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Nagindas Motilal Vs. Nilaji Moroba Naik - Court Judgment

LegalCrystal Citation
Decided On
Case NumberAppeal No. 7 of 1922
Reported inAIR1924Bom390; (1924)26BOMLR395
AppellantNagindas Motilal
RespondentNilaji Moroba Naik
DispositionAppeal allowed
letters patent, clause 15 - judgment--order refusing excuse, of delay in pre-senting an application--delay caused by wrong advice consequent on ignorance of newly passed art of legislature--excuse of delay---application for leave to appeal to privy council.;an order passed by a single judge of the high court rejecting an application to excuse the delay in presenting an appeal or application beyond the period of limitation is a 'judgment' and is appealable as such under clause 15 of the letters patent.;ramchandra v. mahadev (1917) 20 bom. l.r. 172, followed.;gobinda lal das v. shiba das chatturjee (1906) i.l.r. 33 cal. 1323, not followed.;on january 1, 1921, india act xxvi of 1920 came into force. it cut down the period within which to apply for leave to appeal to his majesty in council.....marten, j.1. this is an appeal under clause 15 of the letters patent from the decision of the division court on november 23, 1921, refusing to excuse the delay of the applicants in the presentation of their petition for a certificate of appeal to the privy council. the learned judges who constituted the court disagreed as to whether the delay should be excused. accordingly under clause 36 of the letters patent the opinion of the senior judge prevailed, which was to the effect that the delay should not be excused. consequently it became unnecessary to decide whether the certificate should be granted. i should state that one consolidated rule had been granted both in the above application to excuse delay and in the above petition for a certificate. they were respectively civil applications.....

Marten, J.

1. This is an appeal under Clause 15 of the Letters Patent from the decision of the Division Court on November 23, 1921, refusing to excuse the delay of the applicants in the presentation of their petition for a certificate of appeal to the Privy Council. The learned Judges who constituted the Court disagreed as to whether the delay should be excused. Accordingly under Clause 36 of the Letters Patent the opinion of the senior Judge prevailed, which was to the effect that the delay should not be excused. Consequently it became unnecessary to decide whether the certificate should be granted. I should state that one consolidated rule had been granted both in the above application to excuse delay and in the above petition for a certificate. They were respectively Civil Applications No. 615 of 1921 and No. 681 of of 1921, and both of them were before the Division Court Similarly the present appeal before us is headed in both the above applications, although that does not appear from page a of the Appeal Paper Book before us; and it would seem from the notice of appeal sent to the present respondents by the office that only Civil Application No. 615 of 1921 is specially mentioned, viz., the application to excuse delay.

2. Now this Letters Patent appeal was filed on January 28, 1922, and the delay of over two years which has ensued in bringing the appeal to a hearing is serious and, so far as I am aware, most unusual. We have called for a report on this matter, which can he marked for identification as Exhibit Z. But it is admitted that the appeal was originally brought within time, and no contention has been raised before us that there has been any subsequent laches on the part of the applicants which would disentitle them from obtaining the relief which they claim.

3. The only preliminary objection taken by the respondents is that no appeal lies from the decision of the Division Court on November 23, 1921. This depends on whether the above decision was a 'judgment' within the meaning of Clause 15 of the Letters Patent. It should be borne in mind that by the High Court's judgment of February 11, 1921, the decision of the trial Judge had been restored, and that of the first appellate Court reversed, with the result that the plaintiff and others succeeded in the claim for rent which they had advanced in respect of the suit lands. The effect, therefore, of the decision of November 28, 1921, refusing to excuse the delay and consequently refusing to entertain the petition for the necessary certificate of appeal to the Privy Council amounted to a final decision so far as this High Court was concerned, and put an end to the litigation between the parties. The only remedy then open to the appellants was to apply direct to the Privy Council for special leave to appeal. But as such special leave will not as a rule be granted unions there is some substantial question of law or general interest involved, presumably the applicants would not be in so strong a position as if they would rely before us on Section 110 of the Civil Procedure Code. The question, therefore, whether the applicants can still rely before us on Section 110 is or may be one of practical importance.

