Hardayal vs Muni Lal

Rajendra Nath Mittal, J.—This revision petition has been filed against the judgment of the Additional District Judge, Gurgaon, dated November 15, 1979.

Briefly, the facts are that an execution application was filed by the decree-holder for taking possession of the property by demarcation, in the executing Court. The judgment-debtor raised objections, against the execution of the decree. The objections were dismissed by the executing court. The judgment-debtor went up in Appeal before the senior Subordinate Judge, Gurgaon. The appeal was transferred to the District Judge under the orders of the High Court. The District Judge transferred the appeal for decision to the Additional District Judge. The Additional District Judge remanded the case to the executing court vide judgment dated Oct 27, 1977. It again dismissed the objections of the J.D. on December 12, 1978 He preferred an appeal on December 18, 1978, before the District Judge, Gurgaon. An objection was taken before him on October 24, 1979, that the appeal against the judgment of the executing Court was maintainable before the Senior Subordinate Judge and not before the District Judge. It was further stated that thus the Additional District Judge has no jurisdiction to hear it. The learned Additional District Judge agreed with the objection and returned the memorandum of appeal to the judgment-debtor for presenting the appeal to the proper Court.

On the same day i.e. 24th October, 1979, the appeal was presented to Senior Subordinate Judge, Gurgaon. He also filed an application u/s 5 of the Limitation Act for condonation of delay in filing the appeal on the ground that the counsel under a bona fide mistake filed the appeal in the Court of District Judge, Gurgaon. The appeal was again transferred to the District Judge, Gurgaon, for deciding the same. He transferred the appeal to the Additional District Judge, Gurgaon who did not extend the period of limitation and consequently, dismissed the appeal as barred by limitation. The judgment-debtor has come up in revision against that judgment to this Court.

The only question that arises for determination in this case is as to whether there were sufficient grounds for condonation of delay in filing the appeal. The counsel for the petitioner, who filed the appeal before the District Judge against the judgment of the executing Court has filed an affidavit in this Court that he filed the appeal to the District Judge under a bona fide impression that that Court had the jurisdiction to decide it. He further states that that impression was created as the appeal had earlier been reminded to the executing Court by the Additional District Judge, Gurgaon. In the application u/s 5 of the Limitation Act, judgment debtor had stated that he had filed the appeal on the advice of his Lawyer. It is now well settled that if the appeal is filed under a bona fide mistake on the advice of a Lawyer in a Court without jurisdiction, and later it has been filed in the Court of competent jurisdiction, the litigant should not be allowed to suffer for the fault of the Lawyer.

In the afore said view I am fortified by the observations of the Supreme Court in Balbir Singh v. Bagh Singh AIR 1973 S.C. 650, In that case a first appeal against the judgment of the trial Court laid directly to the High Court but it was filed in the Court of District Judge under some bona fide mistaken belief and the matter escaped scrutiny by the office at the time of presentation or even in course of hearing before the Court. A second appeal was filed before the High Court against the judgment of the Court and when the mistake was pointed out it was converted into a first appeal and condonation of delay was sought. It was held by the Supreme Court that the appellant has sufficient cause for the delay in filing the first appeal in the High Court and he was entitled 11 the deduction of the period during which he prosecuted the appeal before the District Judge A similar view was taken by the Supreme Court in Concord of India Insurance Co. Ltd. Vs. Smt. Nirmala Devi and Others, . It was held there that the law settled was that mistake of counsel might in certain circumstances be taken into account in condoning delay although there was no general proposition that mistake of counsel by itself is always a sufficient ground. It is always a question whether the mistake was a bona fide or was merely device to cover an ulteri or purpose such as laches on the part of the litigant or an attempt to save limitation in an underhand way.

In the present case, as already stated above, the appeal had been remanded by the Additional District Judge and that fact led the counsel to believe that the jurisdiction value of the case was such that the appeal was maintained before the District Judge and not before the Senior Subordinate Judge. Further, no objection was raised by the office at the time when the appeal was filed before the District Judge. If an objection had been raised at that time, the appeal could be filed before the Senior Subordinate Judge. I am convinced, after taking into consideration the aforesaid facts and the affidavit of the counsel, that the mistake in filling the appeal by him in the Court of District Judge was a bona fide one and consequently, the petitioner is entitled to exclude the period during which the appeal remained pending before the Additional District Judge, for the purpose of filing the appeal before the Senior Subordinate Judge. The appeal was within limitation when it was filed before the District Judge and it was presented to the Senior Subordinate Judge on the same day on which it was returned to him. Therefore, the learned appellate Court should have condoned the delay and treated the appeal within limitation

For the aforesaid reason, I accept the revision petition, set aside the judgment of the appellate Court and remand the case to it for deciding the matter on merit. No order as to costs.