1. These are two appeals by the plaintiff from orders dismissing his restoration applications under Order 9 Rule 9 Civil Procedure Code in two suits, in both, not on merits, but on the ground that judgments of dismissal of suits had been passed under Order 17 Rule 3 (and not under Order 17 Rule 2); so that, the plaintiff should have filed regular appeals from the decrees dismissing the suit. In reply, the defendants-respondents in both the suits have raised a preliminary ground that these appeals are prima facie time barred and the delay cannot be condoned by the fact of the appellant having prosecuted the appeal's in good faith in the wrong Court, namely, that of the District Judge.
Such a ground could, in a suit, be raised under Section 14 of the Limitation Act; in an appeal, this can be urged under Section 5 of that Act as 'sufficient cause' why the delay should be condoned. In fact the parties have argued about this point of limitation more elaborately than the merits of the appeals. The question is whether there was want at diligence or gross negligence when counsel advised the appellant and the latter accepted that the appeal should be filed in the Court of the District Judge, and not in the High Court.
2. The facts of the two suits are simple. The plaintiff is the same while the defendants are different in the two suits. They were filed before the Civil Judge at Dewas on valuation respectively, of 8661A (suit No. 64 of 1949 Misc. Appeal No. 47) and 7042/- (Suit No. 79 of 1950 Misc. Appeal No. 46 of 1956). The suits were for money and there could be no doubt in the mind of the plaintiff or of anybody else in regard to valuation.
While the suits were pending hearing, the plaintiff was absent on 27-11-1951, which was the date fixed in both the suits at his own request for his evidence. The Court ordered in each of the suits that 'it was being dismissed for non-prosecution' (adam pairavi)'. Thereupon the plaintiff filed two applications -- one in each suit -- under Order 9 Rule 9 seeking restoration on grounds set Out which he pleaded were sufficient to justify this. These grounds have not yet been considered on merits so that, it is unnecessary at this stage to go into them.
The two applications were themselves pending for nearly 3 1/2 years for various reasons with which we are not directly concerned, when, ultimately, they were dismissed on 26-4-1955. In both cases, the dismissal was not because the ground alleged was insufficient as, in fact, it had not been considered, but on the ground that the respective orders were really ones under Order 17 Rule 3, the Court having decided the suits forthwith, so that appeals --not applications for' restoration were the proper course for the plaintiff.
3. The plaintiff thereupon prepared his memoranda of appeal -- one in each case, noting the valuations already mentioned. On 28-6-1955, he tendered the two appeals in the Court of the District Judge, Dewas, which was certainly unusual, considering that he was himself giving the valuation at something over 5000/-. The office of the District Judge noted on both the memoranda that no appeal lay to the District Judge on account of this valuation.
The appellant's lawyer was informed, who wanted to argue it out, and the case took several dates ostensibly, for a decision whether the appeal lay Before the District Judge or before the High Court. On 27-11-1956, this point was decided against the plaintiff and the appellate memoranda were returned on the next day for presentation to the proper Court. They were filed in the High Court on 29-11-1956, about a year and a half after the order appealed against.
4. Affidavits have been filed in both the appeals by the appellant as well as by the lawyer, the latter admitting in a straightforward manner, that he it was, that drew up the memoranda and advised his client that the appeals lay in the District Court at Dewas and directed him to file them there. Petitions have been filed under Section 5 read with section 14 of the Limitation Act, for the condonation of the delay on the ground that the appellant had taken legal advice from a senior counsel and filed the appeals in the District Court accordingly.
As soon as that Court decided that the appeals did not lie there, he filed the memoranda in the High Court. He asserts that in view of Certain rulings -- to be mentioned presently -- he is entitled to such condonation. During arguments, Shri Joshi, Counsel for the appellant has urged that this is not a case of any want of diligence; there was scope for some difference of opinion and at least some bewilderment in view of the wording of Section 23 of the Madhya Bharat Civil Courts Act 1949.
'In all suits decided by the Civil Judge ..... value of subject-matter exceeding 5000/- the appeal from his decision shall lie direct to the High Court. In all other cases it shall lie to the District Court.'
His argument is, since the word 'suits' had been used, appeals from decrees alone will be governed by the 5000/- valuation principle, while, appeals from orders of the Civil Judge, whatever the valuation of their subject-matter, would lie to the District Judge. At any rate, it is urged by Shri Joshi that there was some uncertainty and on that ground, the advice given by the lawyer and accepted by the client cannot be considered to be one wanting in due diligence or bona fides.