4. Now there are a considerable number of decisions in the. various High Courts in India as to what constitutes a judgment. The decisions of those Courts are not uniform, and with respect I do not propose to discuss them all, nor to attempt to reconcile them. So far as this Court is concerned, the meaning attributed to the expression 'judgment' by Couch C.J. in The Justices of the Peace for Calcutta v. The Oriental Gas Company (1872) 8 Ben L.R. 433, has been approved and followed. (See Charandas v. Chhaganlal : (1920)22BOMLR1169 So also in this Court we have a case closely in point in Ramclandra v. Mahadev (1917) 20 Bom. L.R. 172. This was decided by Mr. Justice Heaton and Mr. Justice Shah in 1917, and the head note runs as follows:

An order passed by a single Judge refusing to excuse the delay for an appeal presented beyond the time allowed by law is a judgment within the meaning of Clause 15 of the Amended betters Patent; and an appeal lies from the order under the clause.

5. No doubt it does not appear from the report that any authorities were cited to the Court. But the judgment of Mr. Justice Heaton shows clearly the grounds on which the order was made, and I will read it:

It happened that that this appeal was presented beyond the lime allotted by law and that an application was made by the appellant to a single Judge of this Court lo excuse the delay. That Judge refused to excuse the delay-And here I pause to remark that this order bad the effect of dismissing or rejecting the appeal and that it was an order of a linal character, nob of an interloentciry character. The appellant appealed to a Bench of this Court against that order and the Bench excused the delay, the result of which was that the appeal was admitted and has now come on for hearing. It is argued that the order of a single Judge refusing to excuse the delay is not a judgment within the meaning of Clause 15 of the Charter of this High Court and that therefore no further appeal lay But seeing, as I have said, that the order had the very drastic effect of dismissing or rejecting the appeal, it seems to me it must be taken to fall within the meaning of the word judgment as used in Clause 15, and I think therefore that there is no objection to our disposing of this appeal on its merits.

6. I will only add by way of explanation that under the Court's practice at that time, applications to excuse delay were heard ex parte, and that is how the question of jurisdiction was not raised until the hearing of the appeal itself. That practice has now been altered, having regard to Krishnasami Pandikondar v. Ramasami Chettiar and that is why in the present case both applications were heard together.

7. No doubt there are other decisions in our High Court showing that merely interlocutory orders on atters of procedure and otherwise are not judgments within the meaning of clause For instance, in Miya Mahomad v. Zorabi (1909) 11 Bom. L.R. 241 an order directing the issue of a commission for the examination of witnesses was held not to be a judgment. Similarly in Charandas v. Chhaganlal : (1920)22BOMLR1169 an order refusing directions in a Chamber Summons taken out in third party proceedings was held not to be a judgment. But decisions of that description seem to me essentially different from the one we have here, for they can in no way be said finally to end or determine the litigation. In Tuljaram Row v. Alagappa Chettiar I.L.R. (1919) Mad. 1. a Full Bench of the Madras High Court interpreted Clause 15 in a wide sense, and authorities have recently been reconsidered in that Court in Sonachalam Pillai v. Kumaravelu Chettiar [1924] M.W.N. 167. For the present purposes it is sufficient to say that the present application to us falls well within the tests adopted by the Madras High Court.

8. On the other hand the Calcutta High Court has taken a more restricted view. If, however, Mowla Buksh v. Kisken Pertab Sahi I.L.R. (1875) Cal. 102 and Manly v. Patterson I.L.R. (1881) Cal. 339 are considered, it will be found that importance is attached to the fact that in that Court there is what is called a Privy Council Department, and it would seem that the presiding Judge of that Department was regarded more as an officer of the Privy Council than as a Judge, of the High Court when hearing any applications with reference to Privy Council appeals. In our High Court we have no such Department, and it is quite clear that in dealing with any such applications we sit as Judges of the High Court and in no other capacity.

