Ranganadham Chetty, J.
1. The petition is for condoning the delay of 60 days in presenting a pauper appeal. The ground pleaded is that the Advocate's Clerk in the lower Court informed the petitioner that the time for filing a second appeal is 90 days.
2. We have two Articles in the Limitation Act governing the filing of Second Appeals. In cases where court-fee is paid or payable. Article 156 applies and the period is 90 days while in the case of appeals filed in forma pauperis Article 170 prescribes the period as 30 days. It is argued by the learned Advocate for the petitioner that by mistake the provision of Article 170 was overlooked and that there are decisions which say that a vakil's mistake or a vakil's clerk's mistake is capable of condonation. Krishna v. Chathappan, ILR 13 Mad 269 is relied on tor the observation that the learned Judges 'are not prepared to hold that a mistake in law is under no circumstances a sufficient cause within the meaning of Section 5 of the Limitation Act.'
The Court was dealing with a case where the party was advised that an appeal lay to the High Court inasmuch as the decree was for a sum exceeding Rs. 5,000/-. The appeal was filed but was returned by the High Court on the ground that the criterion was the value of the property and not the amount of the decree. The appeal was represented to the District Court but was rejected on the ground that it was barred by limitation in the view that the delay was caused by an error in the choice of the forum.
3. There were no doubt several cases like ILR 13 Mad 269 where by some mistake the institution of the appeal was in one Court while it should have been in another Court. If it were a suit that was filed in a wrong Court, Section 14 of the Limitation Act would have direct application and the delay capable of condonation. The section does not apply in terms to appeals but the Courts have virtually extended the principle of Section 14 to appeals.
4. Sunderbai v. Collector of Belgaum, AIR 1918 PC 135. is a case of mistake in legal advice in choosing the right court. In Ramji Das v. Kumarakalathi, AIR 1932 Mad 142, Anantakrishna Ayyar, J., was prepared to condone the delay occasioned by a Vakil's Clerk mislaying a chalan and consequently delaying the payment of money. The learned Judge observed that it made no difference if the mistake was committed by the lawyer or his clerk. It was not a question of law in respect of which the mistake occurred and the authority has no bearing on the present question. Arura v. Karam Din, AIR 1947 Lah 76 is also a case of a mistake in choosing the correct forum. Kshetramoni Dasi v. Surendra Mohan, : AIR1955Cal553 , dealt with a delay arising from the advice of a particular lawyer and the Court held that the party had acted bona fide and with reasonable care.
An old lady over 80 years was advised by her Vakil wrongly when the question arose as to a revision lay or an appeal. The Court condoned the delay. That would hardly furnish an analogy tor the decision of the present case. Gati v. Rachla Kunwar, 29 Ind Cas 1003: (AIR 1915 All 310 (2)) is a direct case dealing with pauper appeals. The Court refused to condone the delay. This High Court in Shangaram Narasimlu v. Jangam Istaliah, 1957-2 Andh WR 557 expressed the view that the negligence of an Agent in filing an appeal is no ground for condoning the delay under Section 5 of the Indian Limitation Act.
5. Surendra Mohan v. Mohendra Nath, AIR 1932 Cal 589, after an elaborate discussion of the case law on the subject, held that:
'there is no authority for the view that amistake of a legal adviser, however gross and inexcusable, if bona fide acted upon by a litigant,will entitle him to the protection of Section 5 of theLimitation Act.'
6. The learned Advocate for the petitionerstates that there is no direct case whose facts havea similarity to the ground pleaded in the presentpetition. Here we have the allegation that theVakil's clerk was responsible for the mistake ingiving legal advice. A proposal is made to get anaffidavit from the clerk but I shall take it that themistake really arose from the clerk's inadvertence indetermining the correct Article of Limitation Actthat would govern the case. For one thing, thesalutary principle seems to be that a lawyer'smistake may, in deserving cases, merit condonationbut not a clerk's. Where a question of law is in-volved, a muffasal pleader's clerk can liardly beexpected to give competent advice and if a partyrelics upon his advice and does not seek the adviceof the lawyer himself, he cannot ordinarily be credit-ed with good faith.
7. A distinction has been made in Sitaram v. M. N. Nagrashna, : (1954)IILLJ703Bom , between ignorance of law and a mistake in law. An error committed in the choice of the. forum or a mistake in regard to the advice whether a revision or an appeal lav, would fall within the category of mistake in law; hut where a vakil or a vakil's clerk was unaware of the existence of a specific Article-(170) in regard to pauper appeals it amounts patently to ignorance of law. Ignorance of law can never be excused while a mere mistake sometimes may claim condonation.
8. The appeal would be in time had it not been a pauper appeal. The petition is, therefore, dismissed with Rs. 25/-for costs. The appeal wilt be posted for payment of court-fee in two months' time.