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Kesharibhai Jesingbhai Vs. Bai Lilavati and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtGujarat High Court
Decided On
Case NumberCivil Appln. No. 593 of 1961 in First Appeal Stamp No. 157 of 1961
Judge
Reported inAIR1963Guj119; (1963)GLR59
ActsLimitation Act, 1908 - Sections 5 and 14
AppellantKesharibhai Jesingbhai
RespondentBai Lilavati and ors.
Appellant Advocate S.B. Vakil, Adv.
Respondent Advocate J.M. Thakore, Adv. General and; A.H. Mehta, Adv.
DispositionApplication allowed
Cases ReferredShri Premchand v. Shah and Shri J.D. Pandya
Excerpt:
limitation - delay - sections 5 and 14 of limitation act, 1908 - relief claimed by appellant in respect of properties - contentions raised that application barred by limitation - appellant stated appeal filed by them before district court under advice of lawyers - district court stated proper forum of appeal was high court - memorandum of appeal filed before high court on same day on which it was returned by district court - appellant prosecuted appeal before district court in good faith - delay in filing appeal excluded under section 5 - lawyers acted in good faith in advising appellant to file case before district court on basis of valuation for determining jurisdiction - held, delay in filing appeal condoned. - - this application has been resisted very strenuously on behalf of the.....orderp.n. bhagwati, j.1. this application to condone delay in filing the appeal under section 5 of the limitation act arises from a suit filed by the appellant against the respondents in the court of the third joint civil judge, senior division, ahmedabad, on 19th march 1952. the appellant claimed relief in respect of three categories of properties. the first category consisted of properties which according to the appellant belonged to his father jesingbhai at the time of his death and were bequeathed by jesingbhai to the appellant and his brother jagabhai -- being the only two sons of jesingbhai -- by a will. these properties, alleged the appellant, came into the hands of jagabhai on the death of jesingbhai and the appellant was entitled to one-half share in these properties. the second.....
Judgment:
ORDER

P.N. Bhagwati, J.

1. This application to condone delay in filing the appeal under Section 5 of the Limitation Act arises from a suit filed by the appellant against the respondents in the Court of the Third Joint Civil Judge, Senior Division, Ahmedabad, on 19th March 1952. The appellant claimed relief in respect of three categories of properties. The first category consisted of properties which according to the appellant belonged to his father Jesingbhai at the time of his death and were bequeathed by Jesingbhai to the appellant and his brother Jagabhai -- being the only two sons of Jesingbhai -- by a will. These properties, alleged the appellant, came into the hands of Jagabhai on the death of Jesingbhai and the appellant was entitled to one-half share in these properties. The second category comprised certain other properties which were inherited by the appellant and Jagabhai from their grandmother Bai Mena in equal shares and which on the death of Jesingbhai again came into the hands of Jagabhai on the allegation of the appellant. The appellant contended in relation to the aforesaid properties that an oral partition which had taken place between the appellant and Jagabhai was fraudulent and not binding on the appellant and that notwithstanding such partition the appellant was entitled to claim his one-half share in such properties. The appellant, therefore, claimed in prayer (a) of the plaint that the oral partition was not valid and binding on the appellant arid that all the properties belonging to Jesingbhai at the time of his death as also all properties belonging to Bai Mena, which were received by Jagabhai on the death of Jesingbhai, should be accounted for by the respondents, respondent No. 1 being the widow arid respondents Nos. 2 to 4 being the sons of Jagabhai, since deceased, and that the appellant's one half share in these properties should be ascertained, declared and duly paid over to the appellant. The appellant also claimed in the alternative that if it was held that the properties which belonged to Jesingbhai at the time of his death were joint family properties and that he had no right to make a will in respect of the same, these properties on the death of Jesingbhai belonged to the appellant and Jagabhai as joint family properties and that Jagabhai having received these properties on the death of Jesingbhai, Jagabhai and after his death the respondents were liable to account for these properties and these properties should, therefore, be ascertained and declared and after excluding such of them as were already partitioned, the rest should be divided and the appellant's half share should be awarded to him. The appellant also contended that at the time of the death of Jesingbhai there were certain shares lying with Jesingbhai which belonged to the appellant as his separate property and that on the death of Jesingbhai, these shares were received by Jagabhai and that Jagabhai and after his death the respondents were in the position of trustees in respect of these shares and were liable to account for the same. The appellant accordingly claimed in prayer (b) of the plaint that whatever amount was ascertained as due and payable by the respondents to the appellant at the foot of the accounts in respect of these shares should be paid and these shares together with any accretions which might have been received and any other shares into which they might have been converted should be handed over to the appellant. These shares constituted the third category of properties claimed by the appellant. The appellant valued prayers (a) and (b) of the plaint at Rs. 200/- each for the purpose of court-fees and paid court-fees on the total valuation of Rs. 400/-. So far as the valuation of the subject-matter of the suit for the purposes of jurisdiction and advocate's fees was concerned, the appellant in the original draft of the plaint put the valuation at Rs. 400/- but subsequently before filing the plaint, altered it to Rs. 75,000/-. The respondents resisted the suit on various grounds which it is not necessary for me to set out for the purpose of the present application. Suffice it to state that one of the grounds taken up by the respondents was that the appellant had deliberately undervalued the suit for the purpose of court-fees, It was because of this plea raised by the respondents that amongst various issues was raised issue No. 22 which was in the following terms:-

'32. Whether proper Court-fee is paid by plaintiff? If not, what order be made in respect of it?'

The suit was tried by the Third Joint Civil Judge, Senior Division. The learned trial Judge instead of holding an inquiry whether proper and adequate court-fees were paid by the appellant on the plaint, proceeded to dispose of the suit by trying all the issues. The learned trial Judge came to the conclusion that the appellant was not entitled to any of the reliefs claimed by Mm and he accordingly dismissed the suit with costs. The learned trial Judge in view of the fact that he dismissed the suit with costs, did not decide Issue No. 22 on the ground that it did not survive. The result was that the question whether proper and adequate court-fees were or were not paid by the appellant on the plaint remained undecided and the suit with Court-fees paid on the basis of the value being Rs. 400/- was tried and disposed of on merits. It may be mentioned at this stage that prior to the filing of the suit, the appellant gave a notice dated 17th January 1952, Exhibit 123, to the respondents and in that notice the appellant valued at Rs. 1 ,00,000/-the ornaments which were received by Jagabhai on the death of Jesingbhai and in which according to the appellant he was entitled to one half share. Another fact which must be mentioned at this stage is that in the affidavit, Exhibit 28, made by the appellant on the application for appointment of a Receiver of the properties alleged to be lying in the hands of the respondents, the appellant stated that the shares belonging to the appellant and in respect of which claim was made by the appellant in prayer (b) of the plaint were of the value of Rs. 1,00,000/-. I have set out these two facts since considerable reliance was placed by the learned Advocate General, appearing on behalf of the respondents, on these two facts in support of his contention that there was no sufficient cause for admitting the appeal beyond the period of limitation within the meaning of Section 5 of the Limitation Act. To continue the narration the suit was as mentioned above, dismissed by the learned trial Judge without deciding issue No. 22 as regards the proper and adequate Court-fees payable on the plaint. The dismissal of the suit took place on 31st March 1959. The proceedings for drawing up the decree were taken immediately after the dismissal of the suit and in the course of those proceedings, the question arose as to what was the basis of calculation of advocate's fees since the suit was dismissed with costs and costs were, therefore, payable by the appellant to the respondents. The appellant made an application to the learned trial Judge on 29th April 1959, the application being, Exhibit 803, and contended that the Advocate's fees should be fixed on the basis of the value of the subject matter in dispute in the suit being Rs. 400/-. The basis for the contention was that the plaint was valued at Rs. 400/- for the purpose of Court-fees and that the same valuation should, therefore, govern both for the purpose of jurisdiction and advocate's fees. The contention was, however, negatived by the learned trial Judge by an order dated 29th April 1959. The learned trial Judge observed in the order that the value of the subject-matter in dispute in the suit was Rs. 75,000/- since that was the valuation put by the appellant himself in the plaint and that the advocate's fees should, therefore, be determined on the basis of such valuation. The decree was accordingly drawn up providing advocate's fees on the basis of the value of the subject-matter in dispute in the suit being Rs. 75,000/-. The appellant was obviously aggrieved by the dismissal of his suit and he, therefore, decided to file an appeal against the same. The appellant consulted two lawyers namely. Shri Premchand v. Shah and Shri J. D. Pandya who are both senior lawyers practising until recently in the erstwhile District Court of Ahmedabad and now practising in the City Civil Court and Sessions Court in Ahmedabad, Both these lawyers are undisputedly lawyers of considerable standing and repute and of then Shri Premchand v. Shah is at present the Government Pleader in the City Civil Court and Sessions Court in Ahmedabad. The appellant was advise it by these two lawyers that the appeal from the dismissal of the suit would lie to the District Court and the appellant, therefore, filed Appeal No. 332 of 1959 in the District Court on 31st July 1959. The respondents, it appears made an application. Exhibit 9, to the District Court contending that the appeal from the dismissal of the suit lay to the High Court and not to the District Court and that the District Court had, therefore, no jurisdiction to entertain the appeal. This application was heard by the Joint District Judge, Ahmedabad. The learned Joint Judge came to the conclusion that the value of the subject-matter of the suit for the purpose of jurisdiction was Rs. 75,000/- and that the appeal from the dismissal of the suit, therefore, lay to the High Court and not to the District Court. The learned Joint Judge, therefore, by an order dated 7th January 1961, directed that the memo of appeal be returned to the appellant for presentation to the proper Court. The memo of appeal was actually returned to the appellant for presentation to the proper Court on 9th January 1961 and on the same day the appellant filed the same in this Court. The time prescribed for filing an appeal in this Court being ninety days from the date of the decree appealed against, excluding the time requisite for obtaining certified copies of the judgment and decree, it is obvious that the appeal was time-barred at the date when the memo of appeal was filed in this Court. The appellant, therefore, made the present application for condonation of delay in filing the appeal under Section 5 of the Limitation Act. It is this application which has now come up for hearing before me. This application has been resisted very strenuously on behalf of the respondents, for it is clear that if this application is not granted, the appeal must fail on the ground that it is barred by the law of limitation.