9. But in Hurrish Chunder Chowdhry v. Kalisunderi Devi I.L.R. (1882) 9 Cal. 482, P.C. there was an appeal to the Privy Council, and it was there held that a decision by the Judge appointed to dispose of matters relating to appeals to Her late Majesty in Council, refusing to transmit for execution Her order restoring a decree, was a judgment within the meaning of Clause 15 of the Letters Patent, and way appealable to the High Court. There at page 493 it was said:--

These learned Judge held (and their Lordships think rightly) that whether the transmission of an order under Section 610 would or would not be a merely ministerial proceeding, Mr. Justice Pontifex had in fact exercised a judicial discretion, and had come to a decision of great importance, which, if it remained, would entirely conclude any rights of Kalisunderi to an execution in this suit. They held, therefore, that it was a judgment within the meaning of Section 15.

10. No doubt that was a case of an execution of the decree of the Privy Council, and not one of an application for leave to appeal, but the decision is none the less useful.

11. The respondents relied on Lutf Ali Khan v. Asgur Reza I.L.R. (1890) Cal. 455 where it was held that no appeal lay from an order granting a certificate of appeal to the Privy Council. But the present appeal is not one from the grant of a certificate, but from the refusal of it, and the practical distinction between the two is sufficient to distinguish that case.

12. In Kishen Pershad Panday v. Tiluckdhari Lall (1890) I.L.R. 18 Cal. 182 it was held that no appeal lay from a refusal to extend the time for finding-security for costs in a Privy Council appeal; and in Gobinda Lai Das v. Shiba Das Chatterjee I.L.R. (1906) 33 Cal. 1323 a similar decision was arrived at, where the Court had refused to enlarge the time for preferring an appeal. I have considered these and certain other authorities which were cited to us to the best of my ability. In the result I am of opinion that the decision of this Court in Ramchandra v. Mahadev (1917) 20 Bom. L.R. 172 was correct and ought to be followed, and that consequently an appeal lies in the present, case from the order of the Division Court. In the result, therefore, I would overrule the preliminary objection.

13. I will now proceed to deal on its merits with the application to excuse the delay. I have already stated that the judgment of the High Court restoring the decision of the trial Judge is dated February 11, 1921. The petition for a certificate of appeal to the Privy Council from this judgment was presented on July 16, 1921. Under the practice existing up to January 1, 1921, this petition would have been well within the time of six months then allowed. But that period of six months was cut down to ninety days by Act XXVI of 1920, which was passed in September 1920 and came into operation on January 1, 1921. After making, therefore, allowances for certain periods which the applicants were entitled to deduct for getting copies of the judgment anil decree, they were thirteen or fourteen days out of time under this new practice.

14. The question before us is whether thin delay should he excused. Tlie applicant Pranjivandas relies strongly on the fact that he consulted his local pleaders find was told by them that he had six months in which to appeal, and it was not until July 1921 when he consulted his High Court pleader Mr. Thakor, that he was told that the local pleaders advice was erroneous. Now I think it clear that the question whether this delay can be excused is a matter of judicial discretion. Under Section 5 of the Indian Limitation Act, an application for leave to appeal may be admitted after the prescribed period of limitation, when the applicant satisfies the Court that he had sufficient cause for not making the application within such period. Then there is the following explanation:-

The fact, that the appellant or applicant was misled by any order, practice or judgment ot the High Court in ascertaining or computing the prescribed period of limitation, may be sufficient, cause within the meaning of this section.

15. In the present case, the application in question came before a Bench of two Judges for the execise of their joint discretion. They differed. The senior Judge thought that the discretion of the Court ought to be exercised by refusing to excuse the delay. The junior Judge took the contrary view. Consequently under Clause 36 of the Letters Patent the opinion of the senior Judge prevailed, and the application failed.

