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Jagannath Prasad Vs. Sant Hardasram Sevashram and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal No. 380 of 1976
Judge
Reported inAIR1978All250
ActsLimitation Act, 1963 - Sections 5 and 14
AppellantJagannath Prasad
RespondentSant Hardasram Sevashram and ors.
Appellant AdvocateSidheshwari Pd., Adv.
Respondent AdvocateV.B. Upadhya, Adv.
Excerpt:
.....shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of alike nature is unable to entertain it. section 14 also postulates that the other civil proceedings on which reliance has been placed were prosecuted in good faith. further, the proceedings thereafter must be shown to have been prosecuted in good faith. this conclusion is reinforced when the definition of the term 'good-faith' contained in section 2(h) of the limitation act is taken into consideration. the definition of 'good faith' says 'nothing shall be deemed to be done in good faith which is not done with due care and attention. ' this makes it clear that a reckless disregard of this unambiguous provisions of law..........shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of alike nature is unable to entertain it. it is manifest that the crucial factor which would influence the court in extending the benefit of section 14 would be whether the appellant's conduct satisfies the test of prosecuting with due diligence other civil proceedings. section 14 also postulates that the other civil proceedings on which reliance has been placed were prosecuted in good faith. the two underlined expressions provide the key to the interpretation of section 14. this naturally makes the provisions thereof more stringent than those of section 5 of the limitation act. it is imperative for claiming the.....
Judgment:

M.N. Shukla, J.

1. This is a defendants' appeal presented along with an application under Section 5 read with Section 14 of the Limitation Act. It arises out of a suit valued at Rs. 29,617.10, which was decreed by the trial Court on 2-6-1975. Aggrieved by the decree the defendant-appellant filed an appeal on 4-8-1975 in the court of the District Judge, Varanasi, which was registered as Civil Appeal No. 495 of 1975. As early as 19/20-11-1975, the plaintiff moved an application praying that the appeal be rejected on the ground that in view of the valuation of the original suit mentioned above, the appeal lay to the High Court. The said objection was ordered to be put up for orders on 22-1-1975. On that date the present appellant moved an application No. 160, asking for 15 days' time for replying to that objection. The case was adjourned to 6-12-1975 on which date again the Court passed an order directing the objection 15 (c) to be put up on 3-1-1976. It appears that on that date, respondent No. 3 (a co-defendant) also filed an objection saying that the Court inwhich the appeal had been filed was possessed of jurisdiction to hear the same and the appeal was not required to be filed in the High Court. Thereafter the case was taken up again on 7-2-1976 on which date Sri M. L. Khatri, the senior counsel appearing on behalf of the appellant conceded that the appeal should have been filed in the High Court and prayed for return of the memo of appeal. In these circumstances, the learned 1st Addl. District Judge, Varanasi, who was seized of the application, passed an order on 24-2-1976 that the memo of appeal be returned to the appellant or his counsel for presentation to the proper court, being of the view that the appeal did not lie to the District Judge. It is alleged that the appellant was able to obtain the actual return of the memo of appeal late in the afternoon of 25-2-1976 and reached Allahabad in the early morning of 25-12-1976 and on that date the appeal was presented to this Court.

2. On these facts the benefit of Sections 14 and 5 of the Limitation Act is invoked by the appellant and it is prayed that the delay in filing the appeal be condoned. The question, therefore, which falls for decision is as to whether on the above facts the appellant could be deemed to have been prosecuting bona fide and with due diligence the appeal in the court of the District Judge. Varanasi, where it is alleged to have been filed under the advice of his local lawyer.

