Nandi Jadav vs Smti. Dairaja Devi and Others

N.G. Das, J.—The suit out of which this revisional application u/s 115 of CPC arises was filed by Smti. Dhiraja Devi, one of the Respondents herein against the Petitioner in the court of learned Munsiff, Agartala, West Tripura for Khaish possession of the suit premises and for arrears of rent. The suit was numbered as T.S. 5 of 1972 and when it was in progress Respondents Nos. 2 to 8 filed an application under Order 22, Rule 10 of CPC on 7-8-91 for adding them as Plaintiff. But learned Munsiff by his order dated 17-6-83 rejected that prayer.

Aggrieved by the order, the present Respondents filed a revision petition (Civil Revision No. 85 of 1983) before this Court against the aforesaid order dated 17.6.83. But when this revision petition was taken up for hearing it was detected that an order under Order 22, Rule 19 of CPC refusing to leave is appealable under Order 43, Rule 1, Clause (l) of Code of Civil Procedure. No sooner had this defect was pointed out them. M.C. Deb Roy, the learned Counsel for the present Respondents submitted before this Court that he made a genuine mistake in filing this application before this Court, as in fact an appeal fought to have been filed before the Appellate Court. It was also submitted by Mr. Deb Roy, learned Counsel for the Respondents that the Plaintiff and her assignees were so long proceeding the case bonafide in this Court and accordingly the period of limitation should be condoned u/s 14 of the Limitation Act. This Court accepted his submission and directed that the revision petition be returned to Mr. M.C. Deb Roy, to enable him for presenting the same as an appeal before the Appellate Court. But the prayer for condonation u/s 14 of the Limitation Act was left to the Appellate Court for its decision.

Pursuant to the aforesaid order of this Court the revision petition was returned to Mr. M.C. Deb Roy, learned Advocate on 21.5.86 and Sri Deb Roy filed the appeal before the Court of District Judge on 22.5.86. Thereafter, he also filed an application for condonation of the delay u/s 14 of the Limitation Act on 16-6-86. On 15.12.86 the Respondents filed another application Under Order 6, Rule 17 of Code of Civil Procedure.

The appeal was initially filed in the Court of learned District Judge who transferred the appeal to the Court of learned Addl. District Judge Mr. Durgadas Purkayastha who after hearing the learned Counsel of both the parties allowed the prayer for condonation subject to payment of Rs. 100/- and admitted the appeal. The amendment being not pressed, it was rejected.

It may be mentioned here that no one appeared on behalf of the Respondents. Mr. Banerjee, the learned Counsel appearing for the Petitioner has, however, contended that the learned Addl. District Judge should not have allowed the prayer for condonation as it would be apparent from the certified copy of the order of learned Munsiff dated 17-6-83 that the Respondents did not submit the prayer for certified copy of the order of learned Munsii''f within the prescribed time. It has been very strongly urged by Mr. Banerjee that the Respondents are not entitled to get any sort of relief under the provision of Section 14 of the Limitation Act primarily because the Respondents filed the revision petition after the period of appeal. The precise submission of Mr. Banerjee is that the Respondents are entitled to get the benefit of the Section 14 of the Limitation Act only for the period which was spent during the pendency of the revision petition before the High Court. But according to him even if that period is excluded, the Respondents'' prayer for condonation could not be considered as it would be apparent from the certified copy of the order of learned Munsiff dated 17-6-88 that the Respondents made the prayer for certified copy after the expiry of the period of appeal. In support of his contention Mr. Banerjee has placed reliance in the decision rendered in the case of Somnath Banerjee and Ors.--Applnt. v. Bivek Salvia reported in 1988 Calcutta at page 366. In reality, however, this case is against him. What happened in this case was that the two appeals were initially filed in the court of District Judge. But even though those were appeals from orders, the suit for which the orders were passed having been valued at more than Rs. 25,000/-, the appeals were required to be filed in the High Court under the provision of Section 21 of the Bengal, Agra and Assam Civil Courts Act, 1887 read with Section 106 of the Code of Civil Procedure. The Respondents also lodged a Caveat in the District Court and the appeals were admitted by the District Judge in presence of and after hearing the parties. But subsequently the Respondents filed a revision against such admission and both the appeals were withdrawn by Appellants from the District Court and thereafter filed in the High Court. Therefore the only question posed for consideration was whether there was sufficient cause to condone the delay and extend the time u/s 5 of the Limitation Act. Their Lordships held that mistake being that of Lawyer and also the court a litigant should not suffer and with this finding both the applications for condonation of delay in preferring appeals were allowed and directed that the appeal may be admitted.

