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Brij Bhushan and ors. Vs. Madan Mohan Lal - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberF.A.F.O. No. 77 of 1971
Judge
Reported inAIR1973P& H269
ActsLimitation Act - Sections 14; Code of Civil Procedure (CPC), 1908 - Order 40, Rule 1
AppellantBrij Bhushan and ors.
RespondentMadan Mohan Lal
Cases ReferredState of Kerala v. Krishna Kurup Madhava Kurup
Excerpt:
.....said order. - 3. on behalf of the respondent, it is contended that if a counsel does not act in good faith, i. the litigants seeking relief under section 5, limitation act, on the ground of mistaken advice of their counsel must place material before the court from which it is possible to deduce that the counsel acted in 'good faith' in other words, with 'due care and attention. '.a mistake due to negligence or want of reasonable skill can scarcely be considered to fall within the definition of good faith as defined in the limitation act. the counsel who filed the appeal was expected to know that the forum of appeal would be determined by the value of the original suit for the purpose of jurisdiction and ignorance of this elementary matter cannot be considered to fail within the..........be within time.3. on behalf of the respondent, it is contended that if a counsel does not act in good faith, i.e., with due care aid caution and commits a mistake due to his negligence or want of reasonable skill a litigant is not entitled to the benefit of section 14 of the limitation act. support for this contention is sought from mrs. j. h. nelson v. thakur singh 1967-69 pun lr 64, wherein the following observations were made:--'the averment that under legal advice and bona fide belief the tenant thought that only an appeal lay against the ex parte order was, in my opinion, on the facts and circumstances of this case wholly futile. there was no disclosure made in the application as to which legal adviser had given the said advice. in a case of the present type, it was incumbent on.....
Judgment:

1. The appellants had filed a suit for a declaration claiming themselves to be exclusive owners of the business run in the name of Messrs Ralla Ram Siri Ram. This suit was contested by the respondent, Madan Mohan Lal, who propounded a will and claimed his share in the business of that firm. It may be stated at this stage that plaintiff No. 1 Brij Bhushan is the brother of respondent Madan Mohan Lal while plaintiff No. 2 Lachhmi Devi and Plaintiff No. 3 Tara Wati are the mother and sister respectively of the two brothers. During the pendency of the suit the plaintiffs made an application under rule 1 of order 40 of the Civil Procedure Code praying for the appointment of a receiver of the business of the firm of Messrs Ralla Ram Siri Ram and also of the other property so that their share of the property and profits could be preserved. This application was contested by the respondent and by order dated 22nd October, 1970 the subordinate Judge First Class, Ambala, declined to appoint a receiver but appointed a local commissioner for the limited purpose of preparing an inventory of the properties mentioned in the suit together with that of the assets of the firm of Messrs Ralla Ram Siri Ram and for signing the bahis of the firm at conspicuous places. The bahis were ordered to be kept in sealed boxes in the Court for a period of three months in the first instance. The parties were directed to inspect the bahis in the Court during this period. Being aggrieved against the order by which the appointment of a receiver was declined, the plaintiffs have come up in appeal to this Court.

2. On behalf of the respondent, a preliminary objection has been raised that the appeal is time-barred. As this fact is not disputed on behalf of the appellants it is prayed that the delay occasioned in filing the appeal be condoned as this was caused by the bona fide mistake of their counsel, Shri Gian Chand Garg, who had advised that the appeal lay to the Court of the District Judge The facts necessary for the decision of this point are not in dispute. After obtaining a copy of the impugned order the appellants filed an appeal in the Court of the District Judge, Ambala within a period of limitation. This appeal was disposed of on 5th April 1971 when it was returned for presentation to the High Court. On 6th April 1971 the appeal was filed in this court as the copy of the order passed by the Additional District Judge could not be obtained till late in the evening on 5th April 1971. It is not challenged that if the time spent in prosecuting the appeal in the Court of the Additional District Judge is not taken into consideration in the computation of the period of limitation the appeal would be within time.

3. On behalf of the respondent, it is contended that if a counsel does not act in good faith, i.e., with due care aid caution and commits a mistake due to his negligence or want of reasonable skill a litigant is not entitled to the benefit of Section 14 of the Limitation Act. Support for this contention is sought from Mrs. J. H. Nelson v. Thakur Singh 1967-69 Pun LR 64, wherein the following observations were made:--

