Mariambai and another vs Hanifabai and Another

V.R. Newaskar, J.—A preliminary objection is raised in this appeal that the same is barred by limitation.

The appeal is evidently barred by limitation but on behalf of the Appellants the delay is sought to be condoned by invoking the powers under suction 5 of the Limitation Act.

The material circumstances bearing on this question are as follows:-

The decree under appeal in the present case was granted by the Civil Judge First Class, Khargone on 24-2-1958. Appeal against that decision was preferred in the District Court, Mandleshwar on 24-3-1958. It remained pending there for some time when on a petition submitted on behalf of the Appellants on 30-6-1958 it was made over to him on 8-7-1958 for presentation to proper Court. In the petition seeking the return it was stated on behalf of the Appellants that the appeal lay to the High Court and rot to the District Court. Thereafter the appeal was presented to this Court on 9-7-1958. When it was so presented the appeal was evidently barred by time as it was beyond 90 days excluding the days requisite for obtaining copies of the judgment and decree appealed against.

Question for consideration is whether under the circumstances the Appellants'' delay in presenting the appeal deserves to be condoned.

It is contended on behalf of the Respondent on the basis of the decisions of this Court reported in Firm Hemraj Dhannalal Vs. Ambaram Bhawaniram Surajmal, , and other cases that the forum of appeal under the law in force at the material time was not a matter about which there could be any honest doubt on a proper interpretation of the legal provision. The provision as regards the venue of appeal was clear and explicit and it provided that where the claim in suit is beyond Rs. 5,000 the appeal would lie to the High Court. This provision had been in force in the Madhya Bharat region for over a long period and 1 here were series of decisions in line with the aforesaid decision that a mistake of the counsel as regards the fact as to whether the appeal lay to the High Court or to the District Court could not be considered to be a sufficient cause for condonation of the delay. The learned Counsel also placed reliance upon the decisions in AIR 1937 276 (Privy Council) , and Gulsher Ahmed Vs. The Election Tribunal, Chhatarpur and Others, .

On behalf of the Appellant Mr. Sanghi contended that this is preeminently a case where the powers of this Court u/s 5 of the Limitation Act ought to be exercised in favour of the Appellants. The Appellants engaged the services of a competent senior lawyer and depended upon him for legal advice in the matter of filing the appeal. It was under the advice of the competent legal practitioner that the appeal was presented in the District Court at Mandleshwar. The mistake moreover was not persisted in and immediately on the counsel coming to know that such a mistake had been committed he took steps to withdraw the appeal and presented it in the High Court as soon as the memorandum was returned to the Appellant. The case in Firm Hemraj Dhannalal Vs. Ambaram Bhawaniram Surajmal, , was sought to be distinguished on the ground that in that case there was inordinate delay in securing the return of the memorandum. The fact that the appeal did not lie to the District Judge, Dewas on the ground of its valuation was brought to the notice of the Appellant in that case immediately on the presentation of the appeal. The Appellant, however, insisted upon its continuance in that Court and. wanted the matter to be argued. The memoradum was taken back by the Appellant about a year subsequent to the presentation of the appeal and after the point was argued and decided against the Appellant. In those circumstances refusal of this Court to condone the delay which had occurred in presenting the appeal to the High Court may properly be said to be justified. Such is not the case in this case. The learned Counsel referred to the decision of the Privy Council in Sunderbai v. Collector of Belgaum AIR 1918 PC 135, and contended that since the Appellants had acted on mistaken advice as to law in appealing to the District Court they are not precluded from showing that it was owing to their reliance on such advice that they had not presented the appeal to the High Court. The Appellants, on account of this position, were entitled to have condonation of the delay.

This question has been considered by this Court in number of cases in the very context in which it arose in the present case. There is a definite provision of law that where the subject-matter of the suit is above Rs. 5,000, the appeal from the decision of the Civil Judge, First class would lie directly to the High Court and not to the Court of the District Judge. The provision is not capable of two interpretations and a competent legal practitioner, if he chooses to look into the legal position, cannot be least confounded as regards the Court to which the appeal would lie. In these circumstances if an appeal is presented to a wrong Court can it be said that the mistaken advice given by a legal practitioner is sufficient to relieve the Appellant of his obligation to present the appeal in time. It is well settled that after the period of limitation expires a valuable right accrues to the Respondent and such a right should only be interfered with for substantial and just grounds. In a later decision reported in AIR 1937 276 (Privy Council) , their Lordships considered the precise question as to what extent mistaken advice of a legal practitioner can be a ground for condonation of the delay caused in presenting an appeal to the proper Court. Their Lordships observed:

The Chief Court''s refusal to admit the appeal was based on the view that counsel did not exercise due care and attention and acted with gross negligence in the matter. If this opinion be correct, their Lordships will assume that in the present case it would suffice to justify the dismissal of the appeal. It clearly involves however that the view taken was not such as could have been entertained by a competent practitioner exercising reasonable care.

It is clear from these observations of their Lordships that in order that a mistake committed by a legal practitioner as to legal position may be a sufficient ground for condonation of delay it should be based on such a view as could have been entertained by a competent legal practitioner exercising reasonable care. If each and every mistake committed by a legal practitioner is considered to be a just ground for condoning the delay it may not only lead to very inconvenient result but there is a great possibility of the power being abused.

The Division Bench decision, in Firm Hemraj Dhannalal Vs. Ambaram Bhawaniram Surajmal, , has referred to the aforesaid Privy Council decision and has held that where a provision of law is in any manner capable of interpretation sought to be put on it by the appelant''s counsel than certainly it is a case of possible difference of opinion and the delay ''might be condoned. But if it is altogether incapable of interpretation sought to be put on it there could be no condonation. This view has been consistently taken by this Court in numerous other cases where the facts are practically similar.

