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Mariambai and anr. Vs. Hanifabai and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMadhya Pradesh High Court
Decided On
Case NumberFirst Appeal No. 28 of 1958
Judge
Reported inAIR1967MP107
ActsLimitation Act, 1908 - Sections 5; Madhya Bharat Civil Courts Act, 1949 - Sections 23
AppellantMariambai and anr.
RespondentHanifabai and anr.
Appellant AdvocateS.D. Sanghi, Adv.
Respondent AdvocateMachalpurkar, Adv.
DispositionAppeal dismissed
Cases ReferredGulsher Ahmed v. Election Tribunal
Excerpt:
.....practitioner exercising reasonable care 'in view of these observations, the appellants, to be able to establish that there was sufficient cause grounded on wrong advice given by their counsel, have to show:.....advice given by the counsel should be sustainable as one which could be entertained by a competent legal practitioner exercising reasonable care and that, where the provision of law governing the point is in itself. or for any other reason, incapable of bearing any other interpretation, the mistake of a counsel is not sufficient cause within the meaning of section 5 of the limitation act. tare. j.. reviewing a large number of cases, held that there was sufficient cause in taking that view he appears to have relied upon nagindas motilal v. nilaji moroba, ilr 48 bom 442: (air 1924 bom 899) and bhausaheb jamburao v. sonabai, ilr 1946 bom 481: (air 1946 bom 437). his conclusion is:'therefore, i am of opinion that if a legal adviser in the confused state of law prevailing in the different.....
Judgment:

Pandey, J.

1. This case comes before me on a difference between Newaskar. J. and Tare, J. on the question whether, in the circumstances of this case, there is sufficient cause within the meaning of Section 5 of the Limitation Act for extension of the time prescribed for filing this appeal.

2. The value of the suit, out of which this appeal arises, is admittedly over Rs. 5,000. It was decided by the Civil Judge, Class I, Khargone, on 24 February 1958 and a decree in pursuance thereof was passed on 26th February 1968. The defendants, who had obtained certified copies of the judgment and decree on 27th February 1958, filed this appeal in the Court of the District Judge, Mandleshwar on 24th March 1958. Thereafter, on 80th June 1958, the defendants applied to that Court for return of the memorandum of appeal for presentation to the proper Court and, having thus obtained it on 8th July 1958, they presented it in this Court on 9 July 1958.

3. All that is said about the existence of sufficient cause is that a senior counsel, KB. Hifazat Ali, advised the defendants to present their appeal in the Court of the District Judge, Mandleshwar. and they did so. On his part, the counsel has filed an affidavit to say that 'at that time I was under the impression that the appeal would lie to the District Court' and, therefore. 'I advised and prepared the memo of first appeal and asked Moosa to go and present the same to the District Judge. Nimar, at Mandleshwar' It is no longer disputed that the defend an is had acted on the erroneous advice of their counsel. KB. Hifazat Ali. Newaskar, J. relying upon Phoolabhai v. Ashabhai, First Appeal No. 42 of 1954. dated 3-12-1957 (MP). which followed the view taken in Krishnarao v. Trimbak, ILR (1938) Nag 409 (AIR 1938 Nag 150); Hemraj Dhannalal Firm v. Ambaram. 1961 MPLJ 343: (AIR 1961 Madh Pra 336' and the observations of the Privy Council in Rajendra Bahadur v. Rajeswar Bali, AIR 1937 PC 276. took the view that each and every mistake committed by a counsel is not a just ground for extending limitation, that, to be a ground available for the purpose, the advice given by the counsel should be sustainable as one which could be entertained by a competent legal practitioner exercising reasonable care and that, where the provision of law governing the point is in itself. or for any other reason, incapable of bearing any other interpretation, the mistake of a counsel is not sufficient cause within the meaning of Section 5 of the Limitation Act. Tare. J.. reviewing a large number of cases, held that there was sufficient cause In taking that view he appears to have relied upon Nagindas Motilal v. Nilaji Moroba, ILR 48 Bom 442: (AIR 1924 Bom 899) and Bhausaheb Jamburao v. Sonabai, ILR 1946 Bom 481: (AIR 1946 Bom 437). His conclusion is:

'Therefore, I am of opinion that if a legal adviser in the confused state of law prevailing in the different regions of a State commits a mistake on his impression of the regional law, his act might amount to some sort of negligence, yet it would not amount to gross negligence so as to deserve a censure by refusal to extend time.'

4. Having heard the counsel at some length. I am inclined to agree with the view taken by Newaskar, J. in Ramlal v. Rewa Coalfields Ltd., AIR 1962 SC 361, the Supreme Court quoted with approval the following statement of the Madras High Court in Krishna v. Chathappan, (1896) ILR 13 Mad 269 (FB):

'Section 6 gives the Court 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.'

The statement of law, which has been accepted by the Supreme Court, implies that though 'sufficient cause' has to be liberally construed, there will be no sufficient cause where negligence or inaction or want of bona fides is imputable to the appellant. In AIR 1937 PC 276. the Privy Council observed:

'Mistaken advice given by a legal practitioner may in the circumstances of a particular case give rise to sufficient cause within the section though there is certainly no general doctrine which saves parties from the results of wrong advice.'

