(1) This is an application under Section 5 of the Limitation Act praying that the delay in presenting Regular First Appeal No. 299 of 1959 may be condoned.
(2) Chanan Singh along with his three brothers instituted a suit for the recovery of Rs. 6,000/- against Sarmukh Singh in 1958. On 14th of February, 1959 it was decreed to the extent of Rs. 3,000/- only. On 3rd of April, 1959 an appeal against this decree was preferred in the Court of the District Judge, Ludhiana, and in the column of 'value' in the form of memorandum of appeal, it was expressly stated, that the value of suit was Rs. 6,000/- and the value of appeal Rs. 3,000/- for the purpose of jurisdiction.
In the column meant for 'value of appeal for purposes of court-fee' of course Rs. 3,000/- was entered and court-fee of Rs. 394/- was affixed thereon. When this appeal came up for hearing in the Court of the learned District Judge on 18th of November, 1959, an objection was raised on behalf of the plaintiffs' respondents that the valuation of the suit for the purpose of jurisdiction being Rs. 6,000/- the appeal lay to the High Court and not to the Court of the District Judge. This objection prevailed and the memorandum of appeal was directed to the returned to Sarmukh Singh appellant for presentation to the Court of competent jurisdiction.
The memorandum of appeal so returned was presented in this Court on 20th of November, 1959, after Court hours and was registered on 21st of November, 1959 though it was returned on 23rd of November, 1959 with the remark inter alia that an application for extension of limitation should also be filed. It is in these circumstances that the present application under Section 5 of the Limitation Act was filed in this Court on 24th of November, 1959.
(3) In the petition the main ground taken for extension of period is that Shri Harbhagwan Modgil, council for the appellant in the Court of the learned District Judge, had undergone an operation for cataract, and therefore, could not travel, with the result that the client did not get the message with respect to the order of the learned District Judge directing the memorandum of appeal to be returned to the appellant till 23rd of November 1959, when he came to Chandigarh to file the appeal reaching his destination in the evening.
On arrival here he learnt that Shri Harbhagwan Modgil having failed to get any reply from the client had himself traveled to Chandigarh, but due to some mishap to the car he reached here late in the evening and could only present the appeal to the Deputy Registrar at 4.25 p.m. on 20th of November. The reason for filing the appeal in the Court of the learned District Judge has been stated to be that the petitioner had 'acted on the advice of counsel bona fide given'. Another affidavit sworn by Shri Harbhagwan Modgil Advocate was produced before us today stating that the appeal had been filed in the Court of the District Judge as the amount of the decree was Rs. 3,000/-.
It is further explained that the learned Judge had ordered the return of the memorandum of appeal on 18th of November, 1959 and the counsel thereupon sent a message to the client at his village; on 19th of November he got back the memorandum of appeal and presented the same in this Court on 20th of November, 1959 at 4 o' clock. This, Shri Modgil has affirmed, was due to car breakdown in the way. He has also added in his affidavit that in these days he was not well and had been operated upon for some eye-trouble on 4th or 5th October, 1959.
(4) The counsel for the appellant has submitted that although Sec 14 of the Indian Limitation Act does not in terms apply to appeals, nevertheless, the principle underlying this section can legitimately be taken into account and this should be done in the present case while considering the question of 'sufficient cause' under Section 5 for not preferring the appeal within the prescribed period of limitation. In support of his contention, he was placed reliance on Rajendra Bahadur Singh v. Rajeshwar Bali, AIR 1937 PC 276 and Brij Indar Singh v. Lala Kanshi Ram, AIR 1917 PC 156.
In my view the proposition canvassed by the learned counsel is unexceptionable, but he question which we have to determine is whether in filing the appeal in the Court of the learned District Judge the counsel responsible for doing so had acted in good faith as defined in Section 2(7) of the Indian Limitation Act. The expression 'good faith' is defined in the following terms:
'Nothing shall be deemed to be done in good faith which is not done with due care and attention.'
Rajendra Bahadur Singh's case, AIR 1937 PC 276, acted by the learned counsel for the appellant-petitioner undoubtedly lays down that:
'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,'
But it also makes it quite clear that there is no general doctrine which saves parties from the results of wrong advice. In Kishan Chand v. Mohammad Hussain, AIR 1942 Lah 94, also Tek Chand J. on the peculiar facts of that case considered the mistaken advice given by the pleader concerned, who was not conversant with a recent notifications, to be sufficient cause within the meaning of S. 5, Indian Limitation Act. In Dattatraya Sitaram Gadkari v. The Secy. of State, 60 Ind Cas 744: (AIR 1921 Bom 302), a Division Bench of the Bombay High Court also excused delay in filing the appeal in the proper Court when the appellant had acted in good faith under the advice of a pleader and file an appeal in the first instance in a wrong Court.
