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Dattatraya Sitaram Gadkari Vs. the Secretary of State for India - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 906 of 1919
Judge
Reported inAIR1921Bom302; (1921)23BOMLR89; 60Ind.Cas.744
AppellantDattatraya Sitaram Gadkari
RespondentThe Secretary of State for India
DispositionAppeal allowed
Excerpt:
.....limitation act (ix of 1905), section 5-presentation of appeal in wrong court-sufficient cause--good faith-bombay civil courts act (xiv of 1869), section 16.;a suit in which the claim was valued at rs. 248 was dismissed by the assistant judge. the plaintiff, acting on the advice of his pleader, preferred an appeal to the high court it was admitted at first, bub afterwards returned to the plaintiff for filing it in the district court. the district judge declined to excuse the delay on the ground that the plainiiiff had no sufficient cause for delay since the question as to which court the appeal lay was not involved in any doubt. on appeal :-;that, under the circumstances, the plaintiff had shown sufficient cause for not preferring the appeal in time, for in acting on the advice given..........in the way in which they should be read. he has not attached the right meaning to the words ' in good faith '. 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 some questions may appear to be 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 be said that the appellant has acted in such a way that he should be debarred from his right to appeal. in ram ravji.....
Judgment:

Norman Macleod, Kt., C.J.

1. We think that this appeal must be allowed.

2. The learned Judge thought that because the question as to which Court the appeal lay was not involved in doubt, therefore there was not sufficient cause for the appellant not preferring the appeal to the Court of the District Judge within time. But that is not, in my opinion, the right criterion in cases of this kind. I do not think that the learned Judge has read the remarks of Mr. Justice Jardine (Dadabhai v. Maneksha I.L.R. (1896) Bom 552. in the way in which they should be read. He has not attached the right meaning to the words ' in good faith '. 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 some questions may appear to be 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 be 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 SubkarnI.L.R. (1895) Bom. 133their 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 ' and I do not think that Mr. Justice Jardine (Dadabhai v. Maneksha I.L.R. (1896) Bom. 552 used the words ' good faith' in the sense that the District Judge thought he did, that is to say, as meaning without due care and attention. Usually no doubt the presiding Judge has to use his discretion whether there is sufficient cause or not in excusing delay; but in this case I think the Judge erred in law.

3. The appeal must be allowed and the case sent back to the District Judge to be heard on its merits.

4. Costs to be costs in the appeal.

Fawcett, J.

5. I agree. The Allahabad High Court no doubt has ruled that the presentation of an appeal to a wrong Court through a mistake in or ignorance of law is not a ' sufficient cause ' within the meaning of Section 5 of the Indian Limitation Act: Jag Lal v. Har Narain Singh I.L.R. (1888) All. 524. But this view has not been adopted by the Calcutta, Madras and Bombay High Courts which treat the matter as depending upon the circumstances of each particular case. This is not a case in which the appellant lost time in appealing against the judgment that the appeal lay to the District Court and not to the High Court, so as to fall within the view taken in Daudbhai Muaabhai v. Emnabai I.L.R. (1903) Bom. 235: 5 Bom. L.R. 947. Though no doubt there was carelessness in the matter, yet I think there is no reason to believe that the appeal in the High Court was not filed 'in good faith,' using those words in the sense given to them by the definition in the General Clauses Act, that is to say, honestly, though it may be negligently.

6. I concur, therefore, in allowing the appeal.


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