JUDGMENT Dalal, J.
1. A ruling of any High Court is the greatest calamity that could happen to a subordinate Court as it chokes every pore of his intelligence. This is a second appeal from the dismissal of an appeal by a Court of a Subordinate Judge which refused to exercise its discretion under Section 5, Lim. Act. The Court has stated certain facts, admitted them as correct and then decided by reason of certain rulings that the appeal cannot be admitted under Section 5. No general principle is enunciated, and the Court does not take any trouble to exercise his discretion. If there is any principle enunciated relating to the decision it is to the effect that the mistake of a clerk is tantamount to the mistake of a party.
2. This general proposition is subject to limitation. What has been accepted as true in the present case is this. The trial Court delivered judgment on 24th March 1926, and the very next day on 25th March the plaintiff delivered costs to his pleader's clerk to obtain a copy of the decree. An application for copy was filed by the clerk on 26th March and the copy was ready on 23rd April. He obtained delivery on 26th April. The clerk, however, got mixed up and forgot that he had received the copy. The plaintiff went to the clerk several times after 26th April to inquire whether the copy had been obtained, and the clerk gave the answer that the copy was not ready by that time. The evidence has been accepted that the plaintiff went to the clerk several times up to 9th May and again on 19th May the clerk gave the same answer. The plaintiff went again on 28th May and insisted on the clerk making proper inquiries, whereupon he promised to make an inquiry, and after a short time informed the plaintiff that the copy had been delivered to him as far back as 26th April. On receiving the copy on 28th May the plaintiff got the appeal filed on 29th. In such a case it can hardly be said that the negligence of the clerk was tantamount to the negligence of the party. The party had been diligent throughout and the finding is one of fact that the party continuously went to the clerk to inquire about the copy, that prompt steps were taken to pay the clerk costs of obtaining copy and that as soon as the party was able to obtain the copy from the clerk the appeal was filed. In this very case if after giving costs to the clerk on 25th March the party had taken no further interest in the matter until he had been informed by the clerk at the end of May that copy had been obtained in April certainly the neglect of the clerk would have been tantamount to the neglect of the party. Their Lordships of the Privy Council quoted with approval the following dictum of a Full Bench of the Punjab Chief Court in Brij Indar Singh v. Kanshi Ram A.I.R. 1917 P.C. 156, (at p. 104 of 45 Cal.):
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 with ordinary diligence, when the whole period between the date of the decree appealed against, and the date of presenting the appeal does not, after excluding the time spent in prosecuting with due diligence a proper application for review of judgment, exceed the period prescribed by law for presenting the appeal.
3. In the present case the lower appellate Court has accepted the plaintiff's version that from 24th March when the decree of the first Court was delivered, until 28th May he was diligently trying to obtain a copy of the decree in order to file an appeal. In fact there can be no doubt as to his diligence because the application for copy was filed on 26th April. After that he went on inquiring of the clerk about the copy and he was not informed by the clerk of the delivery of the copy until 28th May and immediately on receiving the copy he got the appeal filed the very next day on 29th. The plaintiff was continuously diligent so far as in him lay. Out of the rulings quoted by the learned Judge of the lower appellate Court two are mine reported in A.I.R. 1925 Oudh at pp. 189 and 374. In both of them the party left the matter entirely to his counsel and his clerk and never bestirred himself to goad them into activity. In the case of Mahtab Kuer v. Birhmo A.I.R. 1924 All. 176 the party in delay did not take steps towards obtaining a copy until six weeks after the decree to be appealed against. The copy was not actually applied for till several weeks later, the long vacation having intervened. In the case of Buddhu v. Diwan [1915] 37 All. 267, another case quoted by the lower Court, the party at fault thought that he had done all that was required of him to be done by giving the papers of the case and a fee of some sort to a legal practitioner. In this Court the learned Counsel for the respondent quoted another ruling of a Bench of this Court: Ahmad Husain v. Muhammad Fasih-ullah A.I.R. 1923 All. 455. In that case the decree appealed against was signed on 2nd April and an application for copy was not put in till 13th. The copy was not taken back till 25th April and the memorandum of appeal was not filed till 3rd May. In that case the lower appellate Court had considered the question of discretion independently of rulings and come to the conclusion that the appellant had shown laches in attempting to procure a copy of the decree which it was essential for him to obtain before he could file his appeal. No application for copy in that case was made until three days before the period of limitation expired. Another ruling quoted was that of my brother Sulaiman in Ram Rup v. Naik Ram (A.I.R. 1926, All. 252.) That was a peculiar case where no affidavit was filed in the lower appellate Court and all the circumstances of the case were not disclosed to it. In that case the learned Judge refused to entertain the second appeal on the ground that the appellate Court had exercised the discretion vested in it. In the present case, in my opinion, no discretion has been exercised but merely a string of rulings has been quoted, according to which, the learned Judge seemed to be of opinion that his own discretion was barred.
4. In my opinion this is a case where discretion should be exercised in favour of the plaintiff. I set aside the decree of the lower appellate Court and remand the appeal to it for admission and trial.
5. Costs here and heretofore shall abide his result.