Abodh Bala Ghosh v. Radharani Dasi

The Judgment of the Court was delivered by

Das, J.:— This Rule was obtained by defendant No. 1, calling upon the opposite parties to show cause why time should not be extended for the filing of the appeal and for registration of the same.

In order to decide this question it is necessary to set out the history of this long-drawn litigation. On April 12, 1926, the plaintiff opposite party instituted a suit in the court of the Additional Subordinate Judge, Howrah, being Title Suit No. 806 of 1926, for partition and for accounts. On December 21, 1931, a preliminary decree was made in the suit. On February 5, 1932, the petitioner, who is defendant No. 1, preferred an appeal to this Court, being First Appeal No. 55 of 1932. On August 22, 1935, this appeal was dismissed. On December 13, 1935, a commissioner was appointed for taking accounts. On July 30, 1946, after a lapse of about ten years, the commissioner submitted his report. Both parties filed objections to the commissioner's report. This matter was set down for hearing on February 21, 1947. The plaintiff did not press his objections to the commissioner's report. Defendant No. 1 was absent on the alleged ground of his illness. This objection of defendant No. 1 was rejected. The plaintiff's objections were not pressed and were, therefore, overruled. The commissioner's report was thereupon accepted. The court then proceeded to pass a final decree in terms of the commissioner's report by order No. 1323 of the same date. On March 18, 1947, defendant No. 1 filed an application under O. IX, r. 13 of the Code of Civil Procedure, for setting aside the ex parte order said to have been passed on February 21, 1947. On June 21, 1947, the application under O. IX, r. 13, was dismissed. On July 21, 1947, defendant No. 1 preferred an appeal to this Court against the order dismissing his application under O. IX, r. 13 of the Code. This gave rise to First Miscellaneous Appeal No. 126 of 1947. On July 31, 1947, a final decree in terms of order No. 1323, dated February 21, 1947, was signed by the learned Judge. It appears, from the affidavit in opposition on behalf of the plaintiff opposite party, that on November 19, 1947, an application for a certified copy of the order, dated February 21, 1947, and of the final decree was made on behalf of the petitioner. The copies were obtained on the same date. It further appears from the affidavit in opposition on behalf of the plaintiff opposite party that on November 27, 1947, an application under s. 152 of the Code of Civil Procedure was made on behalf of the present petitioner. This application under s. 152 of the Code was disposed of on March 8, 1948. A certified copy of the order of that date was produced before us on behalf of the plaintiff opposite party. It appears from the said copy that the learned Subordinate Judge dismissed the application on the ground that the application was misconceived and was not maintainable. In the course of the order, the learned Judge observed that there were no arithmetical or clerical errors either in the commissioner's report or in the judgment. The learned Judge also observed that the final decree was in accordance with the final judgment. The learned Judge also stated that the applicant (the present petitioner) wanted to attack the report of the commissioner for accounts in an indirect way and that, if there was any error, the remedy of the petitioner lay by way of an application for review or by way of an appeal. The First Miscellaneous Appeal No. 126 of 1947, was ultimately heard on February 1, 1950, and was dismissed by this Court. On February 2, 1950, the petitioner made an application for a certified copy of the judgment and final decree passed in Title Suit No. 806 of 1926. The requisite copies were ready for delivery on February 13, 1950, and were delivered to the petitioner on the following day. The petitioner purchased stamps for the memorandum of appeal on February 20, 1950, and, as the Courts were closed on February 21, 1950, the appeal was filed in this Court on February 22, 1950, and was returned on February 24, 1950, as being time-barred. The petitioner made an application under s. 5 of the Indian Limitation Act and obtained the present Rule on February 24, 1950.

The power of an appellate court to entertain a memorandum of appeal which is filed beyond the period prescribed for filing the same is contained in s. 5 of the Indian Limitation Act. The material portion of that section is that any appeal may be admitted after the period of limitation prescribed therefor when the appellant satisfies the court that he had sufficient cause for not preferring an appeal within the time prescribed.