2. The only ground urged by Mr. S.B. Vakit. learned advocate appearing on behalf of the appellant, in support of this application was that the appellant consulted Shri Premchand v. Shah and Shri J. D. Pandya, two senior lawyers who enjoyed high status and reputation in the legal profession in Ahmedabad and the appellant was advised by them that the appeal from the dismissal of the suit lay to the District Court and it was in reliance on their advice that the appellant filed the appeal in the District Court. Mr. S. B. Vakil contended that the appellant acted in good faith in prosecuting the appeal in the District Court and that as soon as tie District Court held that the proper forum of appeal was the High Court and not the District Court and returned the memo of appeal to the appellant for presentation to the High Court, the appellant wasted no time and immediately filed the memo of appeal in the High Court. Mr. S. B. Vakil urged that under the circumstances, the appellant had, sufficient cause for not filing the appeal in the High Court within the prescribed period and that the delay in filing the appeal should, therefore, be condoned under Section 5 of the Limitation Act. The learned Advocate General appearing on behalf of the respondents, on the other hand, contended that mistaken advice given to the appellant by his lawyers was not sufficient to save the appellant from the bar of limitation and that the appellant could not be said to have made out sufficient cause within the meaning of Section 5 of the Limitation Act unless he produced material before the Court to show that his lawyers acted in good faith i. e. with due care and attention. The learned Advocate General argued that the two lawyers Shri Premchand v. Shah and Shri J. D. Pandya, who advised the appellant, did not act with due care and attention in advising the appellant to file the appeal in the District Court inasmuch as, according to the learned Advocate General, it was clear that the appeal lay to the High Court and not to the District Court and that the view that the appeal lay to the District Court was not a reasonable view which could be come to by any competent lawyer exercising reasonable care and skill. The contention of the learned Advocate General was that the advice given by these two lawyers to the appellant being negligent advice, not given with due care and attention, the appellant was not protected by such advice and if the appellant followed such advice and prosecuted the appeal in the District Court, which was not the proper forum for filing the appeal, and thereafter filed the appeal in the High Court beyond the period of limitation, the appellant could not be said to have sufficient cause for not filing the appeal within the prescribed time. The learned Advocate General urged that, under the circumstances, no sufficient cause having been made out by the appellant for the exercise of discretion under Section 5 of the Limitation Act, the delay is filing the appeal should not be condoned and the application should be rejected. These were broadly the rival contentions urged before me and I shall now proceed to examine the validity of these contentions,

3. On these contentions two questions arise for consideration. The first question is whether a litigant who relying on a mistaken though negligent advice of his lawyer has adopted proceedings in a wrong Court can rely on the provisions of Section 5 of the Limitation Act and ask the Court to con-done the delay occasioned by his prosecuting proceedings in the wrong Court as a result of such ad-vice given to him by his lawyer? The question which thus arises is how far. and in what circumstances an honest mistake on the part of a litigant caused by an erroneous advice given to him by his lawyer may afford him a ground , for protection under Section 5 of the Limitation Act if such advice be negligent or not given with due care and attention? This is a question on which there is divergence of opinion amongst various High Courts and it is, therefore, necessary to deal with this question on principle as also to examine the Various authorities bearing upon this question. The second question which is relatively a more simple one is whether the two lawyers who advised the appellant to file the appeal in the District Court acted negligently or without due care and attention in giving such advice. Of course the second question would arise only if I take the view that a litigant cannot invoke the protection under Section 5 of the Limitation Act when he acts in reliance on an erroneous advice given to him by his lawyer if the lawyer in giving such advice was negligent or did not act with due care and attention.

4. Now Section 5 of the Limitation Act confers a discretion on the Court to admit an appeal even though filed after the expiry of the period Of limitation if the appellant can show that he had sufficient cause for not filing the appeal within the period of limitation. The discretion is a judicial and not an absolute discretion and must be, exercised in the same manner in which all judicial power is exercised. The discretion is limited only by the words 'sufficient cause' and in every case where the discretion is invoked, the question must be whether the appellant had sufficient cause for not preferring the appeal within the period of limitation. There is such an infinite variety of circumstances under which occasion may arise for invoking the discretion that it is impossible to lay down any rigid rule which may cover every case in which there is 'sufficient cause' and not fail to comprehend within its scope some cases of 'sufficient cause'. The discretion cannot be crystallized into a rigid role nor can it be encased in any straight jacket formula. As observed by Lord Selborne, L. C., in Carter v. Stubbs, (1880) 6 O.B.D. 116.

'there Can be no positive rule as to or absolute statement of the cases in which, and in which only, the discretion of the Judge or Court should be exercised to enlarge the time for appealing, and in each individual case the surrounding circumstances must be looked at.'

While, dealing with a similar rule in England Bowen L. J., said with regard to the circumstances under which the discretion of the Court to grant leave to appeal should be exercised:

'The rules leave the matter at large. Of course it is to be exercised in the way in which Judicial power and discretion ought to be exercised, upon principles which are well understood, but which had better not be defined in a case except so far as may be necessary for the decision of that case -- otherwise there is the great danger, as it seems to us, of crystallising into a rigid definition that Judicial power and discretion which the Legislature and the Rules of the Court have for the best of all reasons left undetermined and unfettered'.

The discretion in each particular case must, therefore, be exercised on the facts of the case. But this truism is not destructive of the idea that there can be certain general principles to guide the Court in the exercise of the discretion. I shall presently examine whether there is any general principle which applies to relieve the appellant against delay in filing the appeal occasioned by the erroneous advice of his legal adviser. I may preface the discussion by observing that I am not unaware of the adage that in applications for admitting appeals beyond the period of limitation, the Court must bear in mind the rights of both parties and not be led away by sympathy for a legal practitioner's error into interfering with the rights which his opponent's client has already obtained under an existing decree. But it must be remembered that in considering the rights of the parties one cannot overlook the provisions of Section 5 of the Limitation Act which in effect may result in an extension of the prescribed period. The right which accrues to a party to have the opponent's suit treated as at an end is a conditional right liable to be defeated by extension of time under Section 5 of the Limitation Act. It is in the light of this background that I must consider how far the appellant can be said to have sufficient cause for not filing the appeal within the period of limitation when the delay in filing the appeal has been caused by the mistaken advice of his legal adviser.

5. Fortunately the principle which must guide the Court in such cases is no longer open to question. The Privy Council in Brij Indar Singh v. Kanshi Ram, 19 Bom LR 866 : (AIR 1917 PC 156) approved the general rule laid down by the Chief Court of Punjab in the following passages from the judgment in Karam Baksh v. Daulat Ram, 183 Pun Re 1888:-

'All that the section requires in express terms, as a condition for the exercise of the discretionary power of admission of an appeal presented after time is 'sufficient cause for not prosecuting the appeal within the prescribed period'. If such cause is shown, the Court may in its discretion, which is of course a judicial and not an arbitrary discretion, admit the appeal. We think the true guide for a Court in the exercise of this discretion, is whether the appellant has acted with reasonable diligence in prosecuting his appeal, and we think, further, that he ought ordinarily to be deemed to have acted with reasonable diligence, when the whole period between the date of the decree appealed against, and the date of presenting the appeal, does not, after excluding the time spent in prosecuting with due diligence a' proper application for review of judgment, exceed the period prescribed by law for presenting the appeal.'

'We also agree with the High Court of Allahabad in the case reported in ILR 5 All 591, Balwant Singh v. Gumani Ram that the circumstances contemplated in Section 14 of the Limitation Act should ordinarily constitute a sufficient cause within the meaning of Section 5.'

The Privy Council after quoting the above passages observed that 'these citations seem to show that there is a general rule expressed' and stated that this general rule had been laid down by Full Benches in all the Courts in India and had been acted on for many years and the Privy Council did not, therefore, think it proper to interfere with the same. It would thus appear that according to the Privy Council the true guide for the Court in the exercise of its discretion under Section 5 of the Limitation Act is whether the appellant has. acted with reasonable diligence in prosecuting his appeal and the appellant should ordinarily be deemed to have acted with reasonable diligence, when the whole period between the date of the decree appealed against and the date of presenting the appeal, does not, after excluding the time spent in prosecuting with due diligence a proper application for review of 'judgment, exceed the period prescribed by law for presenting the appeal. And this result would 'seem to follow by the application of the principle analogous to that embodied in Section 14 of the Limitation Act, for as observed by the Privy Council, 'the circumstances contemplated in Section 14 of the Limitation Act should ordinarily constitute a sufficient cause within the meaning of Section 5 of the Limitation Act'. If, therefore, the appellant has been prosecuting with due diligence and in good faith another proceeding challenging the decree but the Court in which such proceeding is pursued is from want of jurisdiction, or other cause of a like nature, unable to entertain the same, the 'appellant would ordinarily be deemed to have acted with reasonable diligence in prosecuting the appeal so as to attract the applicability of Section 5 of the Limitation Act provided the whole period between the date of the decree appealed against and the date of presenting the appeal, does not, after excluding the time spent in prosecuting such proceeding, exceed the period prescribed by law for presenting the appeal. On the analogy of Section 14 of the Limitation Act the time spent in prosecuting such proceeding would not be taken into account for the purpose of determining whether there was sufficient cause for not presenting the appeal within the period of limitation. This is the general rule approved by the Privy Council and it is with reference to the test provided by this general rule that I must examine whether on the facts the appellant's case falls within or without the terms of this general rule.

