1. Having heard the learned Advocates and having considered the materials before us, we are satisfied that a sufficient cause for extension of time and condonation of delay under Section 5 of the Indian Limitation Act has been made out.
2. Mr. Mitter for the opposite party does not seriously dispute that it was due to the forgetfulness of the learned Advocate (Mr. Amarendra Mohan Mitra) for the appellants petitioners, in circumstances, stated in the Rule petition, namely, that the brief was accidentally mixed up with briefs of disposed of cases- and mislaid and the learned Advocate forgot all about it due to stress of circumstances, to wit, illness of his wife and sister-in-law and attendant anxiety, that the delay of six days occurred in the filing of the appeal. He however, raises the point that forgetfulness of counsel or advocate is not a ground for extension of time under Section 5 of the Limitation Act and in support of his contention, he has referred us to the decision of a single Judge of the Oudh Chief Court in the case of Mt. Dilan v. Ram Bharosey, AIR 1925 Oudh 374 (1). That decision is short and there is only the statement that the explanation that
'the learned counsel forgot all about the appeal papers of which have been presented to him prior to the expiry of the period of limitation, until the said period expired',
is not a sufficient reason for excusing delay under Section 5 of the Indian Limitation Act.
3. With all respect to the learned single Judge of the Oudh Chief Court, we are unable to assent to such a broad and general proposition. It is, at any rate, too wide to be accepted as an absolute proposition of law. In a case under Section 5 of the Indian Limitation Act, the point for consideration is whether the appellant was diligent and, although there might have been opinions to the contrary, this Court, at least in its recent decisions, has always adhered to the view that, if the appellant has done all that he could have done in the matter, and has acted bona fide and with reasonable care, and the delay is occasioned by something which is due entirely to the learned Advocate, then, barring, possibly cases of gross negligence, in all other cases at least, the delay should be condoned under Section 5 of the Indian Limitation Act and the above exception would not in our opinion, include accidents or accidental or explicable mistakes or forgetfulness, due to exceptional circumstances, as in the present case. The circumstances here were such as would have excused and explained even the client's forgetfulness and the Advocate, even as the client's agent, would not make his client's position worse. Indeed, the instant case is not worse than Prosonno Kumari Debi v. Ram Chandra Singha, 17 Cal. L.J. 66 (vide p. 69) and Karali Charan v. Apurba Krishna 34 Cal. W.N. 1119, where this court excused the delay. It is well to remember also that, generally speaking, Courts have refused to crystallise into a rigid definition the judicial power and discretion under Section 5 of the Indian Limitation Act, which the legislature has, for the best of all reasons, left undetermined and unfettered, and to limit and circumscribe its aforesaid power and discretion in the matter by laying down any general rule or principle in that behalf and the said power and discretion has been left to be exercised by the court with reference to the facts and circumstances or the particular case before it, with only this rider that such exercise should be judicial and not arbitrary. Tested as aforesaid and in the above light, this Rule, in our opinion, cannot fail.
4. We would, accordingly, allow the petitioners' application and make this Rule absolute; the delay of six days in the presentation of the appeal, in the circumstances of this case, will be condoned & the time appropriately extended for the purpose of acceptance of the Memorandum of appeal as presented within time. Let the appeal be registered, if otherwise in form. It will then proceed in accordance with law.
5. Having regard to the circumstances of thiscase, we would also direct that there will be noorder as to costs in this Rule.