3. A comparison of the language of the provisions of Section 5 and S, 14 of the Limitation Act reveals that they are not identical and this explains the somehow different tests which have been applied and evolved by the courts in deciding as to whether an appellant should be given the benefit of Section 14 or not. Section 5 of the Limitation Act provides that any appeal etc. may be admitted after the prescribed period of limitation if the appellant satisfies the court that he had sufficient cause for not referring the appeal within such period. On the other hand, Section 14 the Limitation Act is to the effect that in computing the period of limitation for any suit etc., the time during which the plaintiff had been prosecuting with due diligence anothercivil proceeding, whether in a court of first instance or of appeal or revision, against the defendant, shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of alike nature is unable to entertain it. It is manifest that the crucial factor which would influence the court in extending the benefit of Section 14 would be whether the appellant's conduct satisfies the test of prosecuting with due diligence other civil proceedings. Section 14 also postulates that the other civil proceedings on which reliance has been placed were prosecuted in good faith. The two underlined expressions provide the key to the interpretation of Section 14. This naturally makes the provisions thereof more stringent than those of Section 5 of the Limitation Act. It is imperative for claiming the benefit of Section 14 that the initial filing of the appeal in a wrong court must be proved to the satisfaction of the court to have been initially done with due diligence. Further, the proceedings thereafter must be shown to have been prosecuted in good faith. This indicates that it is only those allegations which really admit of some room for mistake and are the result either of inadvertence or a genuine inability to form a categorical opinion as to the forum of the appeal which are intended to be covered by these protective clauses. The circumstances should be such that one could legitimately entertain a doubt with regard to the forum of filing an appeal or that the appellant was handicapped by some inadvertent factor or helpless situation so that the proper forum was missed. It is only in such cases that this section can be invoked. This conclusion is reinforced when the definition of the term 'good-faith' contained in Section 2(h) of the Limitation Act is taken into consideration. The definition of 'Good faith' says 'Nothing shall be deemed to be done in good faith which is not done with due care and attention.' This makes it clear that a reckless disregard of this unambiguous provisions of law cannot be said to come within the definition of 'Good faith.' The case law has, in its expanding orbit, embraced in appropriate cases even the mistakes honestly committed by a counsel or other agent of the parties. Still the authorities are circumspect in laying down that it is not every degree of negligence which would be condoned by the application of Section 14 of the Limitation Act. Ultimately, the decision must rest on the facts of each case. The initial burden is upon the person who wants extension in limitation to show that he acted with due care and attention and was not clearly negligent or careless. Precisely the same question arosefor decision in a case before the Jammu & Kashmir High Court and the law was summed up in the following words in Haji Mahda Bhat v. Ahad Mir (AIR 1964 J&K; 42) (at p. 46):--

'In matters where a counsel's wrong advice has resulted in pursuing certain remedy in a wrong forum, the test and the crux of the matter is that where a counsel ignores a clear and mandatory provision of law or enactment, he could not be said to have acted in good faith or with due care and attention. In such cases, time cannot be extended. But where a counsel honestly believes a certain forum to be the correct one but ultimately discovers that it was not the proper place presenting the proceeding such counsel could not be said to have acted without due care and attention. Where there are conflicting views on a certain proposition, if a counsel adopts or chooses his forum on one set of authorities he cannot be said to have acted without good faith as defined in the Limitation Act.'

4. The learned counsel for the appellant relied on a Division Bench decision of the Allahabad High Court in Lala Hanuman Das v. Prithvi Nath (1956 All LJ 367): (AIR 1956 All 677) where the court recognised the plea of the negligence of a clerk of a mofussil lawyer in filing the substitution application as sufficient cause for condoning the delay in presenting the application. It was held by the Bench that the cause established was in the nature of an honest mistake due to forgetfulness or over sight. Still, however, the rule was stated as not so elastic as to condone every act of negligence. It is observed by Agarwala, J. as follows (at p. 370 of All LJ):

'It is not every negligence that would be condoned. Only that species of negligence may be considered as amounting to sufficient cause which any reasonable person situated in the position of the agent may in all honesty commit.'

