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Balmukund Upadhya Vs. Smt. Bhagwati Devi - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 825 of 1967 Connected with Civil Revn. No. 9 of 1967
Judge
Reported inAIR1969All210
ActsLimitation Act, 1963 - Sections 5
AppellantBalmukund Upadhya
RespondentSmt. Bhagwati Devi
Advocates:Faujdar Rai, Adv.
DispositionAppeal and revision allowed
Excerpt:
.....one, should not be allowed to operate to the prejudice of the litigant. this decision of the learned judge, in my opinion, is contrary to the established view of this court that even negligence of the district lawyer or of his clerk may be enough to constitute sufficient cause for the failure to initiate proceedings within the prescribed period. the advice given by the clerk no doubt may be termed as 'negligent' but the poor litigant who had reposed confidence in the clerk, should not be penalised for it. we think that section 5 gives the courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; ' these decisions clearly show that the emphasis laid is on..........at allahabad that the appeal which was valued only at rs. 9,110 could be filed in the court of the learned district judge and not in the high court as directed by the counsel practising in district court. consequently, the advocate at allahabad made an endorsement on the letter of the counsel of the district court to the effect that he should file the appeal in the court of the district judge. this endorsement was dated 14-1-1966. thereupon the mukhtarkhas came back to azamgarh and presented the appeal on the 17th of january, 1966, with an application under section 5 of the limitation act praying for the condonation of delay. in the application for the condonation of delay the facts, as stated above, were narrated and the same were supported by an affidavit.3. the learned district judge.....
Judgment:

S.N. Singh, J.

1. This second appeal and Civil Revision No. 9 of 1967 arise out of a suit for partition filed by the plaintiff-appellant which was partly decreed and partly dismissed by the trial Court by its order dated 30-9-1965. It is not necessary to give in detail the facts of this case, for the lower Appellate Court has not considered the merits of this case but has dismissed the appeal on the preliminary point of limitation. The necessary facts giving rise to the present appeal and the civil revision are as follows:--

2. The plaintiff-appellant instituted a suit for partition at first in the Munsifs Court valuing it at Rs. 2,000. An objection was taken by the defendant about the valuation of the property and a commission was issued. The Commissioner found the valuation to be Rs. 18,220 with the result that the plaintiff having claimed half share in the property, the valuation of his share came to Rs. 9,110. The learned Munsif returned the plaint for presentation to the proper Court. The plaint was presented in the Court of the Civil Judge, Azamgarh, and the plaintiff valued the suit at Rs. 9,110. The suit proceeded and was partly decreed and partly dismissed.

Thereafter, an application for copies of judgment and decree was filed on 7-10-1965. Copies were ready by the 1st of December, 1965. Thereafter the case of the plaintiff is that he was advised by the clerk of his counsel to go to the High Court to file the appeal. The clerk concerned got a letter from his counsel recommending his case to an Advocate of the High Court. The Mukhtarkhas of the appellant actually came to the High Court and got the memo of appeal prepared but when the appeal was going to be filed, the mistake was discovered by the Advocate at Allahabad that the appeal which was valued only at Rs. 9,110 could be filed in the Court of the learned District Judge and not in the High Court as directed by the counsel practising in district Court. Consequently, the advocate at Allahabad made an endorsement on the letter of the counsel of the District Court to the effect that he should file the appeal in the Court of the District Judge. This endorsement was dated 14-1-1966. Thereupon the Mukhtarkhas came back to Azamgarh and presented the appeal on the 17th of January, 1966, with an application under Section 5 of the Limitation Act praying for the condonation of delay. In the application for the condonation of delay the facts, as stated above, were narrated and the same were supported by an affidavit.

3. The learned District Judge accepted the case of the plaintiff that he was advised by the clerk of his counsel to go to the High Court for presenting the appeal within a period of 90 days and acting on his advice the Mukhtarkhas had gone to Allahabad, but he did not consider that this was a sufficient ground for the condonation of delay; as such the learned District Judge dismissed the application under Section 5 of the Limitation Act and also the appeal as time-barred.

4. The plaintiff filed Civil Revision No. 9 of 1967 against the order refusing to condone the delay and also filed Second Appeal No. 825 of 1967 against the dismissal of his appeal as time-barred. In my opinion, if the plaintiff had filed only the second appeal, the purpose would have been served. However, as a precautionary measure, when he has filed the second appeal as well as the revision, it should not prejudice his case.