The decision in Sunderbai v. Collector of Belgaum AIR 1918 PC 135, is capable of being explained on the aforesaid principle. For the question in that case namely whether any valuation, even though arbitrary, made by the Plaintiff has to govern the question of valuation for the purpose of jurisdiction, may have been considered by their Lordships to be sufficiently debatable and might, according to them, have led to a bona fide mistake in presenting the appeal to a wrong Court.

It is suggested that in the present case the counsel, who advised the presentation of the appeal in the District Court, was one who, in his usual course, did not practice in the Courts in the Madhya Bharat region and that consequently he might have committed a mistake as a result of his own impression as regards the correct forum of appeal due to what may be the proper view prevailing in the region in which he usually practises.

I am unable to accept the contention based on any such suggestion. A counsel, who undertakes to advise a litigant, is ordinarily expected to look into the appropriate legal provision, which is not the result of a comparatively recent amendment, and it is not permissible for him to say that he did not look into the appropriate law.

This Court in another Division Bench case, in Phoolabhai v. Ashabhai and others Civil First Appeal No. 42 of 1954 decided on 3-12-1957, has held, following the decision in Pandit Krishnarao v. Trimbak 22 MPLC 457: AIR 1918 Nag. 156, that:

There is no authority for the view that a mistake of a legal adviser, however gross and inexcusable, if bona fide acted upon by a litigant, will entitle him to the protection of Section 5 of the Limitation Act, or will make the proceedings taken by him before a wrong Court as proceedings prosecuted with due diligence and bona fide.

Moreover, in the absence of any details in the affidavit of Mr. Hifazatali as regards the circumstances in which he happened to advise the Appellant to prefer the appeal in the District Court, I cannot draw my own conjectures as to how the mistaken advice might have been given.

The decision in Nagindas Motilal v. Nilaji Moraba Naik AIR 1924 Bom. 399: ILR 48 Bom 442, and Bhausaheb Jamburao Vs. Sonabai, , upon which Tare, J., relies are easily distinguishable. In the former case the period of limitation for an application for leave to appeal to the Privy Council, after making allowance for copying days expired on 2-7-1921 due to change in law by Act No. 26 of 1920 which brought down the period of limitation from six months to three months. Application however was presented on 16-7-1921 and was consequently delayed by 14 days. Macleod, C.J., was of the view that the delay could not be condoned. However Shah, J., held a contrary opinion. In accordance with the then existing law the opinion of the Chief Justice prevailed. On further appeal under Letters Patent Marten, Prait and Fawcett, JJ., who heard the matter were of the view that it was but natural for an up-country litigant to consult a local lawyer and the local lawyer could not be said to have acted without due diligence since he might not have come to know of the recent change in law, so recent as to have been introduced only a month or two before the advice mi�ht have been sought. The Fudges felt that the mistake committed by the counsel might well have been made even by an experienced lawyer unless he could think of change and exhaust every avenue to find out whether there was any change or not. The principle is not contrary to what the Privy Council has stated. Whereas in Bhausaheb Jamburao Vs. Sonabai, , the lawyer was misled by the prevailing practice due to the view expressed by the High Court in its decision in case of Balappa Tanmanna v. Dyamappa Bhusappa (1920) 42 Bom LR 872. Both these decisions therefore are clearly in line with the principle adopted in the earlier cases referred to by me.

I would, therefore, hold that having regard to the aforesaid Division Bench decisions of this Court Firm Hemraj Dhannalal Vs. Ambaram Bhawaniram Surajmal, , and Phoolabhai v. Ashabhai Civil First Appeal No; 2 of 1954 decided on 3-12, 1957, this cannot be considered to be a proper case for exercise of the powers u/s 5 of the Limitation Act in condoning the delay in presenting this appeal. The appeal is accordingly held to be barred by limitation. It is dismissed with costs.

Tare, J.

This appeal is by the Defendants against the decree, dated, 24-2-1958, passed by Shri B.B.L. Saxena, Civil Judge, Class I, Khargone, in Civil Suit No. 37 of 1955.

The Respondents had filed a suit for partition and separate possession of the property of one, Sheikh Ameer, whose co-heirs they claimed to be along with the Defendants. The trial Judge decreed their claim. Hence the present appeal.

At the present stage, the question of limitation only is involved concerning the extention of time u/s 5 of the Limitation Act. The preliminary decree was passed in favour of the Respondents on 24-2-1958. The Appellants filed an appeal against that decree on 24-3-1958 before the District Judge, Mandleshwar. On 30-6-1958 an application was made by the Defendants to the District Judge for return of the memorandum of appeal on the ground that an appeal was tenable in the High Court only. Accordingly, the memorandum was returned to them on 8-7-1958 and was represented in this Court on 9-7-1958.

On behalf of the Respondents an objection has been taken that the appeal re-presented in this Court is birred by time and there is no sufficient cause for extension of time. It is in the light of these allegations that the conduct of the Appellants has to be judged in the present case.

The first Appellant is a widow. The second Appellant who is her ton has been conducting the litigation and has been responsible for prosecuting the suit and the appeal. The application for a certified copy of the judgment and decree was made on 24-1-1958, that is, much before the judgment of the trial Court was delivered on 24-2-1958. The copies were delivered on 27-2-1958, that is, on the next day of the date of signing the decree by the trial Court on 26-2-1958. Thereafter, the second Appellant went to Khandwa and engaged Khan Bahadur Syed Hifazatali, Advocate for the purpose of drafting the appeal. The counsel drafted the appeal and told the second Appellant that the appeal will have to be filed in the Court of the District Judge, Mandleshwar. Accordingly, the memorandum of appeal was presented by the second Appellant personally. That was well within time even as an appeal filed in that Court. The limitation for filing the appeal in the High Court would have expired some time at the end of May and, therefore, the appeal could as well have been filed on the reopening day after the summer vacation. It will thus be seen that the Appellants have been extra diligent at every stage of the litigation. They cannot be accused of any negligence, much less gross negligence amounting to misconduct. If at all, these facts established their keen anxiety, as also their special carefulness in the matter of prosecuting the litigation; their only fault, if any, lay in engaging a counsel who ordinarily practices at Khandwa, which, prior to the formation of the present State of Madhya Pradesh, was a part of the old State of Madhya Pradesh, that is, Central Provinces and Berar. It is clear that the appeal came to be filed in the Court of the District Judge, Mandleshwar solely on the advice of the counsel, although those circumstances leading to the incorrect advice have not bean clearly brought out from the affidavits filed by the second Appellant and his counsel.

