Har Narain Singh vs Jag Lal on 7 May, 1888

Allahabad High Court
Har Narain Singh vs Jag Lal on 7 May, 1888
Equivalent citations: (1888) ILR 10 All 524
Author: Mahmood
Bench: Straight, Mahmood


Mahmood, J.

1. In this case a preliminary objection has been raised by Mr. Gonlan on behalf of the Plaintiff-respondent, to the effect that this appeal has been preferred to this Court and admitted beyond the period of limitation provided by law, without any such circumstances existing as would justify this Court, as a Court of appeal, in admitting the appeal beyond time, under the provisions of Section 5 of the Limitation Act. The Plaint clearly shows that the Plaintiff valued his claim and the subject-matter of the suit at a sum of Rs. 10,000, and in the litigation the defence set up by the defendant did not expressly dispute such valuation of the suit, but resisted the suit upon other grounds, which have no strict bearing upon the question of jurisdiction. The Court of First Instance decreed the claim, holding that the property belonged to the Plaintiff, and that the sale-deed set up by the defendant was fraudulent and fictitious.

This decree was passed on the 11th June 1886, and from that decree the defendant preferred an appeal to the District Judge of Azamgarh, who by his order of the 6th December 1886, returned the memorandum of appeal, finding that the subject-matter of litigation exceeded the sum of Rs. 5,000, which was the pecuniary limit of his appellate jurisdiction. This having occurred, the present appeal was not presented to this Court before the 13th December 1886, from the decree of the first Court dated the 11th June 1886.

2. It is clear, and there is no contention, that this appeal calculated by the ordinary rules of computing the period of limitation is barred, and the only ground upon which Mr. Kashi Prasad has asked us to hear this appeal and to dispose of it upon the merits is that under the peculiar circumstances of this case the provisions of Section 5 of the Limitation Act are available to his client, and in exercising the discretionary powers conferred upon us as a Court of appeal we might resort to the analogy of the law contained in Section 14 of the Limitation Act.

3. This appeal has been already admitted by the order of a single Judge, subject to any objection that may be raised at the hearing of the case, and even if no such qualification had been made, the Full Bench ruling in the case of Dubey Sahai v. Ganeshi Lal I. L. R., 1 All., 34, has Laid down that the Bench which has to deal with the case finally is entitled to dispose of such questions.

4. The question then is, Is this appeal within time, or rather has this appeal been preferred within such time as would entitle the appellant to the benefit of the discretionary power of Section 5 of the Limitation Act? I may say at once that Section 14 of the Limitation Act is not directly applicable to this case, because that section applies only to suits and applications, and has no reference to appeals such as the one now before us; because if it did apply to appeals, then Section 5 of the Limitation Law would, to that extent, amount to a surplusage, an interpretation which I am not willing to place upon the Limitation Act.

5. It has been contended on behalf of the appellant that the action of the defendant-appellant in preferring the appeal to the Court of the District Judge of Azamgarh was a bond fide proceeding. Mr. Kashi Prasad does not say that such proceeding was the result of any error of fact, and his argument does not suggest that it was an error other than that of law. The learned pleader argued that where a Plaintiff values his claim at a particular sum of money, and the defendant raises a plea disputing such valuation, reducing it to a sum lower than that named by the Plaintiff, an unsuccessful defendant in such a litigation has got a right, in appealing from the decree of the first Court, to go not to the Court which would have jurisdiction with reference to the pecuniary valuation of the suit, but to the Court which with reference to the defence set up by the defendant as to the valuation of the suit would ordinarily have jurisdiction. And upon this argument the learned pleader argues that because the defendants in this case had set up a plea that Rs. 3,000 was the value of the property in suit, therefore they were perfectly justified in not preferring their appeal to this Court, but preferring it to the Court of the District Judge of Azamgarh.

6. I am of opinion that this contention is entirely unsound. Questions of jurisdiction, whether with reference to the nature of the suit or with reference to the pecuniary limits of the claim, are matters to be governed by the statements contained in the Plaint. A Plaintiff may sue for a million pounds as damages either for a tort committed or as the value of certain moveable property which can no longer be recovered. The defendant may, in such an action, plead that the amount of damages claimed is excessive, and the value of the property is also exaggerated, and that in either case all that the Plaintiff is entitled to is far less than the million pounds. The question is at which assessment the question of jurisdiction is to be settled? Is it the valuation of the claim as preferred by the Plaintiff or the plea set up in defence? I have no hesitation in saying that it is the valuation of the Plaint which would govern the action, not only for the purposes of the original Court, but also for the purposes of appeal, and indeed throughout the litigation. In support of this view I need only cite the Pull Bench ruling of this Court in Mahomed Hossein Khan v. Shib Dyal, N. W. P. H. C. Rep., 1873, 108, and the views expressed by my brother Straight in Gobind Singh v. Kallu I. L. R., 2 All., 778. [See also Ghunder Koomar Mundul v. Bakur Ali Khan, 9 W. R., 598.]