5. On behalf of the appellant-applicant, it has been argued that the learned District Judge having accepted the case set up by the plaintiff-appellant that the Mukhtarkhas was advised by the clerk that the appeal was to be filed in the High Court and the period for filing such appeal was 90 days and that acting on this advice the Mukhtarkhas had gone to Allahabad and got the memo of appeal prepared and finding there that the appeal could not be filed in the High Court, returned and filed the appeal in the District Court, he erred in holding that the wrong advice by the clerk was not sufficient ground for condoning the delay. Reliance was placed for this submission of his on a Division Bench decision of this Court in the case of Hanuman Dass v. Prithvi Nath : AIR1956All677 .

6. As against this submission of the learned counsel it has been argued for the respondent-opposite party that the discretion exercised by the lower Appellate Court should not be interfered with in second appeal, much less in revision. In support of this contention of his the learned counsel has relied upon the cases of Sitaram Ramcharan v. M. N. Nagrashana : (1960)ILLJ29SC ; Smt. Ujjam Bai v. State of U. P. AIR 1962 SC 1621; Ramlal v. Rewa Coalfields Ltd. : [1962]2SCR762 ; Inder Singh Desh Raj v. Harnam Singh Gian Singh ; Punjab State v. Gopal Singh AIR 1964 Punj 154; Ashutosh v. Jatindra Mohan Seal : AIR1954Cal238 ; Keshardev v. Radha Kissen : [1953]4SCR136 ; and Namdeo Lokman v. Narmada Bai : [1953]4SCR1009 .

7. I have considered the respective submissions of the learned counsel and have looked into the various authorities cited by the learned counsel for the parties and have also looked into the various cases referred to in the case of : AIR1956All677 . So far as this Court is concerned, the consistent view has been that the expression 'sufficient cause' should be so construed as to advance substantial justice (see the cases of Shib Dayal v. Jagarnath, AIR 1922 All 490 (FB); Brij Mohan Das v. Mannu Bibi, (1897) ILR 19 All 348 (FB). These two Full Benches referred to above clearly establish that an honest mistake of law committed by an advocate, even though a negligent one, should not be allowed to operate to the prejudice of the litigant. The same principle has been applied in the case of clerks or mofussil lawyers.

8. We have to see in the circumstances of the present case and on the finding of fact recorded by the learned District Judge as to whether there was sufficient cause or not for the delay in filing the appeal before the learned District Judge. The learned District Judge has believed that the appellant's case that he bona fide believed in the advice given by the clerk concerned and acting on the bona fide belief he went to Allahabad and thereafter came back to the District Court and filed the appeal. It is not said that the appellant was negligent in filing the appeal even after when he was apprised of the fact that such an appeal could, be filed in the District Court. The time taken in filing the appeal after the information given is not such that one would hold that the appellant has not explained each day's delay in the circumstances of this case. The learned District Judge, after having accepted the case of the appellant on facts to be correct, held that the facts found did not constitute sufficient cause. This decision of the learned Judge, in my opinion, is contrary to the established view of this Court that even negligence of the district lawyer or of his clerk may be enough to constitute sufficient cause for the failure to initiate proceedings within the prescribed period. In judging as to the sufficiency of cause, the bona fides of the person concerned are to be taken note of and the calibre of the agent giving advice has to be seen.

In this case it appears that the suit which was valued at Rs. 9,000 and odd was partly decreed and partly dismissed by the learned Civil Judge. The clerk concerned in the circumstances of this case must have entertained the belief that the appeal would lie to the High Court and not to the District Court and had given that advice. It is true that after having brought to the notice of the mofussil counsel the facts of the case, if the clerk had sought his advice, he might have known that the appeal could only be filed before the learned District Judge, but this was the negligence of the clerk concerned in whom the appellant placed implicit reliance. The advice given by the clerk no doubt may be termed as 'negligent' but the poor litigant who had reposed confidence in the clerk, should not be penalised for it. If the learned District judge had not believed the case of the appellant, it would have been otherwise and the delay would not have been condoned but having accepted the bona fides of the appellant, it was not proper exercise of discretion in rejecting the appeal as time-barred. The Supreme Court cases referred to above by the learned counsel for the respondent are distinguishable.

9. The Supreme Court in the case of : [1962]2SCR762 referred to above by the learned counsel for the respondent, has approved of the decision given by the Madras High Court in the case of Krishna v. Chathappan, (1890) ILR 13 Mad 269, and this decision was also relied upon in the case of : AIR1956All677 , as such, we can safely take the case of (1890) ILR 13 Mad 269, as laying down the correct law which has the approval of the Supreme Court.