From the affidavit of the second Appellant, Sheikh Moosa, as also the affidavit of the counsel, Khan Bahadur Syed Hifajatali, it is clear that the Appellants acted on the mistaken advice of the counsel, in spite of their keen anxiety to posecute the litigation to its logical conclusion. It would have been better if the two affidavits had mentioned the detailed circumstances clarifying as to how the mistaken advice happened to be given. But in this connection we may observe that it may be permissible to this Court to take judicial notice of the different laws prevailing in the different regions of Madhya Pradesh, which alone could be responsible for the mistaken advice.

In the Mahakoshal region of the present Madhya Pradesh, the C.P. Court Act, 1917 (Act No. 1 of 1917) was in force. Section 20 of the same was as follows:

(a) an appeal from the decree or order of the Court of Civil Judge (Class II) shall lie to the District Court;

(b) an appeal from the decree or order of the Court of a Civil Judge (Class I) shall lie-

(i) where the value of the suit or original proceeding in such Court does not exceed five thousand ruppees to the District Court; and

(ii) where the value of such suit or original proceeding exceeds five thousand rupees, to the High Court.

The said provision was similar to Section 23 of the Madhya Bharat Civil Courts Act, 1949. However, the C.P. Courts Act No. 1 of 1917 was amended in the year 1956 by the Madhya Pradesh Courts (Amendment) Act No. II of 1956, which came into force with effect from 1-7-1956. By this amendment, Section 20 of the old Act was amended in the following terms:

(a) an appeal from the decree or order of the Court of a Civil Judge shall lie to the District Court. (b) an appeal from the decree or order of an additional Judge of the District Court shall lie-

(i) where the value of the suit or original proceeding in such Court does not exceed ten thousand rupees, to the District Court; and

(ii) where the value of such suit or original proceeding exceeds ten thousand rupees, to the High Court;

Therefore, it will be seen that the distinction between the Civil Judge Class II and Class I was abolished by the said Amendment Act.

According to the amended provision, every appeal against the decree of a Civil Judge, of whatever class, lay to the District Court; while a distinction was made regarding decrees passed by the Additional District Judges. If the valuation was below Rs. 10,000 the appeal lay to the District Court. If it was more, it lay to the High Court. The effect of the changes introduced by the Amendment Act No. II of 1956 has been lucidly explained by a Division Bench consisting of Hidayatullah, C.J. (as he then was) and Choudhuri,J. in Lalchand Agarwal Vs. Keshaorao Jamthe and Others, , wherein the learned Judges also held that the Amending Act had no retrospective operation. That was the law understood in the Mahakoshal region of the Madhya Pradesh till the enactment of the Madhya Pradesh Civil Courts Act, 1958 (No. 19 of 1958), which came into force with effect from 1-1-1959 and which repealed all the regional Acts, namely, the Bhopal and Vindya Pradesh Courts Acts, 1950, the C.P. Courts Act, 1917 and the Madhya Bharat Civil Court Courts Act, 1949.

It is further significant to note that the case of Lalchand Agarwal v. Keshaorao Jamthe and Ors. 1960 JLJ SN 288: 1961 MPLJ 443, laid down that the Amending Act No. 2 of 1956 was inapplicable to suits instituted prior to the Amendment and, therefore, not applicable to pending cases. On the other hand, the Madhya Pradesh Civil Courts Act, 1958 was made applicable to all suits pending at the time the consolidating Act came into force. The only exception made was in respect of appeals already instituted before 1-1-1959. The effect of the consolidating Act of 1958 has been well stated by a Division Bench of this Court consisting of Dixit, C.J. and Pandey, J. in the case: Nawab Hamidulla Khan, His, Highness of Bhopal v. Basantram Tolaram 1960 JLJ-SN 288: 1961 MPLJ 443. It is thus clear that the law as understood in the Mahakoshal region of the Madhya Pradesh till the consolidating Act of 1958 was that an appeal against the decision of a Civil Judge of whatever class lay to the District Court, while an apperl against the decree(sic) of an Additional District Judge lay to the High Court if the valuation was above Rs. 10,000. This, in our opiniun, will be an important factor in the present case and the alterations and the development of the law in the different regions of Madhya Pradesh can be judicially noticed by this Court, although these facts have not been clarified in the affidavits in details.

In such cases the question of sufficiency of cause will have to be considered with reference to the definition given by the Limitation Act, which is slightly different from the definition of ''good faith'' under the General Clauses Act. Section 3 (22) of the Indian General Clauses Act No. X of 1897 defines ''good faith'' as follow:

a thing shall be deemed to be done in ''good faith'' where it is in fact done honestly, whether it is done negligently or not;

Evidently, the question of sufficiency of cause with reference to Section 5 of the Limitation Act cannot be decided in the light of this definition, as the Act itself defines ''good faith'' as follows vide Section 2(7) :

good faith'' nothing shall be deemed to be done in good faith which is not done with due care and attention.

