Shrimati Shanti Devi vs Satya Pal and Others

I.D. Dua, J.—The only point which arises at this stage for determination relates to the prayer u/s 5 of the Limitation Act for condoning the delay in presenting the appeal in this Court.

The suit out of which this appeal has arisen was Institute by the Appellant for separate possession by partition of her share in the properties mentioned in the Schedule attached to the plaint and also for rendition of accounts etc. In the plaint, value for purposes of court-fee, was, mentioned to be Rs. 200/- each on two counts and for purposes of jurisdiction Rs. 400/-. The market value of the property was, however, stated to be Rs. 50, 000/- and the, Plaintiff''s share from the cental income was staged to be Rs. 2,000/-.

In the written statement, an objection was taken that the suit had not been properly valued for the purposes of court-fee and jurisdiction. No issue, it appears, was settled on this objection and the matter was left at that, apparently, as the learned Counsel for the Respondents suggests, because the pecuniary jurisdiction of the learned Subordinate Judge 1st Class for entertaining suits was unlimited. It appears that after the termination of the suit, the value both for purposes of court-fee and jurisdiction was stated in the decree-sheet to be Rs. 400. In accordance with the entry in the decree-sheet, an appeal was preferred in the Court of the learned Senior Subordinate Judge Ludhiana.

At the time of the hearing of the appeal the Respondents in the lower Appellate Court objected that, the appeal lay in the High Court and not in the Court of the learned Senior Subordinate Judge because the valuator the purposes of jurisdiction was obviously more than Rs. 5,000/-. In support of this contention, reliance was placed on the value of the Plaintiff''s share in the property in suit as stated in the plaint which was, considered and indeed found by the Court below to be at least Rs. 25,000/- On this finding, the memorandum of appeal was returned to the Appellant for presentation to the proper Court and was duly presented in this Court along with an Application made u/s 5, Indian Limitation Act.

Since refusal to grant the prayer u/s 5, Limitation Act, must entail dismissal of the appeal, the papers have been placed before this Bench for disposal.

On behalf of the Plaintiff-Appellant, it has been contended that it is a fit case in which this appeal should be admitted even though the period of limitation prescribed therefore has expired because there is sufficient cause for not preferring it in this Court within time. According to the counsel, it is legitimate to take Into account the principle underlying Section 14, Indian Limitation Act while considering the question of extension of period u/s 5 and it has been emphasis ed that the Appellant had Initially preferred the appeal in good faith and prosecuted it with due diligence in the Court of the learned Senior Subordinate Judge, in that, he had been misled into it by, the decree in which the 1 value for purposes of jurisdiction was shown to be Rs. 400/-. We have been referred on behalf of the Appellant 3 Petitioner, inter alia, to AIR 1937 276 (Privy Council) to which it is laid down-that mistaken advice given by a legal practitioner may in the circumstances of a given case give rise to sufficient cause within the meaning of Section 5, Limitation Act, though there can be no general doctrine which saves parties from the results of wrong advice, in the reported case the advice was held to be honest though mistaken, the legal adviser honestly taking the view that the valuation of the suit for the purposes of appeal there was Rs. 1,000/- and, therefore, the appeal lay to the District Judge. The true value was, however, found to be in excess of Rs. 5,000/- and the appeal was refilled in the, Chief Court. The Judicial Committee there concluded that the counsel could rot be deemed to have been negligent in valuing, the appeal nor could his action be described as "gross negligence"., The Privy Council also expressed the opinion that in applying Section 5 to such a case the analogy of Section 14 which only applies to suits was an argument which had considerable Weight. The Judicial Committee approvingly referred to its two earlier decisions in Brijindar Singh v. Kanshi Ram 104 Pun Re 1917 : AIR 1917, PC 156 and Sunderbai v. Collector of Belgaum ILR 43 Bom. 376 : AIR 1918 PC 135. Reference by Shri Gandhi has next been made to Arura v. Karamdin AIR 1947 Lah 76, where, again an appeal, to a wrong-forum was on its own facts held to constitute sufficient cause and relief granted u/s 5. The, other cases to which Shri Gandhi has made a reference are, inter alia Shanti Lal v. Firm Hiira Lal She Narain AIR 1941 Lah 402; Abdul Ghani v. Maula Bakhsh 161. Ind Cas 215 : AIR 1936 Lah 670, where Tek Chand and Dalip Singh, JJ. applied Section 5 to a case of the Appellant having been misled by the action of the Copying Department thinking of course erroneously) that he would be entitled to exclude certain days in computing the period of limitation for the appeal and Kesharibhai Jesingbhai Vs. Bai Lilavati and Others, where also Bhagwati J. applied Section 5 in the case of mistaken advice by a lawyer of status and reputation. It may, however, be mentioned that in the. Gujarat case the learned Single Judge appears to have-dissented from two decisions of this Court in Sarmukh ''Singh v. Chanan Singh AIR 1960 Punj 512 and Dina Nath Vs. Munshi Ram and Others, (both Division Bench decisions). It is not necessary for me to express, any opinion on the view taken by the learned Single Judges of the Gujarat Court because the two Bench decisions of this Court are clearly binding on us and as at present advised I am also inclined to think, with respect, that they represent the correct view of law.

