1. This first appeal has been filed by the plaintiff whose suit has been dismissed only on the point of limitation by the learned Subordinate Judge of Berhampur in his judgment dated 31-10-1949. The cause of action for the suit of the plaintiff is an order dated 2-10-1943 passed under the provisions of Section 145, Criminal P. C. The plaintiff is a purchaser of the disputed property described in the schedule of the plaint in a sale held in execution of a decree obtained in a suit before the District Munsif of Berhampur, the judgment-debtor being one Saketi- Boddu.
The date of plaintiff's purchase is 21-1-1936. The plaintiff also took delivery of possession through Court on 12-5-1936. The disputed lands being Government zeroyati lands, the plaintiff claims to have paid revenue or cist to the Government ever since the date of his purchase and that he was in possession of the disputed property.
According to the version of the plaintiff, his tenants raised crops in the year 1941; but defendant 2 who is the husband of defendant 1 cut and removed away the crops on 21-6-1941 from a portion of the lands with the help of some other persons. Thereafter proceedings under Section 145, Cr. P. C. were started at the instance of the plaintiff, but nevertheless it culminated against him. So the present suit.
2. The suit was, in the first instance, filed before the Munsif at Berhampur on 28-9-1946 shortly before the expiry of the three years' period of limitation from the date of the order under Section 145, Criminal P. C. (Ex. 9). The suit being one for recovery of possession and the disputed lands being Government zeroyati lands, the plaintiff's Advocate Sri G. Raghab Rao of Berhampur valued the suit on the basis of ten times of the cist paid which came upto Rs. 139/6.
The plaintiff further claimed a sum of Rs. 860/10 as mesne profits for three years preceding the date of the suit. The total valuation for the purpose of court-fee was Rs. 1000/-. The learned advocate who appeared for the plaintiff in the trial Court filed the suit before the Munsif as in his opinion the value for the purpose of Court fee was the same as the value for the purpose of jurisdiction in this case.
3. Defendant 1 is the daughter of Saketi Boddu and claims title on the basis of a deed of settlement of 1941. Defendant 2 is her husband. They denied the title of the plaintiff and assailed the execution sale as invalid and further asserted that the plaintiff was never in possession of the suit property. But nevertheless they took up the plea in the Munsif's Court that the suit had been grossly undervalued both for the purposes of Jurisdiction and court-fee.
4. The learned Munsif tried the preliminary issue and came to the conclusion that the suit had been grossly undervalued for both purposes, that is, for the purposes of court-fee and jurisdiction, and returned the plaint on 9-7-1948 to be filed in the proper Court.
5. The plaint was refiled in the Court of the Subordinate Judge of Berhampur on 10-7-1948 the counsel having properly valued the suit for the purpose of court-fee and for the purpose of jurisdiction.
6. In the Subordinate Judge's Court the main point of defence was one of limitation. As I have mentioned above, the order under Section 145, Criminal P. C., is dated 2-10-1943, the suit before the Munsif was indeed filed in time on 28-9-1946; but then the Munsif had no jurisdiction as the suit was beyond the pecuniary jurisdiction of the Court.
The suit therefore had to be filed again after return of the plaint on 10-7-1948. The case undoubtedly is governed by Article 47, Limitation Act as the order under Section 145. Criminal P. C., was against the present plaintiff, that is to say, he has got to file the suit within three years from the date of the order.
The suit can be said to be within time only if the plaintiff is entitled to the protection under the provisions of Section 14, Limitation Act, that is to say, if he is entitled to the exclusion of the period for which the suit was before the Munsif.
7. The following issues were framed before the learned Subordinate Judge :
'1. Whether this suit filed on 10-7-1948 to set aside the order in M.C.9/43 is not barred by time in view of the provisions of Article 47 of Schedule l, Limitation Act?
2. Whether T.S. No. 218 of 1946 filed in the Munsif's Court, Berhampur, saves limitation under Section 14, Limitation Act?
3. Whether the order dated 2-10-1943 of the Sub-divisional Magistrate, Chatrapur in M.S.9/43 is wrong and liable to be set aside as alleged in para 8 of the plaint?