6. Of course it must be noted that all that the Privy Council said in the above case was that the circumstances contemplated in Section 14 of the Lim. Act should ordinarily constitute a sufficient cause within the meaning of Section 5 of the Limitation Act and that if after excluding the time taken in prosecuting with due diligence and in good faith another proceeding in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it, the appeal is within the period of limitation, the appellant should ordinarily be deemed to have acted with reasonable diligence in prosecuting the appeal so as to bring his case within Section 5 of the Limitation Act and that the delay in filing the appeal should in such a case be condoned. The Privy Council did not decide as to when the appellant could be said to be prosecuting such other proceeding with due diligence and in good faith. It was not the case of the appellant before the Privy Council that he had prosecuted, the application for review of judgment under the mistaken advice of his lawyer and the question did not, therefore, arise before the Privy Council whether or not the lawyer in giving such advice acted in good faith or not i.e., with due care and attention, and if the lawyer did not so act, whether the appellant could be said to have prosecuted the application for review of judgment with due diligence and in good faith so as to attract the argument based 'on the analogy of Section 14 of the Limitation Act. The Privy Council did not have occasion to consider whether in a case where the appellant pursues a proceeding in a wrong Court on the mistaken advice of his lawyer, the diligence and good faith required for the applicability of the general rule approved by the Privy Council must be that of the appillant or whether the want of due diligence and good faith on the part of the lawyer would deprive the appellant of the protection under Section 5 of the Limitation Act. It is therefore, clear that this decision of the Privy Council beyond stating the general rule cannot assist me in deciding whether the case of an appellant whose appeal has been filed beyond the period of limitation by reason of his having pursued another proceeding in a wrong Court on account of the mistaken advice given by his lawyer without due care and attention, falls within or without the general rule. Mr. S.B. Vakil, learned advocate on behalf of the appellant, contended that it is the due diligence or good faith of the appellant which must be seen for the purpose of deciding whether his case falls within the general rule and not the due diligence or good faith of his lawyer. It is always a legal question as to what is the correct forum of appeal in a given case and, argued Mr. S.B. Vakil, an appellant can do no more and no better than consult his lawyer for deciding in which Court the appeal should be filed and so long as the appellant acts with due diligence and with due care and attention in prosecuting the appeal in reliance on the advice which might be given to him by his lawyer, the appellant is certainly protected even though the giving of such advice by the lawyer might be attended with negligence or want of due care and caution. It was on the other hand contended by the learned Advocate General that the appellant could not be said to have acted with due diligence and in good faith if the mistaken advice given to him by his lawyer, relying on which he filed the appeal in the wrong Court which had no jurisdiction, proceeded from negligence or want of due care and attention on the part of the lawyer. The question thus resolves itself into a narrow one, namely, how far negligence or want of due care and attention on the part of a lawyer to whom an appellant must necessarily turn for legal advice as to the forum of appeal, would deprive the appellant of the protection of the general rule approved by the Privy Council.

7. Before I turn to the authorities, let mo examine the question on principle. As observed by the Privy Council, the circumstances contemplated in Section 14 of the Limitation Act should ordinarily constitute a sufficient cause within the meaning of Section 5 of the Limitation Act. Now Section 14 of the Limitation Act runs as follows :

'14. (i) 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.

(2) In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance, or in a Court of appeal, against the same party for the same relief shall be excluded, where such proceeding 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.

Explanation I : In excluding the time during which a former suit or application was pending, the day on which that suit or application was instituted or made, and the day on which the proceedings therein ended, shall both be counted.

Explanation, II : For the purposes of this section, a plaintiff or an applicant resisting a appeal shall be deemed to be prosecuting a proceeding.

Explanation III : For the purposes of this section misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.'

If the analogy of this Section is applied, it is clear that due diligence and good faith in prosecuting the Other proceeding must be on the part of the appellant. The appellant must have been prosecuting the other proceeding with due diligence and in good faith and in such a case if the Court in which the proceeding is prosecuted is from defect of jurisdiction, or other cause of a like nature, unable to entertain it, the time taken up in prosecuting such other proceeding would, under the general rate approved by the Privy Council, be excluded and if after exclusion of such time the appeal is within time, the Court would consider it sufficient cause and excuse the delay. What the Court must, therefore, consider in such a case is: Has the appellant acted with due diligence and in good faith? Of course good faith here must mean due care and attention for these words are borrowed from Section 14 of the Limitation Act and they must therefore bear the meaning assigned to them by Section 2(7) of the Limitation Act where the definition is 'nothing shall be deemed to be done in good faith which is not done with due care and attention'. The question put in another form would, therefore, be: Has the appellant, in acting as he did, acted with due care and attention? Now the question as to which is the correct forum of appeal is a purely legal, question, sometimes of considerable nicety and complexity, and no appellant could be expected to have any personal knowledge as to which is the Court in which the appeal should be filed, unless of course he is himself a lawyer. As a matter of fact the appellant would be acting without due care and caution if he acted on his own knowledge or information without consulting a lawyer who would be competent to advice on the question of the forum of appeal. Due care and attention on the part of the appellant require that he should in a matter which is a purely legal matter depending upon rules of law, sometimes simple and sometimes complicated, and which would necessarily be beyond the comprehension of a layman, consult a lawyer who would he in a position to advice him. Now if the appellant consults a lawyer who is known and reputed to be a competent lawyer and acts on the advice of such lawyer, can it be said that he has acted without due care and attention in relying on the advice of such lawyer and acting upon it? I can well understand a case where the appellant chooses to consult a lawyer who is a raw junior at the Bar or who is, to the knowledge of the appellant, not well-versed in the particular branch of law on which he is consulted. In such a case it may well be said that the appellant has not acted with due care and attention in consulting such a lawyer. But where the appellant consults a lawyer of considerable standing and repute and acts on the advice or such lawyer, I do not see how it can be said that the appellant has acted without due care and attention, merely because the advice which may be given to him by such lawyer may turn out to be negligent or given without due care and attention. I fail to understand what greater care and attention could the appellant show. To my mind it would be most unfair and unjust to the appellant to visit him with a penalty for something not done by him, over which he had no control and which he could not possibly anticipate. I am, therefore, of the opinion, that apart altogether from any authorities, if the appellant can show that he exercised due care and attention in seeking advice from his lawyer and acting on such advice he prosecuted the appeal in the wrong Court with due diligence, he would come within the general rule approved by the Privy Council even though such advice might have been given by the lawyer negligently or without due care and attention and if after excluding the time spent in prosecuting the appeal before the wrong Court the whole period between the date of the decree appealed against and the date of presenting the appeal before the right Court does not exceed the period prescribed by law for presenting the appeal, the appellant would be entitled to the benefit of the protection of Section 5 of the Limitation Act.

8. So much on principle. Turning to the authorities I find that there is considerable divergence of opinion amongst various High Courts and the authorities are far from uniform. In this fog of authorities, however, a beacon of light is to be found in the decision of the Privy Council in Sunderabai v. Collector of Belgaum, 21 Bom LR 1148 : (AIR 1918 P.C. 135). In that case the plaintiff sued for a declaratory decree and asked for consequential relief. The plaintiff valued the reliefs of declaration at Rs. 130/- each and the relief of injunction at Rs. 5/- and paid Court-fees upon that basis. The Subordinate Judge before whom the suit was tried decided all the issues in favour of the plaintiff barring one issue which he declined to decide and passed a decree in favour of the plaintiff on 16th April, 1910, embodying the two declarations and the injunction prayed for by the plaintiff. The defendants under the advice of the Legal Remembrancer to the Bombay Government, filed an appeal in the High Court on 19th July 1910, which if the appeal lay to the High Court was well within the ninety days allowed for an appeal to the High Court. On objection taken on behalf of the plaintiff, the High Court on nth March 1912, decided that the appeal lay to the Court of the District Judge. Belgaum, and not to the High Court and affirmed the principle, which had been previously applied by the High Court that 'where a plaintiff sues for a declaratory decree and asks for consequential relief and puts his own valuation upon that consequential relief, then for the purposes of Court-fees, and also for the purposes of jurisdiction, it is the value that the plaintiff puts upon the plaint that determines both'. The High Court accordingly directed that the Memorandum of Appeal should be returned to the appellants for presentation to the District Judge of Belgaum. The defendants thereafter presented the Memorandum of Appeal to the Court of the District Judge, Belgaum, on 18th March 1912, alleging that the appeal had been presented to the High Court under the bona fide belief that the appeal lay to that Court, and prayed that it might be admitted. The appeal was thereafter transferred to the High Court and the question which arose before the High Court was whether the delay in filing the appeal to the Court of the District Judge, Belgaum, should be condoned under Section 5 of the Limitation Act. The High Court held that the defendants had sufficient cause for not preferring the appeal within the period of limitation and excused the delay in filing the appeal under Section 3 of the Limitation Act. The matter was carried in appeal to the Privy Council and Sir John Edge delivering the judgment of the Privy Council observed :

'After the District Judge had admitted the appeal, it was by order of the High Court removed into that Court. The learned Judges of the High Court, after hearing the parties and considering the affidavits which were filed, were rightly satisfied that the defendants had sufficient cause for not having preferred their appeal to the Court of the District Judge within the period of limitation. The fact that the defendants had acted on mistaken advice as to the law in appealing to the High Court in 1910 did not preclude them from showing that it was owing to their reliance on that advice that they had not presented the appeal to the Court of the District Judge within the prescribed period of limitation. (Section 19 Bom LR 866 : (AIR 1917 PC 156) )'.

