Balbir Chand vs Gopal Chand

Passey, J.—This appeal which is from a decree of a Sub Judge, First Class was originally presented in the Court of District Judge, Patiala on 12-12-1949. On 5-7-1950 the District Judge ordered that the appeal be returned to the Appellant for presentation to the High Court on the ground that the District Judge had no Jurisdiction to hear it. There is a note in the handwriting of the District Judge of the same date which shows that the record of the appeal was returned to the Appellant. It was, however, presented in the High Court on 7-8-1950.

Two questions arise for determination; one whether the appeal was presented bona fide in the Court of the District Judge and second whether there is an explanation for the delay for presentation of the appeal in the High Court. No affidavit has been filed by the Appellant in order to explain either fact. Mr. Ram Niwas prays that he should be allowed time to put in affidavit of the counsel who presented the appeal in they Court of the District Judge and also of the Appellant. The reason that he gives for no putting in any affidavit so far is that he wrote to his client asking him to furnish him with an affidavit and though he got a reply from him that he would be coming himself to look into the matter he has not arrived. Mr. Ram Niwas is unable to say why his client has not turned up. In view, of the importance of the questions involved and also in view of the fact that the date appearing under the note of the District Judge showing that the appeal was returned to the Appellant on 5-7-1950 is being challenged, Mr. Ram Niwas is allowed to put in affidavits that he wishes to put in by the 23rd instant on the condition that he pays Rs. 100/- as costs of adjournment to the other side. If the Respondent so likes he can put in counter affidavits by the 27th. The appeal to come up for hearing on the 28th.

Teja singh, C.J.

The affidavits as directed by our order of 11-5-1953 which should be read as a part of the final order, have been filed. I now proceed to decide whether time should be extended u/s 5, Limitation Act. The Appellant''s counsel urges that since his client was misled by the mistaken advice of his counsel whom he engaged to institute the appeal on the analogy of Section 14 the time during which the appeal remained pending in the Court of the District Judge, should be excluded or in the alternative time should be so extended as to include the time spent by the Appellant in prosecuting the appeal in the District Judge''s Court. Both sides are agreed that Section 14 does not apply to appeals in terms but in a fit and proper case, benefit of it can be given to an Appellant by granting extension of time u/s 5. As we observed in our previous order two questions have to be taken into consideration: One whether the appeal was presented bona fide in the Court of the District Judge and second whether there is explanation for the delay for presenting the appeal in the High Court.

As regards the first point it is necessary to refer briefly to the facts of the litigation out of which the appeal has arisen. The Plaintiff is a Brahmin and is employed in the State as a Naib Tehsildar. His father, .who, we are told, was also a Naib Tehsildar sold a house in Patiala to the Defendant for Rs. 800/- on 10-5-1973 Samvat. 30 years later, i.e. on 14-5-2003 the Plaintiff instituted an usual suit for declaration challenging the validity of the sale alleging that his family was governed by agricultural custom, that the house was ancestral qua him and that the sale was without consideration and necessity. The value of the suit for purposes of Jurisdiction was given in the plaint at Rs. 10,000/-. The trial Sub Judge dismissed the suit on 26-7-2006 S (11-10-1949 A. D.); Against this decree, the Appellant preferred an appeal to the District Judge on 27-8-2006 S (12-12 1949 A. D.) When the appeal up for hearing before the District Judge on 5-7-50 an objection was raised on behalf of the Respondent that the value of the suit being Rs. 10,000/- the appeal lay to the High Court and not to the District Judge. The correctness of the objection was obvious to everyone and the Appellant''s counsel did not make any effort to question it and accordingly the District Judge by his order of the same date, ordered the memorandum of appeal to be returned to the Appellant to be presented in the High Court. The record shows that a copy of the order was prepared there and then and the memo of appeal was handed:

over to the Appellant''s counsel with the following note in the handwriting of the District Judge:

Returned to the Appellant with necessary papers and copies etc.

This note also bears the date 5-7-1950. The appeal was presented in this Court on 7-8-1950.

It is not denied by the Appellant''s counsel that since the suit had been valued for purposes of jurisdiction at Rs. 10,000/- the appeal lay direct to the High Court. Counsel also conceded that the valuation of the suit was also correctly given in the copy of the decree-sheet which accompanied the memorandum of appeal in the District Judge''s Court and had the counsel who put in the appeal taken the care of turning to the copy he could have no difficulty in finding that the appeal did not lie to the District Court. How the counsel made the mistake is not clear from the affidavit that he has sworn. All that is mentioned in this connection in para 2 of the affidavit is

I state on solemn affirmation that I filed this appeal in. the Court of District Judge, Patiala, '' by bona fide mistake as sale money in dispute was only Rs. 800/-.

