Haji Mahda Bhat vs Ahad Mir

J.N. Bhat, J.—This is a revision application presented by one Haji Mahda Bhat Plaintiff against Ahad Mir non-applicant Defendant in a suit

for rendition of accounts and dissolution of partnership brought by the Plaintiff against the Defendant-Respondent in the Court of the Munsiff

Sopore. The valuation of the suit was tentatively fixed at Rs. 1000/- by the Plaintiff. After the preliminary decree a final decree was passed by the

trial Court on 14-3-1959 for Rs. 3203/- in favour of the Plaintiff against the Defendant in that case. The Defendant presented an appeal in this

Court against the decree of the trial Court on 13-6-59 which was decided by a Division Bench of this Court on 7-10-59, holding that the appeal

did not lie to this Court but to the District, Court. The appeal was returned on 7-10-59 to the Defendant non-applicant and was presented by him

the same day with an application supported by an affidavit u/s 14 of the Limitation Act to the District Court.

Later on the Defendant Appellant put in an application on 22-9-1960 stating that his application of 7-10-59 may be deemed to be an application

u/s 5 of the limitation Act. It was stated in the application for extension of time by the Defendant that he had been misled on the amount of the final

decree passed by the trial court which was more than Rs. 2500/-, and as such the Defendant bona fide believed that the appeal would lie to the

High Court and not to the District Judge. He further stated that the Defendant was not at fault at all and he had believed honestly that the forum

was the High Court and he had honestly and with due diligence pursued the appeal before the High court. The Court or the district Judge by its

order dated 25-4-63 allowed this application for extension of time on payment of Rs. 35/- as costs. It is against that order that the present revision

has been presented by the Plaintiff-Petitioner.

In this revision petition it has been contended by Mr. Sunder Lal learned Counsel for the Petitioner, that the lower appellate court was not right

in allowing the application for extension of time because there was want of bona fides or at any rate good faith on the part of the non-applicant's

learned Counsel. u/s 34 of the Civil Courts Act the ordinary forum of appeal against a decree passed by a Munsiff is the Court of the District

Judge. The learned Counsel for the Defendant had acted without due care and attention and ignored this clear provision of law. The point whether

in such a suit the forum of appeal would be determined according to the original valuation put by the Plaintiff in his plaint or according to the sum

ultimately decreed was decided by this Court previously in some other cases and, therefore, the omission of the learned Counsel to take note of

those authorities amounted to gross negligence on his part and as such the presentation of the appeal in the High Court was the result of

carelessness and negligence on the part of the learned Counsel. The delay thus caused could not be condoned.

Mr. Sunder Lal cited the following authorities in support of his contention:

Sarmukh Singh Vs. Chanan Singh and Others, ; Mt. Jevani v. Ramanand, 7 J. and K. L.R. 11; Narhari v. Shanker AIR 1953 SC 417 and Atma

Singh Hazara Singh and Another Vs. The State, .

Mr. Sunder Lal further said that the affidavit presented should have been by the learned Counsel for the Defendant because he was the proper

person to state under what circumstances he had preferred the High Court as the forum of appeal to the District Court which was the ordinary

forum. Therefore the affidavit of the Defendant should be ignored.

The learned Counsel for the non-applicant on the other hand submitted that he was genuinely misled into the belief that the forum of appeal was

the High Court and not the court of the District Judge as the amount decreed was Rs. 3203/- which was ordinarily the amount appeals abcut the

decree of which amount would be heard by the High Court. He further submitted that in such suits for accounts where the sum decreed was in

excess of the original valuation put by the Plaintiff in his plaint, there was divergence of judicial authority about the forum of appeal. There were

some authorities in his favour, notable amongst which were Kalu Ram v. Hanwant Ram AIR 1934 Lah 488 and Ijjatulla Bhulyan v. Chandra

Mohan Banerji ILR 34 Cal 954 which were both Full Bench decisions, and which held that in such suits the forum of appeal would be determined

by the sum ultimately decreed. Even this Court had difficulty in deciding that point in the appeal and appointed Mr. Sunder Lal as an amicus curiae

to argue this controversial point before It.