As against this the learned Counsel for the Defendants-Respondents has laid stress on the fact that In the plaint itself the value of the property was mentioned as Rs. 50.000/- and the counsel who filed the appeal had throughout been connected with the conduct of the suit in the Court of first Instance, with the result, that he must have been fully aware of the valuation as mentioned in the plaint. In any event, only If the counsel filing the appeal had taken the trouble of looking at the plaint or if he had cared to recollect that in this case the value of the property was Rs. 50,000/- he would have presented the appeal in this Court Admission or lapse on his part to take proper care must, according to the Respondents'' learned Counsel, be held to amount to absence of, good faith; in other words, of due) care and attention. Emphasis has to this connection been laid on the definition of the term "good faith" in Section 2(7), Limitation Act. Ho has referred us to Sarmukh Singh Vs. Chanan Singh and Others, , for the authority that a mistake due to negligence or misconduct or want of reasonable skill can by no stretch be considered to fall within the definition of good faith as contained in Section 2(7). Dina Nath''s case AIR 1953 Punj 298, is next referred to. |n this case a Bench of this Court (Falshaw J. (as he then was) and J.L. Kapur, J.) made the following observations:

No question of bona fide mistake arises nor does it show any good faith because if the legal advisers of the Appellant had only taken the trouble of looking up any elementary book on Court-fees and Suits Valuation Act, they would have discovered this.

Relying on these observations, the Respondents learned Counsel has submitted that a lock at the plaint would have disclosed the correct forum for the appeal. He has further stressed that the Plaintiff should not be permitted to place reliance on the insertion in the decree which was primarily due to his own wrong valuation in the plaint.

After considering the respective contentions raised at the bar and the'' circumstances of the case, I think the prayer u/s 5, Limitation Act, deserves to be allowed. It is undoubtedly true that after the expiration of the period of limitation prescribed for making an appeal, a right accrues in favour of the victorious suitor to treat the decree as binding between the parties and this right should not be light-heartedly disturbed, but on the other hand there is also a consideration which cannot be ignored, namely, that if sufficient cause for excusing delay is shown discretion is given to the Court to condone the delay and admit the appeal. In this connection it must also be remembered that, to borrow with gratitude the words of Lord Cairns, used in Rodger v. Comptoir D''Escompte De Paris (1871) 3 PC 465 at p. 475, "one of the first and highest duties of all Courts is to take care that the act of the Court does no injury V any of the suitors". Now, in the Court below an objection was raised on behalf of the Defendants that the plaint did not correctly state the value for the purpose of jurisdiction and that, therefore, the relief claimed was undervalued but the Defendants for reasons best known to them did not press this objection, nor did the Court itself advert to it, with the result that the valuation remained entered in the plaint as it was. Had the matter been pressed, the Court would have adjudicated upon it and come to some conclusion and if necessary would have called upon the Plaintiff to correct the valuation within a time to be fixed by it: on his failure to do so the plaint would have Been rejected but on the correction having been made the plaint would have beet] amended accordingly. On the conclusion of the trial, in the ordinary course, when the judgment was pronounced and the decree framed, both the judgment and decree disclosed Rs. 400/- as value for purpose of Jurisdiction. Now it is a matter of common-knowledge that when a suit or goes to a counsel for filing an appeal, the entry in the decree is normally and as a matter of practice considered to be a proper prima facie guiding factor for determining the forum of appeal. If an appeal is filed in accordance with the valuation disclosed in the Judgment and the decree, in my opinion, it cannot, without more be said that the counsel has been guilty of bad faith or has failed to exercise duo care and caution. The contention that in the case in hand the counsel filing the appeal was also a counsel in the trial Court does not necessarily mean that he recollected, or, must, reasonably speaking, have recollected that in the plaint the properly in dispute had been valued at Rs. 50,000/-, A busy counsel is certainly not expected, according to the common course of human conduct, to remember these minor and apparently unimportant details about the various cases handled by him. it Is, therefore, not possible for me, on the facts and circumstances of this case, to hold that the Appellant had not acted with due care and caution in presenting his appeal in the first instance in the Court of the Senior Subordinate Judge.

In my view the Appellant, has clearly established sufficient cause within the contemplation of Section 5 Indian Limitation Act, and this appeal should be admitted to hearing and the delay condoned.

Jindra Lal, J.

I agree.