'The averment that under legal advice and bona fide belief the tenant thought that only an appeal lay against the ex parte order was, in my opinion, on the facts and circumstances of this case wholly futile. There was no disclosure made in the application as to which legal adviser had given the said advice. In a case of the present type, it was incumbent on the tenant to give full particulars of the legal advice and if possible to support it by an affidavit of the legal adviser that he had given such advice after due care and attention. Mere broad and general plea that the tenant had under legal advice and bona fide belief been prosecuting with the due diligence another proceeding for getting the ex parte order set aside is, in my opinion, not enough on the facts and circumstances of the present case. Due diligence and caution are, in my view, essential pre-requisites before Section 14. Limitation Act can be attracted. The litigants seeking relief under Section 5, Limitation Act, on the ground of mistaken advice of their counsel must place material before the Court from which it is possible to deduce that the counsel acted in 'good faith' in other words, with 'due care and attention.'. A mistake due to negligence or want of reasonable skill can scarcely be considered to fall within the definition of good faith as defined in the Limitation Act. If the counsel had merely gone through the provisions of order 9 of the Code of Civil Procedure, he would have seen that under Order 9, Rule 13 it is open to a defendant against whom an ex parte order has been made to apply to the Court for an order to set it aside. Ignorance of this elementary provision is not excusable in a legal practitioner, whatever his standing at the bar, and by itself may not constitute a sufficient cause within a purview of Section 5. The professional bar, it must be remembered, is an essential and integral component of our judicial processes and if this judicial process and if this judicial process is to satisfy the litigants seeking justice, the minimum standard of skill, industry and knowledge of law on the part of the members of the bar must be maintained. Any unreasonable lowering of the standard of efficiency must inevitably reflect prejudicially on the quality of justice in this Republic.'

The above observations are fully attracted to the facts of the present case. There is no affidavit of the legal adviser and moreover, all that the legal adviser had to ascertain was as to what was the value for the purpose of jurisdiction of the suit out of which the appeal had arisen. The counsel who filed the appeal was expected to know that the forum of appeal would be determined by the value of the original suit for the purpose of jurisdiction and ignorance of this elementary matter cannot be considered to fail within the definition of good faith. Failure on the part of a legal practitioner to ascertain the value of the original suit for the purpose of jurisdiction and to see where the appeal would lie on that basis would be a mistake due to his negligence or want of reasonable skill and in such a case it cannot be deduced that the counsel had acted in good faith.

4. In coming to this conclusion, I am also influenced by an earlier decision of this Court in Dina Nath v. Munshi Ram, AIR 1953 Punj 298, wherein the following observations appear:--

'All these authorities show that in a conditional decree such as the one which was in this case the court-fee payable would be the amount of the condition which the plaintiffs sought to get removed, i.e., a sum of Rs. 5,535/5/8 and therefore the jurisdictional value would follow that amount. The appeal would lie to this Court. No question of bona fide mistake arises nor does it show any good faith because if the legal advisers of the appellant had only taken the trouble of looking up any elementary book on Court-fees and Suits Valuation Act, they would have discovered this. Good faith has been defined in the Law of Limitation in Section 2(7) as follows:--

'(7) 'good faith'; nothing shall be deemed to be done in good faith which is not done with due care and attention:' In my opinion no good faith has been shown and there is no reason for the extension of time under Section 5, Limitation Act.'

On behalf of the appellant, in the main reliance is placed on the Punjab University v. Acharya Swami Ganesh, (1972) 1 SCWR 606=(AIR 1972 SC 1973). In this case appeal against the judgment of the District Judge was filed two days after the period of limitation had expired and the reason given in the application under Section 5 of the Limitation Act was that the counsel for the Punjab University had miscalculated the last day on which the appeal was to be filed. This mistake was held not to be due to negligence and it was observed as under:--

'It is true that counsel for the University committed a mistake in his calculation. But that is not the same thing as negligence. In matters of calculation it is common knowledge that people do not commit mistakes. They are bona fide mistakes and these mistakes have got to be taken note of by courts in considering whether the delay in filing the appeal should be condoned or not. It has been repeatedly held by courts that a mistake by a lawyer is a good ground for condoning the delay in filing the appeal. It is clear that the appeal came to be filed two days after the period of limitation solely because of the wrong calculation made by counsel. The High Court is therefore directed to admit the appeals and dispose of the same in accordance with law.'

In the above case, the Supreme Court has not departed from the principles of law enunciated in the above two authorities but came to the conclusion that the mistake in that particular case was a bonafide one, i.e., that the mistake could have occurred even by the exercise of due care and caution. I am, therefore, of the view that this authority does not advance the case of the appellants.

5. Reference was also made to State of Kerala v. Krishna Kurup Madhava Kurup, AIR 1971 Ker 211. In this case it was found that the appeal had been instituted in the wrong Court on the advice of the counsel but the wrong advice was due to the fact that the law as to proper forum prevailing at the time of filing the appeal was ambiguous and this had led to the mistakes by the counsel. On the facts of that case it was held that the counsel had acted in good faith. This authority again is of not much help to the appellants.

6. For the reasons stated above, I am clearly of the view that no ground for condoning delay has been made out and it is of no consequence that even the respondent had filed an appeal against the impugned order in the Court of the District Judge. The counsel for the respondent may have been equally negligent and his negligence cannot furnish a reason for holding that the appellants' counsel acted in good faith. Consequently the appeal fails and is dismissed but the parties are left to bear their own costs.

7. Appeal dismissed.


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