7. I hold that the present appellant in going to the Court of the District Judge of Azamgarh in appeal was acting in contravention of the law, which law it was his duty to know. Iqnorantia legis neminem excusat is a very good maxim of law, as much applicable to this country as to any other; and I hold that in this case, there being no satisfactory explanation why the present defendant-appellant went to the Court of the District Judge of Azamgarh in appeal instead of coming up to this Court, that the period which has elapsed has not been duly accounted for, so as to justify us in acting under the exceptional provisions of Section 5 of the Limitation law.

8. I am all the more inclined in this particular case to adopt this view, because throughout the litigation the defendant-appellant never denied that the Rs. 10,000 alleged by the Plaintiff to have been the amount of the sale-consideration was the amount agreed upon at the consideration of the sale of the 8th March 1874, which, indeed, was the main contention in this litigation.

9. Then, again, there is a period between the 6th December 1886, the date upon which the memorandum of appeal was returned by the District Judge of Azamgarh, and the 13th December 1886, the date upon which this appeal was presented to this Court. There has been no endeavour whatever to explain the reason why this delay took place. This appeal, indeed, so far as it has been presented beyond the period of limitation, is not supported either by affidavit or even by any explanation contained in the memorandum of appeal other than the facts which I have already stated.

10. It is perfectly conceivable that, in conditions of life such as they exist in India, an appellant in the condition of the present defendant-appellant might have felt himself entitled to try an experiment by going into the appellate Court of the District, and then taking his own time, after his memorandum has been returned, to come into this Court to file the same appeal. The statutes of limitation are intended to check such tendency of dilatoriness, and such statutes must have operation. These statutes have been called statutes of repose, but the moment they are allowed to be slackly dealt with, they cease to be statutes of repose, and frustrate the very object which they aim at. These views I expressed in Husaini Begam v. The Collector of Muzaffarnagar I. L. R., 9 All., 11, in which T happened to differ with my honorable colleague in that case, but my judgment was upheld by the learned Chief Justice and my brothers Straight and Brodhurst on appeal under the Letters Patent I. L. R., 9 All., 655. I hold therefore that this appeal was preferred to this Court beyond time and, as such, should be dismissed with costs. I order accordingly.

Straight, J.

11. I concur with my brother Mahmood and in the conclusion at which he has arrived with regard to the disposal of this appeal. It is not denied now by Mr. Kashi Prasad that the appeal has been properly prefe(sic) to this Court, and that being so, it must be conceded that it was improperly preferred to the Court of the District Judge. That being so, it undoubtedly rests upon the appellant, who asks us to extend to him the indulgence of Section 5 of the Limitation Act, to satisfy us that he made his appeal to the Court of the District Judge “bona fide,” that is to say, under an honest though mistaken belief, formed with due care and attention, that he was appealing to the right Court. Looking to the circumstance that in the Plaint the property was alleged by the Plaintiff to be of the value of Rs. 10,000, that upon the basis of that valuation he came into Court and sought to recover possession of it, and to the fact that the defendant never traversed that allegation, but allowed the suit to be tried by the Subordinate Judge upon that footing, I do not think it can be reasonably said on his behalf that he honestly believed the suit one in which the appeal lay to the District Judge. The appellant has filed no affidavit, and we have no sworn assurance of his to the effect of what his learned pleader has now said as to an erroneous impression prevailing in his mind when he filed his appeal in the Court of the District Judge. There are no materials whatever to satisfy me that at the time he filed his appeal in the Court of the District Judge he was acting under an honest though mistaken belief that the appeal lay to that Court. Even, therefore, if analogically I import the sort of indulgence into Section 5 of the Limitation Act which is mentioned in Section 14, the appellant has not shown me that he is entitled to it.

12. Moreover, apart from the delay that took place in the Court of the District Judge, we have the additional circumstance that for the delay from the 6th December 1886, when the memorandum of appeal was returned to the appellant by the Judge, to the 13th December 1886, when that memorandum was filed in this Court, no explanation is offered on behalf of the appellant. I say most emphatically that when the memorandum of appeal was returned, on the 6th December 1886, to the appellant, it was his bounden duty to hasten with all alacrity to this Court for the purpose of presenting his appeal, and that not having done so, we have no right to exercise in his favour the discretion conferred upon us. I agree with my brother Mahmood that Mr. Conlan’s objection must prevail, and this appeal must be and it is dismissed with costs.

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