raiyat should hold for purposes of cultivation, I may not have thought it expedient to disturb the long line of decisions covering a period of about half a century. As things are, no difficulty arises in this case as here we have got to consider the relevant previsions of the Goalpara Tenancy Act, which are materially different from those of the Bengal Tenancy Act. It is noteworthy that while the expression “land” has been defined in the Goalpara Tenancy Act, the Bengal Tenancy Act does not contain any definition of land. The land for the purpose of the Goalpara Tenancy Act, must be land occupies or let for purposes of agriculture. This alone is enough to distinguish the authorities relied on by Mr. Lahiri. The under-raiyat whom he seeks to bring under the Goalpara Tenancy Act, has to show that he is holding land as defined in the Act. If the land of under-raiyat does not answer the description needed for the purposes of the Goalpara Tenancy Act, he cannot claim that the Tenancy Act, should govern his relationship with his landlord. The definition of the word “under-raiyat” in the Goalpara Tenancy Act is not as wide as that which we find in the Bengal Tenancy Act. According to this definition the under-raiyat means tenant holding land immediately or mediately under a raiyat. The land must be let out or occupied for agricultural purposes or purposes subservient thereto. Reading the definition of land with the definition of under-raiyat, it becomes obvious that what must be considered to be lacking in the Bengal Tenancy Act is not lacking here. The authorities, therefore, relied on by Mr. Lahiri are off no assistance to us in this case. For reasons given above, I am of the view that the Goalpara Tenancy Act, has no application to the facts off this case and that the case is governed by the provisions contained in the Transfer of Property Act. The notice sent to the defendant was, therefore, valid and he is evictable.

40. The appeal in the L.A Court was admittedly within time according to the view prevailing in the Calcutta High Court. It was time barred according to the view expressed in 1949 Assam 23.

41. In the memo of appeal, there was a statement to the effect that as the decree was signed on the 30th May 1949, the appeal is not barred by limitation. The note is based on the Calcutta view. The learned Subordinate Judge found the appeal to be barred by time on a preliminary objection raised before him. In answer to this objection, the counsel for the appellant urged that the appeal was within time and in the alternative maintained that he was misled by the old practice in the Calcutta High Court according to which time that elapsed between the date of the judgment and the date of the signing of the decree is excluded from computation under Section 12 of the Limitation Act as time requisite for obtaining, copies. The learned counsel also relied on AIR 1950 Assam 83, wherein delay was condoned on the ground of misleading caused by the Calcutta view.

42. The learned Subordinate Judge addressed himself to the question whether appellants can be allowed the time that elapsed between the date of the judgment and the date of the signing of the decree. He agreed that this period had to be excluded according to the Calcutta view and then proceeded to consider the question whether it could be excluded ever after the decision reported in AIR 1949 Assam 23. He observed as follows:

“I have examined the whole question at issue very carefully and I must admit that it was no doubt the practice with the Calcutta High Court to exclude this period as alleged by the learned lawyer for the appellants. But I must consider whether the appellants can be allowed this period (from the date of judgment to the date of signing the decree) even after the ruling of the Assam High Court as reported in ‘Katimal Brahma v. Mohan Nath’, AIR 1949 Assam 23. On Page: 106this point also the learned lawyer for the appellants submits that the case of Katimal Brahma v. Mohan Nath Nahata was reported in the AIR in July 1949, when only he could know about the ruling: but this appeal was filed on the 8th June 1949, before the case was reported in the AIR. It is submitted that in a place like Dhubri, it is not always possible to know what cases are decided and which principle is accepted by the Assam High Court, before these are reported in the AIR.”