Mr. Banerji appearing for the appellant petitioner submitted that the appellant was entitled to an addition of the time taken up in prosecuting an application under O. IX, r. 13 of the Code of Civil Procedure as also of the time taken in prosecuting an appeal against the order of dismissal of the said application. It is urged that the appellant is entitled to such an addition of time on the principle contained in s. 14 of the Indian Limitation Act, which applies to applications under s. 5 of the said Act. Reliance is placed on the decision of the Judicial Committee in the case of Brij Indar Singh v. Kanshi Ram. In this case, in computing the period of limitation for preferring an appeal, the appellant wanted to add the time taken by him in prosecuting an application for review of the judgment sought to be appealed against. The judgment of the Judicial Committee allowed the appellant such an addition of time. The decision was not based on the ground whether ignorance of law was a sufficient cause of extension of time but on the ground that a practice had grown up for more than half a century of allowing such addition of time in computing the period of limitation prescribed for filing an appeal, in all the Courts in British India. Their Lordships observed that they did not want to depart from a practice which had been followed in the different High Courts. As I read the judgment of the Judicial Committee, this is the basis of the decision. Mr. Banerji for the petitioner submitted that by way of analogy this principle should be applied to the present case and time taken in proceeding with an application under O. IX, r. 13 of the Code should be added. The question whether an unsuccessful applicant under O. IX, r. 13 of the Code can ask the appellate court to extend the time by adding the periods taken, up in such unsuccessful proceeding was debated in the case of Ardha Chandra Rai Chowdhury v. Matangini Dassi. The learned Chief Justice delivering the judgment of the Court observed that s. 14 of the Indian Limitation Act was not applicable to cases coming within s. 5 of the said Act and that where an application under O. IX, r. 13 of the Code of Civil Procedure was dismissed on the merits, it could not be said that s. 14 had any application, the application not failing on the ground of defect of jurisdiction or other causes of a like nature, and that, accordingly, the period taken in proceeding with an unsuccessful application under O. IX, r. 13 of the Code could not be tacked with the period of limitation prescribed for filing an appeal.

Mr. Banerji contended that the basis of the decision has been taken away by the decision of the Judicial Committee in the case of Brij Indar Singh v. Kanshi Ram (supra) cited above. I have already pointed out the basis of the decision of the Judicial Committee in the case cited. The basis of the decision did not rest on a general principle but on the ground that the practice of adding the period taken up in proceedings for review had prevailed in all the Courts for over half a century. It is, therefore, not possible to extend the decision in Brij Indar's case to a case like the present. In fact this precise argument was put forward in this Court in the case of Rajendranath Kamrar v. Kamalkrishna Kundu Chaudhuri. A Division Bench of this Court held that the actual decision in Brij Indar's case must be applied to cases of review. But in cases then before their Lordships, namely, where an extension of time was prayed for on the ground of pendency of an unsuccessful application under O. IX, r. 13, the true position was stated as follows:—

But there is no reason whatsoever for extending the rule, which their Lordships approved of for holding by analogy that this principle should be extended to applications which are not applications for review.

The view taken by this Court in Rajendranath Kanrar v. Kamalkrishna Kundu Chaudhuri (supra) has been followed in the case of Jotiba Limbaji Kanashenavar…Defendant v. Ramappa Jotiba Kanashenavar…Plaintiff .. The same principle was applied in the case of Ma Naw Naw v. V.E.S.S.M Somasundram Chetty. In that case, a defendant, against whom an ex parte decree had been made, made an application under O. IX, r. 13, for setting aside the decree. This application was dismissed for default. Thereafter, a second application under O. IX, r. 13, was made and time for filing the same was sought to be extended on the ground that the time taken up in prosecuting the first application under O. IX, r. 13, should be added. This application was dismissed. It may be pointed out that the view taken by this Court in the case of Ardha Chandra Rai Chowdhury v. Matangini Dassi (supra) has not been dissented from in any later case in this Court or elsewhere. On the other hand, as already stated, the decision has been followed by the Bombay High Court and the, principle underlying the decision was approved of by the Rangoon High Court. If the principle, on which the decision of the Judicial Committee in Brij Indar's case already cited was based, is to be applied, we should follow the practice prevalent in the different Courts which has always been not to allow an extension of the period; taken up in prosecuting an unsuccessful application under O. IX, r. 13, which fails on the merits.

