Abdul Ghaffur vs Ram Saran Kashyap

P.N. Mookerjee, J.—This rule was issued u/s 5 of the Indian Limitation Act. It seeks condonation of delay in the filing of a pauper appeal. The delay to be condoned is of a period of about two weeks.

The original pauper Appellant Abdul Gaffur died after the presentation of the appeal along with the application for leave to file and prosecute the same in forma pauperis and his cousin sister Bivan Bibi was substituted in his place and stead as his heiress and legal representative for continuing the above proceedings. Both Abdul Gaffur and Bivan Bibi have been found to be paupers and so the substituted Appellant Bivan Bibi is entitled to prosecute this appeal in forma pauperis provided the question of limitation is decided in her favour and the delay in the filing of the appeal by the Original Appellant is condoned u/s 5 of the Indian Limitation Act. That is the only question under consideration "before the appeal can be entertained and registered and that question falls to be decided in this rule.

The original pauper Appellant Abdul Gaffur was a Defendant in the court below. The Plaintiff''s suit against him was decreed by the trial court on January 9, 1957. The decree was signed on the 16th following. Abdul Gaffur applied for certified copies of the judgment and decree on the February 8, 1957, and he obtained the same on the 19th and, on the same day, he approached his pleader Syed Nazmul Huda for advice as to whether an appeal should be filed and if so, whether it could be filed without court fee and also as to when and where such appeal should be filed. The pleader, it appears, advised him that an appeal pan and should be filed in this Court in forma pauperis within 90 days from the -date of the decision of the trial court. The pleader further assured him (Abdul Gaffur) that he would take him to an Advocate of this Court in time. Thereafter the pleader Syed Nazmul Huda took his client, the pauper Abdul Gaffur, to the filing Advocate Mr. Makhan Chandra Dev on March 11, 1957, when it transpired that the time for filing an appeal in this Court in forma pauperis, that is, for filing the application for leave to- appeal in forma pauperies, which must accompany the memorandum of appeal in the case of pauper appeal, was 30 days from the date of the trial court''s decree and not 90 days. On the next day, that is, on March 12, 1957 the memorandum of appeal was presented to the Stamp Reporter along with the necessary application for leave to appeal in forma pauperis. But, as the time for filing this application, namely, the period of 30 days from the trial court''s decree, had expired on February 26, 1957, the application along with memorandum of appeal was returned to the filing Advocate for presentation in court. The application, in which there was also a prayer for condoning the delay in its presentation, was then presented to court on March 13, 1957, along with the memorandum of appeal and, on that application, the present Rule was issued. The application was supported by an affidavit of the applicant Abdul Gaffur and the basic statements in it, relevant to the question of condonation of delay, were also supported by a affidavit of the Pleader Syed Nazmul Huda.

When the Rule came up for final hearing, Mr. Ganguly, appearing for the Plaintiff Opposite party, filed no counter-affidavit, but sought for permission to cross-examine the deponent pleader Syed Nazmul Huda, who, as stated above, had sworn an affidavit in support of the application in so far as it related to condonation of delay in the filing or presentation of it. This prayer was granted by us and Syed Nazmul Huda was cross-examined by Mr. Ganguly on December 17, 1957. The pleader stuck to the statements made by him in his affidavit, and re-affirmed on oath inter alia that he had advised Abdul Gaffur as mentioned above. On these materials we have to decide whether the delay in the presentation of the proper application and appeal can and should be condoned.

