Anandi Ram Kalita and Another vs Mt. Chaduri Pachinioni

Ram Labhaya, J.—This is a petition u/s 14, Limitation Act, for condoning the delay in filing an appeal from an order of Sri A. Kalita, Subordinate Judge, U.A.D., dated 30-6-54, by which he granted a probate, with a copy of the will annexed, to Mt. Chaduri Panchinioni, the sole executrix of the assets of her late husband. Mt. Chaduri (Respondent) had applied for the probate of the will. The matter was transferred to the Subordinate Judge who granted the probate. An appeal was filed, in the Court of the District Judge on 13-8-54 through Sri L. Barooah, B.L.

The appeal came up for hearing on 8-1-55, It was returned to the appellants on the same day for filing it in the proper Court. In pursuance of this order, the appeal has been presented to this Court, and the petitioners seek condonation of the delay, as the appeal is time barred on the face of it. Condonation of delay is sought on the analogy of the provisions contained in Section 14, Limitation Act, that section being admittedly inapplicable to this case in terms.

Section 14(1) provides that

in computing the period of limitation prescribed for any suit, the time during which the-plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of Appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.

It is evident that this section has got no application to appeals which are covered by Section 5 Limitation Act. If the principle of the section is applied to cases in which condonation of de lay is sought u/s 5, the applicant will have to show that the proceeding was being prosecuted in good faith in another Court which, from defect of jurisdiction or other cause of a like nature, could not entertain it.

It was conceded in the Court of the District Judge, and it is not disputed here, that the District Judge had no jurisdiction to hear the appeal. It was for this reason that the appeal was returned for presentation to the proper Court. It follows that one requirement of the principle of Section 14 is satisfied. The Court in which the appeal remained pending from 13-8-54 up to 8-1-55, was not competent to entertain it by reason of want or absence of jurisdiction.

The other requirement of the principle of Section 14 is that proceeding in another Court should have been prosecuted in good faith, and that is the question that arises in this case. It is to be determined whether the appeal was filed and prosecuted in the Court of the District Judge in good faith.

The expression "good faith" has been defined in Section 2, Clause (7), Limitation Act. Section 2, Sub-section (7) of the Act provides that

nothing shall be deemed to be done in good faith which is not done with due care and attention.

It is thus necessary for the petitioners to show that the appeal came to be filed in the District Judge''s Court in spite of due care and attention. Now, due care and attention are antagonistic to negligence. If, therefore, there is any element of negligence in the case, the principle of Section 14 even would not apply.

The error which has been responsible for the difficulty of the petitioners was obviously an error of law. Even a bona fide error of law on the part of a party or his agent may be regarded as sufficient ground for holding a proceeding to have been conducted in good faith. If errors of law are excluded from the ambit of the principle which forms the foundation of Section 14, the scope of the section would be considerably narrowed down.

The petitioners naturally wore misled by the wrong advice of the counsel. The counsel is an agent of the party. If he acts bona fide, that is, with due care and attention, condonation of delay may be possible by the application of the principle of Section 14, But, his negligence would also be the negligence of the party and would deprive the party of the right to claim the benefit of the principle of Section 14.

It cannot be laid down as a general rule that a litigant should in no case suffer from any error or mistake on the part of his counsel. Protection from injury, however, may be given where the agent of the party, including his counsel, is shown to have acted bona fide. Where his conduct is free from negligence and carelessness, the requirement of the principle of Section 14 is satisfied.

This takes us to the question whether in this, case the appeal was prosecuted in good faith in the District Judge''s Court by the counsel for the petitioners. It was a case under the Indian Succession Act. Probate was granted under the provisions of that Act. The entire proceeding was regulated by the provisions contained in that Act. Section 299 provides for appeals to the High Court.

Every order made by a District Judge by virtue of the powers conferred on him by this Act, is made subject to an appeal to the High Court, in accordance with the provisions of CPC applicable to appeals. This is a specific provision which determines the forum for appeal in cases coming within the scope of Section 299, Succession Act.

The decision in this case was not given by the District Judge. The case had been transferred to the Subordinate Judge. It could be so transferred if the High Court, acting in the exercise of its powers u/s 23, Bengal, North Western Provinces and Assam Civil Courts Act (Act 12 of 1887), had authorised, by general or special order, the Subordinate Judge concerned to take cognizance of, or the District Judge to transfer it to the Subordinate Judge under this administrative control.

It is not disputed that the District Judge had power to transfer the proceeding to the Subordinate Judge, concerned. The Subordinate Judge, on transfer of the proceeding, exercised the same jurisdiction with regard to it as the District Judge would have, if he had tried and disposed of the case himself. Where the powers of the District Judge are conferred on a Subordinate Judge, the jurisdiction is concurrent; the powers are the same.

In the absence of any express provision in the Succession Act, appeals from orders passed by a Subordinate Judge, in a case transferred to him u/s 23 of the aforesaid Act, 12 of 1887, would lie to the High Court u/s 299. There is no provision in the Act specifying the forum of appeal in a case where probate is granted by a Subordinate Judge in a case transferred to him.

The question as to whether an appeal in such circumstances, would lie to the High Court or to the Dist. Court, arose in-- Baroda Debya Vs. (Sreemati) Phutumani, before a Division Bench of that Court. It was held that an appeal would lie to the High Court. Wort, J., who delivered the judgment, in coming to his conclusion, relied on the earlier decision of Mnhmood, J. reported in--''Sohna v. Khalak Singh'' 13 All 78 (B).

We are in full agreement with the view expressed in this case. It appears to us further that the question cannot be regarded as one of any doubt or difficulty. No other view on this matter is possible. The authority is all one way. The Indian Succession Act has been in force since 1925. Before that there was the Probate Act.

The view, before and after the Succession Act, consistently has been that an appeal lies to the High Court. The learned Counsel for the petitioners had to concede in the District Court that it had no power to entertain the appeal, and Mr. Sen here has not been able to contend that there was any good or even plausible reason for persuading the learned Counsel there to file the appeal in the wrong Court.

All that he has suggested is that a proceeding under the Succession Act for probate has to be, as nearly as possible, in the nature of a suit. The appeal was preferred in the District Court on the basis that the pecuniary value of the property in dispute was below Rs. 5,000/-. This would not show that the appeal was filed with due care and attention.

A mere reference to the relevant provisions of the Succession Act would have indicated that there was no justification for filing the appeal in the District Court. The mistake arose obviously from the fact that the relevant provisions were probably not referred to or consulted. The question not being of any great difficulty and the available case law being all one way, we find it extremely difficult to hold that this appeal was filed or prosecuted in the District Court bona fide.

The petitioners, in these circumstances, are not entitled to the exclusion of the time spent in prosecuting their appeal in the District Court. If that period is not excluded, the appeal is time-barred. In these circumstances, this petition is disallowed. We make no order as to costs.

Deka, J.

I agree.