He further stated that as soon as the appeal was returned to him on 7-10-59, he that very day instituted the same in the proper court along with an

application for extension of time supported by an affidavit. He had, therefore, been acting all along in good faith and with due care and attention.

The lower appellate court had exercised its discretion properly and there should be no interference with its order. His last argument was that it was

the discretion of the, Court to extend time and when the lower appellate Court exercised its discretion this Court should not interfere in revision.

The point of extension of limitation under such circumstances comes-and has come frequently-before courts of law for judicial determination. In

my opinion when the whole set of authorities is perused, there is no conflict on the basic principles applying to the extension of time amongst the

various High Courts. The principles put in different language by different High Courts are the same. It is only upon the particular circumstances of a

case that some times courts have held that extension should not be granted.

Section 5 of the Limitation Act authorizes a court to receive an appeal after the period of limitation prescribed therefore when the Appellant

satisfies the court that he had sufficient cause for not preferring the appeal within such period. 'Sufficient cause' has always been held to be

dependent upon the particular circumstances of a case. Reference may be made to Dinkarrao v. Ratansi Asaram AIR 1938 Nag 300 , Firm

Ramnath Ramchander Vs. Firm Bhagatram and Co., and Raghavayya v. Vasudevayya Chetty AIR 1944 Mad 47 etc.

Under the provisions of Section 14 of the Limitation Act time spent by a party in prosecuting in good faith in a court which from defect of

jurisdiction is unable to entertain a proceeding, is to be excluded in computing the period of limitation. In this Section the words 'good faith' have

been used. The term 'good faith' is differently defined in the General Clauses Act, the Limitation Act and the Penal Code. In the General Clauses

Act Section 3(22) it is stated that a thing shall be deemed to be done in good faith where it is done honestly, whether it is done negligently or not.

The definition of 'good faith' in the Limitation Act as well as in Section 52 of the Penal Code is more stringent. Section 2(7) of the Limitation Act

says that ""nothing shall be deemed to be done in good faith which is not done with due care and attention."" The same is the definition, though

worded differently, of this expression in Section 52 of the Penal Code.

In this particular case we have not to go into all the implications of the term 'good faith' but we have to confine its interpretation to the fact

whether the mistaken advice or belief of a counsel in filing appeals in a wrong court will be deemed to be done in good faith or in other words after

exercising due care and attention or not. This matter has come up times out of number before the different Courts in India and in England also. I

shall first notice soma English authorities. on the subject; then discuss Anr. set of authorities of the Indian High Courts which apparently conflict

with the authorities of other High Courts and then state what is the correct position. As already stated I do not find, so far as the interpretation of

these words is concerned, that there is any real conflict between the various High Courts, but it is only upon the particular circumstances of a case

that a particular decision of a court has turned.

In an authority reported as in re Coles and Ravenshear, (1907) 1 K.B. 1 it was held that when an appeal was not presented within the proper

time and the provision of law prescribing limitation for presentation of the appeal was very clear, there was no ground for granting special leave to

appeal, and the appeal was held as time-barred.

Here it will be noticed that the provision of law prescribing the period of limitation was very clear and did not admit of any controversy.

In Gatti v. Shoosmith (1939) 3 All ER 916 owing, to a misreading of the rule, the applicant was a few days too late in entering an appeal, The

intention to appeal had been notified to the Respondent's solicitors, by letter sent within the time specified by the rule. The applicant asked that the

time might be extended on the ground that the failure to enter the appeal within the time limited was due to the mistake of a legal adviser.

It was held that

There is nothing in the nature of such a mistake to exclude it, from being a proper ground for allowing the appeal to be effective though out of time;

and whether the matter shall be so treated must depend on the facts of each case.

In Collyer v. Dring (1952) 2 All ER 1004 Slade J with whom Havers J. agreed stated:

The question is whether a lay client in a criminal cause or matter must suffer on account of her ignorance of purely procedural matters through the

inadvertence or negligence of a professional man, or whether such inadvertence or negligence can amount to 'special circumstances' conferring a

discretion on the court to grant an extension of time under RSC., Order 59 Rule 30(2). The court will deal with the application on the basis that

such inadvertence or negligence may constitute 'special circumstances' and on the facts of the case it holds that such 'special circumstances' have

been shown.