Therefore, according to the provisions of the Limitation Act, the test is not whether a thing is honestly done; but whether it is not done with due care and attention. The standard of want of due care and attention will have to be judged in the light of the facts of each particular case; and there can be no hard and fast rule to be laid down for all eventualities or circumstances. Each case will have to be judged on its own merits.

Ordinarily, if a legal practitioner gives legal advice to his client on which the latter acts, the question arises whether the advice had been given with or without due care and attention. That is the determining factor for ascertaining the question of good faith. Their Lordships of the Privy Council have laid down that it is not an inflexible rule that under no circumstance the legal advice given by a counsel in good faith will amount to a sufficient cause within the meaning of Section 5 of the Limitation Act. As early as 1878, Brett, L.J. in Highton v. Trehcrne (1878) 48 LJ Ex 167 page 168 made the following observations:

In cases where a suitor has suffered from the negligence, or ignorance or, gross want of legal skill of his legal adviser, he has his remedy against that legal adviser, and meantime the suitor must suffer. But, where there has been a bona fide mistake, not through misconduct nor through negligence nor through want of reasonable skill, but such as a skilled person might make, I very much dislike the idea that the rights of the client should be thereby forfeited.

This case has generally been followed by the Indian High Courts for ascertaining the existence of sufficient cause for extension of time u/s 5 of the Limitation Act.

In Brij Indar Singh v. Lala Kanshi Ram and others AIR 1917 PC 156: LR 44 IA 218, their Lordships of the Privy Council made the following observations with reference to the question of extension of time:

It would doubtless be within the power of this Board to hold that the general rule so laid down was wrong. But here it must be noticed that though as authority binding on Mr. Justice Johnstone it rests on the Punjab case, the authority for it is really much wider. The case of In re Brojender Goomar Roy 5 BLR Sup. Vol. page 728 (FB, was also a Full Bench case, sent to the Full Bench of Calcutta in order to obtain a general rule, and it is well summarised in the head-note which runs:

If a party 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 among the days limited for appealing, but will be added thereto, and a memorandum of appeal presented within such extended period will be received as put in within time.

And in delivering judgment, Peacook, C.J., mentioned that they were upholding the ruling of fourteen Judges in 1865, and that the practice upheld had been the practice of Madras since 1860. Their Lordships were also informed that the same rule had been followed in Bombay. In Allahabad the same result is reached by combining the case of Balwant Singh v. Gumani Ram ILR 5 All. 591, with the case of Brjj Mohan Das v. Mannu Bibi ILR 19 All. 348.

Now if the matter were entirely open, inasmuch as a mere mistake in law is not perse sufficient reason for asking the Court to exercising its discretion u/s 5 (instances of which are given in some of the cases cited by the learned Judge), there would be a good deal to be said in argument in favour of making the rule universal, and upholding in its entirety the ruling given in the case of Ramjiwan Mal v. Chand Mali ILR 10 All. 587 above cited. But the matter is not open. To interfere with a rule, which after all is only a rule of procedure, which has been laid down as a general rule by Full Benches in all the Courts of India, and acted on for many years, would cause great inconvenience, and their Lordships do not propose so to interfere.

It was strenuously urged by the learned Counsel for the Respondents that inasmuch as the power in Section 5 is admittedly a discretionary power, this Board ought not to interfere with the discretion exercised by Mr. Justice Johnstone and he cited cases of which Sharp v. Wakefield (1891) App. Cas 173 may be taken as a type. In reality, however, that case is against him. For it laid down that discretion there as here must be a judicial and not an arbitrary discretion. Now if the Judge who purports to exercise the discretion does so under the view that there is no general rule, when in fact there is one, if he has, to use an expression often used in another class of cases, misdirected himself as to the law to be applied to the case, he cannot exercise a judicial discretion, and the Superior Court in this case this Board must cither remit the case or exercise the discretion, themselves." 30. It was for that reason that their Lordships of the Privy Council set aside the judgment of the High Court and allowed the appeal by giving the Appellant benefit of Section 5 of the Limitation Act. It was clearly laid down by their Lordships that the provisions of Section 5 have to be applied to cases in the exercise of judicial discretion, having in view the general rule that has been followed by the Indian High Courts in the matter of ascertaining sufficiency of cause. It is, therefore, clear that the provisions of Section 5 cannot be used in a manner which would operate penally to the prejudice of either of the parties. The Court has on the one hand to take into consideration the fact that by lapse of time a valuable vested right has accrued in favour of one of the parties, which is sought to be displaced by the other party seeking an extension of time. Time can be extended only if the party is able to establish the existence of a sufficient cause which prevented it from taking action within the prescribed time.

Then once the existence of sufficient cause is established, the Court has to exercise its discretion, having in view the conduct of the party coupled with the nature of the mistake committed.

This case further came up for consideration before their Lordships of the Privy Council in Sunderbai and Anr. v. Collector of Belgaum and others AIR 1918 PC 135: LR 46 IA 15. Referring to the earlier case of Brij Indar Singh v. Kanshi Rani and others AIR 1917 PC 156: LR 44 IA 218 their Lordships made the following observations:

After the District Judge had admitted the appeal, it was by order of the High Court removed into that Court. The learned Judges of the High Court, after hearing the parties and considering the affidavits which were filed, were rightly satisfied that the Defendants had sufficient cause for not having preferred their appeal to the Court of the District Judge within the period of limitation. The fact that the Defendants had acted on mistaken advice as to the law in appealing to the High Court in 1910 did not preclude them from showing that it was owing to their reliance on that advice that they had not presented the appeal to the Court of the District Judge within the prescribed period of limitation; see Brij Indar Singh v. Kanshi Ram and others AIR 1917 PC 156: LR 44 IA 218.