It would, therefore, be apparent from what I have stated above that this decision does not help the present Petitioner in any way. In the case in hand it is an admitted fact that Mr. M.C. Deb Roy, learned Counsel, who filed the revision petition before this Court quite frankly confessed that it is was because of his mistake that he filed the revision petition instead of preferring an appeal. It is clear from the order dated 19-5-86 whereby the revision petition was disposed of that the revision petition was filed upon a mistaken advice of the Lawyer and that such mistake could be detected only when the revision petition was taken up for hearing. There is no dispute that the period of revision u/s 115, CPC is 90 (ninety) days from the date of decree or order sought to be revised. Admittedly the revision petition bearing No. 81 of 1993 was filed on 14-9-83 i.e. within the period of 90 days. As already stated Mr. D.B. Roy, learned Counsel for the Respondents was under a mistaken belief that the order of learned Munsiff dated 17-6-83 was revisable u/s 115 of Code of Civil Procedure. Obviously that was the reason why the learned Counsel for the Respondents did not file the petition for certified copies of the order dated 17-6-83 within the period of appeal. It is, therefore, clear from the above facts that the Respondents filed the revision petition at his Lawyer''s advice and they were prosecuting the said application upon a mistaken advice of their lawyer.

In Ramlal, Motilal and Chhotelal Vs. Rewa Coalfields Ltd., the Supreme Court quoted with approval the observation of the Madras High Court in Krishna v. Chattoppan (1890) ILR 13 Mad 269 to the effect that "The words sufficient cause" receiving a liberal construction so as to advance justice when no negligence nor inaction, nor want of bonafide is imputable to the Appellant." It is disputed that a litigant without the help of a Lawyer cannot conduct a case. The legal (sic) has become so wide spread that a litigant without the help of a Lawyer finds himself at his wit''s end. So a litigant has no option other than to take the help of a lawyer to conduct his case in a Court of law. The Supreme Court in the case of Rafiq and Another Vs. Munshilal and Another, at page 1401 has observed: "The obligation of the parties is to select an Advocate, brief him, pay the fees demanded by him and then trust the learned Advocate to do the rest of the things as after engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest." If a party has done that, than, as the Supreme Court has proceeded to have observed further in the form of a question-"What is the fault of the party who having done everything in his power and expected of him would suffer because of default of his Advocate."

In the instant case it is not disputed that the Respondents engaged their lawyer to prefer appeal or revision against the order of learned Munsiff dated 17.6.83. But it is their lawyer who actually committed mistake and the learned Lawyer Mr. Deb Roy also frankly confessed that it was because of his fault that he filed revision instead of filing appeal. There is nothing in record to show that the Respondents did not approach the lawyer in time.

The next question which calls for consideration is whether the Respondents are entitled to get relief u/s 14 of the Limitation Act as Section 14 applies to suits and application only and not appeal. But circumstances contemplated in this section can justifiably be taken to constitute a "sufficient cause" within the meaning assigned to that pharse in Section 5 of the Limitation Act for the purposes of appeals also. The only distinction between the applicability of Section 14 in terms in the case of a suit or an application on the one hand and invocation of the principles of Section 14 in the case of appeal on the other is that whereas Section 14 confers a right on a Plaintiff or an applicant to get period, during which the suit or application was pending and prosecuting bonafide in the wrong court, excluded as a matter of right, the remedy based on the principles of that provision u/s 5 of the Limitation Act in the case of an appeal is discretionary and the Court may condone the delay in filing an appeal in the Court if the requirement of Section 14 appears to have been satisfied.

Learned Addl. District Judge has recorded in the impugned order that Mr. Deb Roy, learned Counsel for the Respondents also submitted before him that it was his mistake and not the mistake of his client. So having regard to this submission the learned Additional District Judge exercised his discretionary power in allowing the prayer for condonation. Mr. Banerjee did not submit that the revision petition was not prosecuted in good faith. So the question of negligence on the part of the Respondents being out of way, I am of the opinion that the facts of the present cases disclosed sufficient cause within the meaning of Section 5 of the Limitation Act. I am of the view that the mistaken advice given by a legal practitioner gives rise to the sufficient cause. In the circumstances of the case the Petitioner had very little reason to complain of the delay and bonafides and deligence of the Respondents.

For the reasons given above the Revision petition merits no consideration and accordingly it is dismissed. The Petitioner will pay the Respondents costs of this Revision.