16. It is now argued before us that in effect the present appeal is an appeal from the discretion of a single Judge, viz., senior Judge, and that as a matter of law the fact that the junior Judge dissented should not be taken into consideration. Consequently it was urged that we cannot interfere with the exercise of the discretion of the senior Judge, unless it is shown by the applicants that there was some material error of law or of fact or some want of the exercise of his discretion. Neither party cited to us any authority bearing directly on this point. For the purpose of this case, therefore, I must regard the matter as one of first impression. The opinion which I have formed is that we ought not to accede to the arguments presented to us by the respondent on this point, and that we ought not to treat tliis appeal as if it was one merely from the decision of a single Judge. The Court here was composed of two Judges and not one. Having regard to their difference of opinion it was necessary that the application should formally he disposed of in one way or another. In Letters Patent appeals we find the mode adopted is that the opinion of the senior Judge is to prevail. In other appeals the method adopted is to confirm the decision appealed from, though the Bench has power to refer a point of law to a third Judge (See for instance Section 98, Civil Procedure Code). On the other hand. Clause 15 of the Letters Patent expressly provides for a further appeal where the Judges of a Division Court are divided in opinion.

17. If, then, the argument presented to us was to succeed, it would mean that, in matters involving a discretion, the ultimate decision would not rest with the last appellate Court, but would depend upon the accident which of the two Judges in the Division Court was the senior. Consequently in the present case the ownership of the 112 acres in dispute would ultimately depend not so much on the exercise of the discretion of the Courl, as a whole, but on the question whether Judge A. or Judge B was the senior of the two.

18. In my opinion, therefore, it is open to us to consider the judgment of the junior fudge as well as of the senior Judge in deciding what is the proper order to make on this application, I have read both judgments carefully. The decision of the senior Judge is based mainly on this that the applicants ought not to have been content with consulting two local pleaders. They ought to have consulted a High Court pleader. And I think it follows that in the opinion of the learned Judge the applicants would have been given correct advice if they had applied to a High Court pleader.

19. Now I quite recognize that one has to bear in mind here the rights of both parties, and not to bo led away by sympathy for a legal practitioner's error into interfering unduly with the rights which his opponent's client has already obtained under an existing decree. But in considering the rights of the parties, one must bear in mind the provisions of Section 5 of the Indian Limitation Act which in effect may result in an extension of the prescribed period. I also think that the explanation it Section 5 his a bearing on the intention of the Legislature as to the class of cases for which this relief was intended. The words 'practice of the High Court' in that section are to my mind wide words. I think they extend in common parlance to all the habits and customs of the Court in dealing with the litigation before For instance, in England the two standard works--The Annual Practice and The Yearly Supreme Court Practice--contain all the corresponding Rules which are found in our Code of Civil Procedure and in otir High Court Rules and a great deal else besides. I think then it may not unfairly be said that the limit of time for an appeal in this High Court is part of the practice of the Court, even though in the present case that practice may be regulated by a Statute, viz., the Indian Limitation Act. In England this limit of time is found in the Rules of the Supreme Court itself. And so for the matter of that is the time for presenting this present appeal. Under rule 8 of the Appellate Side Rules at p. 37 of the 1920 Edition that time is sixty days from the date of the decision appealed against, unless the Court in its discretion, on good cause shown, excuses the delay. But even if the period for an appeal is not, strictly speaking part of the 'practice' of the Court within the meaning of the explanation to section 5, it is closely anal ogous to it, and consequently this explanation is a useful guide in the present case.

20. Now it is quite clear that up to January 1, 1921, the practice of our Court was that a would-be appellant had six months in which to present his petition for the necessary certificate, of appeal to the Privy Council. Does it necessarily follow that when this period was cut down to ninety days, the fact would at once be known to all competent legal practitioners' On this point Mr. Justice Shah says:--'It is a mat tar of common knowledge that it took somes time before the curtailed period of limitation came to be generally known.' And this is borne out by the evidence before us, from which it appears that in other cases even High Court pleaders were not aware of the changes effected, and the delay was excused by the Court.

21. Speaking from my own recollection of practice at the bar. I am well aware of the difficulty of reading immediately any changes which may be effected by Statute or by Rules, and of rhe practical danger of one's recollection of the past practice prevailing over some cursory glance at a new amending rule. Till the changes that are effected appear in the authori/.ed imports, on Statutes, or in the latest text books, there is often a. risk of if slip being made, however careful a lawyer may be, for his former books of reference are only misleading.