Taking into consideration the fact that the sale took place 30 years before the suit was instituted and the value of the house must have been increased many times during this period and further in consideration of the fact that on the Plaintiff''s own showing the value of the suit for purposes of jurisdiction was Rs. 10,000/-, I cannot understand how the counsel was influenced by the fact that "the sale money in dispute was Rs. 800/-". It is not mentioned in the affidavit nor is it alleged before us that the counsel consulted any rules and law or that the mistake arose because he considered that the matter was governed by some particular rule and law in preference to the other. In the circumstances, the only inference that can be drawn is that either the counsel put in the appeal without looking at the decree-sheet and without even consulting the law on the point or both. In either case it was a case of extreme negligence and carelessness and in the view that I take I cannot hold that the mistake made by the counsel can be regarded as bona fide. Sub-Section 7 of Section 2, Limitation Act lays down that nothing shall be deemed to be done in good faith which is not done with due care and attention. I have no doubt in my mind that the Plaintiff''s counsel not only acted without due care and attention but he did not apply any care or attention at all.

The point stressed before us by the Appellant''s counsel was that in a case of this kind it is not so hunch the conduct of the counsel that has to be taken into consideration but that of the Appellant himself and he argued that so far as the Appellant is concerned when he made the case over to a properly qualified lawyer, if the lawyer made any mistake, even though the mistake was not bona fide, it would not be proper to penalise the client. In this connection he drew our attention to the pronouncement of their lordships of the Privy Council in - AIR 1937 276 (Privy Council) After going through the entire judgment of the case I am of opinion that instead of supporting the Appellant''s counsel it goes against him. In that case too the party concerned engaged a counsel and it transpired later that the Court in which the counsel had instituted the appeal had no jurisdiction to entertain it. One of the points urged by the other side was that the counsel was guilty of negligence but their Lordships on referring to the facts of the case came to the conclusion that the view taken by the counsel was not unreasonable or that he could not be deemed to have been negligent in filing the appeal as he did. Then they made the following observations:

The question of negligence being out of the way, their Lordships are of opinion that the facts of the present case disclose sufficient cause within the meaning of Section 5, Limitation Act. They are of opinion that in applying Section 5 to-such a case as the present, the analogy of Section 14 (which applies only to suits) is an argument of considerable weight. Mistaken advice given by a legal practitioner may in the circumstances of a particular case give rise to sufficient cause within the section though there is certainly no general doctrine which saves parties from the results of wrong advice.

As I read these words in the context of the finding recorded by their Lordships that the counsel neither acted unreasonably nor he was-negligent, they appear to me to lay down that each case must be decided on its particular facts and that when it is established that an Appellant was mislead by the opinion of a counsel and the counsel was not negligent, this fact can be a good ground for extending time u/s 5. To put it in other, words, wrong advice of a counsel can justify a Court in giving a litigant the benefit of Section 5 if the advice was given In good faith. Counsel also cited before us a Division Bench decision of this Court, - ''Devti v. Waryam Singh'' 1 Pepsu LR 304 (B), but that also does not help his client, because what the learned Judges held was that in a case where an Appellant suffers from negligence or gross want of legal skill of his legal adviser he should not be given protection of Section 5, Limitation Act but where there has been a bona fide mistake not through misconduct or through negligence, the Appellant is entitled to indulgence u/s 5. It is true that in that case time was extended in favour of the Appellant but this was because after turning to the facts the learned Judges held that the counsel acted bona fide and was not guilty of misconduct and negligence. The same was the case in - ''Ghulam Mohammad v. Usman'' AIR 1933 Lah 541 (C) where the counsel before giving the advice had studied the matter and it was held that if he made a mistake that mistake was bona fide. The question was considered by Anr. Bench of this Court in R. P. O. No. 12 of 1950 (Pepsu) (D).

As in the present case in that case too the appeal had been filed in wrong Court because of the mistaken advice of counsel and when it was filed in the right Court an objection was taken by the Respondent that it was barred by time. The Appellant''s counsel prayed for the extension of time. While repelling the prayer this is what Chopra J. observed:

It is correct that in exercising the discretion for excusing the delay u/s 5, the principles of Section 14 may be made applicable by analogy to appeals also. But for that the Appellant has to show that the wrong proceedings were prosecuted bona fide (i.e. with due care and attention) and with reasonable diligence. The negligence of the party or even his agent will not furnish a sufficient cause for the delay. The Appellant or his counsel must have, very well, known that an appeal in cases in which the value for purposes of jurisdiction was more than Rs. 5000/- would directly lie to the High Court and not to the District Judge. The matter was so simple that there should have been no mistake or difficulty in ascertaining the value of the subject-matter for purposes of jurisdiction and also the forum of appeal

A mistake arising from negligence or committed without any real excuse and which could have been averted by proper diligence cannot be said to be bona fide and can not be a sufficient cause for extension of time.

This view is also supported by a Division Bench decision of the Simla High Court, - ''Lady Raj Malik v. Dr. Susanta Sen'' AIR 1951 P&H 209 (E) in which it was held that where a suitor has consulted a legal adviser and such advice is either negligently given or as a result of gross ignorance or want of legal skill he cannot come to Court and ask for indulgence on that ground. This point is, therefore, decided against the Appellant.