4. Whether the plaintiff's alleged tenants had raised the crop in 1941 and whether the alleged trespass is true?
5. Whether the alleged decree in S. C. 283/23, execution proceedings in E.P.858/35 and court sale alleged in the plaint are true, valid and binding on the defendants?
6. Whether the Court delivery alleged in the plaint is true and valid?
7. Whether defendant 1 has a valid title to the suit lands?
8. Whether the suit is bad for non-joinder and mis-joinder of parties?
9. What relief, if any, is the plaintiff entitled to?'
Most of the issues, that is from 3 to 8 had been decided in favour of the plaintiff. The sale certificate and the writ of delivery of possession clearly establish the title of the present plaintiff and further that the suit was brought before the Munsif within 12 years from the date of delivery of possession through Court. It was conceded by the learned lawyer appearing for the defendants that defendant 1 on the basis of the deed of settlement of the year 1941 had not derived any title.
8. The decisions in respect of other issues were not challenged before us by the learned counsel appearing on behalf of the respondents. The only issue therefore which deserves consideration by us is on the point of limitation, that is to say, the pertinent point that arises for determination in the present appeal is whether the plaintiff is entitled to take in his aid the provisions of Section 14(1), Limitation Act which runs as follows:
'Section 14(1) In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.'
One of the essential pre-requisites for seeking protection under the provisions of Section 14 of the Act is that the previous suit before the Munsif must have been prosecuted in good faith. We must make it clear at the outset that the word 'good faith' has been defined in the Indian Limitation Act in Section 2(7) as 'good faith--nothing shall be deemed to be done in good faith which is not done with due care and attention.'
It is to be noticed that this definition of 'good faith' is identical with that given in the Indian Penal Code (Section 52) and is at variance with the definition given in the General Clauses Act, 1897, which is 'A thing shall be deemed to be done in good faith where it is in fact done honestly whether it is done negligently or not.' Cases of this nature where the plaintiff seeks protection under, Section 14, Limitation Act are governed by the definition in the Limitation Act.
There are some decisions, old and new, where this distinction has been lost sight of and relief has been given in favour of the plaintiff merely on the finding that the pleader for the plaintiff was acting honestly even though there were cases of negligence of the lawyer.
In our view, this is not the correct position. The plaintiff is entitled to the exclusion of the period under Section 14 of the Act only when it is established that the mistake was due in spite of due care and attention, that is to say, that the mistake was due not on account of the negligence of the party or his legal adviser who was left in charge of the case.
In the present case it is clear that the plaintiff entrusted the entire case in the hands of his advocate Sri G. Raghab Rao, an experienced and leading lawyer of Berhampur Bar, who has been practising ever since the year 1926. The point involved is one of valuation of the suit for the purposes of court-fee and jurisdiction on the interpretation of certain provisions of the Court-fees Act, 1870, and the Suits Valuation Act, 1887, and these matters are entirely the concern of the advocate in charge of the case and the plaintiff very clearly had nothing to do with the matter excepting completely relying upon the legal advice given to him.
The plaintiff who is an old man of 75, according to his evidence, is not to be blamed at all in the matter of choosing his lawyer as the choice had fallen upon one of the eminent lawyers of the district.
9. But this is not enough to give relief to the plaintiff under the provisions of Section 14 of the Act. According to the settled views, we are still to examine, scrutinise and scan the conduct of the lawyer.
If on such scrutiny it is found that the conduct of the lawyer was probably negligent and that the view taken by him was unreasonable, the plaintiff has got to suffer for the conduct of his counsel. But if our finding is otherwise, that in the position of the law then existing, the counsel could reasonably take this view, as he had done, even though mistaken, that is to say, if the lawyer was not probably negligent, the plaintiff is to be allowed protection under Section 14 of the Act.
We will in this connexion refer to the decision of their Lordships of the Privy Council in the case of -- 'Bajendra Bahadur v. Rajeshwar Bali', 1937 PC 276 [AIR V 24] (A). The case which came up before their Lordships was first tried under Section 111, U. P. Land Revenue Act, and the application was dismissed.
The applicant under Section 112, U. P. Land Revenue Act read with Section 39, Oudh Courts Act appealed to the District Judge within the period of limitation acting on rather mistaken but honest advice of his counsel who honestly took the view that the valuation of the suit for the purpose of appeal was Rs. 1,000/-. The appeal was dismissed on the ground that the true value was in excess of Rs. 5,000/- in which case the appeal would lie to the Chief Court.