22. In the present case, of course, the applicant himself could nol know what the practice or the. law on the point was. He could any take legal advice. With great deference to the contrary opinion which prevailed in the Division Court, I am of opinion that he cannot be blamed for being content with the advice of his two local pleaders on that point, and for not consulting a High Court pleader. It was not as if any doubt arose in the minds of the local pleaders. They advised, and advised correctly, on the practice an it had existed up to within a few months prior to that date. And if they were not aware of any statutory change, it would not occur to them to go to the expense of taking a High Court opinion on a matter on which no doubts were present to their minds.

23. I pass by the circumstances that at the first hearing before the Division Court, some erroneous facts as to Mr. Shingne's position in the case, and as to the date of the supply of the Bombay Law Reporter Statutes were stated to the Court. They were corrected in the subsequnent application for a review, which application was dismissed.

24. But it was strongly urged before us in reliance, on an, CODE and Ravenshear (1) that a mistake of counsel is not a sufficient reason for extending the time in which to appeal. I recognise that the mere fact that it is counsel who makes a mistake docs not necessarily protect his client against the consequences of his blunder, but on the other hand the fact that the mistake is one made by counsel is not necessarily fatal to his client.

25. During the course of the argument f told respondents' counsel that there were cases on the other side of the line in England, and that in particular I remembered a strenuously contested case where my client was out of time with an appeal owing to a mistake of his solicitor as to the effect of the Unless, arid where the Appeal Court extended the time a and subsequently allowed the appeal on its merits.

26. Since the agrument I have refreshed my memory of the English authorities, and I find that In Re Coles and Ravenshberd, can no longer be relied on as it is based on practice which is now obsolete. That case was decided under K.S.C. Order 58, rule 15. as it then stood, but which Rule was altered in May' 197 0by the addition of the words 'Subject and without prejudice to the power of the Court of Appeal under Order 64, Rule 7'. The reason for the alteration was this. Certain authorities ending with Re Coles and Ravenshear had decided in effect that special circumstances were required to justify the Court extending the time under Order 58, Rule 15 and that the mistake of one's own counsel was not a special circumstance (see International Financial Society v. City of Moscow Gas Company (1877) 7 Ch. D. 241 On the other hand the general power of extension of time given to the Court by the other Rule, viz., Order 64, Rule 7, did not require any special circumstance, and consequently it was held in other cases, such as, Baker v. Faber [1908] W.N. 9, that a mistake by one's own counsel might he a sufficient excuse if the application was made under this other Rule. This led to the Full Court, of Appeal (viz. all six Judge considering the matter afresh in January 1909 in Rambold v. London County Council and Scott (1909) 100 L.T. 259. That was a casewhere the delay arose from the illness of counsel. The Full Court excused the delay under Order 64, Rule 7, and held that Baker v. Faber was rightly decided, and that In re Coles and Ravenshear was decided under Order 54, Rule 15. Shortly afterwards, viz., in May 1909, Order 53, Rule 15, was altered by making it expressly subject to Order 64, Rule 7, in the way I have already mentioned.

27. So the result is that Baker v. Faber approved as it is by the Full Court of Appeal in Rumbold v. London County Council and Scott and not In re Coles and Ravenshear represents the present English practice. In Baker v. Faber the plaintiff had been wrongly advised by counsel that he had three months within which to appeal, whereas in fact he had only eight days. So it is closely in point here and in favour of the applicants.

28. Therefore so far as the English authorities at present stand, they favour the applicants' contentions rather than the respondents, I recognise, however, that the English Rules were confusing, as different periods applied to final and to interlocutory appeals, and it was often difficult to say whether any particular appeal was a final or an interlocutory appeal having regard to the way in which the Rules were drafted.

