TMI Blog1917 (7) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... was taken up thereafter on April 21, 1904. In the course of the hearing on July 16, 1904, an application was made to the Chief Court to revise an order of the District Judge, directing a party to produce certain books. I need not -go into details concerning this. Suffice it to say that the petition remained in the Chief Court till January 1, 1908, when Mr. Herbert, pleader for plaintiff, withdrew it, and that in the meantime certain casualties had occurred among the parties. In February, 1906, Raja Balbir Singh died and was succeeded by the present chief. On May 9, 1906, the latter applied in the Chief Court for substitution of his own name, and this was ordered on May 19, 1906. Joti Mal, defendant 2, had also died on April 15, 1906, and plaintiff said he heard of this (plaintiff is a minor) on November 8 of the same year. Application for substitution of his five sons was made on December 13, 1907, and the file still being in the Chief Court, on January 11, 1908, the prayer was granted. These orders of May 19, 1906, and January 11, 1908, were apparently both ex parte. The papers went back from Chief Court to District Judge on March 13, 1908, and then an application was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chief Court against that order. This the plaintiff did. But on presenting his appeal he was met by the objection that it was time-barred. The case depended before the same judge, Johnstone J. He upheld the objection. The case was then set down for review by the Chief Court. In that Court Johnstone J. sat as sole judge. He, after a careful reconsideration, not unnaturally repeated his former judgment, but gave leave to appeal to His Majesty in Council. 4. The sole question directly raised is whether the time which was spent in getting the District Judge Prenter's judgment, which was afterwards decided to be wrong, and in getting it set aside falls to be deducted in calculating the time during which appeal was possible. This depends on Section 5 of the Limitation Act, which is in these terms : Any appeal or application for a review of judgment may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies the Court that he had some sufficient cause for not presenting the appeal or making the application within such period. 5. It is right, also, to quote Section 14 of the same Act, which is as follows : In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Karm Bakhsh v. Daulat Ram 1888 P.R. No. 183 laid down no general rule. The case was first taken in chambers, when Plowden J., the point being raised, said : This class of cases is constantly cropping up, and some definite rule should be laid down. Following this view, when with another judge he took up the case in the Divisional Court, he referred the matter to a Full Bench. The case was heard before a Full Bench, and Plowden J. delivered the judgment. It will be enough to cite two passages from that judgment. After setting forth the terms of Section 5 of the Limitation Act, he says : All that the section requires in express terms as a condition for the exercise of the discretionary power of admission of an appeal presented after time is sufficient cause for not presenting the appeal within the prescribed period. If such can be shown the Court may in its discretion, which is of course a judicial and not an arbitrary discretion, admit the appeal. We think the true guide for a Court in the exercise of this discretion is whether the appellant has acted with reasonable diligence in prosecuting his appeal, and we think further that he ought ordinarily to be deemed to have acted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in I.L.R. 5 Allah. 591 with the case in I.L.R. 19 Allah. 348. 11. Now if the matter were entirely open, inasmuch as a mere mistake in law is. not per se sufficient reason for asking the Court to exercise its discretion under Section 5 (instances of which are given in some of the cases cited by the learned judge), there would be a good deal to be said in argument in favour of making the rule universal and upholding in its entirety the ruling given in the case of Ramjiwan Mal v. Chand Mal I.L.R. 10 Allah. 587, above cited. But the matter is not open. To interfere with a rule, which after all is only a rule of procedure, which has been laid down as a general rule by Full Benches in all the Courts of India, and acted on for many years, would cause great inconvenience, and their Lordships do not propose so to interfere. 12. It was strenuously urged by the learned Counsel for the respondents that, inasmuch as the power in Section 5 is admittedly a discretionary power, this Board ought not to interfere with the discretion exercised by Johnstone J., and he cited cases of which Sharpe v. Wakefield [1891] A.C. 173 may be taken as a type. In reality, however, tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seems to their Lordships very clear. Section 365 provides for the substitution of a new plaintiff, when the plaintiff has died, upon the application of the representative of the deceased plaintiff. Section 366 deals with the state of circumstances when no such application is made within a certain time. The defendant may either (1.) have the suit abated, or (2.) get an order putting up a new plaintiff. Section 368 deals in a similar manner with the case of the death of a defendant. Thus it will be noticed that abatement is a penalty which is only imposed on a failure of the plaintiff. 13. Then conies Section 371, which primarily deals with what abatement involves : No fresh suit shall be brought on the same cause of action. It is obvious that it is only a plaintiff that is hurt by this. Nothing could be better for a defendant. It is also obvious that an abatement is equally hurtful to the plaintiff whether granted in respect of a failure, under Section 366 or Section 368. When Section 371 goes on to say under what conditions the plaintiff can get rid of the abatement, it would be expected that it would deal with abatement however procured. And the opening words make ..... X X X X Extracts X X X X X X X X Extracts X X X X
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