The applicant therefore appealed to the Chief Court but his appeal being time-barred, a petition under Section 5, Limitation Act was presented for extension of time. The Chief Court refused to condone the delay. But their Lordships on a discussion of the circumstances in which the appeal was filed before the District Judge on the mistaken advice of the lawyer, came to the conclusion :
'In the circumstances it does not appear to their Lordships that the view taken by the appellant's counsel was unreasonable or that he can be deemed to have been negligent in valuing the appeal; to describe his action as 'gross negligence' is in their Lordships' view to visit him with a censure undeserved.'
This is a case where their Lordships had to apply the provisions of Section 5, Limitation Act on the analogy of Section 14 of the Act which alone deals with cases lying over in a Court having no jurisdiction. Their Lordships further observed :
'They are of opinion that in applying Section 5 to such a case as the present, the analogy of Section 14 (which applies only to suits) is an argument of considerable weight.'
This decision, therefore, in our opinion, applies on all fours and serves as a very safe guide to us in construing the provisions of Section 14 of the Act. We will on this point observe that the party is not completely absolved of all his responsibilities and automatically becomes entitled to the protection under the provisions of Section 14 merely by entrusting all his work on a very worthy lawyer of the locality, but that the Court has got to examine and scrutinise the conduct of the lawyer. Their Lordships further observed :
'Indeed the error is not shown to be attributable to bias. * * * *
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.'
On the authority of this decision we will make it clear that mere absence of dishonesty and mala fides on the part of a lawyer is not sufficient for the plaintiff to invoke in his aid the provisions of Section 14 of the Act. In our opinion, it will not be completely out of place to quote some observations from an English decision of Brett, M. R. in -- 'Highton v. Treherne', (1879) 48 LJ QB 167 (B) :
'In cases where a suitor has suffered from the negligence or ignorance or gross want of legal skill of his legal adviser he has his remedy against that legal adviser, and meantime the suitor must suffer. But where there has been a bona fide mistake, not through misconduct nor through negligence nor through want of reasonable skill but such a skilled person might make, I very much dislike the idea that the rights of the client should be thereby forfeited.'
Sir Dawson Miller C. J., in the case of -- 'S. C. Dey v. Mt. Rajwanti Kuer', 1923 Pat 140 [AIR V 10] (C), had made a very lucid exposition of the law on the subject in a succinct sentence that if a party pleaded that he had been misled by his legal adviser, the principle on which the Court should act in such cases was stated to be that if the mistake might arise even amongst practitioners of experience, the litigant should not be made to suffer for such an error.
10. We will next refer to a decision of their Lordships of the Patna High Court in the case of -- 'Nrisingha Charan v. Trigunand', 1938 Pat 413 [AIR V 25] (D). There also a wrong forum was chosen in filing the appeal on the mistaken advice of the legal adviser. The plaintiff had valued the suit at Rs. 5,100/-, namely, Rs. 4,400/- as the value of the property and Rs. 700/- as the approximate value of the mesne profits from the date of the contract till the date of delivery of possession.
The appeal was filed first of all in the High Court by Mr. S. N. Bose, a counsel of experience and repute in the Patna Bar. It was ultimately found that the appeal should be valued at Rs. 4,400/- and this approximate value of Rs. 700/-for the mesne profits pendehte lite could not be added. The appeal therefore had to be returned and re-filed before the District Judge who found that he was not satisfied that the delay in filing the appeal before him was due to any bona fide mistake of the appellant's legal adviser.
Mr. Bose however while arguing before the High Court in the first instance relied upon a decision of the Patna High Court in support of his contention that the value of the mesne profits pendente lite might also be added to the value of the suit for the purpose of determining jurisdiction. That decision was clearly distinguishable & was distinguished by the learned Chief Justice who had heard the appeal and returned it to be presented in the proper Court.