29. But however that may be, we have to decide this case according to the law and practice of India and not of England. And in my judgment it is clear that in India litigants are treated with, more indulgence in the matter of time than in England. The decisions of the Privy Council in Brij Indar Singh v. Kanshi Ram (1917) L.R. 44 I.A. 218 and Sunderbai v. Collector of Belgaum (1918) L.R. 46 IndAp 15; 21 Bom. L.R. 1148 are clear illustrations of this The explanation, to Section 5 of the Indian Limitation Act is another

30. Nor if the tests of due diligence and good faith are, adopted as in Section 14 of the Indian Limitation Act do the applicants fail, to satisfy those tests. On the contrary, in ray judgment the applicants acted in good faith, and with due diligence, and were guilty of no negligence. When they presented their petition for a certificate, they were within time by some two months and a half under the old practice. The fact that they waited to obtain copies of the judgment and decree before deciding on such an important matter as the presentation of an appeal to the Privy Council, can hardly be said to be in their disfavour.

31. In Dattatraya v. Secretary of State (1920) 23 Bom. L.R. 89 which is a decision of the Chief Justice and Mr. Justice Fawcett, the plaintiff acting on the erroneous advice of his pleader had preferred an appeal to the High Court, when it should have been presented to the District Court. This led to his being out of time when he applied to the right Court. Under the circumstances it was held that the plaintiff had shown sufficient cause for not preferring an appeal in time, for in acting on the advice given to him by his pleader, he had acted in good faith. There the learned Chief Justice says (pp. 90, 91):--

I think that the appellant was entitled to rely upon the advice of his pleader that the appeal lay to the High Court and a party cannot be said to be acting without good faith because he relies upon a person whose status entitled him to give advice to litigants. It may be that the pleader ought to have known that the appeal lay to the District Judge. But there again Home questions may appear to he so entirely free from doubt to one person, that only one opinion is possible, and yet another may equally well come to a different conclusion. I do not think it can he said that the appellant has acted in such a way that he should be debarred from his right to appeal. In Ram Ravji Jambhekar v. Pralhaddas Subkarn (1895) I.L.R. 20 Bom. 133, their Lordships say: 'We feel unable to accept the argument for the appellant that because the mistake made in filing the suit at Cawnpore was an error of law, that the suit was not a bona fide one. It was a stupid, though not an unaccountable, blunder; but the ignorance of law, or the ill-advice of a pleader, does not, in our opinion, necessarily or prima facie establish a want of good faith.

32. Similarly in Brij Indar Singh v. Kanshi Ram (1917) L.R. 41 IndAp 218, s.c. 19 Bom. L.R. 866, it was held by the Privy Council that the time occupied in filing a review petition ought to be allowed, although that application for a review was founded on an erroneous view of the law.

33. Speaking for myself, I should like to adopt what the learned Chief Justice has said in Dattatraya v. Secretary of State and to apply his observations to the present case. That no doubt was a case where a mistake was made by a pleader as to the then existing law. Here the mistake arises from a different cause, viz., the ignorance of recent change in the law. Personally I am disposed to think that the latter is the more excusable error of the two. But whether that be so or not my conclusion on all the facts of this case is that the delay ought to be excused here, as it was in Dattatraya, v. Secretary of State. Consequently I would allow the appeal so far as it relates to Application No. 615 of 1921.

34. A further question is whether we ought to deal now with the other application No. 631 of 1921, namely, for a certificate of appeal to the Privy Council. Counsel on either side take different views as to whether this application is before us, the applicants contending in the a afirmative and the respondents in the negative.

35. I think it clear that the memorandum of Appeal No. 7 of 1922 which was filet by the applicants extends to both applications. But I recognise that page a of the appeal paper book and the copy notice of appeal which were drafted by the office were not as lucid as they might have been. However, counsel on both sides agree that it is now open to us to remit the application No. (631 of 1921 to the Division Court for hearing on its merits. That then is the course which I think may be adopted.

36. I would, therefore, suggest that our order should be to the following effect, viz:

Discharge the order of the Division Court of November 23, 1921. Application. No. 615 of 1921 to excuse delay allowed. Application No. 631 of 1921 for a certificate of appeal to the Privy Council remitted to the Division Court for determination on its merits. Costs of both parties in both applications to date throughout to be costs in application No. 631 for a certificate and to be dealt with by the Division Court.

Pratt, J.

