1. This is an application for leave to appeal as a pauper from a judgment and decree pronounced by the Civil Judge, First Class, Ujjain, in Civil Suit No. 105 of 1951, on 14th May 1955. It was admitted by a Division Bench of the Madhya Bharat High Court on 23-11-1955 and the opponents were called upon to show cause why the petitioner should not be granted the leave prayed for. The petitioner has now made an application offering to pay the requisite court-fee and for being allowed to continue with the appeal as duly filed on 19th November 1955.
2. It is not necessary to consider whether the applicant should be allowed to pay the court-fees, and proceed with the appeal. For, whether the appeal is treated as one in forma pauperis or as one with the requisite court-fees, in either case it is barred by time. This is not disputed by the learned counsel for the applicant. But he prays that as the applicant had, through a wrong advice of his counsel, first filed an application for leave to appeal as a pauper before the District Judge of Ujjain on 11th July 1955, and as the learned District Judge returned the memo of appeal for presentation to the proper Court on 31st October 1955, the delay in the filing of the appeal in this Court should be condoned. The contention cannot be accepted.
A mistake of the counsel is no doubt a good ground for extension of time under Section 5 of the Limitation Act, but the mistake must be such which is a bona fide one and not one which proceeds from misconduct or negligence or want of reasonable skill. If it is not a bona fide mistake, that is one committed in spite of due care and attention, then it cannot form a sufficient cause for giving the benefit of Section 5 of the Limitation Act, (see Krishna Rao v. Trimbak, AIR 1938 Nag 156 (A)).
In the instant case, the provisions of Section 23 of the Madhya Bharat Civil Courts Act are so clear that there could be no room for any doubtthat 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.
3. Learned counsel for the applicant asked us to treat the memo of appeal as an application under Article 227 of the Constitution of India We ere unable to treat the application for leave to appeal as a pauper setting out the grounds of pauperism as an application under Article 227 of the Constitution of India, or as one under Section 115, C. P. C. The applicant is at liberty to file any such application if he is so inclined.
4. I agree.