1. The appellant is a merchant living in Bezwada. In September, 1935, he entered into two contracts with the respondent, a merchant of Nandyal: In April, 1936, appellant, alleging that the contracts had been broken by the respondent, filed a suit for damages against him in the Court of the District Munsiff of Bezwada. In his written statement respondent pleaded, amongst other contentions, that one of the terms of the contracts themselves was that all suits arising out of them should be filed only in Nandyal, and therefore the Bezwada Court had no jurisdiction. In reply to this contention a further sub-paragraph was inserted in the plaint in March, 1937, in which it was stated that the term relied upon by the respondent offended against Section 23 of the Contract Act. The District Munsiff of Bezwada held that he had no jurisdiction to try the suit and returned the plaint. On appeal, the Subordinate Judge of Bezwada confirmed this decision.
2. Appellant thereupon presented the plaint in the Court of the District Munsiff of Nandyal on 10th January, 1940. Respondent pleaded that the suit was barred by limitation. Both the learned District Munsiff and the learned Subordinate Judge of Kurnel have accepted this view and dismissed the suit. Hence the present second appeal.
3. The question of limitation depends upon whether the appellant can or cannot take advantage of the provisions of Section 14 of the Limitation Act. If he can, even to the extent of excluding only the period spent in the trial of the suit by the District Munsiff, Bezwada, his suit in Nandyal will be in time. If he cannot, it is clearly barred. The question which must therefore be decided is whether the appellant in prosecuting his suit in Bezwada was acting in good faith, i.e., with due care and attention.
4. In support of his plea of good faith appellant relied upon two facts:
(i) He was unaware of the term in the contracts which required him to file his suit in Nandyal; and
(ii) He filed it in Bezwada upon the advice of his advocate, whom he naturally trusted to decide such a question of law for him.
5. The lower Appellate Court has held against the first contention on the ground that appellant did not dare to assert it in the witness-box. On the second contention it has held that the advocate himself did not act in good faith, and therefore appellant cannot rely upon his advice as establishing his own good faith. It is. on this second contention that the arguments in second appeal have turned.
6. The decision of the learned Subordinate Judge against the good faith of the advocate is clearly one of fact and it has not, and cannot, be urged that that decision is open to attack in second appeal as one based upon no evidence, for the advocate has himself given evidence on behalf of the appellant. In the course of that evidence he said that in his opinion Section 23 of the Contract Act rendered the particular term in the contracts unenforceable. He did not look up any authorities to satisfy himself on this point, as he regarded his opinion to be as completely free from doubt as the proposition that a son is heir to his father.
7. It is argued on behalf of the appellant that there are rulings of the Lahore Court which support his view and that he may therefore have honestly held it. On the other hand there is a ruling of this High Court (by Madhavan Nair, J., in Achratlal Kesavlal Mehta and Co. v. Vijayam and Co. : AIR1925Mad1145 which holds that under Section 28 of the Contract Act, a section which clearly applies far more directly than Section 23 to facts of the kind with which we have now to deal, such a clause in a contract is not illegal. This ruling has been followed by other High Courts, e.g., Calcutta, Bombay and Allahabad, and, so far as I am aware, has never been dissented from. The learned Subordinate Judge points out that the least research would have acquainted the advocate with this state of the law in Madras.
8. I do not think it is open to me to find that the learned Subordinate Judge is wrong on a question of fact of this kind, but, if it were, I should have no hesitation in confirming his view. It may be that in the first instance an advocate might assume hastily but honestly that a clause restricting the filing of a suit in Bezwada was illegal, and that he might be so sure of the accuracy of his own opinion that he considered it unnecessary to confirm it by reference to any authorities or text-books; but the facts here show that the advocate must have acted upon this opinion on four separate occasions:
(i) when he advised the filing of the plaint in Bezwada;
(ii) when he had it amended to meet respondent's plea;
(iii) when he advised the filing of an appeal; and
(iv) when he advised the filing of a second appeal, (though this time appellant was shrewd enough not to take his advice).
9. It is impossible, I think, to discover any trace of due care and attention in persistent conduct of this kind. Much more likely is it that the dominating motive in the mind of the advocate was to secure and retain this brief for himself for as long and remunerative a period as possible.
10. The only question of law which really arises in this appeal is whether the good faith of the advocate is at all relevant. It is not referred to expressly in Section 14. Can it be argued that the good faith of the party alone need be considered; good faith which would normally be established by the mere act of relying upon professional advice? Mr. Appa Rao for the appellant cannot argue that the law, can be stated so comprehensively. All he says is that something equivalent to dishonesty or gross negligence must be found before the appellant should be made to suffer by reason of his advocate's shortcomings. No authority, however, has been cited which goes even this far. It is true that in certain cases, mistakes or slips on the part of an advocate have been condoned. It is human to err and such mistakes may be consistent with a general mental attitude on the part of an advocate to apply due care and attention to his professional work. But here we return to the realm of fact. Whether an advocate has shown due care and attention is a question of fact to be decided on the evidence adduced in any particular case. No absolute rule of law can be laid down, and whether a Judge's decision on this point be right or wrong, it cannot be upset in second appeal on the ground that he has transgressed such a rule of law.
11. In the result this appeal must fail, and it is dismissed with costs.
12. Leave refused.