37. As to the preliminary objection that no appeal lies I feel no doubt that the order refusing to extend time under Section 5 of the Indian Limitation Act is a 'judgment' under Clause 15 of the Letters Patent. The word was defined by Couch C.J. in The Justices of the Peace for Calcutta v. The Oriental Gas Company (1872) 8 Ben. L.R. 433 as a decision which affects the merits of the question between the parties by determining some right or liability. That definition has been adoptod by this Court in Miya Mahomed v. Zorabi (1909) 11 Bom. L.R. 241 and in Charandas v. Chhaganlal (1920) 22 Bom. L.K. 1169 and approved by the Privy Council in Hurrish Chunder Chowdhry v. Kalisunderi Debi I.L.R. (1882) Cal. 482. Hurrish Chunder Chowdhry's case was an even stronger case than the present for the appeal there was from an order refusing to transmit for execution an order in Council and the Privy Council held that even if the proceeding's were ministerial it was sufficient that the Judge had exercised a judicial discretion and that his decision would conclude the rights of the party in execution. So here a judicial discretion has been exercised and a decision taken which makes the judgment of the lower Court conclusive of the rights of the parties.

38. I think the Calcutta cases where an order granting leave to appeal were held not to be a judgment may be distinguished on the ground that such an order does not import a decision of any right but the leave was merely a step enabling the parties to go to Privy Council.

39. I am not prepared to follow Kishen Pershad Panday v. Tilukdhari Lall I.L.R. (1890) Cal. 182 or Gobinda Lal Das v. Shiba Das Chatterjee I.L.R. (1906) Cal. 1323 as these cases do not seem to be consistent with Hurrish Chunder Chowdhry's case.

40. The precise point that we have before us has been decided in the affirmative in the case of Ramchandra v. Mahadev : AIR1917Bom14 and I think that decision is correct and binds us.

41. On the question whether the discretion to refuse delay was rightly exercised I are not oblivious of the rule enunciated by the Privy Council in Jaipal Kunwar v. Indar Bahadur Singh I.L.R. (1904) All. 288 that the Court of appeal should always be slow to reverse the decision of a lower Court made in the deliberate exercise of a discretion entrusted to it by law. But the rule is not absolute and the fact that there was a difference of opinion between the Judges of the lower appellate Court is a circumstance which makes it easier for us to substitute our discretion for that of the lower appellate Court if we think it was wrongly exercised.

42. The appellant applied thirteen days after time had expired in ignorance of the reduction of the period of limitation by Act XXVI of 1920 from six months to ninety days. The appellant was misled by the advice of a local pleader but I cannot agree with the learned Chief Justice that he was guilty of negligence n not consulting a High Court pleader in Bombay. A party upcountry would naturally take the advice of his local pleader as to the time for filing an appeal. I do not think it can be suggested that a District Court pleader is not competent to advise on a point of limitation. It is true that the pleader is the party's agent and if the pleader is negligent the party must suffer. But I think that even a diligent pleader might overlook an obscure section in an amending Act which had come into force only a few months before he was consulted.

43. No doubt a mistake of law is per se, no ground for excusing delay. But here occur the additional factors of a recent change of law and no want of diligence. The Privy Council in Brij Indar Singh v. Kanshi Ram I.L.A. (1918) Cal. 91, 19 Bom. L.R. 866 have recognized the practice of Courts in India to treat the diligence of the party as the chief teat for the guidance of the Court's discretion under Section 5 of the Indian Limitation Act.

44. The English Courts at one time followed a stricter rule in eases where wrong advice has been given by counsel: see Inter-national Financial. Society v. City of Moscow Gas Company (1877) 7 Ch. D. 241 and In re, Coles and Ravewkear (1907) 1 K.B. 1. But that rule has been relaxed as pointed out by my learned brother Marten in Rumbold v. London County Council and Scott. And I would in this connection quote the remarks of Brett M. It. in Highton v. Treherne (1878) 48 L .J.Q.B. 167, which seem to me to express the rule favoured by the Privy Council in Bri Indar Singh's case. The Master of the Rolls said (p. 168):--

In cases where a suitor has Buffered 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, hit such as a skilled person might make, I very much dislike the idea that the rights of the client should he thereby forfeited. It seems to be obvious that the Court has jurisdiction to enlarge the time under some circumstances. Therefore why not on the present occasion? It has been said that when the time for appealing is past, the person who would be respondent has a vested right to retain his judgment. But obviously it is not an absolute right, and I am perfectly confident that the practice of all the Courts has been to treat it as not an absolute right, though the Courts are chary of enlarging the time when the time allowed by the rule has run out.

