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Seva Samaj Sanchalak Govardhandas Kalidas Vs. State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. Nos. 894 and 925 of 1970
Judge
Reported inAIR1972Ker184
ActsLimitation Act, 1963 - Sections 5; Code of Civil Procedure (CPC) , 1908 - Sections 115
AppellantSeva Samaj Sanchalak Govardhandas Kalidas
RespondentState of Kerala and ors.
Appellant Advocate V. Harihara Iyer, Adv.
Respondent Advocate Govt. Pleader (for No. 1),; T.S. Venkateswara Iyer, Adv. (for Nos. 6 and 7) and;
DispositionRevision allowed
Excerpt:
.....affidavit filed by the petitioner it has been clearly stated that the mistake arose because of the wrong advice given by the petitioner's counsel and that the said affidavit had been attested by shri harihara iyer and that he himself had filed the i. after having heard counsel on both sides at great length, i am satisfied that the delay in filing the civil miscellaneous appeal arose because of the wrong opinion given by the counsel and that it would therefore constitute sufficient cause for the condonation of the delay under section 5 of the limitation act. i do not think it necessary to refer to the various decisions as the position is well settled that in the absence of laches on the part of the petitioner, the delay caused by the mistake of the counsel should be treated as sufficient..........the appeal and no affidavit had been filed from the counsel stating that it was because of the wrong advice given by the counsel that the c.r.p. had been filed. the lower court has also stated that even if the allegation of mistaken advice given by thecounsel be true, that is not sufficient reason as contemplated by section 5 of the limitation act and, therefore, there is no justification to condone the delay. shri harihara iyer, learned counsel for the petitioner, contended that the mere fact that an affidavit had not been filed by him should not have been taken as a ground for rejecting the contention of the petitioner, that in the affidavit filed by the petitioner it has been clearly stated that the mistake arose because of the wrong advice given by the petitioner's counsel and.....
Judgment:
ORDER

P. Unnikrishna Kurup, J.

1. This revision petition is filed against an order of the District Judge of Ernakulam, whereby I. A. No. 47 of 1969 for condoning the delay in the presentation of G. M. A. No. 3 of 1969 before the District Court, was dismissed. The petitioner filed O. P. No. 7 of 1965 for permission to sue in forma pauperis in the Munsif's court of Cochin. That petition was dismissed by the order of the court dated 18-8-1967. The petitioner filed a C. R. P. in the High Court against the order, which was dismissed on the ground that no C. R. P. was maintainable as the proper remedy was to file an appeal. The petitioner then filed C. M. A. No. 3 of 1969 and along with it filed I. A. No. 47 of 1969 for condoning the delay. The ground alleged by the petitioner for the delay was that his legal adviser had, under a mistaken, impression, advised him to file the C.R.P. and that he did so bona fide and came to know that no revision petition lay only when it was dismissed by the High Court. According to the petitioner, as soon as the certified copy produced in the High Court along with the C.R.P. was got back by the petitioner, the C.M.A. and the I.A. for condoning the delay were filed in the District Court.

2. The order under challenge has proceeded on the basis that the C.R.P. had been filed deliberately to get over the period of limitation in filing the appeal and no affidavit had been filed from the counsel stating that it was because of the wrong advice given by the counsel that the C.R.P. had been filed. The lower Court has also stated that even if the allegation of mistaken advice given by thecounsel be true, that is not sufficient reason as contemplated by Section 5 of the Limitation Act and, therefore, there is no justification to condone the delay. Shri Harihara Iyer, learned counsel for the petitioner, contended that the mere fact that an affidavit had not been filed by him should not have been taken as a ground for rejecting the contention of the petitioner, that in the affidavit filed by the petitioner it has been clearly stated that the mistake arose because of the wrong advice given by the petitioner's counsel and that the said affidavit had been attested by Shri Harihara Iyer and that he himself had filed the I.A. and the C.M.A. before the lower Court. His contention was that if all these circumstances had been taken into account, it would be very clear that the counsel had to admit that it was because of the wrong advice given by him that the C.R.P. came to be filed and that there was no deliberate intention on the part of the petitioner to protract the proceedings. The learned counsel for the respondents strenuously contended that in the absence of an affidavit from the counsel, the lower Court was fully justified in refusing to accept the version of the petitioner and also that this court sitting in its revisional jurisdiction, should not interfere with the discretion exercised by the lower court in the matter of refusal to condone the delay. After having heard counsel on both sides at great length, I am satisfied that the delay in filing the Civil Miscellaneous Appeal arose Because of the wrong opinion given by the counsel and that it would therefore constitute sufficient cause for the condonation of the delay under Section 5 of the Limitation Act. Various authorities were cited on both sides on the question as to whether a wrong advice given by the counsel would constitute sufficient cause for the condonation of the delay. The preponderance of judicial authority is in favour of the view that if the delay was occasioned by the wrong advice given by the counsel, it would ordinarily constitute sufficient reason for the condonation of the delay. I do not think it necessary to refer to the various decisions as the position is well settled that in the absence of laches on the part of the petitioner, the delay caused by the mistake of the counsel should be treated as sufficient cause. Mr. Venketeswara Iyer for the respondents vehemently contended that even if the order passed by the lower court was illegal, this court would not be justified in interfering with it under Section 115, Civil Procedure Code. In my opinion, the lower court has acted with illegality in the exercise of its jurisdiction as it thought that a wrong advice given by the counsel would not constitute sufficient cause as contemplated by Section 5 of the Limitation Act. The lower court has therefore proceeded on the basis that it has no jurisdiction to condone the delay and the case therefore clearly comes within the scope of Section 115 of the Civil Procedure Code.

3. This Civil Revision Petition is allowed and the order in I. A. No. 47 of1969 is reversed and the delay condoned, It would follow that C. R. P. No. 925 of1970 has also to be allowed and the order dismissing C. M. A. No. 3 of 1969 has to be set aside. It is accordingly reversed and C. M. A. No. 3 of 1969 is restored to file and the lower court is directed to dispose it according to law. In the circumstances, there will be no order regarding Costs.


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