TaxTMI 
TaxTMI 
1937 (7) TMI 4
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.... the litigation out of which this present appeal arose with the help-of his Pleader Mr. B.L. Seth at Saugor. He applied for certified copies of judgment and decree and received them on June 7, 1935. The applicant was informed by the clerk of Mr. B.L. Seth that the Judicial Commissioner's Court would re-open on July 2, 1935. As the appellant-applicant had no reason to suspect any deception or ignorance on the part of the Pleader's clerk, he depended upon this information as true and deputed Mr. N.N. Parnerkar, Pleader of Gwalior, to go to Nagpur and to have the appeal filed. On the 21st Mr. Parnerkar went to Nagpur and learnt on enquiry that the High Court had really re-opened on June 17, 1935, and that the appeal was time barred. He immediately sent a letter and a telegram to the appellant to come to Nagpur but. the latter being ill and some members of his family also being ill, he could not come. 2. On these facts the appellant claimed indulgence under Section 5 of the Limitation Act, and prayed that the appeal be admitted by ignoring the delay. The postcard received from the Pleader's clerk intimating that the Judicial Commissioner's Court re-opened on July 2, ....
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....#39;s Court, Nagpur, re-opens on July 2, 1935, and it would not matter much if Mr. Parnerkar reached Nagpur on June 25, and arranged for the filing of the appeal. On June 25 he received a telegram from Mr. Parnerkar to file an affidavit. The wording of the telegram is as under : Inform Falke case strong appeal time-barred but still possible if letter giving wrong information produced. Come personally or send somebody with power to file affidavit or at least send the letter no time to waste, arrange for money wire reply soon at Bhumralkar Mental Hospital, Nagpur. 5. The applicant proceeds to say in his affidavit that on receipt of this telegram he could not immediately arrange to leave Gwalior as he was ill and his daughter was also ill and that he informed Mr. Parnerkar accordingly and sent the letter which he received from the clerk of the Pleader to Mr. Parnerkar. This letter of the applicant is not on record. The applicant explains his inability to go to Nagpur and file the affidavit till July 11, 1935, by stating that a telegram for remitting money was sent to him on June 28, 1935, but he did not get it. Thereafter he received a letter on July 5, from Pachmarhi aski....
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....al was actually presented. This delay is accounted for in the first instance by the letter received from the clerk of the Pleader at Saugor wherein it was stated that the Judicial Commissioner's Court would re-open on July 2. The appellant argues that he had no reason to disbelieve the statement made therein and thus acted bona fide in relying upon it and sending Mr. Parnerkar by about June 24 or 25 for arranging the filing of the appeal. It is admitted, however, that on June 25, he got information that the appeal was time-barred. The inaction on the part of the appellant between June 25 and July 2, is accounted for by illness which prevented him from coming to Nagpur. The appellant thus claims that sufficient cause has been shown by him. He relies on Baban v. Emperor A.I.R. 1926 Nag. 503; 96 Ind. Cas. 857; 27 Cr. L.J. 1001; 9 N.L.J. 180, wherein Mr. Prideaux, A.J.C. observed as under: I think that in the present case the delay ought to be excused. It is obviously not the applicants' fault that their appeal was presented late. They relied on what their Pleader told them, and the mistake is apparently an honest mistake, though due to carelessness on the part of the ....
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....ot entitled to an extension of time if some unexpected or unforeseen contingency prevents him from filing the appeal within time: Kedarnath v. Zumberlal 12 N.L.R. 171; 37 Ind. Cas. 503, was followed. The Court while exercising the discretion vested in it will necessarily look into the conduct of the appellant and will only exercise its discretion in favour of a person who is found to be diligent and not in favour of one who is guilty of laches or negligence. It is only in that view that the conduct of the appellant becomes relevant. In this case we find that though the decision was given in February 1935 and though the copies were obtained in April 1935, the appellant did not care to consult a lawyer, but depended upon the advice of a Pleader's clerk to send the copies to him. It appears that the Pleader's clerk did not send the copies till the applicant asked him to send them by V.-P. parcel. In the postcard from the Pleader's clerk it is stated that the V.-P. parcel was for Rs. 24 Rs. 20 being the balance of fee due to the Pleader Rs. 2 for obtaining copies, and Rs. 2 for postage. This shows that this applicant had not paid his Pleader fully, had n....
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....ion, it was held that the cause shown was not sufficient as the applicant had not acted with due care and attention. The Pleader's clerk could not be in a better position than an unauthorised published legal diary. In Gopal Patwa v. Digambar Singh A.I.R. 1927 Pat. 232; 101 Ind. Cas. 448 while declining to extend time under Section 5 of the Limitation Act, their Lordships of the Patna High Court stated that the negligence of the agent is the negligence of the principal and no distinction could be made between the two. In that case also the appellant threw the whole blame on the clerk of the Pleader who appeared for him in the Court below. We find similar observations in Ganesh Dat v. Hirde Bzhari A.I.R. 1925 Oudh 189; 82 Ind. Cas. 484. In fact the mistake of a Pleader's clerk is held to be the mistake of the party himself. Practically the same view was taken in Vithia v. Sakhia 5 N.L.R. 25; 1 Ind. Cas. 901. Kamiruddin Mullik v. Bishupriya Chowdhurani A.I.R. 1929 Cal. 240; 119 Ind. Cas. 383; 33 C.W.N. 76: Ind. Rul. (1929) Nag. 799 was cited on behalf of the appellant, but we find that that was decided upon the peculiar circumstances of that case. Due diligence on the part of ....
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....June 25 and July 2, is also of a nature which cannot be accepted to enable us to condone the delay on his part. In the affidavit that was filed with the petition of appeal by Mr. Parnerkar it is stated that it was on the 29th that Mr. Parnerkar received a letter from the applicant stating that he was possibly coming but not definitely because he was ill. It appears that the appellant did not put forward his illness as an excuse immediately after he received a telegram from Mr. Parnerkar on the 25th. The letters addressed to Mr. Parnerkar are not on record. The certificate of illness from a native physician that has been filed on record is dated July 6, 1935. It was evidently obtained after the appeal was filed and it has been brought to our notice that the physician who granted the certificate has scored out the word hamare in the certificate thereby indicating that he does not say that the appellant was under his treatment. A certificate obtained from a native physician some time after the appeal has been filed in which the physician himself does not say that he treated the patient is of no evidentiary value and cannot be relied upon. We are not, therefore, satisfied that the appe....