45. This judgment also disposes of the argument based on the right accruing to the successful litigant when the time for appealing has expired.

46. I agree in the proposed order.

Fawcett, J.

47. I concur generally with the two judgments just delivered. On the question whether the appeal lies, I have only to add a few remarks.

48. In Gobind Lal Das v. Shiba Das Chatterjee I.L.R. (1906) Cal. 1323 the finality of a decision under Section 5 of the Indian Limitation Act is challenged on the ground that an appeal presented after the prescribed period of limitation has expired, is a dead one, and that an order refusing to excuse the delay in presenting it is therefore not one involving any question of the rights and liabilities of the parties but a proceeding in respect of a matter which had already come to a termination by operation of law. With great respect I do not think this argument is a sound one. Section 5 of the Indian Limitation Act says that an appeal, though not presented in proper time, 'may be admitted,' if the delay is excused for sufficient cause; and the general provision in Section 3 for the dismissal of appeals preferred after the period of limitation is subject to the provisions (inter alia) of Section 5. That being so the appeal cannot be considered to be dead until the Court has definitely decided that it should not be admitted. The appeal meanwhile is merely defective, or (to use the analogy of life and death) sick and not dead. A somewhat similar case is the presentation of a memorandum of appeal insufficiently stamped. The Court has a discretion under section.149 of the Civil Procedure Code to give time for making up the deficiency of Court-fees; and the appeal in such a case is not dead, but only liable to be rejected under Order VII, r. 11, as applied by Section 107, sub-section(2), if the Court refuses to exercise its discretion in favour of the appellant under Section 149, Civil Procedure Code. Again in Krishna Ayyangar v. Nallaperumal Pillai I.L.R. (1919) Mad. 550, 22 Bom. L.R. 568., the Privy Council held that the High Court had impliedly extended the time for appeal; and such an idea is entirely inconsistent with the proposition that the appeal, when presented, was a dead one. For these reasons, I think we should follow the ruling in Ramchandra v. Mahadev : (1918)20BOMLR712 in preference to the contrary view taken in Gobinda Lal Das v. Shiba Das Chattarjee I.L.R. (1906) Cal. 1323.

49. On the question whether the delay should be excused under Section 5 of the Indian Limitation Act, I think the ruling of the Privy Council in Sunderbai v. Collector of Belgaum I.L.R. (1909) 43 Bom. 376, 21 Bom. L.R. 1148 is applicable here. The report of that case contained in L.R. 46 IndAp 15 that this High Court had excused the delay, being (satisfied that the appellants had acted bona fide and with due diligence; and Privy Council say in their judgment that (p. 23): --

the High Court, after hearing tins parties and considering the affidavits which were filed, were rightly satisfied that the defendants (i. e. the appellants) had sullicient 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 tie 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, piesented the appeal to the Court of the District Judge within the prescribed period of limitation.

50. In my opinion in the present case it has been shewn that the delay of the appellants was bona fide due to mistaken legal advice, and that there WAS no failure of proper diligence on their part.

51. On this point I have nothing' to add to the judgments of my learned brothers, except to draw attention to the judgment of Aikman J. in Anjora Kunwar v. Babu I.L.R. (1907) All. 638, that the law in India is not so strict in regard to erroneous advice on the part of a legal adviser as the view taken in In re Coles and Ravenshear [1907] 1 K.B. 1.

52. I also concur that this is a case where the Court can properly interfere with the discretion that has been exercised by the learned Chief Justice. As to the disposal of the application for a certificate I think the case is similar to one arising under Order XLI, rule 23, the application having been disposed of on a preliminary point as to its admissibility. I concur, therefore, in the proposed order.

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