5. As against it, the respondents have urged! that this is not a case of any scope for difference of opinion, but a straight and plain matter that the suits being of a valuation higher than Rs. 5000/-, all appeals from the decisions, whether they are decrees or orders properly so Called, should go straight to the High Court.
6. By now, it is accepted by all Courts that the principle of Section 14 can, in proceedings other than suits be linked with Section 5 and applied as sufficient cause. In other words, if the party concerned has prosecuted With due diligence another civil proceeding in the wrong Court, it can still urge this as sufficient cause for condoning limitation under Section 5. It is also accepted on all hand? that every mistake of law is not necessarily a mistake without due diligence, and that some mistakes of law can, in certain circumstances, be consistent with due diligence and bona fides. Long ago, in the case reported in Krishna v. Chathappan, ILR 13 Mad 269, it was held:
'We 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.'
7. Since then, there have been quite a number of rulings from different High Courts applying Section 5 even to cases where a party has acted under a mistake of law. Among them, two rulings stand out, respectively, of the Privy Council and of the Supreme Court. In Rajendra Bahadur v. Rajeshwar Ball, AIR 1937 PC 276, it was ruled:
'Mistaken advice given by a legal practitioner may in the circumstances of a particular case give rise to sufficient cause within the meaning of Section 5, Limitation Act, though there is certainly no general doctrine which saves parties from the results' of wrong advice.'
In that case, there was scope for difference of Opinion of the valuation of the suit for the purpose of appeal. Counsel honestly took the view that it should be 1000/- and accordingly took the appeal to the District Judge, who, however, dismissed it on the ground that the true value was in excess of Rs. 5000/-. Then he went to the Chief Court at Oudh. His appeal being time-barred, he applied under Section 5 for extension of time. In that case, it was held that counsel had not been negligent in valuing the appeal as he did. Dinabandhu Sahu v. Jadumoni Mangaraj, AIR 1954 SC 411 arose out of an election dispute where the petition though posted in advance, still reached the Election Commissioner one day too late. The Supreme Court condoned the delay, and further held --
'Even if the matter had to be judged under Section 5 of the Limitation Act, it would have been a proper exercise of the power tinder that section to have excused the delay. The words 'sufficient cause' should receive a liberal Construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant.'
8. These two cases, in fact, are the prototypes of two different sets of circumstances that might arise. Generally speaking, the types are exclusive and there is no likelihood of a third.
9. The first is, where the memorandum or similar document reaches the appellate authority too late, or goes to the wrong Court and has subsequently to be withdrawn because of a breakdown or wrong functioning of some mechanism which the party could not foresee. The difficulty arose in the Supreme Court case because the post was delayed by one day. The case reported in Sharifjan v. Vishnupriya Devi, AIR 1950 Nag 37 is also one of mechanical breakdown. There, the pleader of the plaintiff had correctly entered the Court in the heading of the-plaint. When the plaintiff's Mukh-tyar presented it to the Civil Nazir, he took it to the wrong Court, and the Judge entertained it thinking at that time that he had jurisdiction. Later on, it was withdrawn and presented in the proper Court and Section 14 was applied.
10. The second type is one not involving any breakdown of mechanism, but one where there is scope for honest difference of opinion or at least, some bewilderment. Law can, at times, be complicated, and the litigant has very often to take legal advice from some member of a profession of whose ability he can only have a very vague firsthand idea. When he goes to a lawyer and finds that the latter is in honest doubt about the valuation or some legal point and therefore, of the appropriate Court, the litigant should not suffer.
The lawyer has to make a choice and if it isreally a case where two choices are possible, and headvises the client to make one, the latter cannot bepunished even if it turns out to be the wrong choice.In the Privy Council case, for example, there wasscope for difference of opinions to the proper formula on which the valuation should be calculated.That led the appeal being filed in the DistrictCourt, which later on turned out to be the wrongCourt. Similar is the ruling reported in GulsherAhmad v. Election Tribunal, 1958 MPLJ 679 :(AIR 1959 Madh Pra 108), which arose out of anelection dispute. ,
There, the petitioner had been advised that no appeal lay from an order under Section 90 (3) of the Represcntation of the People Act. Accordingly, he filed a writ application which was thrown out because the High Court held that a remedy by way of appeal was available. Then he filed the appeal which was of course time barred. It was, however, condoned because the High Court thought that 'the view that the appeal did not lie against any order under that section was a possible view and there was no negligence of counsel in advising the filing of a writ petition.'
