Anil K. Sen, J.
1. This Rule had been issued on an application under Section 5 of the Limitation Act, filed by the defendant/appellant.
2. The appellant was the defendant in a suit for eviction instituted by the opposite parties. She was sought to be evicted from premises No. 70, Lindsay Street, Calcutta, on the ground that the said premises were originally let out to one Mrs. Sira Manen who died on Aug. 12. 1970, and since then the defendant/ appellant had been in wrongful occupation of the said premises as a trespasser. The defendant/appellant filed a written statement in contesting the said suit and claimed herself to be the daughter of late Mrs. Sira Manen and to have inherited the tenancy on her death. The suit which was filed in the year 1972 was taken up for hearing in presence of the parties on May 11, 1976. It was heard in part on that day and on 3 other cotes when the witnesses for the plaintiff were examined and the defendant herself was examined in part. At that stage the suit was adjourned for further hearing to Aug. 9, 1977, on which date neither the defendant/appellant nor her lawyer being present, the learned judge closed the case The suit was then decreed on Aug. 25, 1977.
3. On September 10, 1977, the defendant/appellant filed an application under Order 9 Rule 13 of the Civil P. C. wherein she pleaded that in recording the adjourned date her lawyer made a mistake in noting the date as 8-9-77 in place of 9-8-77 so that in the meantime the suit itself was disposed of ex parte against her. This application under Order 9 Rule 13 of the Code was dismissed by the learned Judge on the view that when the suit was decreed on an adjourned date after three days of contested hearing, it cannot be said to have been decreed ex parte -- Order 9 not being attracted to such a case. The learned Judge observed :
'Now if a suit be decreed on contest the remedy of the aggrieved party is to prefer an appeal under Order 41 of the Civil P. C. before the appropriate forum.
Order 9 of the Civil P. C. or Section 151 of the Civil P. C. is not attracted in such cases. The defendant/petitioner has sued in wrong forum. The learned advocate Shri A K. Bose categorically submitted that because of the mistake on his part his client had to suffer. As stated already, the matter is rather unfortunate but this court in law is not empowered to grant the petitioner relief prayed for'.
4. In the background of such facts, the defendant/appellant preferred an appeal to this court and presented the memorandum with an application under Section 5 of the Limitation Act. In her application she made out a case that she was advised to file an application under Order 9 Rule 13 of the Code by her lawyer and acting on such advice she was bona fide proceeding with the said proceedings under Order 9 Rule 13, of the Code until it was dismissed on a finding that such an application is not competent in law on grounds set out hereinbefore. As she was prosecuting the said proceedings diligently and in good faith and since the appeal had been preferred within a reasonable time from the dismissal of the said application the delay may be condoned under Section 5 of the Limitation Act read with Section 14 thereof. The Rule is being contested by the plaintiffs/opposite parties. Mr. Mukherji appearing on behalf of the plaintiffs/opposite parties has strongly contended that on the facts as they appear on records the defendant/ appellant is not entitled to any relief under Section 5 of the Limitation Act. According to Mr. Mukherji she is not so entitled firstly because in computing the period of limitation for the appeal the time lost in prosecuting the application under Order 9 Rule 13 of the Code cannot be excluded nor the fact of her prosecuting such a proceedings can be considered to be sufficient cause for extending the period of limitation prescribed for preferring such an appeal. Reliance is placed by Mr. Mukherji on a Bench decision of this court in the case of Abodh Bala Ghosh v. Radharani, ILR (1950) 2 Cal 252. Secondly, it has been contended by Mr. Mukherji that it cannot be said that the defendant/appellant had been prosecuting the proceeding under Order 9 Rule 13 of the Code in good faith, inasmuch as, had she proceeded with due care and attention she would not have adopted such a remedy under Order 9 Rule 13 of the Code, in the facts and circumstances of the case.
5. The first objection raised by Mr. Mukherji is of some importance. This court in the case of Abodh Bala Ghosh (supra) no doubt laid down the proposition that: 'It cannot be said that as a matter of law the appellant is entitled to add to the period of limitation prescribed for the filing of an appeal the time taken by him in prosecuting an unsuccessful application under Order 9 Rule 13 of the Civil P. C. which is dismissed on merits.' In holding as such, this court was following the earlier Bench decisions of this court in the case of Ardha Chandra Roy Chowdhury v. Matangini Dassi (1895) ILR 23 Cal 325 and Kajendra Nath Kanrar v. Kamal Krishna Kundu Chowdhury ILR 59 Cal 1057: (AIR 1932 Cal 558). In all these cases, however, the defendant/appellant having two remedies open to him, namely, under Order 9 R 13 of the Civil P, C. and under Order 41 thereof had chosen to adopt the one under Order 9 Rule 13 which failed on merits when the defendant/appellant failed to make out any sufficient cause for non-appearance and then proceeded to file the appeal praying for exclusion of the time spent in prosecuting the proceeding under Order 9 Rule 13 of the Code in computing the period of limitation for the appeal. In all these cases, however, the learned judges were laying emphasis on the fact that the proceeding under Order 9 Rule 13 failed on merits. As a matter of fact in the case of Rajendra Nath Kanrar (supra) the learned judges pointed out that this court in the case of Ardha Chandra Roy chowdhury (supra) 'pointed out that if an application for setting aside an ex parte decree is refused on the merits, it is very different from a case where the application fails for want of jurisdiction or other causes of like nature.' In our view the distinction so made is of great importance.
