Skip to content


Municipal Corporation of Delhi Vs. Bharat Oxygen Gass Co. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtDelhi High Court
Decided On
Case NumberRegular First Appeal No. 669 of 1970
Judge
Reported inILR1971Delhi385
ActsLimitation Act, 1963 - Sections 5; Suits Valuation Act, 1887 - Sections 8
AppellantMunicipal Corporation of Delhi
RespondentBharat Oxygen Gass Co.
Advocates: T.C.P. Lal, ; R.L. Aggarwal and; S.P. Aggarwal, Advs
Cases ReferredMata Din v. A. Narayanan
Excerpt:
.....of delay - section 8 of suits valuation act, 1887 and section 5 of limitation act, 1963 - appeal returned for filing in proper court - appeal returned for lack of pecuniary jurisdiction - delay in preferring appeal - time taken to decide whether to prefer appeal or not - delay due to bonafide mistake on part of counsel and not a device to cover any ulterior purpose - delay condoned. - - phool chand and others(2) wherein it is stated that a mistaken advice of counsel is not sufficient to justify extension of time being granted under section 5 of the limitation act unless the advice was given in good faith, that is, with due care and attention. if it had, it would have seen quite clearly that there was no attempt to avoid the limitation act but rather to follow it albeit on a..........praying for condensation of the delay in filling the appeal in this court. (2) the respondent had filed suit no. 46 of 1966 in the court of the subordinate judge 1st class, delhi, against the appellant for a mandatory injunction directing it to issue a license to them for storing gases in the premises bearing no. 16, darya gunj, delhi. the value of the suit for the purposes of court-fee was fixed at rs. 130.00 while its value for purposes of jurisdiction was fixed at rs. 20,000.00. by his judgment and decree dated august 21, 1969 the subordinate judge issued the injunction prayed tor. against this decree, the appellant filed an appeal in the court of the senior subordinate judge, delhi. in the memo. of appeal the same valuations were shown for the purposes of court-fee and jurisdiction.....
Judgment:

S.N. Andley, J

(1) This is an application under section 5 of the. Indian Limitation Act, 1963, praying for condensation of the delay in filling the appeal in this Court.

(2) The respondent had filed Suit No. 46 of 1966 in the Court of the Subordinate Judge 1st Class, Delhi, against the appellant for a mandatory injunction directing it to issue a license to them for storing gases in the premises bearing No. 16, Darya Gunj, Delhi. The value of the suit for the purposes of court-fee was fixed at Rs. 130.00 while its value for purposes of jurisdiction was fixed at Rs. 20,000.00. By his judgment and decree dated August 21, 1969 the Subordinate Judge issued the injunction prayed tor. Against this decree, the appellant filed an appeal in the Court of the Senior Subordinate Judge, Delhi. In the memo. of appeal the same valuations were shown for the purposes of court-fee and jurisdiction as had been shown in the suit. The respondent objected to the jurisdiction of the Senior Subordinate Judge to hear the appeal as the jurisdictional value of the appeal was Rs. 20,000 and this objection was upheld by the Additional Senior Subordinate Judge, Delhi, who heard the appeal by his order dated May 4, 1970. The appellate Court directed the appeal to be returned for presentation to the Court of competent jurisdiction.

(3) The petition of appeal was actually returned to the appellant on May 6, 1970 and it was alleged that it was received by Mr. Tarachand Brijmohanlal, counsel for the appellant, on May 14, 1970 and was filed in this Court on May 16, 1970. It may be mentioned that the counsel for the appellant who appeared in the first appellate Court and who had filed the appeal there was Mr. V. P. Joshi. Since there was no Explanationn in the application as to why the appeal was filed in this Court on May 16, 1970, while the petition of appeal had been returned to the appellant on May 6, 1970, opportunity was given by an order of this Court to the appellant to file a further affidavit. In pursuance of this order, a further affidavit dated February 9, 1971 of J. R. Sharma, Legal Assistant of the appellant was filed.

