Pritam Singh and Another vs Sadhu Singh and Others

R.L. Anand, J.—This appeal has been directed against the judgment and decree dated 8.11.1979 passed by District Judge, Ambala who dismissed the appeal of the plaintiff-appellants Pritam Singh and Surjit Kaur.

The brief facts of the case are that Pritam Singh and Surjit Kaur filed a suit for possession of houses bearing No. 879, 881 and 882 and workshop bearing No. 880 situated in Ward No. 4, Circular Road, Ambala City and for recovery of moveable property i.e. lathes, oil engines etc. as lying in the workshop and fully enumerated in the list attached to the plaint as Appendix ''A''. In the alternative, the plaintiffs claimed Rs. 8,000/-being price of the moveable articles. It is alleged by the plaintiffs that Bhagat Singh deceased was the real brother of the plaintiffs and he was the owner of the said property. Bhagat Singh deceased separated himself from defendant No. 1 Sadhu Singh in the year 1957 and he died issueless leaving behind his widow Ajmer Kaur, who succeeded him. It is pleaded that Ajmer Kaur, widow of Bhagat Singh and sister-in-law of the plaintiff died issueless on 14.6.1965. Plaintiff No. 1 claims himself as the only legal heir and successor of the property left by Bhagat Singh deceased and Ajmer Kaur deceased. It is alleged by plaintiff No. 1 that he wanted to take the possession of the suit property but Amar Singh, father of defendants Nos. 1 and 2 resisted the delivery of the possession of the property by alleging that he was holding the suit property as general attorney of Ajmer Kaur. The case of the plaintiffs further was that power of attorney of Amar Singh came to an end after the death of Ajmer Kaur and plaintiff No. 1 has become the legal heir and successor of Bhagat Singh and Ajmer Kaur.

The suit was contested by the defendants, who raised the preliminary objection that Surjit Kaur sister of plaintiff No. 1 was necessary party to the suit in whose absence the suit cannot proceed. This objection of the defendants was upheld vide order dated 25.11.1970 passed by the trial Court. As to the effect of plaintiff No. 1 not joining Surjit Kaur, his sister, as co-plaintiff with him in the suit, the matter was kept in abeyance for enabling the plaintiff No. 2 to take any objection. The plaintiff No. 1 since amended the plaint by adding Surjit Kaur as defend ant No. 2. The defendants also raised the objection that plaintiff No. 1 did not earlier implead plaintiff No. 2 as a party and, therefore, the suit is liable to be dismissed.

The trial Court framed the following two preliminary issues on 12.1.1971 :-

What is the effect of not impleading plaintiff No. 2 who has been held as necessary party vide order dated 25.11.1970? OPP.

Whether the suit is not maintainable in the present form? OPD.

The trial Court decided issue No. 1 against the plaintiffs. Issue No. 2 was, however, decided against the defendants. Resultantly, both the issues were disposed of vide order dated 2.3.1971.

Aggrieved by the said order, plaintiffs Pritam Singh and Surjit Kaur filed the appeal at the first instance in the High Court on 12.7.1971. It may be mentioned here that as the law stood on that day, the jurisdiction value of the suit was such that the appeal laid to the High Court. Later on the jurisdiction value of the District Judge was en hanced, as a result of that the appeal was transferred to the Court of District Judge, Ambala, who registered the appeal at Sr. No. 197/13 of 1978 and vide judgment dated 8.11.1979 the appeal was dismissed on the ground that it is barred by limitation and in this regard the findings given by the learned District Judge in paras Nos. 6, 7, 8 and 9 can be referred with advantage. Aggrieved by the judgment dated 8.11.1979, the plaintiff have come in the present appeal.

I have heard Ms. Himani Sarin, Advocate, for the appellants. No assistance has been given from the side of the respondents.

The learned counsel for the appellants submitted that the lower Appellate Court fell in error and acted illegally and without jurisdiction in holding that the appeal of the appellants, which was filed in the High Court, was beyond limitation. The counsel submitted that as per Article 116 of the Limitation Act, the appeal could be instituted in the High Court within 90 days from the date of the decree and the order. She further submitted that the appeal was instituted in the High Court on 12.7.1971 and it should be considered within limitation for the following reasons. According to the counsel, the order by the trial Court was passed on 2.3.1971. The certified copy was applied on 3.3.1971 which was ready for delivery on 31.3.1971. The counsel submitted that if 90 days are calculated from 2.3.1971, the appeal was within limitation. She submitted that the appeal could be instituted in the High Court on or before 1.6.1971. In the High Court there were summer vacation w.e.f. 31.5.1971 and the summer vacation continued upto 9.7.1971. Though the Registry was open but the option lie with the appellant whether to file the appeal in the High Court during vacation or not. The counsel submitted that 10.7.1971 was a local holiday declared by the High Court and 11.7.1971 was Sunday and, therefore, the appeal had been validly and rightly filed on 12.7.1971. All these aspects have not been gone into by the first Appellate Court and it has committed a patent illegality in dismissing the appeal primarily on the ground of limitation.

I agree with the submissions raised by the learned counsel for the appellants. Though the Registry might have remained open, but the plaintiffs can always get the benefit of the summer vacation of the High Court. As the High Court remained closed w.e.f. 31.5.1971, the appeal could be instituted on the first opening day of the High Court and the first opening day was 12.7.1971 itself, because 10.7.1971 was a local holiday and 11.7.1971 was Sunday and no transaction could be conducted in the Registry.

The counsel also submitted that the moment the jurisdiction of the District Judge was enhanced, the appeal was transferred to the Court of District Judge, Ambala for disposal according to law.

In this view of the matter, I accept this appeal, set aside the impugned order dated 8.11.1979 and direct the learned District Judge, Ambala to re-admit the appeal to its original number and dispose of the same according to law and on merits. He shall also issue notices to the parties before proceeding further into the matter. The appellants are also directed to appear before the Court of learned District Judge, Ambala on 25.10.1999.

Let a copy of this order and the record of the lower Court be sent to the Court of District Judge, Ambala for further action.