Manohar Lall J., in his judgment has referred to quite a number of decisions on this question indeed without giving his comment on each of these decisions. But at page 419, he observes :
'The true rule about mistaken advice from a legal practitioner must now be taken to be that the circumstances of each particular case should be examined to see whether such advice gives rise to sufficient cause within the section. Let us therefore examine the circumstances on the lines followed in '1937 PC 276 [AIR V 24] (A)'.'
After reviewing the facts of that case in the light of the Privy Council decision, his Lordship observed :
'that this mistake could have been committed by any senior member of the Bar and as such the client was entitled to condonation of delay.'
11. Last of all, we will refer to a decision of the Calcutta High Court in the case of -- 'Ambika Ranjan v. Manikganj Loan Office Ltd.', 1928 Cal 468 [AIR V 15] (E). The appellant instructed his pleader of over 15 years' standing and having considerable practice to file an appeal. The pleader, under a wrong impression that the appeal relates to the suit which was valued below Rs. 5,000/-, filed the memorandum of appeal in the Court of the District Judge.
It was found that the appeal did not lie to the Court of the District Judge and it ought to have been presented in the High Court. The District Judge on that day returned his memorandum of appeal to the petitioner and the appeal was presented by him in the High Court. On these facts the client prayed for extension of time under Section 5, Limitation Act. Suhrawardy J., observes :
'A general rule of law cannot be laid down that a mistake of a pleader, however obvious it may be can always and under every circumstance afford ground for extension of time under Section 5.'
His Lordship condoned the delay on the ground that the appeal was wrongly filed before the District Judge on the advice of a pleader of some standing on whose words he had good reason to rely. On going through the entire judgment of Suhrawardy J., it appears that he was of the impression that the lawyer while acting under a wrong notion that the appeal relates to the suit below Rs. 5,000/- was not guilty of gross carelessness. But Graham J., in his short separate note however observed:
'It would certainly be a case of great hardship to the appellant if, in the circumstances that have happened, he should lose his right of appeal. There can be no doubt that the appellant's pleader was guilty of great carelessness in filing the appeal in the wrong Court; but it seems to me to be impossible to hold that the appellant has acted otherwise than bona fide in the matter.'
With great respect, It is not possible for us to accept this observation as a correct formulation of the law on the subject. We have made it clear earlier that if the lawyer has committed that mistake on account of palpable negligence his client cannot seek protection under Section 14 of the Act.
Indeed the previous decisions, that we have referred to, were under Section 5, Limitation Act where the only ingredient necessary to bring it within the section was that there should be sufficient cause for the delay; but as the sufficient cause pleaded in those cases arose out of choice of a wrong forum and as the appellant prayed for condoning the delay on account of the time taken in the wrong Court, they are cases to be governed by the analogy under the provisions of Section 14 of the Act as was clearly laid down by their Lordships of the Privy Council in '1937 PC 273 IAJR V 24) (A)'.
12. Our next task is to see if this present case is a fit, one where the plaintiff can invoke legitimately the provisions under Section 14 of the Act in his aid. It has been decided by very high authority that Section 14 ought to be liberally construed see --'Ramdutt Ramkissen v. E. D. Sassoon & Co.', 1929 PC 103 [AIR V 16] (E).
In the present case, the suit relates to sixteen items of Government Zeroyati lands of which there are whole survey numbers, items 10 and 12 to 16 are however parts of survey numbers of which boundaries and separate Cist were given as per the sale certificate. The suit being one for possession, this is clearly a case coming under Section 7(v)(a), Court-fees Act which runs as follows :
'Section 7(v)(a). In suits for the possession of land, houses 'and gardens--according to the value of the subject matter; and such value shall be deemed to be
Where the subject matter is land, and--
(a) where the laud forms an entire estate, or
a definite share of an estate, paying annual revenue to Government,
or forms part of such an estate and is recorded in the Collector's register as separately assessed with such revenue,
and such revenue is permanently settled ten times the revenue so payable.'
Mr. Raghab Rao on the basis of this ten times of the Cist of all the plots valued the property for the purpose of court-fee at Rs. 139 and odd. He did not make any distinction between the whole plots and the part plots. For doing so, he relied upon a decision of the Madras High Court in the case of -- 'Subramania Ayyar v. Rama Ayyar, 1927 Mad 1002 [AIR V 14] (F).
