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Judgment
Anantakrishna Aiyar, J.—This is an application for revision, filed by the 2nd defendant in S.C.S. No. 661 of 1927 on the file of the District
Munsif of Conjeevaram. A decree was passed in the suit on 17th August, 1927, against the 2nd defendant among others, the 2nd defendant not
appearing at the date of the adjourned hearing. On 15th September, 1927, the 2nd defendant filed an application in the Lower Court under Order
9, Civil Procedure Code, read with Section 17 of the Provincial Small Cause Courts Act. u/s 17, the 2nd defendant-petitioner had to deposit in
Court within 30 days the amount due under the decree in question. The 2nd defendant paid into the hands of his vakil on the 15th September,
1927, the necessary amount. The account books of the vakil have been filed and they support the 2nd defendant''s plea that the necessary funds
were paid into the hands, of the vakil on 15th September, 1927. Before the money is actually paid into the Court the party has to apply for the
necessary chellan and in this case the necessary application for the chellan was made on the 15th September at the time when the application under
Order 9 was made, but the chellan seems to have been issued only on the 28th September, 1927. Unfortunately, the vakil''s clerk seems to have
mislaid the chellan and consequently was not able to pay the money into the treasury in time. Some amendments of the application had to be made
as per orders of the Court for which some time was granted and finally on the 17th October, 1927, the money was paid into Court, a fresh chellan
having been procured in the meantime. The decree-holder objected to the application being heard on the ground that the provisions of Section 17
of the Provincial Small Cause Courts Act had not been complied with inasmuch as the decree amount had not been paid into Court within 30 days
from the date of the decree in question. The learned District Munsif was, however, satisfied that the money had been paid by the 2nd defendant
into the hands of the vakil in time with instructions to have the necessary steps taken in the matter. To use the words of the learned District Munsif:
It is proved by the vakil''s accounts that the money was paid to the vakil on the 15th September itself and so it should have been paid into the
treasury on the date when the chellan was issued. This could not be done because the vakil''s clerk had mislaid the chellan in question.
However the learned District Munsif felt himself bound to dismiss the application, because, in his view, it was only mistakes committed by the
vakil that could be ground for excuse u/s 5 of the Limitation Act but not small mistake committed by the vakil''s clerk. Again, to use the words of
the learned District Munsif,
But here there is no carelessness on the part of the vakil, the carelessness was only on the part of his clerk.
He added:
No decision in our own High Court had laid down that such carelessness on the part of the vakil''s clerk is a sufficient ground for excusing the
delay. A line must be drawn somewhere. If the carelessness of the vakil''s clerk were to stand on the same footing as the vakil''s carelessness why
not the carelessness of the vakil''s peon or servant? I therefore think that there are no sufficient grounds for excusing the delay.
The learned District Munsif''s attention was drawn to the case in Kandaswami Mudaliar v. Arunachala Chetty (1923) 21 L.W. 24 where
arithmetical mistake committed by a party''s vakil which resulted in the filing of the appeal beyond the due date was held to be a sufficient cause for
excusing the delay under the provisions of Section 5 of the Limitation Act. The learned District Munsif observed with reference to that case as
follows:
If the same case had arisen in Lahore perhaps the decision would have been the other way, because it was admittedly occasioned by the
carelessness of the vakil, i.e., it was not done in good faith according to the decision in Umrao Bakhash v. Noor Muhammad Khan (1923) 72 I.C.
732.
Thus it is clear that while the District Munsif was of the view that as far as the merits were concerned any bona fide mistake committed by a
vakil with reference to the transaction of any business entrusted to him by a litigant would be a proper ground for excusing any delay under the
provisions of Section 5 of the Limitation Act, he felt that similar mistakes committed--not by the party''s vakil but by the vakil''s clerk--would not
be any ground to excuse delay u/s 5 of the Act. I am unable to appreciate the distinction. So far as the litigant who invokes the jurisdiction of the
Court to exercise its powers of excusing the delay under the provisions of Section 5 of the Act is concerned, it is not a matter of any great concern
for him whether the particular mistake was committed by the pleader himself or by the pleader''s clerk. If the mistake was committed with
reference to his case, though by the pleader''s clerk, in the usual course of business while transacting in the ordinary way the legal business of the
litigant, the party should not be made to suffer because this particular mistake was committed when the papers were being dealt with in the
ordinary course of business by the vakil''s clerk and not by the vakil. It is clear that a vakil could not transact personally all the routine and
mechanical items of business of the client in a satisfactory manner and that various matters have to be dealt with in the usual course of business by
the vakil''s clerk. In the present case it is clear that the chellan was mislaid by the vakil''s clerk who was dealing with the papers in the usual course
of business of the vakil. No fraud or mala fides is suggested; that being so, this is a case where the party should not be made to suffer when it is
clear that he had done in proper time everything that he was bound to do in respect of the matter. How the vakil''s clerk''s mistake or carelessness
on the particular occasion should be dealt with is a matter between the vakil and the clerk, and the finding that it was a case of the chellan being
mislaid by a bona fide mistake is prima facie enough, so far as the party is concerned, to enable him to invoke the provisions of Section 5 of the
Limitation Act.
The learned advocate for the respondent argued that Section 5 of the Limitation Act would not apply to such cases at all. I think it is too late to
raise such a contention. In Koilpillai Saniban v. Sappanimuthu Samban (1922) 44 M.L.J. 247 the learned Judge Ramesam, J., held that the
provisions of Section 5 applied and even went further and in revision himself held that the facts were enough to have the delay excused. In fact
there is an earlier decision of this Court reported in the case in Sudalaimuthu Kudumban v. Andi Reddiar ILR (1922) 45 M. 628 : 42 M.L.J. 484
a decision of a. bench of two learned Judges, where it was specifically held that Section 5 of the Limitation Act applies to such a case. Mr.
Bhashyam Aiyangar, the learned advocate for the petitioner, drew my attention to the fact that in Sudalaimuthu Kudumban v. Andi Reddifir ILR
(1922) 45 M. 628 : 42 M.L.J. 484 the mistake was one on the part of the clerk of the vakil. Of course the question did not directly arise for
decision whether such mistakes committed by the vakil''s clerk were such as could be dealt with u/s 5. But that only shows that the distinction
sought to be made by the learned District Munsif in this case between such slips committed by the vakil on the one hand and the vakil''s clerk on
the other is not of any material importance, provided the mistake was a bona fide one, committed in the course of the conduct of the case entrusted
by the party to the vakil. Holding then that the distinction sought to be made by the learned District Munsif is not sound, I reverse his order and
excuse the delay in the presentation of the application, having regard to the facts found in this case. The result, therefore, would be that M.P. No.
295 of 1927 will be remanded for disposal on the merits by the District Munsif. As regards costs I think in such cases it is no satisfaction to the
decree-holder--the other party to the proceedings--when he is put to extra trouble and inconvenience, to be told that it was because the 2nd
defendant''s pleader''s clerk was guilty of a bona fide mistake. In such Gases I think the proper order should be that the 2nd defendant should be
directed to pay costs to the decree-holder both of the hearing of the application in the Lower Court in February, 1928 (the amount of which will
be fixed by the Lower Court) and of this Civil Revision Petition; I order accordingly, and that, irrespective of the ultimate decision of the merits of
the main application No. 295 of 1927.