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TMI Blog1959 (1) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... o several transactions of cloth through firm Mathra Das-Atma Ram at Ahmedabad, the dealings having started from January 1946 and continued for a number of years. It was further pleaded that firm Mathra Das-Alma Ram submitted some accounts on 19-3-1948 but the same were not admitted to be correct; the accounts having not been rendered of the entire dealings. Firm Kaura Mal-Bishan Das brought the present suit for rendition of accounts and for a decree for such amount as may be found due to it after the accounts have been gone into. Firm Mathra Das-Atma Ram defendant-respondent pleaded that it was carrying on business as pucca arhtia at Ahmedadad; that its dealings with the plaintiff started on 20-2-1947; that it did not act as Commission A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dum of appeal was returned to the plaintiff-appellant for presentation to the Court having jurisdiction in the matter. On the same day the appellant's counsel took back the memorandum of appeal from the Court of the Senior Subordinate Judge and re-presented it in the Court of the District Judge at Amritsar. 4. It appears that when this appeal came up for hearing before the learned Additional District Judge, Shri Manohar Singh, who had returned the memorandum of appeal as Senior Subordinate Judge, happened to be the presiding officer of the appellate Court, viz., the Court of the Additional District Judge. Here again, an objection was raised on behalf of the defendant-respondent, that the appeal was barred by limitation. The learned A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plaintiff as P.W. 3. claiming about ₹ 15,000/- to ₹ 20,000/- from the defendant, that his Court had no jurisdiction to try the suit. With this observation the case had been forwarded by Shri Onkar Nath to the learned District Judge for being sent to some other Court having jurisdiction to try the suit. In pursuance of this order, it appears, that the learned District Judge on 26-5-1952 had transferred the present suit to the Court of Shri Kartar Singh Gambhir, Subordinate Judge 1st Class, Amritsar, for disposal. From those facts-the learned Additional District Judge concluded that there was no bona fide or honest mistake on the part of the counsel for the plaintiff-appellant. It was also observed in this connection that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strict Judge, there was sufficient ground for the learned Additional District Judge to extend the period under Section 5 of the Indian Limitation Act. The counsel submits that the memorandum of appeal was refiled in the Court of the District Judge without any undue delay after its return by the Senior Subordinate Judge. The mere fact that no formal application under Section 5 of the Indian Limitation Act had been presented does not and should not operate as an absolute bar to the lower appellate Court itself considering the question of extension of time. The entire material was on the record and no new facts outside the record were to be alleged or pleaded by the plaintiff-appellant. 7. As against this, Mr. D. R. Manchanda has very ably ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. It is not disputed Shat. the plaint was not formally amended. Under the law and procedure the value for the purposes of jurisdiction has to be contained in the plaint. After the matter is determined by the Court it must, in order to be effective, result in amendment of the plaint by substituting the amount so determined, in place of the original valuation fixed in the plaint. Admittedly this course was not followed. The mere fact that the appellant took back the memorandum of appeal from the Court of the Senior Subordinate Judge and, in compliance with that order, represented the appeal in the Court of the learned District Judge, cannot, in my opinion, amount to estoppel. If the Senior Subordinate Judge was competent to entertain and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication filed by the appellant was hardly a sufficient ground for refusing him the relief, if he was otherwise entitled to it. It has frequently been held that procedure is meant for advancing and not for obstructing the cause of justice; and if the entire material was on the record, as in the present case it obviously was, it could not promote the ends of justice, if that material was ignored and the relief refused to the appellant, merely because he had not claimed it by means of a formal application in writing or that a formal affidavit was not filed. The language of section 5 of the Limitation Act does not provide that an application in writing must be filed before relief under the said provision can be granted. In Mt. Kulsoomun Nis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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