It is to be noted that the appeal wrongly came to be filed in the High Court instead of the District Court on the advice of the very District Judge before whom it was presented and who at the relevant time was the Legal Remembrarcer(sic) to the Government. As a Legal Remembrancer he was certainly competent person to give legal advice about the forum of the appeal. Yet a mistake was committed by him in advising that the appeal would lie to the High Court and not to the District Court. The mistake of the District Judge in his capacity as Legal Remembrancer was held to constitute sufficient cause by the High Court, and their Lordships of the Privy Council laid down that the discretion had been judicially exercised and, thefore, there was no occasion for interfering with the same.

In AIR 1937 276 (Privy Council) , their Lordships of the Privy Council applied the earlier rule laid down in the cases of Brij Indar Singh v. Lala Kanshi Ram & other AIR 1917 PC 156: LR 44 IA 218 and Sunderbai and Anr. v. Collector of Belgaum and others AIR 1918 PC 135: LR 46 IA 15 and made the following observations:

Even so, however, they see no proof of negligence in the fact that counsel took another view of the application and the value to be assigned to it. The ordinary purpose of partition is to alter the mode in which rights to immovable property are held and enjoyed; to convert a joint right in certain land into a several right in a portion thereof. The Appellant''s land in Khata No. 1 of Mahal Harha had been his in severalty throughout and he had no occasion to obtain an alteration in the mode of his enjoyment or possession. It was abundantly clear upon the face of his application that he had no desire to affect any land of the first Respondent beyond obtaining compensation for the land which the first Respondent was enjoying in the shamilat in excess of his share. In these circumstances it does not appear to their Lordships that the view taken by the Appellant''s counsel was unreasonable or that he can be deemed to have been negligent in valuing the appeal: to describe his action as ''gross negligence'' is in their Lordships'' view to visit him with a censure undeserved.

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 result of wrong advice. In the circumstances of this case the Respondents had very little reason to complain of the delay and the bona fides and diligence of the Appellant cannot be impugned. The case is well within principles previously acted on by the Board, in Brij Inder Singh v. Lala Kanshi Ram and others AIR 1917 PC 156: LR 44 IA 218 and Sunderbai and Anr. v. Collector of Belgaum ard others AIR 1918 PC 125: LR 46 IA 15.

In that view of the case, their Lordships reversed the judgment of the High Court by allowing the appeal. The view as expressed in the case of AIR 1937 276 (Privy Council) , stands overruled.

Although their Lordships of the Supreme Court have not as yet had occasion to decide the question of sufficient cause with reference to the negligence of a counsel or an agent, the observations made by their Lordships of the Supreme Court would, in our opinion, be very relevant for the purpose of deciding sufficiency of cause. Although the case of Dinnabandhu Sahu v. Jadumoni Mangaraj and others AIR 1954 SC 411 was a matter relating to an election concerning Section 85 of the Representation of the People Act, 1951, the same principle will be applicable to Section 5 of the Limitation Act. In that case the election petition had been sent to the Election Commission by post. It was received in the office of the Election Commission one day later than the limitation prescribed under the Act. Their Lordships made the following observations with reference to the question of sufficient cause:

With particular reference to the order dated 2-7-1952, it is difficult to come to any conclusion other than that in passing that order the discretion under the proviso to Section 85 has been properly exercised. The petition had been presented at the post office one day earlier, and reached the Election Commission one day later than the due date. Even if the matter had to be judged u/s 5 of the Limitation Act, it would have been a proper exercise of the power under that section to have excused the delay.

As we observed in the Full Bench decision in Krishna v. Chathappan ILR 13 Mad 269, in a passage which has become classic, the words ''sufficient cause'' should receive a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of ''bona fides'' is imputable to the Appellant''. We have, therefore, no hesitation in holding that the order dated 2-7-1952 is on the facts a proper one to pass under the proviso to Section 85.

The dictum laid down by their Lordships of the Supreme Court would thus support the proposition that the provisions of Section 5 of the Limitation Act are to be construed liberally so as to advance substantial justice, and not in a manner which would operate penally to the prejudice of any of the parties which might defeat the ends of justice. The Court has to exercise its discretion being aware of the creation of a vested right by a lapse of time in favour of one party, which can only be displaced by proof of sufficient cause with reference to the conduct of the party and the nature of the mistake committed.

Although the case of Ramlal, Motilal and Chhotelal Vs. Rewa Coalfields Ltd., does not exactly concern the question of sufficient cause with reference to the mistake committed by a legal adviser. All the same their Lordships have laid down the general principles in the following words:

In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan ILR 13 Mad 269.

Section 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words ''sufficient cause'' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the Appellant.

It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. It cannot justify an enquiry as to why the party was sitting, idle during all the time available to it. In this connection we may point out that considerations of bona fides or due diligence are always material and relevant when the Court is dealing with applications made u/s 14 of the Limitation Act. In dealing with such applications the Court is called upon to consider the effect of the combined provisions of Sections 5 and 14. Therefore, in our opinion, considerations which have been expressly made material and relevant by the provisions of Section 14 cannot to the same extent and in the same manner be invoked in dealing with applications which fall to be decided only u/s 5 without reference to section 14. In the present case there is no difficulty in holding that the discretion should be exercised in favour of the Appellant because apart from the general criticism made against the Appellant''s lack of diligence during the period of limitation no other fact had been adduced against it. Indeed, as we have already pointed out, the learned Judicial Commissioner rejected the Appellant''s application for condonation of delay only on the ground that it was Appellant''s duty to file the appeal as soon as possible within the period prescribed, and that, in our opinion, is not a valid ground.