8a. It is clear from the above observations that the Privy Council considered it sufficient to bring the case within Section 5 of the Limitation Act that the defendants had not presented the appeal to the Court of the District Judge within the prescribed period of limitation owing to their reliance on the mistaken advice received by them from the Legal Remembrancer to the Government of Bombay who was their legal adviser. The Privy Council did not consider it necessary to go into the question whether the mistaken advice given by the Legal Remembrancer was careless or negligent advice or whether the Legal Remembrancer acted with due care and attention in giving such advice to the defendants. The Privy Council did not care to examine whether the view taken, by the Legal Remembrancer that the appeal lay to the High Court was a reasonable view which could be taken by a competent lawyer exercising reasonable care and skill so that it could be said that the Legal Remembrancer acted in good faith in giving advice to the defendants to prefer the appeal to the High Court. The Privy Council took the view that the fact that the defendants relied on the mistaken advice of the Legal Remembrancer and presented the appeal to the High Court under the bona fide belief caused by such mistaken advice that the appeal lay to the High Court constituted sufficient cause to the defendants for not having preferred the appeal to the Court of the District Judge within the period of limitation. As a matter of fact it does appear from the following observation of the Privy Council, namely :

'...... On objection taken on behalf of the defendants, the High Court, on March 11, 1912, rightly decided that the appeal lay to the Court of the District Judge of Belgaum and not to the High Court, and affirmed a principle, which had been previously applied by the High Court at Bombay, that 'where a plaintiff sues for a declaratory decree and asks for consequential relief, and puts his own valuation upon that consequential relief, then for the purposes of court-fee, and also, for the purposes of jurisdiction, it is the value that the plaintiff puts upon the plaint that determines both' '.

that the Legal Remembrancer did not act with due care and attention in advicing the defendants topresent the appeal to the High Court, for if theLegal Remembrancer had cared to look at Section 7(iv)of the Court Fees Act and Section 8 of the SuitsValuation Act and the previous decision of the HighCourt laying down the above principle, it wouldHave been apparent to the Legal Remembrancer thatthe appeal could He only to the Court of the DistrictJudge and not to the High Court. If, therefore, thePrivy Council had considered it a matter of anyconsequence, whether the Legal Remembrancer actedwith due care and attention in giving advice to thedefendants to prefer the appeal to the High Court,I dare say that the Privy Council would have cometo the conclusion that the Legal Remembrancer didnot act with due care and attention. The PrivyCouncil, however, did not consider it necessary toexamine this question for obviously in the opinionof the Privy Council this question was irrelevant. Itwas the conduct of the defendants which was material for consideration and even if the Legal Remembrancer acted without due care and attention, solong as the defendants relied on the mistaken adviceof the Legal Remembrancer and acting on suchadvice presented the appeal to the High Court underthe bona fide belief that the appeal lay to thatCourt, the defendants could be said to have sufficient cause for not having preferred the appeal tothe Court of the District Judge within the periodof limitation. This decision to my mind clearlyshows that it is not relevant to examine for thepurpose of considering whether a case falls withinthe general rule approved by the Privy Council in19 Bom LR 866 : (AIR 1917 PC 156) (supra),whether the mistaken advice of the lawyer on whichan appellant has acted in prosecuting an appealbefore the wrong Court was given by the lawyer withdue care and attention. It is the due diligence andgood faith of the appellant that must be examinedand not the good faith or due diligence of the LegalAdviser.

9. This view supported as it is by the afore-laid decision of the Privy Council in 21 Bom LR 1148 : (AIR 1918 PC 135) (supra), is further strengthened by the decision of the High Court of Bombay in Dattatraya v. Secretary of State, 23 Bom LR 89 : (AIR 1921 Bom 302). What happened in that case was that a suit in which the claim was valued at Rs. 248/- was dismissed by the Assistant Judge. The plaintiff, acting on the advice of his pleader, preferred an appeal to the High Court. The appeal was admitted at first, but was afterwards returned to the plaintiff for filing it in the District Court, since the High Court had no jurisdiction to entertain the appeal. The District Judge declined to excuse the delay on the ground that the plaintiff had no sufficient cause since the question as to which Court the appeal lay was not involved in any doubt and accordingly dismissed the appeal. The plaintiff filed an appeal to the High Court against the dismissal of his appeal by the District Judge and a I Division Bench of the High Court consisting of Macleod C. J., and Fawcett J. allowed the appeal and excused the delay on the part of the plaintiff in filing the appeal before the District Judge on the ground that there was sufficient cause for the plaintiff for not having filed the appeal within the period of limitation. Macleod, C. J., disagreed with the view taken by the District Judge that since the question as to which Court the appeal lay was not involved in any doubt, the pleader on whose advice the plaintiff acted did not give advice with due care and attention and that the plaintiff did not, therefore, have sufficient cause for not filing the appeal in the District Court within the period of limitation and observed :

'The learned Judge thought that because the question as to which Court the appeal lay was not involved in doubt, therefore there was not sufficient cause for the appellant not preferring the appeal to the Court of the District Judge within time. But that is not, in my opinion, the right criterion in cases of this kind. I do not think that the learned Judge has read the remarks of Mr. Justice Jardine (Dadabhai v. Maneksha, ILR 21 Bom 552) in the way in which they should be read. He has not attached the right meaning to the words in good faith. I think that the appellant was entitled to rely upon the advice of his pleader that the appeal lay to the High Court and a party cannot be said to be acting without good faith because he relies upon a person whose status entitled him to give advice to litigants. It may be that the pleader ought to have known that the appeal lay to the District Judge. But there again some questions may appear to be so entirely free from doubt to one person, that only one opinion is possible, and yet another may equally well come to a different conclusion. I do not think it can be said that the appellant has acted in such a way that he should be debarred from his right to appeal............'

These observations clearly show that an appellant is entitled to rely upon the advice of his lawyer as to the forum of appeal and he cannot be said to be acting without good faith because he relies upon a person whose status entitles him to give advice to litigants. It is, in my opinion, not a right criterion to consider whether the lawyer acted with or without due care and attention in giving advice to the appellant. How is the Court ultimately going to decide whether the lawyer acted with due care and attention? It may be that some cases may be so gross that it may be possible to say without any doubt that the lawyer acted negligently or without due care and attention. But in a large majority of cases it would not be possible to do so with any absolute certitude. The advice given by the lawyer would in a majority of cases depend upon the construction of the relevant provisions of law and the construction may appear so clear and free from ambiguity to one person as to exclude the possibility of any other opinion whereas another person might equally well come to a different conclusion. Does it not even happen in Courts that one Judge may consider a particular construction to be the only possible construction while the other Judge may take the view that it is impossible to accept that construction and that the only light construction is that which he is inclined to place upon the words? It has been said that no definition is so clear as to avoid the possibility of doubt and no language so precise as to exclude all ambiguity. It is possible that a view may appear reasonable to one and absurd to another. Where is the Court going to draw the line? It would, in my opinion, be a totally unsafe criterion to determine whether the view taken by the lawyer in giving advice to the appellant is a reasonable view which a competent lawyer with reasonable care and skill would take and to condemn the appellant if the Judge comes to the conclusion that in his opinion, which may very well vary from the opinion of another Judge, the view taken by the lawyer is not a reasonable view which might be taken by a competent lawyer exercising reasonable dare and skill. The duty of the appellant can only be to consult the lawyer for the purpose of deciding in which forum the appeal should be filed and once the appellant consults the lawyer, seeks his advice and acts upon it, his duty would be at an end. Whether the lawyer in giving advice acted with 01 without due care and attention would, in my opinion, be an irrelevant consideration. Of course I must add here even at the cost of repetition that the appellant should have acted with due care and attention in selecting the lawyer and seeking advice from him.

10. To the same effect are also the observations of the Calcutta High Court in Ambica Ranjan v. Manikganj Loan Office Ltd. : AIR1928Cal468 . The facts of that case are rather striking inasmuch as they clearly reveal that the lawyer who advised the appellant in that case was negligent or was at least not 'so diligent as it was necessary for a lawyer to be in dealing with the interests of his client'. The 'appellant instructed a lawyer of over fifteen years' standing and having considerable practice, to file an appeal from a decree passed against him in a suit in which the property which formed the subject matter of the suit was admittedly valued at over Rs. 5,000/-. How along with this suit there was another suit filed against the appellant in which the property which formed the subject matter of that suit was valued at less than Rs. 5,000/- and that suit was also decreed against the appellant. The lawyer under a wrong impression that the appeal which he was instructed to, file by the appellant related to the suit which was valued below Rs. 5,000/- filed the memorandum of appeal in the Court of the District Judge at Dacca on 29th March 1927. On 27th June 1927 it was found that the appeal did not lie to the Court of the District Judge and that it ought to have been presented in the High Court. The District Judge accordingly returned the memorandum of appeal to the appellant and the appeal was thereafter presented by him in the High Court on 18th July 1927. Since the appeal was out of time, the appellant applied for extension of time under Section 5 of the Limitation Act and the question arose whether in the circumstances of the case the delay on the part of the appellant in filing the appeal in the High Court should be condoned. The application was heard by a Division Bench of the High Court consisting of Subrawardy and Graham, JJ. Subrawardy J., delivering the main judgment observed that the Court was not satisfied that the lawyer in advising the filing of the appeal in the Court of the District Judge under the erroneous impression that the appeal related to the suit which was valued below Rs. 5,000/-was so diligent as it was necessary for a lawyer to be in dealing with the interests of his client. But in spite of the negligence or want of due care and attention on the part of the lawyer, he condoned the delay on the part of the appellant in presenting the appeal in the High Court. The learned Judge laid considerable emphasis on the fact that there was no negligence or inaction or want of bona fides on the part of the appellant and relying on certain decisions of the Calcutta High Court and two decisions of other High Courts, one a decision of the Bombay High Court in Nagindas Motilal v. Nilaji Moraba, AIR 1924 Bom 399 and the other a decision of the Allahabad High Court in Shib Dayal v. Jaganath, AIR 1922 All 490 (FB) held that merely because the mistaken advice given by the lawyer was careless or negligent it did not affect the good faith of the appellant and that so long as the appellant acted bona fide in relying on the advice of the lawyer, the appellant was entitled to the protection of Section 5 of the Limitation Act. The same view was also taken by the other learned Judge Graham J. It will thus be seen that in this case even though the erroneous advice given by the lawyer was attended with want of due care and attention and the lawyer did not act in good faith, within the meaning of that expression as used in Section 2(7) of the Limitation Act, in giving advice to the appellant, the appellant was relieved against the delay occasioned by such erroneous advice and the appeal was admitted even though filed beyond the period of limitation. Of course Suhrawardy, J., stated towards the end of the judgment that, 'I want to guard myself for the present against laying down a general rule of law that a mistake of a pleader, however obvious it may be, can always and under every circumstance afford ground for extension of rime under Section 5 of the Limitation Act'. This proposition is, as I shall presently show, unexceptionable for to use the words of the Privy Council in a case to which I shall presently refer, there is no general doctrine which saves litigants from the results of wrong advice. Every mistaken advice given by the lawyer does not entitle the appellant to protection under Section 5 of the Limitation Act. But if the appellant has prosecuted the appeal in the wrong Court with due diligence and in good faith relying on the mistaken advice of the lawyer and if after excluding the time taken up in prosecuting such appeal, the whole period between the date of presentation of the appeal in the right Court and the date of the decree appealed against does not exceed the period of limitation, the case of the appellant would fair within the general rule approved by the Privy Council in 19 Bom LR 866 : (AIR 1917 PC 156) (supra), and the appellant would be entitled to have the discretion under Section 5 of the Limitation Act exercised in his favour.

