Bish Ram and Another vs Smt. Kalawati and Others

V.D. Misra, C.J.—This is an application u/s 5 read with Section 14 of the Limitation Act for condonation of delay in filing the appeal.

It was on 19th August, 1978, that the Senior Sub-Judge, Solan decreed the suit of possession against the present applicants. In the alternative, a decree "for rupees 5,000/- as past arrears for maintenance and rupees 400/- per month till her life time" was passed in favour of the Plaintiffs (the Respondents) and against the Defendants (the Appellants). An appeal against this decree was filed by the Appellants through Shri Bhupinder Singh, Advocate, Solan on 5th October, 1978. On 12th April, 1979, the appeal was withdrawn and was filed in this Court on 13th April, 1979.

It is averred that when the decree was passed the Appellants were under detention in a criminal case pending against them and that they were released much later after the announcement of the judgment. The appeal is stated to have been filed before the District Judge, Solan on account of mistaken advice given by their counsel. It is also averred that when the Appellants came out from jail, they consulted Shri Malook Singh, Advocate of Chandigarh, and under his advice the appeal was withdrawn from the Court of District Judge and filed before this Court. The application is resisted by the Respondent and it is contended that the advice given by the first counsel of the Appellants was not a bona fide one and the applicants could not take advantage of the same.

In support of the application affidavit of Shri Bhupinder Singh, Advocate of Solan, has been filed. He deposes that Shri Faquir Chand, Advocate of Ambala, was defending the applicants in the criminal case. When the Senior Sub-Judge decreed the suit the Appellants consulted the said Faquir Chand who sent the grounds of appeal from Ambala and advised them to file the same before the District Judge, Solan. It is stated that in the State of Punjab and Haryana appeals below Rupees 20,000/- lie to the District Judge. Shri Bhupinder Singh, who is admittedly President of the Bar and is a lawyer of great standing having conducted numerous appeals in the District Court, had no occasion to file any appeal of the value exceeding Rupees 10,000/-. He, therefore, acting on the advice of Shri Faquir Chand Advocate filed an appeal before the District Judge, Solan. However, later on Shri Malook Singh, Advocate of Chandigarh, was engaged to argue the appeal. Shri Malook Singh opined that the appeal had been filed before a wrong court and it should be withdrawn and filed immediately before the High Court.

In opposition to the affidavit of Shri Bhupinder Singh, an affidavit of Shri Inderjit Singh Gyani, Advocate of Solan, has been filed. This affidavit is partly argumentative. On facts it is deposed that a specific objection relating to jurisdiction was raised before the District Judge on 24th February, 1979, but Shri Bhupinder Singh Advocate vehemently contested it. It is also stated that "Shri Bhupinder Singh Advocate has conducted hundreds of appeals in the District Court and being President of the Bar is a lawyer of great standing".

The following facts emerge from the affidavits. The Appellants were in jail when the judgment was announced. They engaged two Advocates for filing the appeal. One was Shri Bhupinder Singh and the other was Shri Faquir Chand. Thus the applicants had taken all necessary steps to prosecute the appeal. It was promptly filed in the Court of the District Judge, Solan. Shri Faquir Chand, Advocate, had apparently advised on the basis of the law governing appeals in the States of Punjab and Haryana. It will not be out of place to mention that at one time the rules governing the appeals were the same in the courts of Punjab, Haryana and Himachal Pradesh.

"Whether the mistaken advice given by a lawyer amounts to a sufficient cause f the condonation of delay?" has been the subject matter of a number of judgments. The learned Counsel for tile parties have cited various decisions. I will now refer to the relevant ones.

In Dattatraya Sitaram Gadkari Vs. The Secretary of State for India, it was held that "the Appellant was entitled to rely upon the advice of his pleader that the appeal lay to the High Court and a party cannot be said to be acting without good faith because he relies upon a person whose status entitled him to give advice to litigants". In Ambika Ranjan Majumdar Vs. Manikganj Loan Office Ltd., it was ruled: "A general rule of law cannot be laid down that a mistake of a pleader, however, obvious it may be, can always and under every circumstance afford ground for extension of time u/s 5". In that case a pleader under a wrong impression that the appeal relates to a suit which was valued below rupees 5,000/- filed the appeal in the court of District Judge. It was held that "the Appellant was entitled to the extension of time as the appeal was wrongly filed before the District Judge on the advice of a pleader of some standing on whose words he had good reason to rely".

The Judicial Committee in AIR 1937 276 (Privy Council) observed thus: "mistaken advice given by a legal practitioner may in the circumstances of a particular case give rise to sufficient cause within the section.

This question came up for decision before the Supreme Court in the The State of West Bengal Vs. The Administrator, Howrah Municipality and Others, After reviewing the existing case law and following the observations of the Judicial Committee in Kun war Rajinder Singh (supra) it was observed thus:

"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 ilave taken. Here again, what would be such necessary steps will again depend upon the circumstances of a parti case and each case will have to be decided by the courts on the facts and circumstances of the case. Any observation of an illustrative circumstance or fact, will only tend to be a curb on the free exercise of the judicial mind by the Court in determining whether the facts and circumstances of a particular case amount to "sufficient cause" or not. It is needless to emphasise that courts have to use their judicial discretion in the matter soundly in the interest of justice".

It was also observed that the words "sufficient cause" should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of lona fide is imputable to a party. The Supreme Court again had the occasion to reiterate the similar principle and followed this decision in Indian Statistical Institute v. Associated Builders and Ors. AIR 1978 SC 335.

It is true that in AIR 1953 Punjab 298 Firm Hemraj Dhannalal Vs. Ambaram Bhawaniram Surajmal, Mariambai and Another Vs. Hanifabai and Another, , Mariambai and Anr. v. Han and Anr; and 1979 AIHLR 568, Smt. Raj Bala v. Pramod Kumar, the courts refused to condone the delay occasioned by the wrong advice given by the lawyers. But these cases were decided in the peculiar circumstances of those cases.

A word about Banwarilal and Sons Pvt. Ltd. Vs. Union of India and Others, which was decided by a Division bench of the Delhi High Court. Much stress has been laid by Mr. A.C. Sud, learned Counsel for the Respondents, on this decision. I have gone through this decision closely. It follows the Supreme Court''s decisions already referred to by me. In this case a senior lawyer Shri R.M. Lal was stated to have been consulted and it was averred that the delay was the result of his advice. However, Shri Lal did not file any affidavit nor "made a statement at the bar that he was really under a mistaken conception of law" on the point in dispute. The court came to the conclusion that the affidavit filed by the applicant was self serving and could not be believed because it was opposed to all probabilities. It was held in the alternative that "if he really gave such advice, then he was negligent and his mistake was not bonafide". This decision was given in the circumstances of that ease and did not lay any principle other than the one laid down by the Supreme Court.

In the instant case, as already observed, the Appellants had taken all reasonable care and acted in good faith in filing the appeal in the Court of the District Judge, Solan, on the advice of two experienced lawyers. Shri Faquir Chand, Advocate, ''could not be said to have been negligent in giving advice. He was only misled by the rules prevalent in the Courts of the States of Punjab and Haryana which rules, as already observed, were at one time common between these States and the State of Himachal Pradesh. We are, therefore, satisfied that the Appellants have shown sufficient cause for not filing the appeal in this Court within limitation.

The delay is, therefore, condoned.