43. The above passage clearly shows that the Judge was considering the limited question as to whether the time that elapsed between the two relevant dates could be regarded as time requisite under Section 12 of the Limitation Act. He reproduced the argument of the learned counsel for the appellant which in substance was that time for his appeal should be allowed to be calculated according to the Calcutta view as he had no means of knowing the Assam view before July 1949 when the report appeared in the AIR. The learned Subordinate Judge disposed of the contention in the following terms:

“I have given my consideration over this matter also, but I am certainly not prepared to accept the arguments put forward by the learned lawyer for the appellants. In my opinion it is not the law report which makes a law, but it is the judgment of a High Court (as soon as it is pronounced by the learned Judges), which forms the guiding principle for us to decide cases. I am, therefore, constrained to say that the appellants cannot be allowed to take shelter under Section 5 of the Limitation Act. Besides, it is found that the guiding principle in such cases has been definitely laid down by the Assam High Court on the 24th September 1948 in the case of ‘Katimal Brahma v. Mohan Nath AIR 1949 Assam 23, long before the date of filing of this appeal. Considering all these facts, I am obliged to hold that the appellants are not entitled to the period from the date of the judgment to the date of the signing of the decree as the time requisite for copies. Consequently, I hold that this appeal is time barred.”

44. As shown above, the learned Subordinate Judge started considering the question whether the period between the two relevant dates could be excluded from computation or not. His finding was that it could not be excluded. His reason stated emphatically was that the judgment of the High Court laid down the law and it took effect from the date on which it was pronounced. He evidently meant that the judgment interpreted the law and as such afforded the guiding principle from the date of its delivery. This guiding principle was laid down in September 1948 long before the filing of the appeal. The appellant, therefore, was not entitled, according to him, to exclude the intervening period between the date of the judgment and the date when the decree was signed. His conclusion was that the appeal was time barred. This conclusion has been stated in no uncertain terms.

45. My reading of this part of the judgment is that the learned Subordinate Judge addressed himself only to the question whether the appeal was within time on the basis that the time that elapsed between the two relevant dates was time requisite under Section 12 of the Limitation Act. All he was considering whether it was within time or time barred. He did not at all consider the question whether if the appeal was time barred, the delay could be condoned by the alleged misleading. The conclusion that he arrived at merely disposed of one contention raised on behalf of the appellants. That contention was that the appeal was wihtin time. The second contention that the delay in filing the appeal, if it was found to be time barred, could be condoned escaped consideration. The question no doubt was raised. It was mentioned by the learned Sub-ordinate Judge when he was reproducing the argument of the appellant's counsel but he has given no finding on it. The judgment does not indicate what, if any, argument was addressed from the respondents' side as to why delay should not be condoned. The finding that the learned Subordinate Judge was not satisfied that the appellant was misled by the Calcutta view is conspicuous by its absence from the judgment. There is nothing to this or to similar effect in it. The learned Subordinate Judge simply omitted to consider this aspect of the matter. The delay in reporting the Assam view and the alleged consequent ignorance of the appellants were no doubt taken notice of but for considering whether the Calcutta view could govern the appeal which had been filed before the decision of the Assam High Court had been reported. The learned Subordinate Judge was right in the view that this period could not be excluded according to the Assam view which merely interpreted the existing law & as such had to govern the decision of the question whether it was within time or not. He had to consider after coming to this conclusion whether some little delay that occurred in the filing of the appeal (only 3 days) could be condoned on the basis of alleged misleading.

46. The learned Subordinate Judge has referred to Section 5 of the Limitation Act at only one place. The reference is in the following terms:

“In my opinion it is not the law report which makes a law but it is the judgment of a High Court (as soon as it is pronounced by the Judges) which forms the guiding principle for us to decide cases. I am, therefore, constrained to say that the appellants cannot be allowed to take shelter under Section 5 of the Limitation Act.”

47. This reference was made when the question of exclusion of the entire period between the date of the judgment and the date of signing the decree was being considered and here he rightly ruled S. 5, out of consideration observing that the appellants could not take shelter under Section 5 of the Limitation Act on the ground that the judgment of the Assam High Court took effect from the date on which it was pronounced. He was right in the view that S. 5 did not come into the picture when the question was whether the appeal was within time or out of time. On the date when it was filed, it was out of time under the law as interpreted by the Assam High Court. But, he did not advert to the question whether in spite of the judgment reported in ‘Katimal Brahma v. Mohan Nath’, AIR 1949 Assam 23, which took a view contrary to the hitherto accepted view, condonation of delay could be Page: 107claimed if there was actual misleading caused by the Calcutta view. I find it difficult to read into the Judgment of the learned Subordinate Judge a finding that misleading in point of fact as not proved or that the learned Subordinate Judge did not feel satisfied about it. It seems to me that the question slipped away from his mind altogether. If he had considered the question, he would have referred to facts bearing on it; he would also have considered the effect of the decision of this Court reported in ‘Governor-General in Council v. Jesraj Tilakchand’, AIR 1950 Assam 83, where delay was actually condoned on the ground of misleading.