6. There can be no dispute that Section 14 of the Limitation Act on its terms has no application in case of appeals. But it appears to be a settled principle that although Section 14 is not so applicable, the principle of that section has been recognised by courts as applicable to appeals in the sense that bona fide prosecution of a proceeding in a wrong court has been regarded as a proper ground or as sufficient cause within the meaning of Section 5 of the Limitation Act for extending the period of limitation for filing an appeal. (See Rajendra v. Rajeswar AIR 1937 PC 276, Kamiruddin v. Bisnupriya 33 Cal WN 76: (AIR 1929 Cal 240) andRupa Thakurani v. Kumud Nath 22 Cal WN 594 : (AIR 1918 Cal 986).) But the primary requirement of the principle of Section 14 is that one must prosecute the other proceeding in good faith in a court which from defect of jurisdiction or other cause of like nature is unable to entertain. This requirement is not fulfilled in a case where a party having two remedies equally open to him chooses to elect one which fails on merits. There he cannot be allowed to invoke Section 5 based on the above principle and claim exclusion of the period spent in pursuing the remedy first elected by him for falling back upon the other remedy. Such cases are, however, quite distinct from those where a party not really having a remedy open to him, pursues the wrong remedy on a mistaken idea that it is so open to him. Here it is not a case of election of one of two remedies. It is a case which clearly falls within the principle of Section 14. Obviously in this view this court in the case of Abodh Bala Ghosh (supra) and the other two cases referred to hereinbefore refused to exclude the time spent in prosecuting the proceeding under Order 9 Rule 13 of the Code in computing the period of limitation in filing the appeal as in all those cases such an application failed on its merits as the defendant/appellant failed to make out any sufficient cause for non-appearance. In our view, however, it would not be correct to read these decisions as an authority for a proposition that in all cases where the defendant/appellant had unsuccessfully prosecuted a proceeding under Order 9 Rule 13 of the Code, he would not be entitled to claim exclusion of the period spent for the said proceeding in computing the period of limitation for the appeal that he may subsequently prefer. Where a person pursues such a remedy under Order 9 Rule 13 believing in good faith that that is his proper remedy but ultimately fails on the ground that such a remedy is not open to him in law, he makes out circumstances envisaged by Section 14 and the same constitutes sufficient cause for invoking Section 5 in his aid. There is no reason why in such cases the time spent for prosecuting such a proceeding should not be excluded in computing the limitation for the appeal that may subsequently be filed.
7. Judging the present case in the light of the above principles we find that the suit having been decreed on Aug. 25, 1977, in the absence of the defendant,the defendant filed an application under Order 9 Rule 13 of the Code being so advised by her lawyer. No doubt the suit had been heard in part prior to the date on which it was so decreed. But the defendant being absent on the adjourned date of hearing of the suit on the provisions of Order 17, Rule 2 of the Code it was open to the learned judge in the trial court to dispose of the suit either in terms of Order 9 or otherwise. Had it been disposed of in terms of Order 9 Rule 6 one of the remedies open would have been Order 9 Rule 13 of the Code. In the present case, the learned Judge in the trial court had not done so, but he had proceeded to dispose of the suit otherwise. Though he had done so it is quite obvious that the lawyer for the defendant made a mistake in not appreciating that the court did not proceed in terms of first part of Rule 2 of Order 17 and the suit in the present case had not been disposed of in terms of Order 9 of the Code. Such being the position, the application under Order 9 Rule 13 of the Code failed on the ground that the said provision is not attracted the court having no jurisdiction to grant the relief claimed under Order 9 Rule 13 of the Code. But if the defendant/appellant had acted in good faith on such a mistaken advice of her lawyer and had prosecuted the said proceeding with due diligence until it was found out that the remedy adopted by her is not competent in law, we find no reason why her prosecuting such a proceeding cannot be held to be sufficient cause within the meaning of Section 5 of the Limitation Act for excluding the time taken for such proceeding in computing the period of limitation for filing of the appeal. The appeal having been presented within a reasonable time from the date of disposal of the said proceeding under Order 9 Rule 13 of the Code and when the whole period between the date of the decree and date of presenting the appeal does not after excluding the time spent in prosecuting with due diligence the above proceedings exceed the period of limitation prescribed for the appeal, in our view the defendant/appellant is entitled to the relief claimed under Section 5 of the Limitation Act.
8. So far as the second ground put forward by Mr. Mukherji is concerned, in the facts and circumstances of the present case we are not in a position to hold that when the defendant/appellant preferred the application under Order 9Rule 13 of the Code she did not do so with due care and attention. We have indicated hereinbefore that though on the date the suit was decreed it was the adjourned date of hearing yet on the provisions of Order 17 Rule 2 of the Code it was open to the learned Judge to decree the suit ex parte in terms of Order 9 Rule 6 of the Code. The lawyer for the defendant/appellant misread the proceeding to be so when he advised the defendant/appellant to prefer the application under Order 9 Rule 13 of the Code. If the defendant/appellant relying on such advice -- as one would normally do -- had prosecuted the said proceeding as claimed by her it cannot be said that she had not acted bond fide or that she had not acted with due care and attention. In this view, the second ground raised by Mr. Mukherji cannot be sustained.
9. In the result, the application succeeds and the Rule is made absolute. The delay in presenting the appeal is condoned and we direct that the appeal may now be registered if the same is otherwise in form. The appellant/petitioner, however, must pay the cost of hearing of this Rule to the opposite parties, the hearing fee being assessed at 5 Gold Mohurs.
B.C. Chakrabarti, J.
10. I agree.