In this case, however, the Judges though that the expression 'in good faith' did not mean 'without due care or attention' but meant 'honestly' through it may be negligently. I am afraid when the expression 'good faith' has been defined in the Indian Limitation Act, we are bound to apply this definition when construing Section 14.
(5) Mr. Gujral has, on the other hand, drawn our attention to a Division Bench authority of this Court in Dina Nath v. Munshi Ram, AIR 1953 Punj 298, in which J. L. Kapur, J. observed as follows:
'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 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.'
Reliance has also been placed on Uttam Chand v. Vishan Das Bhagwan Das, AIR 1933 Lah 568, which is an authority for the proposition, that a legal adviser's mistake to justify extension of limitation must be a bona fide one, that is, it must be done with due care and attention. There having been no doubt as to the law with respect to the forum of appeals for the kind of cases dealt with in this authority, the Court ruled out the plea of sufficient ground for extending the period within which the appeal should have been filed in the High Court.
Mistaken advice of counsel, unless given in good faith, was held not to justify extension of time by Bhide J. in Amrit Lal v. Phool Chand, AIR 1938 Lah 81. In Ram Narain Joshi v. Parmeshwar Narain Mehta, 30 Ind App 20, the Privy Council repelled the contention that under all circumstances delay attributable to filing an appeal in the wrong Court through an alleged error would amount to 'sufficient cause' for not appealing in due time within the meaning of Section 5 of the Limitation Act.
(6) In my opinion, it is incumbent on a litigant seeking relief under Section 5 of the Indian Limitation Act to 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'. In the State of Punjab Section 39 of the Punjab Courts Act deals with the question of appeals from the decree of Subordinate Judges and it is unambiguously laid down that an appeal from a decree or order of a Subordinate Judge generally lies to the District Judge where the value of the original suit, in which the decree or order was made, did not exceed Rs. 5,000/- and in any other case it lies to the High Court.
Had the learned counsel cared to look up this section there could have no reasonable doubt, that the appeal could, on no conceivable ground, be competent in the Court of the learned District Judge. This was not an error liable to be committed by a reasonably prudent lawyer exercising due diligence and caution. Indeed a mistake due to negligence or misconduct or want of reasonable skill can by no stretch be considered to fall within the definition of 'good faith' as contained in Section 2(7) of the Limitation Act.
But Mr. Thapar has contended that the appellant had entrusted his case to a very senior counsel and, therefore, he must not be penalized for the mistake or even negligence of his legal adviser. It is difficult for me to subscribe to this broad proposition. It cannot be the rule of law that nay mistaken advice given by a counsel of long standing must constitute a sufficient ground under Section 5 of the Limitation Act, and a party is, in my opinion, not completely absolved of his responsibility, nor can he become automatically entitled to protection under the above section merely by entrusting his work to a senior advocate.
The view taken by the legal adviser, if reasonable, though mistaken, may well justify protection by Section 5, but where the view taken is wholly unsupportable on the express language of a well-known provision of law, it is difficult to apply Section 5 to such a case. Indeed, each case has to be decided on its own facts, but the burden of bringing his case within the purview of Section 14 and 5 of the Indian Limitation Act always lies on the person seeking their benefits. It is also for him to place before the Court material from which due care and attention on the part of the legal adviser can be spelled out.
In the instant case though an affidavit by the counsel has been placed on the record it is completely bare of material showing as to why he considered that the appeal lay to the Court of the District Judge, when the value of the subject-matter of the suit was, admittedly and to his knowledge, Rs. 6,000/-. A person practicing the profession of law is expected to make himself master of the principles of the law that he is to help administer and about which his advice is generally sought by his clients' ignorance of the elementary provisions of Section 39 of the Punjab Courts Act is thus, in my opinion, hardly excusable in a legal practitioner, whatever be his standing at the Bar, and cannot, by itself, constitute a sufficient cause within the purview of Section 5, Indian Limitation Act.
(7) For the reasons given above this petition must be disallowed and is hereby dismissed. In the circumstances there will be no order as to costs.
(8) Petition dismissed.