1. In this second appeal which is barred by time an application is made by the defendant appellant for extension of time under, Section 5 of the Limitation Act.
2. On behalf of the appellant it is argued, that due to a bona fide mistake on the part of the counsel the appeal was filed in the Court of Commissioner whereas the appeal lay to the High Court. It is prayed that the time spent in prosecuting the appeal before the Commissioner be condoned and the present appeal be treated within time.
3. It appears that a suit was filed by the plaintiff respondent in the Court of Assistant Commissioner Kathua for ejectment of the defendant. The suit was decreed. Against that judgment and decree an appeal was filed by the defendant in the Court of Deputy Commissioner Kathua.
4. The defendant appellant being unsuccessful in the appeal filed second appeal in the Court of Commissioner, Jammu. The learned Commissioner held by his order dated 11th March, 1963 that the appeal did not lie to his Court and returned the memorandum of appeal to the appellant's counsel on 14th March, 1963. The appeal was presented in this Court on the 19th of March, 1963.
5. The counsel for the appellant argued that the appeal was filed in the Court of Commissioner under a mistake that the plaintiff had filed art application under Section 46 of the Tenancy Act for ejectment and not a suit under Section 85 of the Tenancy Act. On perusal of the judgments ‘of the Assistant Commissioned and the Deputy. Commissioner’ it is abundantly clear that the plaintiff had filed a suit for ejectment under Section 85, First Group clause (d) of the Tenancy Act and it was not an application under Section 49 or 46 of the Tenancy Act. Assuming that the counsel by mistake treated the suit as an application for ejectment and filed the second appeal before the Commissioner there is no explanation forthcoming from the appellant for the delay in filing the appeal before this Court from 14th to 19th March, 1963. From the record it appears that the memorandum of appeal was returned to the appellant on 14th March, 1963 and the appeal was presented before this Court on 19th March. It was necessary for the appellant to explain the delay in filing the appeal from the date when it was returned to the date it was presented before this Court
6. It has been urged on behalf of the appellant that in fact the memorandum of appeal was returned but the copies of the judgments of the Courts below which were accompanying the appeal were not so returned to the appellant. There is no averment to that effect either in the application under Section 5 of the Limitation Act or in the affidavit filed in support of that application. A general rule of law cannot be laid down that a mistake of a pleader, however obvious it may be, can always and under every circumstance afford ground for extension of time under Section 5 of the Limitation Act. The counsel must show that (there was a bona fide mistake on his part and in ispite of care and attention he could not avoid the mistake which was committed by him. As pointed out above, from a perusal of the plaint and the judgments of the Assistant Commissioner and the Deputy Commissioner it can be easily ascertained that the plaintiff had filed a suit for ejectment and) that it was not an application. But assuming for the sake of argument that the counsel made a mistake in treating the plaintiff's suit as an application there is no justification for not filing the appeal immediately after it was returned to the appellant, to the proper Court. No convincing and cogent explanation is forthcoming for the delay Page: 54caused in filing the appeal in this Court from 14th to 19th March, 1963.
7. In Mithoo Lal v. Jamna Prasad, AIR 1933 Oudh 523 a Full Bench of the Oudh Chief Court has laid down as follows:
“In order that mistaken advice given by counsel may be ‘sufficient cause’ within the meaning of S. 5, such advice must be given with due care and attention, and not through the negligence of counsel. Filing of an appeal in a wrong Court through, gross negligence of the counsel is not a ‘sufficient cause’ for presenting the appeal to the proper Court after the expiry of the period of limitation.”
8. In Bhojraj Krishnarao v. Darsu, AIR 1959 Madh Pra 52 it was observed as under:
“The period for preferring an appeal cannot be extended simply because the appellant's case ist hard and calls for sympathy, nor will the Courts extend the period of limitation merely out of benevolence to the party seeking relief. A Court in granting the indulgence must be satisfied that there was diligence on the part of the appellant and that he was not guilty of any negligence whatsoever.”
9. In the instant case the appeal was returned to the appellant on 14th March and the appellant ought to have filed it before this Court on the following day or as soon as it was possible for him to do so. The Commissioner's Court is not far from the High Court and he should not have delayed in presenting the appeal before this Court after it was returned to him.
10. Under these circumstances I see no good ground for extending time under Section 5 of the Limitation Act. The appeal is barred by time and is dismissed. No order as to costs.
FG/R.G.D
11. Order accordingly.