10. This Madras case arose out of the following circumstances: Land was sold in execution of a decree which was passed against the defendant for a sum exceeding Rs. 5,000. A suit to set aside the sale was instituted in a Subordinate Judge's Court and was dismissed. The plaintiff who desired to appeal against the decree dismissing his suit was advised that the appeal lay to the High Court in which a memorandum of appeal was accordingly filed. On its appearing that the value of the property sold was less than Rs. 5,000, the High Court returned the memorandum of appeal for presentation to the District Court. The District Judge rejected it on the ground that it was barred by limitation, holding that the delay caused by the error which the appellant committed in taking proceedings in the wrong Court could not be excused. On appeal the decision of the District Judge was set aside and it was held that the District Judge should have decided whether the appellant under the special circumstances of the case in appealing to the High Court acted on an honest belief formed with due care and attention. In this case the Hon. Judges observed:

'We think that Section 5 gives the Courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant.'

These decisions clearly show that the emphasis laid is on the bona fides of the litigant though this bona fide might be based upon the negligent advice of the clerk or the counsel concerned. If the learned Judge had exercised his discretion having taken note of the principle of law laid down in these various cases, the discretion exercised may not have been interfered with. Since on facts the learned District Judge has found in favour of the appellant but at the same time has considered it not tq constitute a sufficient cause, in my opinion, this will be a case of an error of law and the decision of the learned District Judge can be interfered with by the Court of appeal. In the case of Charles Osenton & Co. v. Johnston, 1942 AC 130 at pp. 138 and 139, the law has been laid down as follows:--'It is clear that the Court of appeal should not interfere with the discretion of a Judge acting within his jurisdiction unless the Court is clearly satisfied that he was wrong. But the Court is not entitled simply to say that if the Judge had jurisdiction and had all the facts before him, the Court of appeal cannot review his order unless he is shown to have applied a wrong principle. The Court must, if necessary, examine anew the relevant facts and circumstances in order to exercise a discretion by way of review which may reverse or vary the order. Otherwise, in interlocutory matters the Judge might be regarded as independent of supervision. Yet, an interlocutory order of Judge may often be of decisive importance on the final issue of the case, and one which requires a careful examination by the Court of Appeal. Thus, in Gardner V, Jay, (1885) 29 Ch D 50. Bowen, L. J., in discussing the discretion of the Judge as regards mode of trial, says: 'That discretion, Eke other judicial discretions, must be exercised according to common-sense and according to justice, and if there is a miscarriage in the exercise of it, it will be reviewed.'

11. Applying the principle of law as laid down above, I have no difficulty in coming to the conclusion that the learned District Judge erred in not giving the benefit of Section 5 of the Limitation Act to the appellant. The Punjab High Court cases relied upon by the learned counsel for the respondent taking contrary view in respect of the advice or counsels clerk cannot be relied upon in face of clear decisions of this Court wherein wrong advice of a clerk has been held to be sufficient ground for condoning the delay. The Punjab High Court, in the case of which has been relied upon by the learned counsel for the respondent, has held as follows:--

'The High Court has power in second appeal to examine the grounds upon which the lower Appellate Court has admitted the appeal beyond time. It has to see that the duty of exercising discretion in a judicial manner cast upon the lower Appellate Court has been discharged properly or not. If discretion has not been exercised at all, or has been exercised whimsically or arbitrarily, the Court of second appeal will be acting within the ambit of Section 100, Civil P. C., while interfering with such an order of lower Appellate Court. The question as to whether the facts and circumstances constitute sufficient cause, is one of law and not of fact and can be raised in second appeal.'

12. Thus, on the authorities cited by the learned counsel for the parties, it is clear that when the learned District Judge came to a wrong finding about the sufficiency of cause, he has committed an error of law and the same can be set aside by a second Appellate Court. The argument of the learned counsel that since the first Appellate Court has exercised its discretion, it should not be interfered with in appeal, in the circumstances of the present case cannot be accepted. In the case of Baban v. Emperor, AIR 1926 Nag 503, it was held that delay in filing an appeal caused by honest mistake of the party's vakil in calculating the time was sufficient cause for excusing the delay under Section 5, and the High Court in revision interfered with the decision of the subordinate Court which had not excused the delay in filing the appeal. In view of what has been said above, the appeal as well as the revision should be allowed.

13. Accordingly, the appeal as well as the revision is allowed, the orders of the District Judge are hereby set aside and the District Judge is directed to readmit the appeal to its original number and decide it on merits in accordance with law. In the circumstances of this case, I direct the parties to bear their own costs in appeal as well as in revision.


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