In In re Macadam (No. 2), Ex-parte Guillaume v. The Trustee (1950) 1 All ER 659 it was held that although a mere mistake by a legal adviser

did not constitute ""special circumstances"", yet on the facts of the case the circumstances as a whole were adequate to justify the granting of the

leave sought. The mistake of the counsel in that case was that he thought that the period of preferring the appeal was six weeks; whereas it later on

turned out to be only 21 days.

Now I shall come to the Indian authorities including those of our own High Court where extension of time has not been granted. First I shall

take notice of the authorities of this Court, because if this point is settled by the authorities of this very court, I am bound in, law to follow them. But

reading those authorities which apparently support the view propounded by Mr. Sunder Lal, I am sure that those authorities scrutinized carefully

have no application to the facts of the present case.

In Suraj Bhat v. Jia Lal Bhat 7 J.& K. LR 110 an appeal in a suit the valuation of which was Rs. 1000 was brought by the learned Counsel in

that case before the Court of the Senior Subordinate Judge. It, was held by their Lordships that it was clearly against the mandatory provisions of

law. An appeal in a (sic) the valuation of which was Rs. 11000/-, could not (sic) brought before the Senior Sub-Judge whose jurisdiction (sic) hear

appeals extended only to a valuation of Rs. (sic). It was therefore held that no sufficient cause was (sic) closed because the counsel had not acted

with due care and attention in preferring the appeal in a wrong forum.

In Anr. case reported as 39 Pun LR (J. and K.) 13 it was held that whether the mistake of a counsel provided a sufficient ground for extension

of time is a question which depends upon the particular circumstances of each case. Where the mistake of a counsel is not due to ignorance but is

due to want of due care and attention, it cannot afford a ground for extending time u/s 5 of the limitation Act. In that case it was clearly found that it

was want of due care and attention on the part of the learned Counsel.

I have come across an authority by his Lordship the C.J. reported as Chand v. Tripat Singh 1963 Kash LJ 56: (AIR 1963 J & K. 53) it which

it has been held that the mistake of a pleader, however obvious it may be, can always and sunder every circumstance afford ground for extension

of time u/s 5 of the Limitation Act in that case an appeal which was presented in the Court of the Commissioner and was returned to the Appellant

on 14th March 1963 for presentation to the High Court was not presented until the 19th March 1963. His Lordship the C.J. held that ""the

Appellant had given no convincing and cogent explanation for the delay in filing the appeal in this Court from 14th to 19th March 1963"" and time

was not extended in that case.

In Ghisulal-Ganeshi Lal Vs. Gumbhirmull-Pandya and Another, the Plaintiff and his attorney knew that leave of the Court u/s 12 Letters Patent

was necessary, but did not make any application for the same. Besides there was a definite plea in the written statement that the court had no

jurisdiction, but the Plaintiff and his attorney did not take any trouble to ascertain that fact. It was held that the Plaintiff and his attorney could not

be said to have prosecuted the case in good faith.

In Dina Nath Vs. Munshi Ram and Others, it was held that:

the mistake of party's legal adviser as to jurisdictional value and court-fee was such that if the legal adviser had only taken the trouble of looking up

any elementary book on Court-fees and Suits Valuation Act, he would have discovered it. No question of bona tide mistake or good faith arises

and time cannot be extended.

In Sewa Singh Vs. Tara Chand and Another, Kapur J. remarked that:

Every Advocate appearing in the district courts in Punjab should know that the, power of distribution vested in the Senior Sub-judge and not in the

District Judge and also that the suits are to be instituted in the Court of the lowest jurisdiction.

Where, therefore, the plaint was handed over to the District Judge instead of to the Senior Sub-Judge, who was vested with powers of distribution

and the same was instituted in the lower Court beyond the period of limitation the contention that if the District Judge thought that he had no

jurisdiction it should have been returned to him there and then or at least the next day and that nobody should suffer because of the mistakes' of the

court, was untenable.

