Karora Singh vs Kartar Singh and Others

Harnam Singh, J.—Mr. Amar Nath Grover urges a preliminary objection that the appeal is barred by time.

The facts so far as material, are that on 3.5.1947, Additional District Judge, Ferozepore, allowing Civil Appeal No. 67/42 of 1946, passed a decree to the effect that the sale in question shall be null and void as against the reversioners of Sucha Singh alienor except to the extent of Rs. 5,578. On 5-5-1947, Karora Singh Defendant made an application for a copy each of the judgment and decree under appeal. The copies were certified u/s 78 of Act I [l] of 1872 on 14-5-1947. In computing the period of limitation for filing the appeal the period between 5-5-1947 and 14-5-1947, has to be excluded. The appeal was, however, filed in this Court on 29-6-1948.

Karora Singh Appellant filed an affidavit in this Court on 29-6-1948, explaining the delay that had occurred in the filing of the appeal. He affirms that on 12-7-1947, he engaged Mr. Dev Raj Sawhney Barrister at Law, Lahore, for filing civil appeal, Karora Singh v. Kartar Singh, and that on that day he gave to Mr. Sawhney the necessary papers and the Court-fee for the appeal. On 15-8-1947, Punjab was divided u/s 4, Indian Independence Act, 1947 and it appears from the affidavit that Karora Singh Appellant made anxious enquiries about his appeal from Mr. Sawhney, but receiving no reply from the Counsel or his clerk, Karora Singh sent Teja Singh to Simla to enquire about the appeal Going back from Simla, Teja Singh told Karora Singh Appellant on 20-6-1948, that the appeal had not been filed. Leaving his village for Simla, Karora Singh reached Simla on 27-6-1948, and filed the appeal in this Court on 29-6-1948.

For the decision of the preliminary objection it is not necessary for me to investigate as to whether Karora Singh was prevented by sufficient cause from not filing the appeal between 1-8-1947, when the period prescribed for filing the appeal expired and 27-6-1948, when he reached Simla for filing the appeal for I find that there is no justification for not filing the appeal on 28.6.1948. An examination of the diary of 1948 shows that Karora Singh reached Simla on Sunday, 27-6-1948. The appeal could have been filed by him in this Court on 28-6-1948. This was not done. The fact that he reached Simla on 27th June, is mentioned in para 9 of the affidavit of Karora Singh, Then the affidavit put in support of the application u/s 5, Limitation Act, shows that the affidavit was sworn by Karora Singh in this Court on 28-6 1948. Indeed, the record shows that Karora Singh purchased stamp papers for the appeal on 28-6-1948. There is, however, not a syllable in the affidavit of Karora Singh giving any explanation for his not filing the appeal on 28-6-1948. Indeed the circumstances disclosed by the record show that the appeal was not filed on 28 6-1948, by reason of sheer negligence.

In Construing Section 5, Limitation Act, Courts in India have held that the existence of sufficient cause for not filing the appeal within time is a condition that must be satisfied before the Court can exercise its power of granting or refusing to grant the extension of time u/s 5 Limitation Act. In the present case no attempt is made to explain why the appeal was not filed in this Court on 28-6-1948.

That being so, I find no justification for giving the Appellant the benefit of Section. 5, Limitation Act, 1908.

In the result, the appeal fails and is dismissed as barred by time.

Considering however, the circumstances of the case I would leave the parties to boar their own costs in this appeal.

Kartar Singh, contesting Respondent, has filed cross-objections in this case maintaining that the learned Additional District Judge erred in not granting a declaration to the Plaintiff that the sale in question was wholly without consideration and necessity and was not binding on the Plaintiff.

Now, it is settled law that appeal must be properly before the Court in order that cross-objections may be heard. In Ramjiwan Mal v. Chand Mal 10 All. 587 : 1888 A.W.N. 258, Mahmood J.,(Straight J, concurring) said:

I take the effect of these various cases to be that entertainment of objections such a Section 561 CPC contemplates, In contingent and Dependant upon the hearing of the appeal in which such objections are raised, and that when the appeal it self fails or is rejected or dismissed without being disposed of upon the merits, the objections follow its fate and cannot be entertained either.

Section 561 of the old Code corresponds to Rule 22 of Order 41, CPC 1908.

In Jai Gopal Singh v. Munna Lal AIR 1924 Lah 43 : 4 Lah. 140, Florde J. (Shadi Lal C.J. concurring) said:

It is clear that an appeal must no properly before the Court in order that the cross-objections may be heard. As the appeal in question was admittedly barred by time, neither the appeal nor the cross-objections were properly before the Court, and accordingly the Court had no power to proceed with the matter.

With great respect I follow the rule laid down in Jai Gopal v. Munna Lal AIR 1924 Lah 43 : 4 Lah. 140 and find that cross-objections are not competent.

For the foregoing reasons, I dismiss the appeal and the cross-objections.

Considering that the appeal and the cross-objections fail, I leave the parties to bear their own costs in this Court.