48. My learned brother Deka, J. is of the view that the learned Subordinate Judge did not put any reliance on the Plea of actual misleading and that he had rightly rejected it. With great respect I feel constrained to state that I have not been able to persuade myself to agree to this view.

49. My learned brother, after observing that the learned Subordinate Judge was not satisfied that there was any case of misleading, himself considered the question and relying partly on the statement contained in the memo of appeal and referred to above, found that the appellants were aware at the time of filing the appeal that this Court in the meantime had held that the time for filing an appeal ran from the date of the judgment and not from the date of the signing the decree. He observed further that

“the decision of this Court might have been reported later but there was no reason to suppose that it was not known to the members of the Bar earlier.”

50. So far as the observation of my learned brother regarding the knowledge of the members of the Bar in general is concerned, there can be no manner of doubt that some members of the Bar, apart from those concerned in the case, must have known about the decision of this Court before it was reported. But I am not prepared to say that all members of the Bar all over Assam were aware of the view taken in ‘Katimal v. Mohan Nath’, AIR 1949 Assam 23, by 8-6-1949 or by any other date. If all members had become aware of it immediately after the decision was given, quite a number of appeals filed after 24th September 1949 had not been allowed to become time barred. The members of the Bar would naturally learn about it at different times and it is not too much to say that some members of the Bar may not have known about this decision till after 8th June 1949 and till it was reported. It was reported in July 1949 and the full implications of the decision could be widely known only after that date.

51. Where, therefore, there is a question whether there has been actual misleading by the Calcutta view, the question ought to be considered on the facts of its particular case. No general rule applicable to all cases can be laid down. If an appellant claims that he has been misled by the Calcutta view, the fact that some members of the Bar must have known about the decision by the date his appeal was filed may not be enough to dis-entitle him to the indulgence under the Explanation to Section 5 of the Limitation Act if he himself was actually misled. The appellant no doubt would have to satisfy the Court that he was actually misled. If circumstances exist which make the plea probable and there are no indications of bad faith or negligence, there may be sufficient cause for condonation of the delay under the Explanation to S. 5. The Explanation recognises this misleading attributable to an order, practice or judgment of the High Court in ascertaining or computing the prescribed period of limitation may be a sufficient cause within the meaning of the section. Where misleading is proved and the appellant has been reasonably diligent in the prosecution of the appeal, there would normally be a case for condoning delay. The explanation leaves the discretion to the Court to treat misleading as a sufficient cause. The discretion has to be exercised judicially, that is in conformity with well-recognised rules and in the light of the facts and circumstances of each particular case.

52. The statement contained in the memo of appeal was to the effect that the appeal is within time. It could have been based only on the Calcutta view. From this statement, it has been inferred that the appellants were aware at the time of filing the appeal that the limitation commenced to run from the date of the judgment. Assuming that this inference is possible, the finding by itself is not enough for refusing to excuse the delay of 3 days in filing the appeal. The appellants may have been aware that day. They may have acquired the knowledge that very day. If knowledge was acquired that day, they could still claim that the delay in filing the appeal was due to misleading. My learned brother has not found even on the basis of the statement contained in the memo of appeal that the appellants were aware of the decision of this Court before the 5th June 1949, the last date for filing the appeal according to the Assam view. In my humble view, the question whether appellants had shown sufficient cause for the delay that occured in filing the appeal or what comes to the same thing whether the delay was due to misleading caused by the Calcutta view has been left undecided. At least the judgment does not show any proper consideration of this question and does not embody a distinct finding on it. If a decision of this question left undecided had been unavoidable, a remand to the learned Subordinate Judge for a finding on the question would have been a more appropriate course. But as I agree with my learned brother that this appeal must fail on the merits, I think no useful purpose would be served by a remand; nor need I give a decision on this question myself in these circumstances.

53. Appeal dismissed.