Samuel Joseph vs Ramachandran Chellayyan and others

S. Padmanabhan J.

Preliminary decree for partition passed by the Subordinate Judge Thiruvananthapuram in O.S. No. 66 of 1972 on 30-10-1976 could have been appealed before the District Judge, Thiruvananthapuram. But, by a bona fide mistake, A.S. No. 171 of 1977 was filed before this court on the last day of limitation. Period of limitation for appeal to the High Court is 90 days, but to the District Court it is only 30 days. Instead of filing the appeal before the High Court, if it was filed before the District Court, it would have been beyond time. This court admitted the appeal, but, later on finding that it had to be filed before the District Court, returned the same for presentation before that court. The order was on 2-4-1980 and the memorandum of appeal was returned on 5-4-1980. A fresh memorandum of appeal was presented before the District Judge only on 18-4-1980 with an application to condone the delay and exclusion of the period under Sections 5 and 14 of the Limitation Act. The District Judge dismissed the application under Sections 5 and 14 and the appeal was also consequently dismissed. Hence this second appeal by the appellant, who is the 40th defendant. The District Judge was of the view that if the appeal was represented on 5-4-1980 itself, the period between 5-6-1977 and 5-4-1980, when the appeal was pending before the High Court could have been excluded u/s 14 of the Limitation Act, but, since it was filed only on 18-4-1980, there is no scope for invoking either Section 5 or Section 14 of the Limitation Act. In this case, there are four plaintiffs and about 100 defendants. The delay was explained as the bona fide mistake regarding the forum and the time taken for preparing a fresh memorandum of appeal and getting the copies printed. The District Judge said that, in view of the fact that the appeal was presented before the High Court only on the last day of limitation, the appellant was obliged to re-present the same on the day it was returned. In support of the conclusion, the decisions in Parameswara Kurup v, Vasudeva Kurup (1964 KLT 145) and Abraham v. Sadanandan and others (1979 KLT 493) were relied on.

Both decisions concern original suits filed in wrong courts not having jurisdiction. They were returned for presentation before compstent court granting time for that purpose. The suits were re-presented within those periods, but they were out of time, according to the law of limitation. In Abraham''s case (1979 KLT 493), the benefit of Section 4 of the Limitation Act was necessary because the period of limitation expired on a holiday. The court said that the benefit of Section 4 is not available when the suit was filed in the wrong court and Section 4 cannot be read together with Section 14 because they provide for different situations, one for computation of limitation and the other for exclusion of time. So also, the decision said that any period of grace granted by the court to credit court fee will not be a period of limitation because the time granted is not based on any statutory provision and it cannot come under the exclusion in Section 14, which is available only for the actual period when the suit was pending in the court and not for the period for which time was given after return of plaint. In Parameswara Kurup''s cose (1964 KLT 145), the decision said that the Munsiff, before whom the suit was wrongly field, had no jurisdiction to extend time and, if he had jurisdiction, the suit could have been treated as re-presented within time. It was in that connection, the decision said, following some earlier decisions, that where a suit had been instituted in a court, which did not have jurisdiction, and it was found necessary to raise a second suit in a court of competent jurisdiction, the second suit cannot be regarded as a continuation of the first, even though the subject matter and parties were identical.

Learned District Judge seems to have a confused thinking in the matter. So far as a suit is concerned, Section 5 of the Limitation Act has no application. Section 5 is applicable only to appeals and applications Section 14 is applicable to suits, appeals and revisions. In both Parameswara Kurup''s case (1964 KLT 145) and Abraham''s case (1979 KLT 493), the questions involved were concerning suits and not applications, appeals or revisions. Here, we are concerned with an appeal. In the re-presented suits covered by the decisions, the only questions that came up and could have come up for consideration (there were no pleas of acknowledgment saving limitation) were application of Sections 4 and 14 in one and Section 14 in the other and not Section 5, which is not applicable to a suit. Here, the application of Section 4 is not there and Section 14 is admittedly applicable for the period of pendency of the appeal before the High Court. While Section 5 deals with extension of period of limitation for filing an appeal or application and admitting the same after prescribed period on satisfaction of sufficient cause for not preferring or making in time, Section 14 deals with an entirely different situation of excluding time, during which the plaintiff was prosecuting with due diligence another civil proceeding, whether in a court of first instance or appeal or revision, against the defendant, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of like nature, was unable to entertain it. What could be excluded u/s 14 is only the actual period of pendency of the proceeding, including the dates on which it was instituted and ended. So far as a suit is concerned, no question of extension of time u/s 5 could arise. Though Section 4 is also concerned with suit, appeal or application, that question does not arise here.