In opposing this Rule Mr. Ganguly has urged two contentions. He has argued first that Section 5 of the Indian Limitation Act does not apply to an application for leave to appeal in forma pauperis and, in support of this argument, he has relied upon a decision of the Nagpur High Court AIR 1927 197 (Nagpur) and an old decision of this Court Sarat Chandra Dey v. Brojeshwari Dassi (1903) ILR 30 Cal. 790 which was referred to and purported to be followed in the Nagpur case. We do not think, however, that this submission has any substance. The Kagpur case, no doubt, appears to lend support to Mr. Ganguly but it is quite patent that'' that case was wrongly decided on the seeming authority of Sarat Chandra Bey v. Brajeshwari Bassi (supra) the relevant change of law from the days of that decision Sarat Chandra Bey v. Brojeshwari Bassi (supra) not having been brought to the notice of the learned Judge of the Nagpur High Court. The decision in Sarat Chandra Bey v. Brojeshwari Bassi (supra) was given Under the Limitation Act of 1877 where, in the corresponding provision of that statute, an application for leave to appeal was not included and necessarily, therefore, it was held inapplicable to applications for leave to appeal in forma pauperis-vide Parbati v. Bhola (1889) ILR 12 All. 79 and Sarat Chandra Bey v. Brojeshwari Bassi (supra) and also to applications for leave to appeal the Privy Council-vide in the matter of petition of Sita Ram Kesho and Ors. (1892) ILR 15 All. 14 and Moroba Eamchartdra v. Gansham Nilkant Nadkarni (1894) ILR 19 Bom. 301. the 1 aw, however, was changed under the Limitation Act of 1908 and Section 5 of this statute expressly applies by its own force and on its own terms to inter alia any application for leave to appeal which has been held, as it must be, to include an application for leave to appeal in forma, pauperis in numerous decisions, reported and unreported, just as it has been held to include an application for leave to appeal to the Privy Council as Well. We do not think any other view can be taken in the matter and we are quite sure that the Nagpur Hig''h Court also would have taken the same view if the change of law from the days of Sarat Chandra Dey v. Brojeshwati Bassi (supra) had been brought to the notice of the learned Judge. We need only add that the decision in Ram Pheron and Ors. v. Sri. Ram alias Sri. Nath and Ors. (1939) ILR 15 Luck. 390 on the point is plainly unsupportable. We accordingly, over rifle the first submission of Mr. Ganguly.

Mr. Ganguly''s second argument is stronger and sounder in principle but, in the facts before us, we are not inclined to accept it. On the materials before the court, Mr. Ganguly cannot, and, indeed, he did not,-dispute that the pleader Syed Kazmul Huda gave the wrong advice which was responsible for the delay in the filing of the appeal, or, rather, the application, in this Court. He, however, argued that this wrong advice of the pleader would not be sufficient cause within the meaning of Section 5 of the Indian Limitation Act. Mr. Ganguly laid particular stress on the fact that a pleader was approached for advice, regarding the filing of the appeal in this Court and that, he submitted, was not bonafide conduct on the part of Abdul Gaffur in the sense of his acting with due care and diligence, which alone would have entitled him to the benefit of Section 5 of the Indian Limitation Act. We do not, think that, for the application of Section 5 any such strict standard is necessary. The section gives a discretion to the Court and, although, undoubtedly, such discretion should be exercised judicially, and not arbitrarily, it should not be defined and crystallised into a rigid rule of law but should be exercised in each case On its own facts with a view to secure furtherance of justice and where the applicant has not been guilty of any gross negligence or want of reasonable care and diligence he should ordinarily get the benefit of the section. We do not think that any other view would be in consonance with justice and, in our opinion, even Kshetramoni Dassi v. Surendra Mohan Kundu and Ors. (1955) C.W.N. 200 liberal though it is, should not be regarded as the last word on the subject.

In the particular facts before us, we are unable to hold that the applicant Abdul Gaffur was guilty of any gross negligence or want of reasonable care and diligence. He approached a pleader who was a pleader of experience having had a good practice and having being in the profession for about 9 years. The applicant had every reason to think that he would get the correct advice from him and, in these circumstances, if he placed implicit faith in the said lawyer he cannot be said to have acted without reasonable care and diligence so as to be guilty of gross negligence or want of bona fides which alone would have disentitled him to the benefit of Section 5 of the Indian Limitation Act. The mere fact that the lawyer concerned was a pleader and not an Advocate would not necessarily affect the position, even though the appeal was to be preferred in this Court. It is well known that usually the clients approach the lawyers of this Court through their lawyers of the court below and we may add further that the mistake that was made in this case was not an uncommon mistake even amongst practising Advocates here.

In the above view, we allow the application and make this rule absolute. But in the circumstances of this case, we would not make any order as to costs.

Sarkar, J.

I agree.