11. That takes me to the decision of the Privy Council in Rajendra Bahadur v. Rajeshwar Bali , which was strongly relied on by the learned Advocate General on behalf of tic respondents. Relying on this decision of the Privy Council the learned Advocate General contended that there is no general doctrine which saves parties from the results of wrong advice given by a legal practitioner and that it would all depend on the circumstances of each particular case whether mistaken advice given by a legal practitioner would give rise to sufficient cause within the meaning of Section 5 of the Limitation Act. According to the learned Advocate General this decision established that if the legal practitioner did not act in good faith and with due care and attention in giving advice to the appellant and as a result gave erroneous advice to the appellant, such erroneous advice could not be relied on by the appellant as constituting sufficient cause within the meaning of Section 5 of the Limitation Act. Now I cannot agree with the learned Advocate General that this represents the ratio of this decision. In this case an appeal was filed in the Court of the District Judge on the basis that the value of the appeal was Rs. 1,000/-. At the hearing of the appeal before the District Judge, an objection was taken to the competence of the appeal on the ground that the true value was in excess of Rs. 5,000/- and that the appeal, therefore, lay not to the Court of the District Judge but to the Chief Court. The District Judge upheld the objection and ordered the memorandum of appeal to be returned to the appellant for presentation to the Chief Court. The appellant accordingly presented the memorandum of appeal to the Chief Court but since the ninety days allowed had expired, the appellant presented an application for extension of time under Section 5 of the Limitation Act. On this application the question arose whether the appellant was entitled to be relieved against the delay in filing the appeal in the Chief Court. This question was ultimately carried to the Privy Council. Now it was not disputed before the privy Council that in filing the appeal in the Court of the District Judge the appellant acted in good faith on the advice of counsel honestly given. But the contention urged on behalf of the respondents was -- and this contention found favour with the Chief Court -- that counsel who gave advice to the appellant did not exercise due care and attention and acted with gross negligence in the matter and that the appellant was, therefore, mot entitled to relief under Section 5 of the Limitation Act. The Privy Council did not decide whether negligence or want of due care and attention on the part of counsel, if established, would be sufficient to deprive the appellant of the benefit of Section 5 of the Limitation Act but proceeded on the assumption that such negligence or want of due care and attention would suffice to justify the dismissal of the appeal. It is clear from the following observations of the Privy Council that it was on this assumption that the Privy Council proceeded to decide the appeal :-

'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........'

The appeal proceeded on the assumption that if it was established that counsel did not exercise due care and attention and acted with gross negligence in the matter, that would be sufficient to disentitle the appellant to relief under Section 5 of the Limitation Act and warrant the dismissal of the appeal. The Privy Council thereafter proceeded to consider whether in giving the advice which he did, counsel acted negligently or without due care and attention, and came to the conclusion that the view taken by counsel as to the valuation of the appeal was not such as could not have been entertained by a competent practitioner exercising reasonable care and that to describe his action as gross negligence would be to visit- him with a censure undeserved. It will thus be seen that the Privy Council did not decide that if the mistaken advice of counsel proceeded from negligence or want of due care and attention, it could not afford a ground of relief under Section 5 of the Limitation Act. The Privy Council for the purpose of the appeal assumed this position and held that on the facts of the case the premise on which the assumption was based did not exist. After disposing of the question of negligence or want of due care and attention on the part of counsel, the Privy Council observed as follows :-

'The question of negligence being out of the way, their Lordships are of opinion that the facts of the present case disclose sufficient cause within the meaning of Section 5, Limitation Act. 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. Mistaken advice given by a legal practitioner may in the circumstances of a particular case give rise to sufficient cause within the section though there is certainly no general doctrine which saves parties from the results of wrong advice. In the circumstances of this case the respondents had very little reason to complain of the delay and the bona fides and diligence of the appellant cannot be impugned.'

These observations were strongly relied on by the learned Advocate General on behalf of the respondents. But seen in their proper perspective, I do not see how they can help the argument urged on behalf of the respondents. The Privy Council after holding that counsel was not negligent and did not act without due care and attention in advising the appellant to file the appeal in the Court of the District Judge so as to justify the dismissal of the appeal on the assumption mentioned above, proceeded to consider whether the facts of the case disclosed sufficient cause within the meaning of Section 5 of the Limitation Act. Since the argument of the appellant stated in its broadest form was that the appellant must be regarded as having made out sufficient cause, for the appellant had, in filing the appeal in the Court of the District Judge, acted in reliance on mistaken advice given by counsel, the Privy Council took care to point out that there is no general proposition that a party acting on erroneous advice given by a legal practitioner would necessarily be entitled to relief under Section 5 of the Limitation Act. It is not in every case where a party is beyond time owing to reliance on mistaken advice given by a legal practitioner that he could be said to have sufficient cause within the meaning of Section 5 of the Limitation Act. The Privy Council uttered a word of caution, namely, that there is no general doctrine which saves parties from the results of wrong advice but observed that mistaken advice given by a legal practitioner might in the circumstances of a particular case give rise to sufficient cause within the meaning of Section 5 of the Limitation Act. One of such cases, according to the Privy Council, would be where the analogy of Section 14 of the Limitation Act applied and the Privy Council, therefore, observed that the analogy of Section 14 of the Limitation Act was an argument of considerable weight and that if that analogy applied, the party could be saved from the result of wrong advice given to him by a legal practitioner. The Privy Council thus did not lay down in this decision anything more than what was laid down in the previous decision of 19 Bom LR 866 : (AIR 1917 PC 156) (supra). The Privy Council thereafter considered the applicability of the analogy of Section 14 of the Limitation Act to the facts of the case and held that the respondents had very little reason to complain of the delay and the bona fides and diligence of the appellant could not be impugned and that the case was well within the principle previously acted on by the Privy Council in 19 Bom LR 866 : (AlR 1917 PC 156) (supra). It will be apparent from this discussion that all that the Privy Council laid down in this decision was that there is no general doctrine which saves parties from the results of wrong advice given by a legal practitioner but that if the analogy of Section 14 of the Limitation Act can be applied, that would be an argument of considerable weight and in such & case mistaken advice given by a legal practitioner would give rise to sufficient cause within the meaning of Section 5 of the Limitation Act. Whether the analogy of Section 14 of the Limitation Act would or would not apply if the mistaken advice given by the legal practitioner proceeds from negligence or want of due care and attention on the part of the legal practitioner was a matter which the Privy Council did not decide and did not consider it necessary to decide since they took the view that there was no negligence or want of due care and attention on the part of the counsel who gave advice to the appellant in the case before them. This decision does not, therefore, help the argument of the learned Advocate General and no reliance can be placed on this decision on behalf of the respondents.