Here, there is no question of the incompetency of the High Court. What is involved is only that u/s 15 of the Code of Civil Procedure, every proceeding will have to be instituted in the court of the lowest grade competent. Though Section 15 of the Code mentions only suits, the procedure provided is regard to suits shall be followed, as far as it can be made applicable, in all proceedings, as provided in Section 141 of the. Code. Further, this Court did not grant any extended period, within which the appeal had to be re-presented. Even the District Judge admits that if the appeal was re-presented on 5-4-1980 itself, it would have been well within time because exclusion of period u/s 14 is available. Then I fail to understand how the District Judge subsequently said that there is no scope for invoking the provisions of Section 5 or Section 14. Section 14 was already held to be applicable by the District Judge himself and that is correct also. The further question is only whether Section 5 also could be invoked. Regarding the applicability of Section 5, the District Judge went wrong in following the decisions, which were concerned only with suits, in which Section 5 has no application.

Though Sections 5 and 14 are independent and cannot read together, they are not mutually exclusive. There is no rule of law, which says that in a case where Section 14 is applicable, for that reason alone Section 5 is excluded. Both operate in different areas. If both provisions are available for different periods in a proceeding, nothing prevents both of them being applied separately. There cannot be any dispute that the District Judge was competent to entertain and dispose of an application u/s 5 on merits, if the appeal was directly filed before him without it being wrongly filed in the High Court. The mere fact that the appeal was wrongly filed in the High Court and the further fact that the appellant got exclusion of the period, while the appeal was pending in the High Court, u/s 14 by themselves are no reasons to deprive the benefits of Section 5, if it is also available. The decisions relied on by the District Judge do not have such an effect. For the application of Section 5 by the District Judge, it is immaterial whether the appeal was wrongly filed before the High Court on the last date of limitation or on an earlier date. When exclusion u/s 14 is given, the further question is only whether there is sufficient cause for extension of time u/s 5 or not. That has to be decided on the merit" of the application subject to the provisions of Section 5 alone.

Therefore, the only question to be decided is whether there is sufficient cause for the delay. The delay for the period before the appeal was wrongly filed in the High Court was due to the bona fide mistake that the appeal lies to the High Court, for which there is 90 days time. 14 days delay in re-presentation was for re-drafting or modifying the appeal memo and getting about 110 copies printed for being filed in the District Court. Alter getting it returned from the High Court on 5-4-1980, it would have been practically impossible for the appellant to reach Thiruvananthapuram and file it on the same day even if no modification or printing was necessary because the distance is so long. Courts must have a practical approach in such matters The process of courts must advance the cause of justice and should not result in its denial on technical grounds.

The main consideration in deciding an application u/s 5 is whether the appellant or applicant has acted with reasonable diligence in presenting his appeal or application The yardstick for exercise of judicial discretion has no fetters. Upon principles, which are well understood the words "sufficient cause" appearing in Section 5 of the Limitation Act, must receive liberal construction so as to advance substantial justice when no negligence nor want of bona fides is imputable to the appellant. The essence of Section 5 is to cater justice to litigants, who have good cause in being late in the matter of filing an appeal or application. There is no meaning if a narrow construction is placed on the "sufficiency of the cause". Only a liberal construction will yield the objective of justice. What is ''sufficient cause'' has to be objectively assessed by the courts. That is mote so when there is neither negligence nor inaction nor want of bona fides of the appellant or applicant. There can be no rigid and fast rule circumscribing the sufficiency of the cause. Even though ignorance of law is no excuse, a bona fide mistake of law in filing an appeal before a wrong court can be a sufficient cause. Otherwise, Section 14 itself would not have been there. Of course, Section 5 is applicableonly in a proper case. I feel that this is a proper case for the application of Section 5. The rejection of the application and dismissal of the appeal involving more than 90 parties resulted not only in untoward misery and harassment to the appellant, but delay of the litigation for more than ten years also.

Second appeal is allowed. Rejection of the application for condonation of delay and dismissal of the appeal are set aside. Delay in filing the appeal is condoned. The appeal is remanded to the District Judge. The District Judge will lake it to his file and deal with it, according to law, on the merits. Office will transmit the records forthwith to the appellate court. Parties will appear before that court on January 7, 1991. No costs.