* * * *

It appears that the provisions of Section 5 in the present Limitation Act are substantially the same as those in Section 5 (b) and Section 5, paragraph 2, of the Limitation Acts of 1871 and 1877 respectively. Section 5A which was added to the Limitation Act of 1877 by the amending Act VI of 1892 dealt with the topic covered by the explanation to Section 5 in the present Act. The explanation provides, inter alia, that the fact that the Appellant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period of limitation may be sufficient cause within the meaning of Section 5. The effect of the explanation is that if the party who has applied for extension of period shows that the delay was due to any of the facts mentioned in the explanation that would be treated as sufficient cause, and after it is treated as sufficient cause the question may then arise whether discretion should be exercised in favour of the party or not. In the cases to which the explanation applies it may be easy for the Court to decide that the discretion should be exercised in favour of the party and delay should be condoned. Even so, the matter is still one of discretion. u/s 5-A of the Act of 1877, however, if the corresponding facts had been proved under the said section there appears to have been no discretion left in the Court because the said section provided inter alia, that whenever it was shown to the satisfaction of the Court that an appeal was presented after an expiration of the period of the limitation prescribed owing to the Appellant having been misled by any order, practice or judgment of the High Court of the Presidency, Province or District, such appeal or application, if otherwise in accordance with law, shall, for all purposes be deemed to have been presented within the period of limitation prescribed therefor. That, however, is a distinction which is not relevant in the present appeal." This will show that if a party is misled by any practice of the Court, the mistake committed by him on such impression would be covered by the expression constituting sufficient cause. Therefore, I am of opinion that if a legal adviser in the confused state of law prevailing in the different regions of a State commits a mistake on his impression of the regional law, his act might amount to some sort of negligence, yet it would not amount to gross negligence so as to deserve a censure by refusal to extend time.

Next I propose to deal with some other cases which would illustrate the principles to be adopted. In the case of Gulsher Ahmed Vs. The Election Tribunal, Chhatarpur and Others, , a Division Bench consisting of Hidayatullah, C.J. (as he then was) & Bhutt, J. held that where the Appellant had filed a writ petition under Articles 226 and 227 of the Constitution of India under the mistaken belief that no appeal under the Representation of the People Act, 1951 lay to the High Court and subsequently filed an appeal after the writ petition was dismissed by the High Court on the ground that the prerogative powers were not to be used where there was a specific remedy provided by a statute, the learned Judges relying on the Privy Council case of Kunwar Rajendra Bahadur Singh v. Rai Rajeshwar Bali and Ors. 22 MPLC 457: AIR 1918 Nag. 156: ILR 1938 Nag. 409, extended time on the ground that there was sufficient cause.

In the connection I might ''refer to the other types of cases where the action of a party, his agent, or counsel cannot be construed to constitute sufficient cause. The case of Pt. Krishna Rao Dattatraya Phalke v. Trimbak(sic) and Ors. 22 MPLC 457: AIR 1918 Nag. 156: ILR 1938 Nag. 409 was a case where an appeal in the High Court came to be filed beyond limitation on the advice of the clerk of an Advocate as to the date of reopening of the''High Court after the summer vacation. Evidently, the clerk had given that date without making any enquiry whatsoever. It was under those circumstances that Bose, J. (as he then was) and Puranik, J. held that the clerk who could be considered to be an agent of the party was grossly negligent in giving such information without any enquiry whatsoever. It was under those circumstances that the action of the agent was held not to constitute sufficient cause.

I might also refer to the other case of Firm Hemraj Dhannalal Vs. Ambaram Bhawaniram Surajmal, , which was decided by a Division Bench consisting of one of us (Newaskar, J.) sitting with Krishnan, J. In that case the counsel concerned wrongly advised the client about the forum of i he appeal. There have been a series of decisions of the Madhya Bharat High Court in that behalf. The counsel, as a practising advocate, was expected to know the provisions of the Madhya Bharat Civil Courts Act, 1949, as also the series of rulings of the Madhya Bharat High Court. In spite of that, he gave a wrong advice to the client and the party concerned persisted in prosecuting the appeal in a wrong Court and in having a decision on that point. The counsel''s insistence was that the appeal had been filed in a proper forum. These facts undoubtedly would disclose utter lack of sufficient cause. I might observe that I am in full agreement with the view as expressed in the two Division Bench cases of Pt. Krishna Rao Dattatraya Phalke v. Trimbak and others 22 MPLC 457: AIR 1938 Nag. 156: ILR 1938 Nag. 409, and Hernraj Dhannalal, Firm v. Ambaram Bhawaniram and Anr. 1962 JLJ 176: AIR 196 MP 336: 1961 MPLJ 343. But, in my opinion, the principle laid down in these two Division Bench (esses) applies to a different type of cases. As laid down by their Lordships of the Privy Council, the rule is not of universal application that every mistake of a counsel is not to be construed as sufficient cause. Under certain circumstances a mistake can certainly constitute sufficient cause. An instance of the type where mistaken advice constitutes sufficient cause is represented by the case of Sunderbai and Anr. v. Collector of Belgaum and Ors. AIR 1918 PC 135: LR 46 IA 15, where the person giving advice was the Legal Remembrancer, and as such one of the senior District Judges in the Province. Therefore, even a wrong advice given by a competent person well-versed in law can under certain circumstances amount to sufficient cause, but such question will have to be decided with reference to the facts of each case.

Ultimately, I might refer to the two decisions of the Bombay High Court, which deal with such situation of legal advice being given by a counsel. The first case was that of Nagindas Motilal v. Nilaji Moroba Naik AIR 1924 Bom. 399: ILR 48 Bom. 442, where an application for leave to appeal to his Majesty-in-Council was filed out of time owing to the worng advice of the party''s local lawyer, who did not know about the recent changes in the law in the matter of curlailment of the period of limitation for such applications. The learned Judges held that the mistake of the lawyer constituted sufficient cause. The other case was that of Bhausaheb Jamburao Vs. Sonabai, , where the mistake committed was similar in nature to the one committed in the Bombay case mentioned above. The learned Judges of the Division Bench consisting of Divatia and Bavdekar, JJ. held that there was sufficient cause. In that view the mistaken advice of the lawyer was condoned and time u/s 5 of the Limitation Act was extended.

