Abdul Rahman vs Smt. Sugra Begum and Others

Gopi Nath, J.—This revision is directed against an order passed by the District Judge, Bijnor rejecting an application u/s 5 of the Indian Limitation Act and dismissing the appeal as time barred. The suit against the Applicant was decreed by an order of the Munsif Nagina, Bijnor, dated 31-7-1976. The Applicant took copies of the judgment and decree and handed them over to his counsel for filing an appeal. The appeal was within time upto 20th September, 1976. It appears that the Applicant entrusted the papers and the copies to his counsel on 21-8-1976. He enquired from his counsel about the filing of the appeal in the month of September, 1976 and the counsel told him that the papers were not traceable, they had either been lost or misplaced somewhere and that he shall find them out. He further told the Applicant that if by his mistake the filing of the appeal was delayed he shall file his own affidavit for the condonation of delay. It appears the papers were tracted out in the last week of December, 1976 and the appeal was filed on 3-1-1977. The counsel gave his own affidavit explaining the dely and he fairly and frankly stated that the papers had been lost in his office. The learned Judge rejected the application for condonation of delay on the ground that fresh copies could have been obtained. It may be observed that fresh copies could not enlarge the limitation as the same had already expired from the date of the decree passed against the Applicant. The question in the case, accordingly, was whether the bona fide mistake of the counsel in misplacing the copies could furnish a sufficient ground for the condonation of the delay in filing the appeal. No negligence could be attributed to the Applicant as he had handed over the papers to his counsel in time. The frankness of the counsel is also not disputed. He had told his client that the papers had been misplaced and he was making a frantic effort to recover the same. He assured the Applicant that he would file his own affidavit if the appeal became time barred. Learned Counsel for the Applicant submitted that the court below did not approach the case from a correct angle inasmuch as the circumstances clearly indicated that the Applicant was not negligent and the mistake on the part of the counsel was a bona fide one and he had frankly owned it.

Learned Counsel for the opposite party contended that this was case of inaction and the delay was rightly not condoned. On the facts stated no case of inaction, either on the part of the Applicant or his counsel appears to have been made out. The Applicant had entrusted the papers well within time to the counsel and he had somehow misplaced them. He owned his mistake to the client, as also to the court by filing his own affidavit explaining the facts. The court below dismissed the application on the ground that fresh copies could be obtained for filing the appeal. We have already observed that the appeal had become time barred by the time loss of paper was discovered. The question is whether the court below was right in dealing with the problem as he did. In Shib Dayal and Another Vs. Jagannath Prasad, it was held that an honest though negligent mistake on the part of a counsel was a sufficient cause for extending the period of limitation u/s 5 of the Limitation Act. In Dinabandhu Sahu v. Jadumoni Mangaraj AIR 1954 SC 411 it was held that the word "sufficient cause" should receive a liberal construction so as to advance substantial justice. In Mata Din Vs. A. Narayanan, it was observed -''the law is settled that mistake of counsel may, in certain circumstances, be taken into account in condoning the delay although there is no general proposition that mistake of counsel by itself is always a sufficient ground. It is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an underhand way". The delay in that case was condoned as the error was found bona fide and no mala fides could be attributed either to the counsel or to the party.

In The Punjabi University, etc. Vs. Acharya Swami Ganesh and Another, a bona fide mistake of the counsel in computing the period of limitation was held to be a sufficient ground for condoning the delay.

In The State of West Bengal Vs. The Administrator, Howrah Municipality and Others, it was observed "the legal position when a question arises u/s 5 of the Limitation Act is fairly well settled. It is not possible to lay down precisely as to what facts or matters would constitute "sufficient cause" u/s 5 of the Limitation Act. But it may be safely stated that the delay in filing an appeal should not have been for reasons which indicate the party''s negligence in not taking necessary steps which he could have or should have taken". It was pointed out that "discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice and the words "sufficient cause" should receive a liberal construction so as to advance substantial justice."

In Ram Ji Dass v. Mohan Singh 1978 ARC 496 it was observed by the Supreme Court that court''s discretion should be exercised in favour of hearing and not to shut out hearing.

In Brij Inder Singh v. Lal Kaushi Ram AIR 1917 PC 156 it was held that where a Judge has misdirected himself as to the law to be applied to the case, he cannot be said to exercise a judicial discretion, and the superior court must either remit the case or exercise the discretion itself.

The court below took a wrong consideration into account in dismissing the application. It observed that the appeal could be filed by obtaining fresh copies but that could not enlarge limitation if the same had already expired. The question was whether there was inaction or negligence on the part of the Applicant in filing the appeal. That in our opinion was not made out in the instant case. The counsel had sufficiently explained the delay.

The application u/s 5 of the Limitation Act deserved to be allowed and is hereby allowed.

The revision succeeds. The order of the court below dated 15-7-1976 is set aside and the case is sent back to the court below for registering the appeal to its original number and disposing it of on merits according to law. In the circumstances of the case parties shall bear their own costs.