Azam Jung vs Mohd. Abdul Razzack

Srinivasachari, J.—This is a revision arising in proceedings started in the lower Court u/s 9, Specific Relief Act. The Petitioner before me filed the suit on the allegation that he was in possession of the suit property up to 12-8-1953 when the Defendant dispossessed him. He, therefore, prayed for his being restored to possession. The suit was filed on 28-12-1953 in the City Civil Court.

The Defendant contended that the Court had no territorial jurisdiction over the property and therefore, the suit was liable to be dismissed. On 22-7-1954 the City Civil Court returned the plaint for presentation to the proper Court. The plaint which was returned on the aforesaid date was filed in the Secunderabad Court on 31-8-1954.

Here again the Court came to the conclusion that the property was not situated within its territorial jurisdiction and therefore returned the plaint to the Plaintiff for presentation to the proper Court on 8-10-1954. The Plaintiff represented the plaint on 11-10-1954 in the District Court, Hyderabad.

In this Court again the plea of limitation was raised stating that the suit should have been brought within six months from the date of dispossession; admittedly the Plaintiff had been dispossessed on 12-8-1953 and the presentation of the plaint in the District Court at Hyderabad on 11-10-1954 was long after the period prescribed for filing the suit had expired. In answer to this the Plaintiff contended that he was entitled to the benefit of Section 14, Indian Limitation Act and under those circumstances the question of limitation did not arise.

The trial Court overruled this contention and held that the Plaintiff could not be regarded as having been diligent in prosecuting the case in the City Civil Court and the Secunderabad Court under those circumstances it dismissed the suit. Hence this revision, I heard the arguments of the learned Counsel for the Petitioner and the learned advocate for the Respondent.

The short point to be determined in this case is as to whether the Plaintiff could avail him-self of Section 14, Limitation Act. To entitle the plain-tiff to the benefit of the terms of Section 14, Limitation Act, it is sufficient to show that he prosecuted the suit bona fide with due diligence. It was urged by the learned Counsel for the Petitioner that then was considerable doubt as to whether the suit land was within the municipal limits of Secunderabad and the notifications issued by Government in this (sic) were not precise.

It was therefore urged that as it w�s not clear as to within what Municipality this particular area came the Plaintiff on the legal advice tendered to him then filed the suit initially in the City Civil Court and later on when he was informed that the land was within the jurisdiction of the Secunderabad Court he presented it in the District Court at Secunderabad. In support of this contention the Petitioner has filed an affidavit.

Section 14, Sub-section (1), Limitation Act is as follows:

In computing the period of limitation perscribed for any suit the time during which the Plaintiff has been prosecuting with due diligence any civil proceeding...against the Defendant shall be excluded, where the proceeding is founded upon same cause of action and is prosecuting in good faith in a Court which, from defect of jurisdiction...is unable to entertain it.

It would appear from the wording of the section that the Court is not given any discretion but the litigant is entitled as of right, to exclude the period spent in in fructuous proceedings where he satisfies the Court that he was prosecuting the suit bona fide with due diligence. In the instant case the mistake that has been made is the filing of the suit in the Court which had no territorial jurisdiction and this mistake had been occasioned by the advice tendered to the Petitioner by his legal adviser.

It may be straightaway pointed out that a mistake made unintentionally would be taken as having been made in good faith. Where therefore from a bona fide mistake of fact the litigant has been misled into litigation in a wrong Court such party could avail himself of Section 14, Limitation Act. The question would be, did the Plaintiff sue in the wrong Court knowingly.

A person would be said to be suing in a wrong Court knowingly where for example he deliberately undervalues the subject-matter of the suit to save court-fee or for any other reason. This is not a case like that. The other ingredient necessary |or relief u/s 14, Limitation Act is that the suit should have been prosecuted in good faith. A person cannot be said to be acting without good forth where he relies upon the advice of a person whose status entitled him to give advice to litigants. As has been observed above, in this case the Petitioner wholly relied upon the advice of his legal adviser.

It was argued that the objection to the jurisdiction of the Court was raised at the earliest stage in the City Civil Court where the plaint was presented for the first time. Although the objection was taken by the Defendant the Court did not give any decision but the matter was pending in the lower Court for a long time and undoubtedly the Plaintiff could not be held responsible for the delay in the Court disposing of the case. If a finding had been given early and the plaint returned immediately thereafter the Plaintiff could have presented it in the proper Court early. This objection, in my opinion, is of no avail.

There can be no doubt that in this case the party has strictly complied with the directions of his legal adviser, for, the matter as to which Court would have jurisdiction, must be presumed to be within the knowledge of the lawyer. If the legal adviser erred in advising the client, and the client acting upon such advice files the suit in a wrong Court, the period during which such suit was pending in the wrong Court or Courts could be deducted in computing the period of limitation. Mistaken advice of a lawyer in any particular case could be regarded as a bona fide mistake. The Privy Council applied Section 5, Limitation Act, to a case where the appeal was filed beyond time and wrong advice of counsel was regarded in that case to be a sufficient ground for the application of Section 5, Limitation Act. Their Lordships observed:

They are of opinion that in applying Section 5 to such a case at the present, the analogy of Section 14 (which applies only to suits) is an argument of considerable weight. AIR 1937 276 (Privy Council) .

These observations would show that in a proper case the provisions of Section 14 could be invoked where the proceedings have gone on in a wrong account on account of mistaken legal advice. According to their Lordships of the Privy Council the fact that a party had acted on mistaken advice as to the law in appealing in a wrong Court did not preclude the party from showing that it was owing to his reliance on that advice that the appeal was filed in the wrong Court. I might advert to the case of Sunderba v. Collector of Belgaum 46 Ind App 15 : AIR 1918 PC 135 (B).

A case exactly in point is the case of Brijmohan Das v. Mannu Bibi 19 All 348 (C), a Full Bench decision of the Allahabad High Court where the learned Judges held that the application of the maxim-''Ignorantia legis neminem excusat'' to a case where there was a bona fide mistake of law was not warranted. This view of the law was approved by their Lordships of the Privy Council in Brij Indar Singh v. Kanshi Ram 44 Ind App 218 : AIR 1917 PC 156 at p. 158 (D).

The other argument advanced by the learned advocate for the Respondent was that I should not interfere in revisional proceedings, the Petitioner having a right to file a regular suit and get the matter adjudicated upon. No doubt ordinarily the High Court would not interfere in a revision against an order passed in a suit u/s 9, Specific Relief Act, but considering the circumstances of the case I think this is a fit case for interference in revision.

The result of my dismissing this revision would be that the Defendant would get into possession of the property and it would take a long time for the Plaintiff to get possession after going through the ordeal of the trial in the first Court and the appellate Court. Would it be equitable to drive the Plaintiff to a suit who according to his allegation was in possession of the property just six months prior to the date of the suit or leave it to the Defendant to get his right established in a Court of law leaving the possession of the property to the Petitioner.

In my opinion the balance of convenience in this case is not in favour of driving the Plaintiff to a regular suit. I am not expressing my opinion with regard to the merits of the case, for that matter would have to be decided by the lower court as to whether the Petitioner was really in possession of the property till 12-8-1953 and whether his suit is liable to be decreed.

In my opinion there has been neither negligence, latches, inaction or bad faith established against the Plaintiff in this case and, therefore, he is entitled to the benefit of Section 14, Limitation Act. The result is that the order of the lower Court is set aside and this revision allowed.

The case will now go back to the trial Court for decision on the merits. Having regard to the particular facts and circumstances of this case, I direct that each party do bear his own costs.