(4) In this further affidavit it is stated that on receiving the petition of appeal on May 6, 1970 Mr, V. P. Joshi wrote a note on May 7. 1970 on the file of the said appeal. In this note Mr. Joshi has stated, inter aha, that the appellant had a right to file an appeal against the order of the Additional Senior Subordinate Judge but if the appellant's High Court lawyer advises that the said order be accepted, then the appeal should be got filed in the High Court. It is further stated in the further affidavit that the said note and the file were sent to the Law Officer of the appellant who looked into the file on May 8, 1970 in the afternoon and made a note there on May Ii, 1970' (May 9 and 10, 1970 being holidays) that the case may be examined by the legal adviser of the appellant ana marked the same as most immediate. Thereupon, the Law Officer of the appellant agreeing with the opinion of the Legal Adviser directed that the matter be entrusted to Mr. Tarachand Brijmohanalal immediately and sent the file to Mr. J. N. Singh, Deputy Commissioner (E) of the appellant Corporation for orders. Mr. Singh passed the orders on May 12, 1970, agreeing with the opinion of the Law Officer, and returned the file on the evening of that very day. The engagement letter was addressed to Mr. Tarachand Brijmohanlal on May 13, 1970 who received the entire file on May 14, 1970. Mr. Tarachand Brijmohanlal examined the matter on May 15, 1970 (erroneously typed 1971) and filed the appeal in this Court on May 16, 1970.

(5) The application is strongly opposed by the respondent. It is contended that there could not have been any doubt in the mind of any person, particularly a lawyer, that in view of the jurisdictional value of the appeal shown in the memo. of appeal, the Court of the Senior Subordinate Judge will not have any jurisdiction to entertain the appeal and the only Court would be this Court. It is contended that the negligence of the counsel cannot be a ground for condensation of delay.

(6) Mr. V. P. Joshi has not filed any affidavit as to the circumstances under which he filed the appeal in the Court of the Senior Subordinate Judge but it appears from his aforesaid note on the file which was made on May 7, 1970, that he did not accept the correctness of the order of the first appellate Court in holding that it had no jurisdiction to entertain the appeal because he was of the opinion that the appellant had a right to file an appeal against that order. At.. the same time, he stated that the appeal against the order may not be filed if the High Court lawyer of the appellant advised that the said order be accepted in which case the appeal should be got filed in the High Court. In fact, Mr. Joshi had argued before the first appellate Court that the appeal had been properly filed in the Court of the Senior Subordinate Judge. From these circumstances, we are persuaded to hold the view that Mr. Joshi believed that in view of the value of the appeal for purposes of court-fee, the appeal had properly been filed in the Court of the Senior Subordinate Judge and not in the High Court.

(7) Mr. R. L. Aggarwal, learned counsel for the respondent has relied upon the Division Bench decision reported in Air 1933 Lah 568 in re: Uttam Chand v, Vishan Das(1), where it is stated 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.' He has also relied upon a Single Bench decision reported in Air 1938 Lah 81 in re: Amrit Lal and others v. Phool Chand and others(2) wherein it is stated that a mistaken advice of counsel is not sufficient to justify extension of time being granted under section 5 of the Limitation Act unless the advice was given in good faith, that is, with due care and attention. It is contended on the basis of these two decisions that the filing of the appeal in the Court of the Senior Subordinate Judge when in the memo. of appeal itself the jurisdictional value was fixed at Rs. 20,000.00 could not have been with due care and attention and it did not amount to a bona fide mistake.