Judging the present case in the light of the principle enunciated in the cases mentioned above, I am of opinion that the mistaken advice of the Appellants'' counsel cannot be construed to be gross negligence. In view of the confused state of the law in the different regions of the State, even a senior counsel could have committed a mistake with reference to the question of forum of appeal in another region, although ordinarily he would be expected to look into the provisions of the particular region under which the appeal had to be filed. But the mistake, at any rate, cannot be said to be so gross as to impose a penalty by refusing to extend time, I am of opinion that in the words of Brett, L.J., as also their Lordships of the Privy Council and their Lordships of the Supreme Court, the Appellants, at any rate, would not merit an undeserved penalty, inasmuch as they have throughout acted with extra carefulness and have shown their keenness to prosecute the litigation, and but for the mistaken advice given by their counsel, they cannot be accused of any lapse or any inaction. Under the circumstances, the time spent in the District Court deserves to be excluded by extension of time on the ground that the facts constituted sufficient cause. It is further pertinent to note that the Appellants or their counsel did not pursue in the wrong advice, but when the fact was brought to their notice, they voluntarily moved the District Court for return of the memorandum of appeal for presentation to proper Court. Therefore, in my opinion, the present case is of the type as represented by the two Bombay cases mentioned above, and not of the type represented by the two Division Bench decisions of this Court. Moreover, the phrase ''sufficient cause'' has to be construed in a liberal manner so as to advance substantial justice, and not allow it to be defeated on any hypertechnical view which would operate in a penal manner. Therefore, I am of opinion that the delay in the present case deserves to be condoned. Accordingly, I extend time u/s 5 of the Limitation Act and direct that the appeal be set down for final hearing on merits.

On account of the difference between Newaskar, and Tare, JJ., the appeal was placed for hearing before K.L Pandey, J. who delivered the followed opinion on 13-2-1963. J

Pandey, J.

This case comes before me on a difference between Newaskar, J. and Tare, J. on the question whether, in the circumstances of this case, there is sufficient cause within the meaning of Section 5 of the Limitation Act for extention of the time prescribed for filing this appeal.

The value of the suit, out of which this appeal arises, is admittedly over Rs. 5,000. It was decided by the Civil Judge, Class I, Khargone, on 24 February 1958 and a decree in pursuance thereof was passed on 26 February 1958. The Defendants, who had obtained certified copies of the judgment and decree on 27 February 1958, filed this appeal in the Court of the District Judge, Mandleshwar on 24 March 1958. Thereafter, on 30 June 1958, the Defendants applied to that Court for return of the memorandum of appeal for presentation to the proper Court and, having thus obtained it on 8 July 1958, they presented it in this Court on 9 July 1958.

All that is said about the existence of sufficient cause is that a senior counsel, K. B. Hifazat Ali, advised the Defendants to present their appeal in the Court of the District Judge, Mandleshwar, and they did so. On his part, the counsel has filed an affidavit to say that "at that time I was under the impression that the appeal would lie to the District Court" and, therefore, "I advised and prepared the memo of first appeal and asked Moosa to go and present the same to the District Judge, Nimar at Mandleshwar. It is no longer disputed that the Defendants had acted on the erroneous advice of their counsel K.B. Hifazat Ali. Newaskar, J. relying upon Phoolabhai v. Ashabhai and others Civil First Appeal No. 42 of 954 dated 3 December 1957,which followed the view taken in Pandit Krishnarao v. Trimbak 22 MPLC 457: AIR 1938 Nag 156-ILR 1938 Nag 409, Firm Hemraj Dhannalal Vs. Ambaram Bhawaniram Surajmal, , and the observations of the Privy Council in AIR 1937 276 (Privy Council) , took the view that each and every mistake committed by a counsel is not a just ground for extending limitation, that, to be a ground available for the purpose, the advice given by the counsel should be sustainable as one which could be entertained by a competent legal practitioner exercising reasonable care and that, where the provision of law governing the point is in itself, or for any other reason, incapable of bearing any other interpretation, the mistake of a counsel is not sufficient cause within the meaning of Section 5 of the Limitation Act, Tare, J. reviewing a large number of cases, held that there was sufficient cause. In taking that view, he appears to have relied upon Nagindas Motilal v. Nilaji Moroba AIR 1924 Bom 399: ILR 48 Bom 442, and Bhausaheb Jamburao Vs. Sonabai, . His conclusion is:

Therefore, I am of opinion that if a legal adviser in the confused state of law prevailing in the different regions of a State commits a mistake on his impression of the regional law, his Act might amount to some sort of negligence, yet it would not amount to gross negligence so as to deserve a censure by refusal to extend time." 44. Having heard the counsel at some length, I am inclined to agree with the view taken by Newaskar, J. in Ramlal, Motilal and Chhotelal Vs. Rewa Coalfields Ltd., . the Supreme Court quoted with approval the following statement of the Madras High Court in Krishna v. Chathappan ILR 13 Mad 269 (FB);

Section 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words ''sufficient cause'' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the Appellant.

The statement of law, which has been accepted by the Supreme Court, implies that though ''sufficient cause'' has to be liberally construed, there will be no sufficient cause where negligence or inaction or want of bona fides is imputable to the Appellant. In AIR 1937 276 (Privy Council) , the Privy Counsel observed:

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.

In view of these observation the Appellants connot rely merely upon the crroneous advive given to them by their counsel. They have to show something more to be able to establish that there was sufficient cause. In this connection, i may point out the absence of a detracting consideration like gross negligence of want of good faith on the part of the counsel is not enough, though if it be present, it would destroy the claim that there was sufficient cause. In AIR 1937 276 (Privy Council) the privy council indicated what more is required in the contest of counsel giving wrong" advice. This is what the Board stated:

The Chief Court''s refusal to admit the appeal was based on the view that counsel ''did not exercise due care and attention and acted with gross negligence in the matter''. If this opinion be correct, there Lordships will assume that in the present case it would suffice to justify the dismissal of the appeal. It clearly, involves however that the view taken was not such as could have been entertained by a competent practitioner exercising reasonable care.