Mr. Banerji also referred us to a decision in the case of (Bukkapatnam) Triumala N aresinhacharyulu v. Sabhnadri Appa Rao. That case, however, concerned the applicability of s. 14 of the Indian Limitation Act to a second suit filed by the plaintiff on the same cause of action. Ia that case, there was a previous application for execution, in which an objection was raised under s. 47 of the Code of Civil Procedure. This was rejected on the ground that the executing court had no power to determine the question. The aggrieved party then filed a suit and wanted an extension of time on the ground that the time taken in proceeding with his objection under s. 47 of the Code should be deducted. This was granted on the principle contained in s. 14 of the Indian Limitation Act. In this case, the failure of the plaintiff in the execution proceedings was due to the fact that the executing court had no jurisdiction to decide the matter and the question, accordingly, came within the scope of s. 14 of the Indian Limitation Act. Mr. Banerji also referred us to the decision in the case of Abdul Sattar Choudhury v. Abdul Rusan. In this case also s. 14 of the Indian Limitation Act was availed of by a decree-holder, who was allowed to add the time by him in prosecuting his application for execution. This Court observed that a decree-holder was a person entitled to the benefit of s. 14 of the Indian Limitation Act. Here again the executing court could not grant relief to the decree-holder on the ground that the relief prayed for by the decree-holder could not have been granted by the executing court. This decision does not, therefore, touch the present question.

In my opinion, it cannot be said that as a matter of law the appellant is entitled to add to the period of limitation prescribed for the filing of an appeal the time taken by him in prosecuting an unsuccessful application under O. IX, r. 13 of the Code of Civil Procedure which is dismissed on the merits.

The second ground on which Mr. Banerji claims an extension of time is based on the allegation contained in para. 20 of his petition. It is well established that the burden rests on the appellant of adducing clear proof that there is sufficient cause relied on by him within the meaning of s. 5 of the Indian Limitation Act. In the present case, the allegation of the petitioner is that the petitioner who was later substituted in place of her husband Tara Prasanna Ghosh, and Tara Prasanna Ghosh were both advised by a learned advocate of this Court that there was a fair chance of success in E.M.A 126 of 1947. This paragraph is sworn to on behalf of the petitioner by her tadbirkâr, Krishna Dulal Mallik. In para. 2 of the affidavit, the tadbirkâr says that this statement is true to his knowledge. The affidavit does not state that the tadbirkâr accompanied Tara Prasanna Ghosh or the petitioner when they were advised by their learned advocate. It is, therefore, difficult to say how the statement contained in para. 20 of the petition could be true to the knowledge of the deponent. Moreover, the advice that was given merely told the petitioner and her husband Tara Prasanna Ghosh that there was a fair chance of success in the appeal. The affidavit does not disclose when and where the advice was given. In para. (9) of the affidavit-in-opposition on behalf of the plaintiff opposite party, the latter stated that the time when the advice was given was not disclosed. It was also stated that the advice, if given, was irrelevant. In the further affidavit sworn to on behalf of the petitioner, the petitioner did not disclose when or where the advice was given nor did she try to clarify what advice was actually given by her learned advocate. The affidavit, on behalf of the petitioner does not carry the matter far. It does not say that the petitioner or her husband were advised not to prefer an appeal at the time and that they could wait till the application under O. IX, r. 13, or an appeal against an adverse order which may be made therein is finally disposed of. Moreover, as I have already said the learned Judge, who disposed of the application under s. 152 of the Code of Civil Procedure, stated in his order that the proper remedy of the applicant was to apply for review or to prefer an appeal against the final judgment. It is not suggested that the relief which the petitioner could have got on an application under s. 152 of the Code of Civil Procedure would not have been sufficient and that the scope of the present appeal is much wider than the scope of the application under s. 152 of the Code of Civil Procedure. On the other hand, in para. 9 of the further affidavit the petitioner makes a contrary assertion. It is stated that if the application under s. 152 was allowed there would be no necessity of proceeding with F.M.A 126 of 1947 or for filing the present appeal. Nothing has been suggested as to why the present petitioner did not file an appeal against the final judgment in spite of the observations contained in the order of the learned trial Judge passed on March 8, 1948.

An attempt has been made in the affidavit in opposition to explain how the present appeal came to be filed under legal advice obtained after the dismissal of F.M.A No. 126 of 1947. This is not relevant for the present purpose. Even, assuming the delay alter the disposal of the F.M.A No. 126 of 1947 has been properly accounted for, there is no sufficient explanation why the appellant did not file her memorandum of appeal against the final judgment at an earlier date. The legal advice, if any, which was alleged to have been given to the present petitioner and her husband could not and did not mislead her. It seems to me that no sufficient cause has been shown for extending the period of limitation under s. 5 of the Indian Limitation Act.

The result, therefore, is that this Rule must be discharged with costs—hearing fee three gold-mohurs.

Sarkar, J.:— I agree.

Rule discharged.

R.K.B