11. Thus, the question of due diligence and bona fides will have to be answered with due regard to the circumstances of each case. Broadly speaking, two tests will have to be applied. Firstly, whether there has been an unexpected breakdown of some machinery which the litigant could not foresee, and for which very naturally he should not suffer. Else, whether the mistake that has beer* committed arose out of honest bewilderment on his part, or on the part of counsel as to the real state of affairs in the eyes of law, or one by its nature capable of two different views. The real problem is not regarding the principles themselves, but one of their application.
The present case clearly does not involve any breakdown of (machinery. It is suggested that counsel for the appellant was really bewildered by the wording of Section 23, and felt that an appeal from an order of the Civil Judge, whatever the valuation of the subject-matter, lay to the District Judge, and not straightway to the High Court. It the section is in any manner capable of the interpretation sought to be put on it, then certainly, it is a case of possible difference of opinion and the delay should be condoned; if on the other hand, it is altogether incapable of the interpretation sought to be put on it, there could be no condonation.
12. With the greatest sympthy for the appellant, it is really difficult for us to accept this interpretation even as what is generally called an arguable case. The word used is 'decision' which certainly includes decrees and orders properly so called. Section 23(1) does not provide that decrees from suits are appealable to the High Court it the subject-matter is 5000/- and all other decisions are appealable to the District Court. The words used are:-
'In all suits decided by the Civil Judge .... appeal from his decision .....'
We are not dealing with a decree in a suit butwith a decision in suit. The further argument isthat the proceedings before the Civil Judge werenot suits properly so called as defined in the CivilProcedure Code, but certain proceedings arising outof or in connection with, suits. This is really veryfar-fetched. The word 'suits' is always used in twodifferent senses, the one so as to include all proceedings whatsoever before the Civil Court and theether, 'suits' properly so called being initiated bya plaint.
Again, a 'decision' in a suit is a term wide enough to include a decree passed directly in the suit itself, or in any ancillary proceedings arising out of a suit or in connection with it. Broadly speaking, a proceeding under Order 9 arising out of a suit is part of the suit and at all events, there is continuity and the decision in that proceeding is a decision in the suit. In fact, Shri Joshi, Counsel for the appellant has not been able to show a single authority or ruling in which anything approximating to his interpretation has been applied at all.
13. We have a number of Civil Courts Acts in force in different States, and naturally, every one of them has a provision similar to Section 23 of the Madhya Bharat Act. There are small differences in the wording and this section is a copy of Section 26 of tbe Bombay Civil Courts Act of 1869 (which controls Section 8 of the same Act). Another type is where instead of the word 'decision' we have 'decrees and orders'. For example in the Madras Act, we have Section 13:-
'Appeals from the decrees and orders of Subordinate Judges and District Munsiffs shall ..... lie to the District Court, except when the amount or value of the subject-matter of the suit exceeds rupees five thousands, in which ease, the appeal shall lie to the High Court.'
Either way, it is obvious that the word 'decision' in the Madhya Bharat and the Bombay Acts, covets both, orders and decrees. In fact, the absence of a single authority to support the view suggested shows that the argument is over-ingenious and made solely with the purpose of- suggesting a bewilderment where there is altogether no scope for it. Moreover, this is not a case where there is any doubt as to the actual valuation as there was in the 'Privy Council case referred to above. In both the suits the plaintiff was making money claims which he himself has stated, were well above Rs. 5000/-.
14. The result is, these are not appeals where the mistake of law is one that is consistent with due diligence and bona fides. It was a mistake in regard to something which was absolutely straight and quite beyond any possible doubt or bewilderment. The appeals are time-barred and the appellant Cannot get the benefit of Section 5 read with Section 14 of the Limitation Act.
15. On the merits themselves, it is difficult to agree with the learned Civil Judge. There was certainly a case for dealing with suits under Order 17 Rule 3; the plaintiff had been given time to bring his evidence and he was absent. As for his evidence, it had not come-either in the form of documents or in the form of witnesses. If the Civil Judge had straightway decided to dispose of the suits on merits, he would have dismissed them because there was altogether no material before him in support of plaintiff's claim. Actually, however, he did not act under Order 17 Rule 3.
He chose to act under Order 17 Rule 2 and dismissed the suits for 'non-prosecution'. In view of the form of the two orders in the suits, it is difficult to understand how the learned Civil Judge thought that the suits had been disposed of under Rule 3 and regular appeals lay and not merely restoration applications under Order 9 Rule 9. If we had not held these appeals to be time-barred, we would have set aside the orders of dismissal and sent back the restoration applications for investigation of the merits.
16. The appeals are dismissed with costs and pleaders fee according to rules, payable by the plaintiff-appellant to the respondents.