12. In this connection I may refer to a decision of a Division Bench of the High Court of Bombay reported in Sitaram Pavaji v. Nimba, ILR 12 Bom 320. This decision provides a clear illustration of the principle laid down by the Privy Council in the aforesaid case of AIR 1937 PC 276. In this case one Nimba obtained a decree against one Sitaram as the heir and legal representative of his deceased uncle Vaman. The decree directed that the amount- adjudged should be recovered from the assets of the deceased in the hands of Sitaram. In execution of this decree certain property was attached, Sitaram objected to the attachment on the ground that the property attached was a joint family property of himself and the deceased Vaman and that upon Vaman's death without issue, the whole property passed to him by right of survivorship. Sitaram accordingly claimed the property as his own and contended that it was not liable to attachment and sale. The Subordinate Court disallowed the objection of Sitaram and passed an order on 20th November, 1880, confirming the attachment. In 1881, Sitaram filed a regular suit to set aside the order passed by the Subordinate Judge. The suit was ultimately dismissed in 1885 as barred by Section 244 of the Code of Civil Procedure, 1882. Sitaram thereupon filed an appeal from the order passed by the Subordinate Judge on 2oth November, 1880. The appeal was, however, rejected as barred by limitation and Sitaram ultimately brought a Second Appeal in the High Court contending that he had sufficient cause for not preferring the appeal within the period of limitation and that the delay, in filing the appeal should be condoned under Section 5 of the Limitation Act. West, J. delivering the judgment of the High Court held that the time spent by Sitaram in the actual proceedings in the suit to set aside the order in execution might properly be deducted in computing the delay that occurred before the appeal was filed, on the analogy of Section 14 of the Limitation Act. . But a deduction of the time that passed before the suit was filed could not follow that analogy. The learned Judge observed that 'mere ignorance of the law cannot be recognized as a sufficient reason for delay under Section 5 of the Act, for that would be a premium on ignorance'. Now though it is not stated in terms in this decision that Sitaram acted under mistaken advice of his lawyer in prosecuting the suit to set aside the order in execution, one might safely proceed on the assumption that Sitaram must have so acted under mistaken legal advice from his lawyer. This decision clearly shows that though Sitaram acted under mistaken advice of his lawyer, he could not be saved from the result of such mistaken advice under Section 5 of the Limitation Act. The analogy of Section 14 of the Limitation Act was applied but that helped to exclude only the time spent in the actual proceedings in the suit to set aside the order in execution and the time that passed before the suit was filed could not be excluded. It may be that if Sitaram had been given correct advice he would not have waited but would have immediately filed an appeal from the order in execution and that he waited upto 1881 for filing the suit only because of the mistaken, advice of his lawyer; but he could not be relieved of the delay upto the date of the filing of the suit for the analogy of Section 14 of the Limitation Act did not apply for deduction of that time. The High Court thus applied the same principle which was subsequently approved by the Privy Council in 19 Bom LR 866 : (AIR 1917 PC 156) and reiterated in AIR 1937 PC 276. Of course the question did not arise in this case whether the mistaken advice received by Sitaram from his lawyer was careless or negligent or whether the lawyer acted without due care and attention in giving such advice and the High Court assumed that the proceeding by way of suit to set aside the order in execution was prosecuted with due diligence and in good faith so that the time spent in such proceeding could be deducted on the analogy of Section 14 of the Limitation Act. This decision is, therefore, no authority; one way of the other, on the question whether an honest mistake on the part of a litigant occasioned by a mistaken advice given by a legal practitioner can afford a ground for relief under Section 5 of the Limitation Act even though the mistaken advice be careless or negligent or be attended with want of due care and attention on the part of the lawyer. This decision has, however, been referred to by me only as providing an illustration of a case where a party was held not to be saved from the result of wrong advice given by his lawyer because the analogy of Section 14 of the Limitation Act did not help to exclude the entire period necessary to be excluded in order to bring the case within the period of limitation.

13. The next decision to which I must refer is the one reported in Nrisingha Charan v. Trigunand AIR 1938 Pat 413. This decision is a decision of a Division Bench of the Patna High Court consisting of Dhavle and Manohar Lall, JJ. The facts of this case were very similar to the facts in : AIR1928Cal468 (supra), with only this difference that in this case the correct forum of appeal was the Court of the District Judge whereas the appellant under mistaken advice of his lawyer filed the appeal in the High Court. The High Court ordered the memorandum of appeal to be returned to the appellant for presentation to the proper Court and the appellant accordingly presented the memorandum of appeal to the Court of the District Judge, and applied for condoning the delay in presenting the memorandum of appeal within the period of limitation. The ground on which the application for condonation of delay was made was that the appellant bona fide acted on the advice of his lawyer in prosecuting the appeal in the High Court and that he had, therefore, sufficient cause within the meaning of Section 5 of the Limitation Act. It is obvious that if the analogy of Section 14 could be applied and the time taken up in prosecuting the appeal in the High Court could be excluded, the appeal in the Court of the District Judge would be within the period of limitation and under the general rule approved by the Privy Council in 19 Bom LR 866 : (AIR 1917 PC 156), that would constitute sufficient cause within the meaning of Section 5 of the Limitation Act. The question which, therefore, arose was whether the analogy Of Section 14 of the Limitation Act could be applied and the contention urged on behalf of the respondents was that that analogy could not be applied since the lawyer on whose advice the appellant acted was negligent and did not act with due care and attention in advising the appellant to file the appeal in the High Court. The District Judge upheld this contention urged on behalf of the respondents and took the view that the lawyer having acted without due care and attention, the appellant was not entitled to extension of time. The matter went in appeal to the High Court at the instance of the appellant. The High Court reversed the judgment of the District Judge and held that for the purpose of deciding whether there was or was not sufficient cause within the meaning of Section 5 of the Limitation Act what was required to be considered was good faith of the appellant and not good faith on the part of the lawyer who advised the appellant and if there was no negligence or inaction of want of bona fides on the part of the appellant, the appellant's case would come within the words 'sufficient cause' in Section 5 of the Limitation Act. Manohar Lall, J., observed after quoting a passage from the judgment of the District Judge :-

'This quotation from the judgment in appeal seems to indicate that the learned Judge was confusing the mala fides of the appellant with the carelessness or mala fide (as alleged) of the advocate for the appellant who advised him to file this appeal. In any opinion the learned Judge erred in law in refusing to extend the time under Section 5; Limitation Act. The duty of the appellant was over when he consulted a lawyer of the standing of Mr. S.N. Bose who admittedly is known as a careful advocate of this Court ............'

Dhavle, J., also made observations to the same effect when he stated:

'......... but I am unable to see how it can in any way lead to the conclusion that he acted without good faith in relying upon the advice of an advocate whose standing certainly entitled him to advise litigants........... '

'......... The question to which Court an appeal lies is such that legal advisers often differ in their opinion about it, as is shown by reported decisions from all the High Courts. It is also a question on which litigants have to be guided by the advice of their lawyers.....'

'The learned District Judge also did not advert to this aspect of the matter, nor did he refer to any ground worth the name for holding that the appellant had not proceeded bona fide in acting on the advocate's advice for the appeal. It is difficult to see what could be required of the appellant beyond consulting a legal practitioner of the standing of Mr. S. N. Bose, to find out the Court to which the appeal lay........'

These observations of the learned Judges clearly show that in their opinion nothing more could be required of the appellant beyond consulting a lawyer of the standing of Mr. S. N, Bose who was admittedly known as a careful advocate of that Court and that the appellant could not be said to have acted without good faith in relying upon the advice of such lawyer whose standing certainly entitled him to advice litigants. The learned Judges did not consider the question whether the lawyer acted negligently or without due care and attention in giving advice to the appellant as a material question and Manohar Lall, J., actually criticized the District Judge for confusing the mala fides of the appellant with the carelessness or mala fides of the lawyer. The learned Judges then proceeded to consider whether on the facts of the case the lawyer was negligent or acted without due care and attention in advising the appellant to file the appeal in the High Court and came to the conclusion that the view taken by the lawyer could not be said to be a view which no competent lawyer exercising reasonable care would take, and that the lawyer was; therefore, not guilty of negligence or want of good faith in advising the appellant as he did. This decision of the Patna High Court also thus supports the view which I am inclined to take and is an authority in support of the proposition contended for on behalf of the appellant.

14. Mr. S.B. Vakil also relied on a decision of a Division Bench of the High Court of Bombay reported in Sitaram Ramcharan v. Nagrashna : (1954)IILLJ703Bom . In this case the words which came. up for construction before the Court were the words 'sufficient cause' in Section 15 of the Payment of Wages Act. Now it is obvious that these words must have the same meaning in the Limitation Act as they have in the Payment of Wages Act and this decision would, therefore, be very much relevant if it decides the point which has arisen for consideration before me. But I am afraid this decision does' not assist me since the question which has arisen before me was not before the Court in this decision and no reliance can, therefore, be placed on this decision by either party. What happened in this case was that some of the employees of the Watch and Ward Department of two Mills in Ahmedabad, made an application, under Section 15(2) of the Payment of Wages Act; for condonation of delay in filing their application for payment of delayed wages. The ground which they pleaded for not making the claim within time was ignorance of legal provisions, namely Section 70 of the Bombay Shops and Establishments Act, 1948, which gave them the right under Section 50 of the Factories Act, 1048, to clam) these wages. The Authority under the Payment of Wages Act dismissed the application for condonation of delay after considering the legal authorities and after taking the view that on correct legal principles ignorance of the party's rights could not constitute sufficient cause for delay in making the application. The matter was taken in appeal to the High Court. A Division Bench of the High Court consisting of Chagla, C. J. and Dixit, J. held that the Authority under the Payment of Wages Act had rightly refused to entertain the application since the employees had no sufficient cause for not presenting the application in time. Chagla, C. J., delivering the judgment of the High Court observed, following the statement of the principle in the decision of the Madras High Court in Krishna v. Chathappan, ILR 13 Mad 269 that the words 'sufficient cause' should receive a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant. The learned Chief Justice then drew a distinction between ignorance of law resulting in inaction and mistake of law resulting in taking proceedings in a wrong tribunal or before a wrong forum and stated that the principle that ignorance of law cannot be recognized as sufficient reason for delay must be applied only to those cases where a party takes no action to assert his rights because he does not know his rights, and should not be applied to cases where a party knowing his rights asserts them but asserts them in a wrong tribunal or before a wrong forum through a mistaken notion of what the law is. Since in the case before them the delay in filing the application was occasioned on account of ignorance of law resulting in inaction on the part of the employees, the learned Chief Justice held applying the above principle that there was no sufficient cause for the employees not presenting the application in time and that the Authority under the Payment of Wages Act was, therefore, right in rejecting the application of the employees for condonation of delay in filing their application under Section 15 of the Payment of Wages Act. All that this authority, therefore, decided was that where a party does not take any action to assert his rights because of ignorance of law as a result of which he does not know his rights, the cause for the delay in taking action cannot be said to be 'sufficient cause' within the meaning of those words in Section 5 of the Limitation Act and Section 15 of the Payment of Wages Act. But this principle cannot apply to a case where a party knowing his rights asserts them but asserts them in a wrong tribunal or before a wrong forum through a mistaken view of the law. The Court in this case did not have to decide the question as to how far and in what circumstances delay occasioned by reason of a party asserting his rights in a wrong tribunal or before a wrong forum through mistake of law can be excused under Section 5 of the Limitation Act or Section 15 of the Payment of Wages Act, for the case before the Court was of a party failing to take action at all as a result of ignorance of his rights and not of a party taking action in a wrong tribunal or before a wrong forum through a mistake of law. This decision is, therefore, no authority for the proposition that the time taken up in prosecuting proceedings in a wrong tribunal or before a wrong forum in reliance on mistaken advice given by a lawyer should be excluded on the analogy of Section 14 of the Limitation Act even though such mistaken advice may be the result of negligence or want of due care and attention on the part of the lawyer. The same answer must apply also to the decision of Shelat. J., in Civil Application No. 316 in Civil Revision Application No. 733 of 1058 relied on by Mr. S. B. Vakil. Of course the question in that case was much more directly connected with the question before me inasmuch' as the delay in filing the Revision Application before the High Court was occasioned by reason of the applicant adopting proceedings in the wrong Court or before the wrong forurn on account of mistaken advice given to him by his lawyer as regards the forum of appeal. No contention was, however, advanced in that case that the mistaken advice given to the applicant by his lawyer proceeded from negligence or want of due care and attention on the part of the lawyer and that the time taken up in prosecuting proceedings in the wrong Court or before the wrong forurn should not, therefore, be excluded in determining whether there was sufficient cause for condonation of delay within the meaning of Section 5 of the Limitation Act. The argument, it appears, proceeded on the assumption that if there was a mistake of law as to the forum of appeal as a result of erroneous advice given by a lawyer and the appellant prosecuted proceedings in the wrong Court or before the wrong forum as a result of such mistake of law, the delay occasioned due to the prosecution of such proceedings would constitute sufficient cause within the meaning of Section 5 of the Limitation Act, whether or not the lawyer acted with due care and attention in giving such erroneous advice. This decision of Shelat, J., also does not, therefore, help me in deciding the present controversy between the parties.

