1. The appeal is against the Final decree made in partition suit in O.S. No. 74 of 1975 on the file of the Principal Civil Judge, Shimoga.
2. There having been a delay of 182 days in preferring this appeal, appellant has made this application, I. A. I. to have that delay excused. The explanation for the delay is that the Learned Counsel engaged in the case, by a bona fide, though erroneous view as to the choice of the first appellate forum, advised and filed the appeal in the Court of the District Judge, Shimoga ; that the appeal was prosecuted in good faith and with due diligence in that forum till 5-4-1982, when that Court held that having regard to the value of the subject matter in the suit, it had no pecuniary jurisdiction to entertain the appeal, and that the period of the pendency of the appeal before that Court was eligible to be excluded.
3. The decree under appeal was passed on 5-2-1981 The appeal filed before the District Court on 23-3-1981 was within the 30 days' time prescribed for an appeal to the District Court. If the period of pendency of the appeal before the District Court was excluded, then the appeal would otherwise be in time. The other short delays in taking back the memorandum of appeal from the District Court and in presenting it here would be absorbed in the sixty more days available for an appeal to this Court.
4. Learned Counsel, who advised the appeal to the District Court, has filed his affidavit explaining the reasons, contributing to his mistake thus :
'I was under a bona fide impression that the appeal had to be filed before the District Judge, Shimoga, against the said order as the subject matter in appeal against the final decree would be the value involved in the said final decree proceedings and accordingly I advised the appellant to file an appeal before the District Judge. Consequently, the appeal was filed before the District Judge. There was no malafides on my part in taking the decision. The advise is bonafide and honest.'
Appellant relies upon the mistake of his Counsel which, according to him, was an honest one, as sufficient ground for the condonation of the delay in the present case.
5. Sri T. S. Ramachandra, Learned Counsel for the respondents, however, urged that a mistake of this kind which even a bare and cursory perusal of the relevant provisions of the law would have prevented cannot be said to be bonafide and that no Counsel of ordinary ability and reasonable diligence could, in this case, have advised an appeal before the District Court. Sri Ramachandra says that where there is material to conclude that the Counsel acted with gross negligence, the party is not entitled to be saved from such mistakes of Counsel.
6. The Supreme Court, in Mata Bin v. A. Narayanan, : 2SCR90 referring to the circumstances in which a party is saved from the consequences of the mistakes of his Counsel said :
'The law is settled that mistake of Counsel may in certain circumstances be taken into account in condoning delay although there is no general proposition that mistake of Counsel by itself is always a sufficient ground. It is always a question whether the mistake was bonafide or was merely advice (devise-Ed.) to : cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an underhand way..'
Adverting to the considerations relevant to the matter and should weigh with Court it was observed :
'It is quite clear that the limitation for the appeal to the High Court was three times as much as it was for the District Court. When the appeal was filed, the litigant had as much as two months in hand to file the same in the High Court. Further, he did not attempt to save Court fee on the appeal but paid the same Court fee which would have been payable in the High Court. It does not appear that he had an underhand motive for filing the appeal in the District Court. Therefore, the filing of the appeal must be attributed entirely to the advice of the Counsel....No doubt, the Counsel was one with some experience and ought to have known that an appeal above Rs. 5.000/- must be filed in the High Court and not the District Court and therefore, we have to see whether he was genuinely under a mistake or not.'
To find out whether the Counsel was genuinely under a mistake or not, what becomes relevant is whether the circumstances contributing to the mistake were such that even a Counsel with a reasonable degree of professional competence was likely to be misled into believing that the advice he was tendering at the time was the correct one. There is no general doctrine which saves the parties from the result of wrong advice. In Banwarilal v. Union of India, : AIR1973Delhi24 the Delhi High Court took the view that a mistaken advice of a Counsel of standing and ability contrary to a widely known point of law could not be said to be bonafide. In Brij Bhushan v. Madan Mohan, it was held that a failure on the part of Counsel to ascertain the value of the subject matter of the suit for purposes of jurisdiction in order to decide the choice of the appellate forum was considered attributable to want of reasonable skill and the Counsel could not, in such circumstances, be held to have acted in good faith. By these standards, the mistake of Counsel in this case would perhaps incur a similar criticism.
But as the question of saving the parties from the consequences of wrong legal advice the pronouncements of the Supreme Court suggest an approach which is somewhat less strict and exacting. It has been held that if the mistake of Counsel was not tainted by malafides or actuated by oblique motives, the parties, who acted on that advice bonafide and diligently are to be saved from the consequences of the mistake.
In Concord of India Insurance Co. Ltd. v. Nirmala Devi and ors., 1980 ACJ 55. Krishna Iyer, J. stated :
'I am of the view that legal advice given by the members of the legal profession may sometimes be wrong even as pronouncement on questions of law by Courts are sometimes wrong. Ad amount of the latitude is expected in such cases for, to err is human and laymen, as litigants are may legitimately lean on expert Counsel in legal as in other departments, without probing the professional competence of the advice. The Court must of course, see whether, in such cases there is any taint of mala fides or element of recklessness or ruse. If neither is present, legal advice, honestly sought and actually given must be treated as sufficient cause when an application under Section 5 of the Limitation Act is being considered. The State has not acted improperly in relying on its legal advisers.'
7. Though the mistake of the Counsel in this case is regrettable and one which any Counsel with reasonable diligence could have avoided, there is however no material to say that there was any oblique motive in tendering that advice or that the Counsel acted malafide or in a reckless manner or with gross negligence, though some negligence there is.
8. We think that since the Counsel cannot be said to have acted malafide, the appellant is entitled to be saved from the consequences of the mistake of his Counsel.
9. Accordingly, we allow I.A. 1 and condone the delay in preferring this appeal. Register the appeal.