The present suit as filed before the Munsif on 28-9-1946 and the decision in '1927 Mad 1002 [AIR V 14] (F)', was taken to be good law that even if the suit be in respect of a part of a survey plot with certain definite area and, particularly with boundaries and separate cist, the valuation for the purpose of court-fee will be ten times the cist.
This decision, however, was distinctly overruled in a Pull Bench decision of the same High Court in the case of -- 'Kesanna v. Gangappa', 1947 Mad 297 (FB) [AIR V 34] (G), and it was held the suit for possession in respect of part plots must be valued for the purpose of court-fee at the market value of the lands in dispute.
Indeed it is clear to us, Mr. Raghab Rao, while filing the suit before the Munsif on the basis of the previous decision in '1927 Mad 1002 [AIR V 14] (P)', could not anticipate that the decision would be overruled. It has got to be found that he acted in perfect good faith in valuing the suit for the purpose of court-fee at ten times of the Cist, that is, Rs. 139/6/- and added Rs. 800/10/- as mesne profits. The suit therefore was valued at Rs. 1000/-for the purpose of court-fee.
13. Now the question that still remains is what was the basis for his valuing the suit for the purpose of jurisdiction at Rs. 1000/-. Our attention is drawn to Section 14, Madras Civil Courts Act, 1873, which runs thus :
'When the subject matter of any suit or proceeding is land, a huuse or a garden, its value shall, for the purposes of the jurisdiction conferred by this Act, be fixed in manner provided by the Court-fees Act, 1870, Section 7, Clause V.'
It is quite reasonable that he would be misled by this section. But it appears that after the district of Ganjam came as a part of the Orissa State in 1936 by Regulation 1 of 1936, the Madras Civil Courts Act, 1873 was repealed. But even if we forget the provisions of the Madras Civil Courts Act, the case is to be governed by the Suits Valuation Act, 1887, and the pertinent section of the Act is Section 8 running as follows :
'Where in suits other than those referred to in the Court-fees Act, 1870, Section 7, paras, v, vi, and ix, and para x, Clause (d), court-lees are payable ad valorem under the Court-fees Act, 1870, the value as determinable tor the computation of court-fees and the value for purposes of Jurisdiction shall be the same.'
Section 7, paras v, vi and ix etc., of Court-fees Act 1870 are excluded from the operation of Section 8, Suits Valuation Act, 18S7. Mr. Ramdas, the learned counsel appearing for the appellant before us, thereafter draws our attention to Section 3, Suits Valuation. Act, 1887, that the Provincial Government may make Rules for determining the value of land for the purpose of jurisdiction in the suits mentioned in the Court-fees Act, 1870, Section 1, paras v, vi, and para x, Clause (d).
No rules have yet been framed by the Government of Orissa. Mr. Ramdas therefore strongly contends that on account of the absence of the Rules contemplated under Section 3, Suits Valuation Act, 1887, Mr. Raghab Rao could have reasonably been misled to commit a mistake of this nature in valuing the suit in the same manner for purposes of court-fees and jurisdiction.
Mr. Ramdas who was a member of Berhampur Bar for a long time further asserts that this was the prevailing practice even amongst the senior members of the Berhampur Bar. In our view, this case cannot be taken to be one in which Mr. Raghab Rao is to be censured with such negligence as to disentitle the plaintiff the protection under the provisions of Section 14, Limitation Act. We are inclined to be of the opinion that this mistake could have been committed by any senior member of the Bar.
14. The plaintiff's suit therefore is not barred by limitation and as all other issues have been decided in favour of the plaintiff and they are not challenged before us, the plaintiff is entitled to & decree for declaration of his title and recovery of possession of the suit lands. The order dated 2-10-1943 (Ex. 9) passed under Section 145, Criminal P. C., is therefore set aside.
Regarding the mesne profits, the plaintiff may apply before the learned Subordinate Judge for an enquiry as to the, quantum under Order 20, Rule 12, Civil P. C. The appeal is allowed and the decree of the Court below is set aside.
15. But regarding costs, we will, in the circumstances, order that the plaintiff is to pay Rs. 100/- (Rs. one hundred) to the defendants. Excepting this there should be no further liability regarding costs of either of the two Courts on either party.
16. I agree.