15. As against these authorities cited by Mr. S.B. Vakil, in support of the contention urged on behalf of the appellant, the learned Advocate General relied on a decision of the Punjab High Court reported in Sarmukh Singh v. Chanan Singh, . Now it is true that this decision does lay down that a litigant seeking relief under Section 5 of the Limitation Act on the ground of mistaken advice of a lawyer in filing an appeal in wrong Court must place material before the Court from which it is possible to deduce that the lawyer acted in 'good faith', in other words, 'with due care and attention' and that a mistake due to negligence or misconduct or want of reasonable skill on the part of the lawyer 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 I am afraid this decision cannot be accepted by me as laying down the correct law on the point. This decision, is mainly based on a mis-reading of the decision of the Privy Council in and docs no more than follow a previous decision of the Punjab High Court in Dina Nath v. Munsi Ram . As pointed out by me above, the decision of the Privy Council in , does not lay down that in order to give rise to sufficient cause within the meaning of Section 5 of the Limitation Act, the mistaken advice must have been given by the lawyer in good faith i. e., with due care and attention and that if the lawyer did not act in good faith i. e., with due care and attention in giving the mistaken advice, the analogy of Section 14 of the Limitation Act cannot be invoked so as to make out sufficient cause within the meaning of Section 5 of the Limitation Act. It is therefore apparent that no support could really be derived by the Punjab High Court from this decision of the Privy Council for taking the view that unless it is shown that the lawyer acted in good faith i. e., with due care and attention in giving the mistaken advice, the litigant acting on the mistaken advice cannot obtain relief under Section 5 of the Limitation Act. It must also he mentioned that this decision of the Punjab High Court has not discussed the question on first principle nor has it considered the decision of the Privy Council in 21 Bom LR 1148 : (AIR 1918 PC 135) which in my view considerably supports the contention urged on behalf of the appellant. I must, therefore, with the greatest respect to the learned Judges of the Punjab High Court decline to follow this decision.

16. But before I part with this point, I must refer to one other decision relied on by the learned Advocate General and that is the decision reported in Bhausaheb Jamburao v. Sonabai, 48 Bom LR 97 : (AIR 1946 Bom 437). The delay which was sought to be excused in that case was the delay in applying for certified copies of the judgment and decree appealed from and this delay was occasioned by the erroneous advice received by the appellant from his advocate. The Court in considering the question whether there was sufficient ground for excusing the delay in filing the appeal, relied on the decisions of the Privy Council in 21 Born LR 1148 : (AIR 1918 PC 135) and and after quoting the following passage from the judgment of the Privy Council in the latter decision, namely:-

'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, though there is certainly no general doctrine which saves parties from the results of wrong advice.'

Observed that on the facts of the case 'the learned advocate on behalf of the appellant believed in good faith that on the headnote in Balappa Tammanna v. Dyamappa Bhusappa, 42 Bom LR 872 : (AIR 194O Bom 415) his client was entitled to the period between the passing and the signing of the decree' and that there was, therefore, sufficient cause for excusing the delay in filing the appeal. The learned Advocate General contended that this clearly showed that according to the learned Judges who decided this case the true interpretation of the decision of the Privy Council in was that the lawyer who gave advice to the appellant must have acted in good faith i.e. with due care and attention and that is why they proceeded to consider whether the lawyer believed in good faith that the appellant was entitled to the period between the passing and the signing of the decree. This contention is, I am afraid, devoid of any merit. The learned Judges no doubt observed that the advocate on behalf of the appellant believed in good faith that the appellant was entitled to the period between the passing and the signing of the decree and that, there was, therefore, sufficient cause to excuse the delay in filing the appeal; but from that it does not follow that in the opinion of the learned Judges it was necessary that the lawyer should have acted in good faith in advising the appellant that the appellant was entitled to the period between the passing and the signing of the decree or that if the lawyer did not act in good faith, the appellant would not have been entitled to be relieved against the delay in filing the appeal. The learned Advocate General is, in my opinion, trying to read much more in this decision than what the language or the context warrants.

17. The following propositions clearly emerge from the aforesaid discussion of the authorities and they may be briefly summarised as follows:-

(1). ignorance of law resulting in inaction on the part of a litigant to assert his rights of which he has no knowledge as a result of such ignorance does not constitute sufficient cause within the meaning of Section 5 of the Limitation Act, (56 Bom LR 930 : (AIR 1954 Bom 537) )

(2) The true guide for the Court in the exercise of its discretion under Section 5 of the Limitation Act is whether the appellant has acted with reasonable diligence in prosecuting his appeal and the appellant ought ordinarily be deemed to have acted with reasonable diligence if the whole period between the date of the decree or order appealed against and the date of presenting the appeal does not, after excluding the time spent in prosecuting with due diligence and in good faith another proceeding in a wrong tribunal or before a wrong forum, exceed the period prescribed by law for presenting the appeal. The time spent in prosecuting with due diligence and in good faith another proceeding in a wrong tribunal or before a wrong forum would be liable to be excluded on the analogy of the principle embodied in Section 14 of the Limitation Act and if after excluding such time the appeal is within the period of limitation, that would constitute sufficient cause within the meaning of Section 5 of the Limitation Act. (183 Pun Re 1888; 19 Bom LR 866 : (AIR 1917 PC 156); 21 Bom LR 1148 : (AIR 1918 PC 135) and .)

(3) If the appellant has prosecuted another proceeding in a wrong tribunal or before a wrong forum in reliance on mistaken advice given to him by his lawyer, the appellant would fall within the general rule embodied in the last mentioned proposition even though the mistaken advice given by the lawyer was careless or negligent and the lawyer did not act in good faith i. e., with due care and attention in giving such mistaken advice; provided of course the appellant acted diligently and in good faith i.e., with due care and attention in consulting the lawyer, seeking advice from him and prosecuting the other proceeding in reliance on such advice. (21 Bom LR 1148 : (AIR 1918 PC 135); 23 Bom LR 89 : (AIR 1921 Bom 302); : AIR1928Cal468 and AIR 1938 Pat 413.) If after excluding the time spent in prosecuting with due diligence and in good faith another proceeding in a wrong tribunal or before a wrong forum, the period between the date of the decree or order appealed against and the date of presenting the appeal exceeds the period prescribed by law for presenting the appeal or the delay in presenting the appeal has not arisen by reason of prosecution of another proceeding in a wrong tribunal or before a wrong forum and the principle embodied in Section 14 of the Limitation Act, therefore, does not apply, but the appellant has acted under mistaken advice given to him by his lawyer or has himself committed a mistake of law, a question may well arise whether the appellant in such a case can be said to have sufficient cause for not presenting the appeal within the prescribed period. Such question has, however, not arisen before me and nothing that I have said in this judgment must be deemed to conclude such question.