5. In short, the rule appears to be that where any mistake with regard to the forum of presenting an appeal has been committed and the court is satisfied on the facts of the case that this was either due to some forgetfulness or oversight or uncertainly as to the law regarding the forum for presenting the appeal, then it may be fit case for applying the provisions of Section 14 of the Limitation Act. On the contrary,where the law is plain and does not admit of any doubt and the appellant or his agent could not possibly have any illusion as to the appropriate forum for presenting appeal, it would be a case of palpable negligence and would not be covered by the provisions of Section 14 of the Limitation Act. All that one had to do in the instant case was to have a look at the valuation of the appeal and thereafter the forum was as clear as day light. We gave repeated opportunities to the appellants to explain to the Court by filing an affidavit of the counsel concerned, if necessary, which may throw light as to the circumstances in which this error was committed. We are constrained to remark that notwithstanding sufficient opportunity being given to the appellant no satisfactory explanation is forthcoming as to why the appeal was presented to the District Judge instead of filing it in the High Court inasmuch as the valuation of the appeal was Rs. 29,617.10. An appeal with a valuation of Rs. 20,000/- or more obviously lay to the High Court. We are rather intrigued by the silence of the pleadings on this aspect of the case which appears to be ominous. Sri H. N. Verma, one of the counsel appearing for the defendant in the court below has filed his own affidavit in which there is not a whisper to the effect that he committed any inadvertent error in filing the appeal before the District Judge or that he entertained any doubt with regard to the forum for filing the appeal. It is stated in that affidavit that Sri M. L. Khatri Advocate, was the senior counsel appearing on behalf of the defendant and Sri Verma was assisting Sri Khatri in the case and Sri A. K, Bajaj a junior lawyer was also attached to the office of Sri Khatri and had joined in signing the Vakalatnama. The affidavit proceeds to add that the memo of appeal was dictated by Sri Khatri, it was prepared through his office and presented on Sri Khatri's behalf by his own office. Sri Verma in his affidavit says that the duly filed in and signed Vakalatnama of Sri Khatri was presented to him at his seat in the civil court and his signature was also obtained. This suggests that the actual filing of the appeal was done through the office of Sri Khatri. He however, has not filed any affidavit. The affidavit before us does not assign any role to the junior lawyer Sri Bajaj. In view of the averments made in the affidavits filed before us we are unable to accept thesubmission made at the Bar that it was the wrong advice given by the counsel which led to this unfortunate error. No Counsel has either come before this Court or filed any affidavit indicating any such mistake on his part. We have already discussed that this was a case of patent and gross negligence where a mere look at the valuation of the appeal would have indicated beyond doubt the proper forum for presenting the appeal. Even more significant is the fact that soon after presenting the appeal the mistake was not realised by the appellant or his counsel. On the other hand, they appeared to have been somewhat complacent and on one occasion actually asked for time to reply to the objection filed on behalf of the respondent at a very early stage of the suit, viz., that the appeal was not maintainable in that Court. Thus, the appellant has utterly failed to show that he had been prosecuting with due diligence another civil proceeding and that he had acted in good faith. His conduct falls short of the standard of due. care and attention attributed to an ordinary and prudent person. Therefore, the appellant is not entitled to the benefit of Section 14 of the Limitation Act. It is true that Section 14 in terms applies to suits and not to appeals but in substance the same principle may be applied. That is why the application has been made under Section 5 read with Section 14 of the Limitation Act. Even for successfully invoking the benefit of Section 5, the appellant has to make out sufficient cause and therefore, reckless or grossly negligent conduct of the appellant would be inconsistent with such sufficient cause. In fact, the Division Bench case of this Court in Lala Hanuman Das v. Prithvi Nath (1956 All LJ 367) (supra) was a case under Section 5 of the Limitation Act wherein as we would be clear from the excerpts quoted above it was held that cases of negligence or carelessness would not be covered by Section 5 of the Limitation Act and the delay in such cases would not be condoned. Applying those tests to the facts of the present case, we are not satisfied that good cause has been established under Section 5 of the Limitation Act to justify condonation of delay in the instant case.

6. For these reasons we find no force in this application which is dismissed and consequently the memo of appeal automatically fails and is rejected as being beyond limitation with costs.

7. Before parting with this case we consider it necessary to add that in this case, as in many other cases, it has come to our notice that the Munsarim had omitted to mention in his report on the memo of appeal that it was not maintainable in the court of the District Judge. This strongly reflects on the efficiency of the Munsarim that he should have omitted to point out at the very inception by noting the valuation of the appeal that it was beyond the jurisdiction of the Mofassil Court. We, therefore, direct the District Judge to examine this matter and take appropriate action against the Munsarim concerned. A copy of this judgment shall be sent to the District Judge, Varanasi.


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