In view of these observations, the appellants cannot rely merely upon the erroneous advice given to them by their counsel They have to show something more to be able to establish that there was sufficient cause. In this connection I may point out that the absence of a detracting consideration like gross negligence or want of good faith on the part of the counsel is not enough, though if it be present, it would destroy the claim that there was sufficient cause. In AIR 1937 PC 276 (supra), the Privy Council indicated what more is required in the context of a counsel giving wrong advice. This is what the Board staled:

''The Chief Court's refusal to admit the appeal was based on the view that counsel did not exercise due care and attention and acted with gross negligence in the matter'. If this opinion be correct, their Lordships will assume that in the present case it would suffice to justify the dismissal of the appeal. It clearly involves however that the view taken was not such as could have been entertained by a competent practitioner exercising reasonable care '

In view of these observations, the appellants, to be able to establish that there was sufficient cause grounded on wrong advice given by their counsel, have to show:

(i) that it wan given by a competent practitioner

(ii) that the practitioner, in giving the advice, exercised reasonable care; and

(iii) that the advice given by him is found ed on a view which could, in the circumstances of the case, be taken by any competent legal practitioner exercising reasonable care,

5. It is not disputed that K.B. Hifazat Ali is a senior and competent legal practitioner. But he has not disclosed in his affidavit, and there is nothing else to show, that he read the relevant provisions of law which he could find in the Madhya Bharat Civil Courts Act, 1949. Against this, his own affidavit shows that, in this matter, he acted on his impression. It is also not disputed that Section 23 of the Madhya Bharat Act, which governed this matter, was incapable of bearing the interpretation that this appeal could be filed in the District Court. In my opinion, a legal practitioner, who gives advice about the filing of an appeal arising from the Madhya Bharat region only upon his impression and without reading the unambiguous provision of law governing the matter, does not act with reasonable care nor does he found his advice upon a view which could have been entertained by any other competent and careful legal practitioner.

6. Tare, I was persuaded to accept that K.B. Hifazat was misled by the confused state of law prevailing in the different regions of the State. Since there is nothing in the affidavit of K.B. Hifazat Ali to support that view, the submissions made before me to sustain it appear to be mere conjectures. Apart from the consideration that a competent legal practitioner ought to know that, upon the formation of the new State of Madhya Pradesh, different laws were in force in various regions of the State. I do not think that, in March 1958, when this appeal was filed, the view entertained by K. B. Hifazat Ali could be taken by any careful legal practitioner even in the Mahakoshal region. In Lalchand v. Keshaorao, 1957 MPLJ 652: (AIR 1958 Madh Pra 197), a Division Bench of this Court decided on 31st July 1957 that appeals and suits instituted prior to the commencement of the Madhya Pradesh Courts (Amendment) Act, 1956 (II of 1956), would be governed by the preexisting law. That being so. even in Mahakoshal region, as in the Madhya Bharat region, the law was that appeals arising out of suits exceeding Rs. 5,000 in value and filed in 1956 had to be filed in the High Court. It follows that if K.B. Hifazat Ali was misled at all, it was not due to the confused state of law prevailing in the different regions of this State

7. In the course of arguments, counsel referred to a number of decisions of other High Courts. The facts of those cases are distinguishable and I do not consider it necessary to examine them, because the precise point raised in this case is directly covered by the decisions of this Court. In Mohanlal Jagannath v. Tejsingh Thakur, AIR 1958 Madh Pra 96, a Division Bench of this Court refused to extend time under Section 5 of the Limitation Act in circumstance! similar to those present here. Dixit, J. (as he then was) stated:

'In the instant case, the provisions of Section 28 of the Madhya Bharat Civil Courts Act are so clear that there could be no room for any doubt that an appeal from a decision of a Civil Judge in a suit wherein the subject-matter exceeded Rs. 5,000 lay direct to the High Court and not to the District Court. It cannot, therefore, be maintained that the question of the forum of appeal in this case was a matter of justifiable doubt and that the advice which the applicant got from his counsel, though mistaken, was bona fide in that such mistake could be committed by any lawyer of reasonable skill. There does not seem to us any ground for condoning the delay under Section 5 of the Limitation Act. That being so, this application is dismissed with costs.'

In AIR 1961 Madh Pra 336, another Division Bench of this Court took a similar view about an identical matter. Krishnan. J. stated:

'It was a mistake in regard to something which was absolutely straight and quite beyond any possible doubt or bewilderment.'

An endeavour was made to distinguish this case on the ground that, even after the mistake was discovered, the appellant persisted in prosecuting the appeal in the wrong Court. But that aspect of the case was not relied upon to support the conclusion reached in that case. Further, Gulsher Ahmed v. Election Tribunal, AIR 1959 Madh Pra 108 mentioned by Tare. J. was also distinguished on the ground that, in the circumstances of that case, it was possible for the counsel to take the view that no appeal lay and, therefore, a writ petition should be filed

8. It is true that in Firm Hemraj's Case, AIR 1961 Madh Pra 336 (supra), the counsel, who was careful to read Section 23 of the Madhya Bharat Civil Courts Act, 1949, sought to justify the filing of the appeal in the District Court on the ground that there was a possibility of honest difference of opinion about the construction of that section and it was not accepted. Much less can it be accepted in the case of a counsel who, as shown, did not inform himself about the law bearing on the point by reading the relevant provisions before proceeding to advise the appellants.

9. The learned counsel for the appellants also urged that this was a bard case and deserved the sympathy of the Court As pointed out by this Court in Krishna Rao's case, ILR (1938) Nag 409: (AIR 1938 Nag 156) (supra), the period of preferring an appeal, cannot be extended simply because the appellant's case is hard and calls for sympathy nor will the Courts extend the period of limitation out of benevolence to the party seeking relief.

10. In the view I have taken, I am of opinion that, in the circumstances disclosed in this case, there is no sufficient cause within the meaning of Section 5 of the Limitation Act to justify extension of the period of limitation prescribed for filing the appeal.

ORDER

V.R. Newaskar, J. and P.K.Tare, J.

11. In accordance with the opinion expressed by the third Judge, since there is nosufficient cause for extension of the period oflimitation in pursuance of the powers of theCourt under Section 5 of the Limitation Act theappeal is dismissed with costs.


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