21-22. In Sarmukh Singh Vs. Chanan Singh and Others, which has been cited Mr. Sunder Lal the principle laid down is that an (sic) filed in a

wrong court due to the mistaken advice of a counsel is a sufficient cause and the principle if Section 14 applies. But the ignorance of an express

provision of law on the part of a counsel was held not to be a sufficient cause. In that case ignorance of the elementary provisions of Section 39 of

the Punjab Courts Act was held not to be excusable on the part of a counsel notwithstanding his standing at the Bar. Their Lordships after

discussing certain authorities stated:

The view taken by the legal adviser, if reasonable, though mistaken, may well justify protection by Section 5, but where the view taken is wholly

unsupportable on the express language of a well-known provision of law, it is difficult to apply Section 5 to such a case. Indeed, each case has to

be decided on its own facts, but the burden of bringing his case within the purview of Sections 14 and 5 of the Limitation Act always lies on the

person seeking their benefit. It is also for him to place before the court material from which due care and attention on the part of the legal adviser

can be spelled out.

In that case the value of the subject-matter of the suit was admittedly to the knowledge of the counsel Rs. 6,000/-. The appeal was preferred

to the court of the District Judge whereas it clearly lay to the High Court.

This authority is self-speaking and if properly understood hardly supports Mr. Sunder Lal.

AIR 1954 Pepsu 126 is a case of extreme negligence and carelessness on the part of a learned Counsel and therefore the benefit of Sections 5

and 14 was not given to the applicant in that case. It was held that the delay of each day had to be accounted for by the applicant.

In State of Bombay v. Ram Krishna Govind Bhanu AIR 1958 SC 767 their Lordships held:

The real question material for the purpose of Section 14 was not whether the Plaintiff was dishonest or that his acts or omission in this connection

were mala fide. On the other hand the question was whether given due care and attention the Plaintiff could have discovered the omission without

having to wait for about ten years or more. In view of the fact that in both the suits the Plaintiff himself drew up the plaint and presented them in

court and in as much as he had given the value of the property in the other suit it was for him to adduce the reasons as to why he failed to give the

value of the property in the suit in question or waited such a long time. In the absence of such reasons it could not be said that he had acted with

care and attention.

The burden of bringing his case within the section lay on the Plaintiff. When he did not satisfy the initial burden which lay upon him the burden did

not shift to the Defendant to show the contrary.

In Jagmohan v. Mahadeo Prasad AIR 1932 Oudh 220 it has been held that Section 14 does not help a person who is guilty of negligence,

laches or bad faith. There can be no dispute that if an applicant is guilty of such a conduct, he cannot invoke the provisions of Sections 5 or 14 of

the Limitation Act.

Having noticed these authorities in which limitation has not been extended, it is clear that in each such particular case there was gross negligence

and want of care and attention on the part of the party or his counsel for not taking cognizance of a very clear provision of the law and wantonly,

negligently and carelessly approaching wrong forums for the redress of their grievances. Each case had its own peculiar circumstances in which

time was not extended. On the other hand there is a whole string of authorities right from the Privy Council to different High Courts wherein the

mistaken advice of a counsel honestly given has been held to be a sufficient cause for extending limitation under Sections 5 and 14 of the Limitation

Act.

In a case reported as Brij Indar Singh v. Lala Kanshi Ram AIR 1917 PC 156 it was laid down that:

If a party bona fide presents an application for review of judgment within the ordinary period limited for appealing, the time occupied by the court

in disposing of such application will not be reckoned amongst the days limited for appealing, but will be added thereto, and a memorandum of

appeal re-presented within such extended period will be received as presented within' time.

In Sunderbai v. Collector of Belgaum AIR 1918 PC 135 it has been held that the time for which an appeal was presented in wrong court

owing to mistaken legal advice and its presentation in right court later on but out of time, may be excused.

Similarly in AIR 1937 276 (Privy Council) a suit u/s 111(3) of the U.P. Land Revenue Act was dismissed. The applicant appealed to the

District Judge within limitation acting on a mistaken bird honest view of his counsel as to valuation of the suit for appeal. The appeal was dismissed

be cause the valuation of the appeal was in excess of Rs. 5000/-. An appeal was filed to the Chief Court at Oudh beyond limitation, accompanied

by an application u/s 5 of the Limitation Act. It was held that the action of the counsel did not amount to gross negligence and there was sufficient

cause for delay within the meaning of Section 5. it was further held that the principle of Section 14 should be applied to such a case.

In In Re: B. Matameswara Rao, it has been held 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.