As regards the second point the Appellant''s position is still worse. As I have already observed the District Judge ordered the appeal to be returned to the Appellant on 5-7-1950 and according to his note the memo of appeal with some connected papers was actually returned to his counsel on that day. The Appellant''s counsel drew our attention to a note appearing at bottom of p. 3 of the record of the appeal which shows that copies of appeal with Vakalatnama and other miscellaneous papers were received by the Appellant''s counsel on 3-8-1950. The note appears to me in the handwriting of some official of the Court and bears the signatures of P.C. Malhotra, Pleader. Referring to this note counsel urged that the pleader received the memo of appeal also on that day. But the words of the note mentioned only the copies etc. and not the memo of appeal. In addition there is no reason why the note of 5-7-1950 which is admittedly in the handwriting of the Presiding Officer should not be preferred to the other note. This being the case the presentation of appeal in the High Court on 7-8-1950 was very much delayed and even if we were to decide the first point in the Appellant''s favour and the entire period for which the appeal remained pending in the District Judge''s Court, i.e. from 12-12-49 to 5-7-1950 be excluded there is no reason why the delay of about a month that was caused after 5-7-1950 should be condoned.

Let us, however, accept the Appellant''s contention that his pleader received all papers connected with the appeal including the memo of appeal on 3-8-1950. The question is what reason there was for his not receiving them earlier. For the explanation, we must turn to the affidavits of the pleader P.C. Malhotra and the Appellant himself. Paragraphs 4 and 5 of the pleader''s affidavit read as follows: "I state on solemn affirmation that the order for returning of the appeal to the Appellant was passed on 5-7-1950 but I took the appeal with necessary papers on 3-8-1950 as being a Pleader I could not present the appeal in the High Court, so I had to inform my client about the orders of the District Judge''s Court and to wait till he gave me further instructions., I further state on solemn affirmation that I informed on the same day about the orders of the District Judge, Patiala, i.e. on 5-7-1950 to my client by post.

I state on solemn affirmation that on returning of the appeal on 3-8-1950 I handed over the papers to Mr. Lekh Ram Sanghi, son of Shri Ram Niwas Sanghi on the same day, i.e. on 3-8-1950.

(Mr. Ram Niwas Sanghi is the counsel who preferred the appeal in the High Court.) The relevant part of the Plaintiff''s own affidavit is as follows:

I state on solemn affirmation that on hearing through letter from Mr. Parkash Chand, Pleader on 7-7-50, that the District Judge, Patiala had ordered for returning the appeal for presentation to the High Court, Patiala, I wrote to Mr. Parkash Chand Malhotra to hand over the paper to Mr. Kirpa Ram Dang but I was informed that he had gone out. "I state on solemn affirmation that I engaged Mr. Ram Niwas Sanghi through letter and directed Mr. Parkash Chand to hand over the papers and wrote a letter to Mr. Sanghi to take the papers from him and file the appeal in the High Court.

One thing is clear from these affidavits that the Appellant came to know of the orders of the District Judge on 7-7-1950. The nature of the correspondence that he carried on after that either with Mr. P.C. Malhotra or Mr. Kirpa Ram Dang or Mr. Ram Niwas has not been disclosed. So it cannot be said that he was diligent and took every precaution that the appeal in the High Court should be preferred without the least delay. As Kapur J. observed in the Simla case cited above the delay of each day has to be explained, but in this case there was a delay of weeks and no explanation whatsoever was forthcoming for it. We are told that the Appellant was then posted at Kandaghat. Taking into consideration the fact that the distance between Kandaghat and Patiala is not very long and the places are connected by post and telephone if the Appellant so desired it could have been possible for him to have the appeal presented in the High Court at the most within a week of the day on which it was returned by the District Judge. There is Anr. fact of which mention need be made. The power of attorney which the Appellant signed in favour of Mr. Ram Niwas is dated 10-7-1950.

Incidentally this contradicts that part of the affidavit in which it is mentioned that on the receipt of the first letter from Mr. Malhotra the Appellant tried to get into touch with Mr. Dang and it was after he was informed that Mr. Dang was not available that he thought of Mr. Ram Niwas. Then if the power of attorney in favour of Ram Niwas was actually ready on the 10th no reason has been shown why it could not be sent to him earlier and why the appeal was not put in the Court few days after that. It should be remembered that the Appellant is not an ignorant person. He is not only a literate person but a person who must be knowing the law, and one should think that he would take all the precautions that the appeal is put in, in the proper Court without waste of single day. If he failed in this, the only cause can be that like his counsel he too was extremely negligent and careless. In view of all this, I do not think that this is a fit case in which time in the Appellant''s favour should be extended.

The result is that the appeal is barred by time and must stand dismissed. Because we have already awarded substantial costs in favour of the Respondent for the adjournment that we allowed to the Appellant to put in affidavits, I would leave the parties to bear their own costs.

Passey, J.

I agree.