In view of these observations, the Appellants, to be able to establish that there was sufficient cause grounded on wrong advice given by their counsel, have to show:

(i) that it was given by a competent practitioner;

(ii) that the practitioner, in giving the advice, exercised reasonable care ; and

(iii) that the advice given by him is founded on a view which could, in the circumstances of the case, be taken by any competent legal practitioner exercising reasonable care.

It is not disputed that K.B. Hifazat Ali is a senior and Competant(sic) legal practitioner. But he has not disclosed in his affidavit, and there is nothing else to show, that he read the relevant provisions of law, which he could find in the Madhya Bharat Civil Courts Act, 1949 Against this, his own affidavit shows that, in this matter, he acted on his impression. It is also not disputed that Section 23 of the Madhya Bharat Act, which governed this matter, was incapable of bearing the interpretation that this appeal could be filed in the District Court. In my opinion, a legal practitioner, who gives advice about the filing of an appeal arising from the Madhya Bharat region, only upon his impression and without reading the unambiguous provision of law governing the matter, does not act with reasonable care nor does he found his advice upon a view which could have been entertained by any other competent and careful legal practitioner.

Tare, J. was persuaded to accept that K.B. Hifazat AH was misled by the confused state of law prevailing in the different regions of the State. Since there is nothing in the affidavit of K. B. Hifazat Ali to Support that view, the submissions made before me to sustain it appear to be mere conjectures. Apart from the consideration that a competent legal practitioner ought to know that, upon the formation of the new State of Madhya Pradesh, different laws were in force in various region''s of the State, I do not think that, in March 1958, when this appeal was filed, the view entertain by K. B. Hifazat Ali could be taken by any careful legal practitioner even in the Mahakoshal region. In Lalchand Agarwal Vs. Keshaorao Jamthe and Others, , a Division Bench of this Court decided on 31 July 1957 that appeals and suits instituted prior to the commencement of the Madhya Pradesh Courts (Amendment) Act, 1956 (II of 1956), would be governed by the pre-existing law. That being so, even in the Mahakoshal region, as in the Madhya Bharat region, the law was that appeals arising out of suits exceeding Rs. 5,000 in value and filed in 1955 had to be filed in the High Court. It follows that if K.B. Hifazat Ali was mised at all. it was not due to the confused state of law prevailing in the different regions of this State.

In the course of arguments counsel referred to a number of decisions of other High Courts. The facts of those cases are distinguishable and I do not consider it necessary to examine them, because the precise point raised in this case is directly covered by the decisions of this Court. In Mohanlal Jagannath Vs. Tej Singh Thakur Kanyalal and Another, , a Division Bench of this Court refused to extend time u/s 5 of the Limitation Act in circumstances similar to those present here. Dixit, J. (as he then was) stated:

In the instant case, the provisions of Section 23 of the Madhya Bharat Civil Courts Act are so clear that there could be no room for any doubt that an appeal from a decision of a Civil Judge in a suit wherein the subject-matter exceeded Rs. 5,000 lay direct to the High Court and not to the District Court. It cannot, therefore, be maintained that the question of the ftrum of appeal in this case was a matter of justifiable doubt and that the advice which the applicant got from his counsel, though mistaken, was bona fide in that such mistake could be committed by any lawyer of reasonable skill There does not seem to us any ground for condoning the delay u/s 5 of the Limitation Act. That being so, this application is dismissed with costs.

In Firm Hemraj Dhannalal Vs. Ambaram Bhawaniram Surajmal, , another Division Bench of this Court took a similar view about an idential matter. Krishnan, J. stated:

It was a mistake in regard to something which was absolutely straight and quite beyond and possible doubt or bewilderment." An endeavour was made to distinguish this case on the ground that, even after the mistake was discovered, the Appellant presisted in prosecuting the appeal in the wrong Court. But that aspect of the case was not relied upon to support the conclusion reached in that case. Further, Gulsher Ahmed v. The Election Tribunal [4], mentioned by Tare, J. was also distinguished on the ground that, in the circumstances of that, it was possible for the counsel to take the view that no appeal lay and, therefore, a writ petition should be filed.

It is true that in Gulsher Ahmed Vs. The Election Tribunal, Chhatarpur and Others, , the counsel, who was careful to read Section 23 of the Madhya Bharat Civil Courts Act, 1949, sought to justify the filing of the appeal in the District Court on the ground that there was a possibility of honest difference of opinion about the construction of that section and it was not accepted. Much less can it be accepted in the case of a counsel who, as shown, did not inform himself about the law bearing on the point by reading the relevant provisions before proceeding to advise the Appellants.

The learned Counsel for the Appellants also urged that this was a hard case and deserved the sympathy of the Court. As pointed out by this Court in Pandit Krishna Rao''s case 22 MPLC 47(sic): ILR 1938 Nag 409, the period of preferring an appeal cannot be extended simply because the Appellant''s case is hard and calls for sympathy nor will the Conrts extend the period of limitation out of benevolence to the party seeking relief.

In the view I have taken, I am of opinion that, in the circumstances disclosed in this case, there is no sufficient cause within the meaning Section 5 of the Limitation Act to justify extension of the period of limitation prescribed for filing the appeal.

Order of the Court

Newaskar and Tare, JJ.

In accordance with the opinion expressed by the third Judge since there is no sufficient cause for extension of the period of limitaion in pursuance of the powers of the Court u/s 5 of the Limitation Act the appeal is dismissed with costs.