In AIR 1933 231 (Oudh) it was laid down that where the mistake of an Advocate is bona fide, the time spent in the prosecution of a

proceeding can be excluded.

33a. In Sridhar Upadhya Vs. Lakshmi Prasad, it has been held:

If any one with due care and attention takes a certain step in a wrong court honestly believing that he is seeking relief in the right court but

subsequently finds himself to have gone to a wrong court, it can hardly be said that he was guilty of want of good faith. A firm conviction in the

correctness of a certain procedure may reduce the degree of care and attention, but it can in no sense suggest a negation or absence of the same.

In Devi Das Vs. Bushahr Sangh, it has been held that:

Where there are conflicting views on a certain point and a party adopts one of the views, it should be taken to have acted in good faith even though

the court adopts the contrary view.

even a, bona fide error of law on the part of a party or his agent may be regarded as a sufficient ground for holding a proceeding to have been

conducted in good faith.

Anandi Ram Kalita v. Mt. Chaduri Pachinionl AIR 1956 Gau 63 It was held that:

even a, bona fide error of law on the part of a party or his agent may be regarded as a sufficient ground for holding a proceeding to have been

conducted in good faith.

In Sarjug Devi and Others Vs. Dulhin Kishori Kuer and Others, it was held that in a suit bona fide and in good faith instituted in a wrong court,

the court holding the plaint to have been under-valued and returning the same for presentation to proper court, there was no lack of care and

attention on the part of a Plaintiff. The undervaluation was held, to be due to error of judgment.

Lastly in Narhari and Others Vs. Shankar and Others, it was held that the High Court ought to have given the Appellant benefit of Section 5 of

the Limitation Act as there was a conflict of decisions regarding this question.

After having mentioned and studied the above authorities, the principle of law deducible from all the authorities is very clear. The initial burden

is upon the person who wants extension in limitation to show that he acted with due care and attention and was not negligent or extremely careless.

In matters where a counsel's wrong advice has resulted in pursuing a certain remedy in a wrong forum, the test and the crux of the matter has been

held to be that where a counsel ignores a clear and mandatory provision of law or enactment, he could not be said to have acted in good faith or

with due care and attention. In such cases time has not been extended. But where a counsel honestly believing a certain forum to be the correct

one but ultimately discovering that that was not the proper place of presenting the proceeding-such counsel could not be said to have acted without

due care and attention. As will be clear from Devi Das Vs. Bushahr Sangh, and Narhari and Others Vs. Shankar and Others, where there are

conflicting views on a certain proposition if a counsel adopts or chooses his forum on one set of authorities, he cannot be said to have acted

without good faith as defined in the Limitation Act.

In the present case, regarding the point whether a forum of appeal was to be determined by the initial value put in the plaint or the amount

decreed in the suit for accounts, there has been a conflict of authorities. As has been pointed out by Mr. Bhan the point was not so free from

difficulty even before the Division Bench of this Court. It had to request Mr. Sunder Lal to help the court by hearing him amicus curiae on this

point. Besides Mr. Bhan's view is fully supported by two Full Bench authorities of two different High Courts in AIR 1934 Lah 488 and ILR 34 Cal

054 (Supra). It is true that there are two authorities of this Court holding a different view, but those authorities are of a very early date and books

on court-fee do not make any mention about them. The learned Counsel for the non-applicant cannot be held guilty of laches or negligence

because he was not aware of those two authorities of this Court. Due care and attention is not synonymous with omniscient and if a counsel is not

honestly in the know of a certain authority, he cannot be held guilty of negligence because he has not been omniscient or has not taken notice of

such things intuitively of which he had no knowledge.

In this view of the matter Mr. Bhan counsel for the non-applicant was sufficiently Justified and fortified by authority in presenting the appeal to the

High Court instead of the district court. He lost no time when the Division Bench of this Court returned, the appeal for presentation to the district

court. The same day the appeal was returned to him, he presented it to the district court with an application supported by an affidavit for extension

of time. No more care and attention could be expected of a counsel or a party.

For the reasons recorded above, the lower appellate court has rightly granted extension of time to the applicant for presenting his appeal to the

district court. There is no force in this revision which is rejected with costs. Counsel's fee Rs. 75.00.