18. Having regard to the aforesaid principles, it is clear that in the present case the appellant had sufficient cause for not presenting the appeal within the period of limitation. The appellant has stated on oath that he preferred the appeal in the District Court under the advice of two lawyers namely, Shri Premchand v. Shah and Shri J.D. Pandya. Shri Premchand v. Shah has also made an affidavit stating that both he and Shri J.D. Pandya bona fide advised the appellant to file the appeal in the District Court. The Memorandum of appeal also gives the reasons for filing the appeal in the District Court and is signed both by Shri Premchand v. Shah and Shri J.D. Pandya. It is not disputed before me that Shri Premchand v. Shah and Shri J.D. Pandya are senior lawyers of considerable standing and repute and of them Shri Premchand v. Shah is at present the Government Pleader attached to the City Civil Court and Sessions Court in Ahmedabad. I do not see how the appellant can be accused of want of good faith meaning thereby want of due care and attention in filing the appeal in the District Court in reliance on the advice of Shri Premchand v. Shah and Shri J.D. Pandya. The appellant certainly acted with due care and attention in taking the advice of two senior lawyers like Shri Premchand v. Shah and Shri J.D. Pandya as regards the forum of appeal. These two lawyers were certainly two of the most competent lawyers whose status entitled them to give advice to litigants in regard to the forum of appeal and if the appellant acted on their advice and filed the appeal in the District Court, it is difficult to see how the appellant can be said to have acted without due care and attention. It may be that these two lawyers acted without due care and attention in giving advice to the appellant to file the appeal in the District Court but that is, to my mind, a circumstance entirely irrelevant for the purpose of considering whether the appellant acted in good faith in prosecuting the appeal before the District Court. If regard be had to the dates, it is clear that the appellant acted with due diligence in prosecuting the appeal right upto the stage when the appeal was presented to the High Court. The period for filing the appeal in the District Court was thirty days while the period for filing the appeal in the High Court was ninety days. The appellant filed the appeal in the District Court within the shorter period of thirty days prescribed for filing appeals to the District Court. It is not alleged that the appellant was guilty of any delay in prosecuting the appeal after it was filed in the District Court. The District Court held on 7th January, 1961, that the proper forum of appeal was the High Court and not the District Court and accordingly ordered the memorandum of appeal to be returned to the appellant for presentation to the proper Court. The memorandum of appeal was actually returned to the appellant on 9th January, 1961 and on the same day it was filed by the appellant in the High Court. The appellant thus prosecuted the appeal before the District Court with the the diligence and in good faith and if the time taken up in prosecuting the appeal before the District Court, namely, the period between 31st July, 1959 and 9th January, 1961, is excluded, the appeal to the High Court would be within the period of limitation. The appellant's case, therefore, clearly falls within the second and third propositions set out above and the appellant must consequently be held to have sufficient cause for not presenting the appeal within the period of limitation and the delay in filing the appeal must be excused under Section 5 of the Limitation Act.

19. In this view of the matter it is not necessary for me to consider the second question, namely, whether the two lawyers of the appellant, namely, Shri Premchand v. Shah and Shri J.D. Pandya acted without due care and attention in advising the appellant to file the appeal in the District Court. But if it were necessary for me to decide this question, I would come to the conclusion that they did not act without due care and attention having regard to the facts and circumstances of the present case. There were as I have pointed out above three reliefs claimed in the plaint. The first relief was for setting aside the oral patition alleged to have been made between the appellants and Jagabhai and for partition of the movable and. immovable properties which according to the appellant belonged to the appellant on the one hand and the respondents on the other as tenants in common with equal shares. This relief was valued in the plaint at Rs. 200/- for the purpose of Court-fees. The second relief was claimed by the appellant in the alternative to the first relief and that relief was claimed on the basis that the properties which belonged to Jesingbhai at the time of his death were joint family properties and Jesingbhai had of right to make a will in respect of the same. The appellant, therefore, by this relief claimed partition of the movable and immovable properties belonging to the Joint family of the appellant and the respondents save and except these properties which had already been partitioned between the appellant and Jagabhai. This relief was also valued in the plaint at Rs. 200/-for the purpose of Court-fees, The third relief was in respect of the shares which according to the appellant were his sole and exclusive property but which were wrongfully detained by the respondents. The appellant valued this relief also at Rs. 200/for the purpose of Court-fees. Now so far as the valuation for jurisdiction was concerned it was put at Rs. 75,000/- in a lump sum without allocating it amongst the three different reliefs claimed in the plaint. In this state of the matter Shri Premchand v. Shah and Shri J.D. Pandya had to decide to which forum the appeal would lie. It is obvious from what is Stated in the memorandum of appeal filed in the District Court that these two lawyers took the view that the total valuation for the purpose of Court-fees being Rs. 400/-, the same valuation most also govern for the purpose of jurisdiction by reason of the provisions of Section 8 of the Suits Valuation Act and taking this view they advised the appellant to file the appeal in the District Court. The question which I must Consider in these circumstances is whether the view taken by these two lawyers was a view which a competent lawyer exercising reasonable care and skill might take. Now considering the first relief, can it be said that it was an unreasonable view on the part of these two lawyers to take that this relief was valued under Section 7(iv)(c) of the Court-fees Act? This relief, as I have pointed out above, was for a declaration that the oral partition between the appellant and Jagabhai was not binding on the appellant and for partition of the movable and immovable properties belonging to the appellant and the respondents. These two lawyers it appears took the view that this relief was a relief of declaration together with the consequential relief of partition and that it, therefore, fell within Section 7(iv)(c) of the Court-fees Act, It may be that this view was not a correct view but the question is not whether this view was wrong or right. The question is : was it or was it not a view which might reasonably be taken? Tested by. this criterion, I have no doubt that the view taken by these two lawyers that the first relief fell within Section 7(iv)(c) of the Court-fees Act was a reasonable view which a competent lawyer exercising due care and skill might take. It was a question of construction and if these two lawyers took that particular view, I cannot say that they were guilty of negligence or want of due care and attention .The construction which appealed to them as a reasonable construction might not appeal to the Court and the Court might take the view that the construction adopted by them was not a correct construction. But as I said before, some questions may appear to be so entirely free from doubt to one person that only one opinion is possible and yet another may equally well come to a different conclusion. Now if the first relief; was governed by Section 7(iv)(c) of the Court-fees Act, it is obvious that the valuation for the purpose of Court-fees must also be the valuation for the purpose of jurisdiction under Section 8 of the Suits Valuation Act and the valuation for the purpose of Court-fees being Rs. 200/- the same figure must represent the valuation for the purpose of jurisdiction. Turning to the second relief can it be said that these two lawyers acted unreasonably in taking the view that this relief fell within Section 7(vi-a) of the Court-fees Act? This relief was, as is clear from paragraph II of the plaint, claimed on the basis that the movable and immovable properties which were in the possession of Jesingbhai at the time of his death were joint family properties and that Jesingbhai had no right to make a will in respect of the same. What was claimed by this relief was partition of the movable and immovable properties which belonged to the appellant and respondents as joint family properties and the appellant by this relief claimed to enforce his right . to a share in these movable and immovable properties on the ground that they were joint family properties. These two lawyers could not, therefore, be said to have acted without due care and attention in taking the view that this relief was valued under Section 7(vi-a) of the Court-fees Act and if that was so, it is obvious that the valuation of this relief for the purpose of jurisdiction must be the same under Section 8 of the Suits Valuation Act. The valuation of this relief for the purpose of Court-fees being Rs. 200/-, these two lawyers could not be said to have acted Unreasonably in considering that the valuation of this relief for the purpose of jurisdiction must also be Rs. 200/-. So far as the third relief is concerned, this was a relief claimed in respect of the shares which according to the appellant belonged to him as his sole and exclusive property. This relief, therefore, clearly fell within Section 7(iii) of the Court-fees Act. Now this relief was valued at Rs. 200/- for the purpose of Court-fees and under Section 8 of the Suits Valuation Act it had to be valued at the same amount for the purpose of jurisdiction. It may be that this relief was grossly undervalued for the purpose of Court-fees and it does appear that it was so grossly undervalued but I do not see how these two lawyers could have taken upon themselves to decide that this relief was grossly undervalued and that they should, therefore, take into account the correct valuation and value this relief for the purpose of jurisdiction according to the correct valuation and file the appeal in the High Court on the basis of such correct valuation. Issue No. 22 was raised in the trial Court as regards the correct valuation of the plaint for the purposes of Court-fees but unfortunately this issue was not answered by the trial Court. If this issue had been answered by the trial Court against; the appellant on the basis of the evidence led before it, it could have been contended with great force that the correct valuation of the plaint for the purpose of Court-fees being over Rs. 10,000/- as contended by the respondents the valuation for the purpose of jurisdiction was also over Rs. 10,000/- and that no lawyer could, therefore, have advised the Appellant to file the appeal in the District Court. But Issue No. 22 not having been decided by the trial Court, the valuation put on the various reliefs in the plaint remained as it was and so long as this valuation remained, I do not see how these two lawyers could be said to have acted unreasonably in taking the view which they did. . In the absence of any judicial, determination of the question of valuation for the purpose of Court-fees, it would have been an wise and unsafe on the part of these two lawyers to have taken the view that on the evidence recorded in the case, the correct valuation for the purpose of Court-fees was more than Rs. 10,000/-and if the correct valuation for the purpose of Court-fees, was more than Rs. 10,000/-, the correct valuation for the purpose of jurisdiction was also more than Rs. 10,000/- and that the appeal, therefore, lay to the High Court and not to the District Court. These two lawyers could not be expected to arrogate to themselves the function which the. trial Court declined to perform. I cannot say under these circumstances that these two lawyers acted unreasonably in taking the valuation for the purpose of Court-fees at the amount put upon the various reliefs in the plaint and ascertaining the valuation for the purpose of jurisdiction at the same amount. It is no doubt true that the valuation for the purpose of jurisdiction put in the plaint was Rs. 75,000/-. But if the valuation put upon the various reliefs in the plaint for the purpose of Court-fees aggregated to Rs. 400/- and the various, reliefs claimed in the plaint fell within Sections 7(iii) 7(iv)(c) and 7(vi-a) of the Court-fees Act, the valuation for the purpose of jurisdiction had to be Rs. 400/- by reason of the provisions of Section 8 off the Suits Valuation Act. These two lawyers, therefore, in my opinion, did not act unreasonably or without due care and attention in taking the valuation for the purpose of jurisdiction at Rs. 400/- and advising the appellant to file the appeal in the District-Court on that basis. These two lawyers acted in good faith in advising the appellant in the manner they did and it, is, therefore, clear that even if the view which I have taken above is wrong and the view accepted in the decision of the Punjab High Court is correct, it must be held that the appellant had sufficient cause for not presenting the appeal within the period of limitation and that the delay in filing the appeal must be excused under Section 5 of the Limitation Act.

20. In the result I allow the application and condone the delay in filing the appeal under Section 5 of the Limitation Act; The appellant will pay the costs, of the application to the respondents.


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