(8) The suit out of which this appeal arises was a suit for injunction and court-fee was payable under section 7(iv)(d) of the Court Fees' Act where the court-fee is payable according to the amount at which the relief sought is valued in the plaint or in the memo. of appeal. For purposes of court-fee the respondent-plaintiff valued the suit at Rs. 130.00 In such a case and as provided by section 8 of the Suits Valuation Act. 1887, the value as determinable for computation of court-fees and the value for purposes of jurisdiction is the same. Mr. Joshi could easily have thought on the basis of section 8 of the Suits Valuation Act that the value for purposes of jurisdiction also should have been Rs. 130.00 and he, thereforee, filed the appeal in the Court of the Senior Subordinate Judge even though in the memo. of appeal, the jurisdictional value was placed at Rs, 20,000.00 as in the suit. No objection appears to have been taken in the suit as to the jurisdictional value and it is the contention of Mr. Aggarwal that value could not be challenged in appeal as provided by section 11 of the Suits Valuation Act. Even so, the question is whether Mr. Joshi was under a bona fide mistake.

(9) In the case : [1970]2SCR90 in re : Mata Din v. A. Narayanan, the suit was valued at Rs. 4,000.00 for rendition of accounts or arrears of rent, at Rs. 130.00 for injunction and at Rs. 710.00 for ejectment totalling Rs. 4,840.00. During the trial of the suit, the valuation for ejectment was raised to Rs. 1800.00 thus taking the total valuation to Rs. 5,930.00. The decree passed was for Rs. 600.00 as arrears of rent and Rs. 463.33 as damages for ejectment but the suit was dismissed as to the remaining arrears of rent or for accounts and for ejectment from a part of the premises. An appeal was filed in the Court of the District Judge, Delhi. The valuation of the appeal was fixed at Rs. 3400.00 for arrears of rent or for rendition of accounts; at Rs. 130/ for injunction and Rs. 1,350- for ejectment totalling Rs. 4.880.00. It was contended that the valuation of the appeal should have been the same as the value of the suit which would be an aggregate of Rs. 5,930.00 and, thereforee, the Court of the District Judge will have no jurisdiction as the appeal should have been filed in the High Court. The appeal was returned for presentation to the High Court and was filed there. The High Court refused to extend the time. An appeal was then taken to the Supreme Court.

(10) On these facts the Supreme Court laid down the following proposition:-

'The law is settled that mistake of counsel may in certain circumstances be taken into account in condoning delay although there is no general proposition that mistake of counsel by itself is always a sufficient ground. It is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an underhand way. The High Court unfortunately never considered the matter from this angle. If it had, it would have seen quite clearly that there was no attempt to avoid the Limitation Act but rather to follow it albeit on a wrong reading of the situation.'

(11) It, thereforee, follows that if the mistake is not a device to cover an ulterior purpose it cannot be described as a mistake which was not bona fide. In the present case we do not find any justification for holding that the filing of the appeal in the Court of the Senior Subordinate Judge was merely a device to cover an ulterior purpose such as is mentioned by the Supreme Court.

(12) The confusion was created by the respondent itself in wrongly fixing the jurisdictional value of the suit at Rs. 20,000.00 while it should have been fixed at Rs. 130.00 under section 8 of the Suits Valuation Act and even though, in the absence of any objection in the suit. the jurisdictional value cannot be challenged in appeal we find it difficult to say that there was no bona fide mistake on the part of Mr. Joshi to have filed the appeal in the Court of the Senior 'Subordinate Judge.

(13) As to the time taken between the return of the memo. of appeal and its filing in .this Court, the circumstances mentioned in the further affidavit which have been adverted to earlier, are sufficient, in our opinion to show that the delay in filing the appeal in this Court was not unjustified in view of the question posed by Mr. Joshi as to whether an appeal should be filed against the order of the Senior Subordinate Judge or whether the returned memo. of appeal should be presented to this Court. The time taken by the appellant corporation in making up their mind was not, in the circumstances of this case, unreasonable. The opinions of the various officers and the decisions taken have been sufficiently mentioned in the further affidavit which shows that the matter was receiving the attention of the proper officers for the further prosecution of the appeal and there was no unjustifiable delay.

(14) In these circumstances, we think there was sufficient cause for the delay in filing the appeal in this Court and we hereby condone the same. The Corporation will, however, pay Rs. 150.00 as costs to the respondent.

(15) The appeal will now be listed for admission before the Court.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //