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State of Rajasthan Vs. Ramnath and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtRajasthan High Court
Decided On
Case NumberFirst Appeal Nos. 70, 85 and 86 etc. of 1970
Judge
Reported inAIR1972Raj161; 1971(4)WLN137
ActsLimitation Act, 1963 - Sections 5
AppellantState of Rajasthan
RespondentRamnath and ors.
Appellant Advocate Raj Narayan, Addl. Adv. General
Respondent Advocate S.N. Mehta, Adv.
DispositionAppeals dismissed
Cases ReferredIn General Accident Fire and Life Assurance Corporation Ltd. v. Janmahomed Abdul Rahim
Excerpt:
.....herself and the last date continued to be mentioned in the correspondence from the office of the legal remembrancer.;the mistake committed by the department (office of the legal remembrancer) or the office of the government advocate was without any real excuse. the facts and circumstances of the case do not give rite to a sufficient cause which may entitle the appellant for extension of time. all of them do not appear to have acted with due care and attention. - - the sanction for filing the appeals was received telegrahpically by the government advocateon 16th march 1970 and in that telegram as well it was indicated that limitation was expiring on 17th march. the mistake occurred is entirely without any real excuse and it cannot be said to be done in good faith. the test, therefore,..........letter dated 4-2-1970 (annexure 3) the legal remembrancer directed the local government advocate shri shrigopal bhargava to send the record of the cases to the government advocate jodhpur and to contact him for expression of opinion. this letter also states that the limitation expires on 17-3-1970. it is further borne out from the affidavit that shri shrigopal bhargava came to jodhpur and contacted shri kajnarain munshi government advocate to whom these cases were marked for opinion on 8th march 1970. after having decided that they were fit cases for appeal shri munshi dictated the memo of appeal on 9th march 1970 to the deponent shri anil kumar bohra in one case. the sanction for filing the appeals was received telegrahpically by the government advocateon 16th march 1970 and in that.....
Judgment:

Jain, J.

1. The question involved m Appeal No. 70/70 and four connected appeals is as to whether the appellant had sufficient cause for not preferring the appeals within the period of limitation.

2. These five appeals were presented by Shri S. N. Bhargava, Deputy Government Advocate at 11-45 P. M. at the residence of the Deputy Registrar (Judicial) on 16-3-1970. These appeals were directed against the decrees dated 29-11-1969 passed by the Additional District & Sessions Jiidge, Dholpur in five civil suits pending against the State. The office pointed out that these appeals were late by two days. That is, the appeals should have been filed on or before 14th March, 1970. On behalf of the State, applications under Section 5 of the limitation Act were submitted on16th July, 1970 In each case. The applications were accompanied by an affidavit of Shri Anil Kumar Bohra, Stenographer in the office of the Government Advocate, Jodhpur. Copies of five documents were also produced. We have marked them as Annexure 1 to Annexure 5 for the sake of convenience.

3. The first three cases were admitted subject to objection as regards limitation and notices were issued to the respondents. In the last two cases notices were issued to the respondents to show cause against the application under Section 5 of the Limitation Act. The respondent in each case filed the reply supported by an affidavit. It was stated by each one of them that there was no sufficient cause to entitle the appellants for the extension of the period of limitation. An additional affidavit of Purushottam Nath Mathur, a legal assistant in the Legal Affairs Department of the Secretariat of the Government of Rajasthan, Jaipur was submitted on behalf of the State on 13th January, 1971 one day before the date fixed for the hearing of the application.

4. We have heard learned counsel for the parties. According to the affidavit of Shri Anil Kumar Bohra, it appears that by letter dated 15-1-70 (Annexure 1) the Government Advocate, Jodhpur was requested to send his opinion if the cases were fit for appeal. The certified copies of the judgments and decrees were sent to him. It was also mentioned in that letter that limitation in these cases for filing appeal was upto 17-3-70. This letter though appears to be from the Legal Remembrancer of the Government of Rajasthan, Jaipur, but it is signed by one Section Malhotra who is Legal Draftsman III in reply to the above letter, the Govt. Advocate by his letter dated 28th January 1970 (Annexure 2) wrote back to the Legal Remembrancer that he has not received the record of the case. He however acknowledged the receipt of the certified copies of the judgments and decrees but asked the department to send extra typed copies. By another letter dated 4-2-1970 (Annexure 3) the Legal Remembrancer directed the local Government Advocate Shri Shrigopal Bhargava to send the record of the cases to the Government Advocate Jodhpur and to contact him for expression of opinion. This letter also states that the limitation expires on 17-3-1970. It is further borne out from the affidavit that Shri Shrigopal Bhargava came to Jodhpur and contacted Shri Kajnarain Munshi Government Advocate to whom these cases were marked for opinion on 8th March 1970. After having decided that they were fit cases for appeal Shri Munshi dictated the memo of appeal on 9th March 1970 to the deponent Shri Anil Kumar Bohra in one case. The sanction for filing the appeals was received telegrahpically by the Government Advocateon 16th March 1970 and in that telegram as well it was indicated that limitation was expiring on 17th March. These are annexures 4 and 5. It was submitted on behalf of the State that it was honestly believed that the limitation for filing the appeals was upto 17th March 1970. It has, however, been stated in the affidavit that while these appeals were being typed Shri Anil Kumar Bohra made the calculation by himself from the endorsements of the Judgments and decrees on the certified copies and found that the appeals should have been filed on the 14th of March, 1970 and the delay has occurred of two days in each case. Shri Rajnarain Munshi was informed of this on telephone, on which Shri Anil Kumar was instructed by him to submit the appeals on the same day before 12 in the night. Thus the entire case of the appellants is that on account of the mention in the correspondence from the office of the Legal Remembrancer they were under the bona fide impression that the limitation was to expire on 17th March, 1970. It is admitted before us that the Government advocate did not himself make the calculation from the endorsement of the certified copies of the judgments and decrees even though the certitied copies were received by him in January, 1970 along with Annxure 1.

5. On behalf of the respondents it is stated that the letter dated 15th January 1970 (Annexure 1) is signed by Section Malhotra, Assistant Legal Remembrancer III. It cannot therefore, be said that it was the opinion of the Legal Remembrancer. Next it was contended that there was no ambiguity about the last date for filing the appeal. Even the stenographer attached to the Government Advocate could calculate the last date for filing the appeal as is borne out from his affidavit and in any event it has not been explained as to who committed the error and how the error crept in, in the calculation of the period of Limitation. The mistake occurred is entirely without any real excuse and it cannot be said to be done in good faith. The second affidavit of Purushottam Nath Mathur revealed that it was the deponent who made the calculation and round that the appeal could be filed upto 17th March, 1970. He prepared the note to this effect. It is further deposed by him that it was approved by the assistant Legal Draftsman III who signed the letter dated 15-1-1970 (Annexure 1) and all other correspondence. In para 6 of this affidavit he has made an attempt to explain how he calculated the period. This attempt, in our opinion, shows his utter carelessness. It runs to this effect:--

'It is submitted that while calculating the number of days taken in the preparation of the certified copies and Judgment and decree-sheet I, by mistake, calculatedthat period from 29th November, 1969 to 16th November, 1969 which period comes to 18 days and after adding this period of 18 days to the prescribed period of 90 days, I noted down in my said note 17th March, 1970 as the last date for filing an appeal in the matter.'

The period mentioned in this from '29th November 1969 to 16th November, 1969' renders the explanation entirely meaningless. It rather shows how careless he is in giving this affidavit. There is no affidavit of Miss Section Malhotra, Assistant Legal Draftsman III on record and it cannot, therefore, be said that she applied her mind in making and approving of the calculation made by Purshottam Nath Mathur, a legal assistant in the office,

6. The existence of 'sufficient cause' is a condition precedent for the exercise of the discretion under Section 5 of the Limitation Act. The expression 'sufficient cause' is not defined, but it has been held that it must mean a cause which is beyond the control of the party invoking the aid of the section. A cause for delay which by due care and attention, the party could have avoided cannot be a sufficient cause. The test, therefore, whether or not a cause is sufficient is to see whether it could have been avoided by the party by the exercise of due care and attention, in other words, whether it is a bona fide cause, inasmuch as nothing shall be deemed to be done bona fide or in good faith which is not done with due care and attention. It is also well settled that subject to the above test, the words 'sufficient cause' should receive liberal construction so as to advance substantial justice.

7. In the present case it is only the Legal assistant who calculated the period of limitation from the endorsements in the certified copies of the judgments and decree-sheets and according to his calculation, he thought that 17th March, 1970 was the last date by which these appeals could be filed. His note passed through the Assistant Legal Draftsman III. As already noticed, there is nothing on record to show that the Assistant Legal Draftsman made the calculation by herself and the last date continued to be mentioned in the correspondence from the office of the Legal Remembrancer. It is admitted that the Government Advocate received the certified copies of the judgments and decrees in all the five cases sometime in January, 1970. No advice was sought from him as regards the last date of limitation. He also did not choose to verify from the certified copies. It is thus obvious that the calculations were not made with due care and attention by any responsible officer. From the affidavit of Shri Anil Kumar it appears that by a simple calculation while he was preparing the appeals for submission, he could find out that the last date of limitation was 14th March, 1970. It is further borne out from the affidavits that the office of the legal remembrancer accorded sanction for filing the appeals on 16th March, 1970 itself and they informed the Government Advocate by a telegram. It is thus more than clear that the mistake committed by the Department (office of the Legal Remembrancer) or the office of the Government Advocate was without any real excuse. The facts and circumstances of the case do not give rise to a sufficient cause which may entitle the appellant for extension of time. All of them do not appear to have acted with due care and attention.

8. Shri Rajnarain, learned Additional Advocate General has placed reliance on State of U. P. v. Pt. Brij Mohan Narain Kaul, 1958 All LJ 119. In that case it appears that the Legal Remembrancer to the State Government sent the telegram to the Collector directing him to file the appeal and at the same time informing him that the period of limitation was to expire on 24th November, 1956. The appeal was then filed on 24th, but on calculation by the office of the High Court it was found that the period of limitation actually expired on 23rd November. The learned Judge of the Lucknow Bench held that the mistake was evidently a bona fide mistake inasmuch as the appellant was entitled to rely on the information of the Legal Remembrancer which subsequently turned out to be incorrect. According to the learned Judge, this was a good ground for condoning the delay. As to whether in a particular case there is sufficient cause or not is a question of fact and a decision in one case cannot be an authority for another case. Apart from this, in the Lucknow case, it was the legal Remembrancer who informed the Collector about the last date of limitation, whereas in the present case, it is admitted that it was the Legal Assistant who calculated and decided the last date of limitation as 17th March, 1970. The matter was never considered by the Legal Remembrancer or any of his subordinate officers. The basis of the information was thus admittedly the calculation of a clerk. Again, in that case the information was given to the collector who cannot be said to be so much acquainted with the law as a practising lawyer. In the present case, the appeals were filed by the Government Advocate and the certified copies of the judgments and decrees were received by him as early as January, 1970 when he was requested to give his opinion. Though the opinion was not solicited as regards limitation, but he would have been well advised if he could verify the information as regards the last date of limitation by himself, but it was not done. Thus the decision in 1958 All LJ 119 is of no help in the present case.

9. In Soneswar (Das) Pandit v. Kanakram, AIR 1928 Cal 249, Rankin, J., for the Court observed:

'I do not quite understand that; but my view is, looking at this matter for myself, that what has happened is that from the ordinary point of view the mistake has been made without any real excuse. In these circumstances I am not prepared to hold that there was sufficient cause under Section 5, Limitation Act. I would be very much against laying down a wide and general rule as to the construction of Section 5. I think the discretion of the Court has to be exercised on all the facts in each particular case.'

10. Thus the case has to be decided as to the existence of sufficient cause with regard to the facts and circumstances of each case.

11. Learned Additional Advocate General has also placed reliance on the un-reported decision of this Court, Badrinarain v. Indernath, Civil First Appeal No. 19 of 1959 decided on 25-4-1960 (Raj). In that case the Senior Civil Judge, Jaipur City dismissed an appeal under Order 17, Rule 3, C. P. C. on 3rd October, 1958. Instead of filing a further appeal, the party was advised to present an application for restoration. The restoration application was dismissed on 8th January, 1959. He was again advised to file an appeal against that Order which was eventually dismissed on 13th July, 1959. Then on 16th, July 1959, he presented the appeal and claimed extension of time under Section 5 and 14 of the Indian Limitation Act on the ground that all the time he was acting bona fide pursuing the remedy which he was advised to pursue by a counsel of standing. In these circumstances the Division Bench held in pursuing the remedy he acted bona fide under the advice given by a leading advocate. From the facts narrated above, it will appear that this decision has got no application to the facts of the case in hand. In the instant case, no advice of a lawyer was sought. The office of the Legal Remembrancer did not seek the opinion of the Government Advocate on the point. Thus no case of bona fide advice is involved. The mistake, as indicated above, has happened not on account of a bona fide advice but on account of want of due care and attention.

12. In Khajeh Habibullah v. Abdul Karim, AIR 1933 Cal 462, an appeal was filed out of time by two days. The explanation given for the delay was that in accordance with the long standing practice the clerk of the Government Pleader's office inquired of the stamp reporter as to the last day for filing the appeal, and believing in good faith his calculation to be correct the appeal was filed. It was observed by the Learned Judges of the Calcutta High Court, 'Now it may be stated at once that neither the stamp reporter noranybody attached to his office is under any obligation to inform litigants or their advisers as to the last dates for filing appeals in this Court.' The litigant or his legal advisers (in this case the Senior Government Pleader or the Assistant Government Pleader) is responsible for making calculations of the nature referred to above and no one can be allowed to fasten responsibility on any of the clerks attached to the office of the stamp reporter in cases of this description. The mistake such as it was, was not of the legal adviser or his clerk but of somebody else who is in no better position than the man in the street. We have very carefully considered the submission made by the Senior Government Pleader, but it strikes us that this is not a case for the exercise of our discretion under Section 5 Limitation Act.

13. We are in respectful agreement with the view taken in the Calcutta case referred to above. In the present case Purshottam Nath Mathur was not the right person to take the decision about the last date of limitation and if everybody else acted upon his note, it cannot be said that they acted in good faith.

It has also been submitted before us that the appeals involve matters of great importance and if the appeals are dismissed, the decrees will go unchallenged and it will cause great hardship. In General Accident Fire and Life Assurance Corporation Ltd. v. Janmahomed Abdul Rahim, AIR 1941 PC 6, the Board has laid down that the Limitation Act ought to receive such a construction as the language in its plain meaning imports. The rule must be enforced even at the risk of hardship to a particular party. The Judge, cannot, on equitable grounds enlarge the time allowed by the law, postpone its operation, or introduce exceptions not recognised by it. In this view of the Law, we regret we are unable to help the appellants.

14. In our considered opinion, no case of sufficient cause has been made out by the appellants and we have no alternative but to dismiss the five appeals as out of time. Accordingly the appeals are dismissed. A copy of this order will be attached in each case.


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