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Kshetramoni Dasi Vs. Surendra Mohan Kundu and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 2062 of 1954
Judge
Reported inAIR1955Cal553,60CWN200
ActsLimitation Act, 1908 - Section 5
AppellantKshetramoni Dasi
RespondentSurendra Mohan Kundu and ors.
Appellant AdvocateSarat Chandra Janah and ;Arun Kumar Janah, Advs.
Respondent AdvocatePurushottam Chatterji and ;Dhirendra Kumar Das, Advs.
Excerpt:
- .....act, as she was bound to do and the sufficient cause relied upon by her was that she had acted bona fide throughout but that she had been misled by the wrong advice given to her by her lawyer. the learned district judge has rejected this plea on the ground that whether an order made under the partition act was or was not appealable, did not admit of two opinions and therefore if the petitioner's pleader had advised the petitioner that an application in revision would lie against the order, he had done so without due care and attention.the learned judge thought that the principle applicable was that one had to enquire whether the mistake or ignorance of law displayed by the lawyer was itself a bona fide or excusable mistake and that if it was not bona fide or excusable, it would be.....
Judgment:

Chakravartti, C.J.

1. In our opinion, this Rule should be made absolute. The petitioner wanted to take steps against art order passed in a partition suit by which defendant No. 3 was allowed to purchase her own share and that of defendant No. 1. She was advised that an application in revision would lie to this Court and under that impression she came and interviewed Mr. Janah with the necessary papers. Mr. Janah, who is appearing for the petitioner in this Rule, informed her that she had been mis-advised and that the order against which she wanted to take steps was an appealable order and that such an appeal would fie before the learned District Judge.

The petitioner then went back and filed her appeal, but when she did so eleven days had already expired from the last day or limitation.

2. The petitioner made an application under Section 5, Limitation Act, as she was bound to do and the sufficient cause relied upon by her was that she had acted bona fide throughout but that she had been misled by the wrong advice given to her by her lawyer. The learned District Judge has rejected this plea on the ground that whether an order made under the Partition Act was or was not appealable, did not admit of two opinions and therefore if the petitioner's pleader had advised the petitioner that an application in revision would lie against the order, he had done so without due care and attention.

The learned Judge thought that the principle applicable was that one had to enquire whether the mistake or ignorance of law displayed by the lawyer was itself a bona fide or excusable mistake and that if it was not bona fide or excusable, it would be the client who would be affected.

3. It appears on the authorities that the view taken by the learned Judge is not correct. What a client has to prove in such cases is that in approaching a particular lawyer whom he had approached, he had acted hona fide and with reasonable care. If he proves so much, the onus lying upon him is discharged. If the lawyer, on being so approached, gives misleading advice and acting upon tnat advice the client allows the period of limitation to expire, he is entitled to rely upon such wrong advice as sufficient cause for the delay, provided always that his initial approach to the particular lawyer had been bona fide and the choice of the lawyer had not been, careless or unreasonable.

The reason why this distinction has been made in the cases is that as regards advising clients in such matters, lawyers do not act as agents of the client and therefore the effect of any mistake whichthey may commit is-limited to themselves, but does not extend to affect the lay client.

4. Mr. Chatterji reminded us of certain cases wherein it has been held that a mistake of a lawyerwould be sufficient cause for the purpose of an application under Section 5, Limitation Act only if the relevant rule of limitation was one which was obscure and about which two conflicting views could reasonably be taken. That indeed is a principle, to be borne in mind, but as has been twice explained by the Privy Council, it applies only when, besides the mistake of the lawyer, mere is nothing else upoa which the petitioner can rely, he being himself guilty of carelessness or lack of ordinary prudence in choosing the particular lawyer concerned,

The principle repeatedly enunciated by the Privy Council is that once a client proves that he had acted bona fide and with reasonable care in approaching a particular lawyer who gave him the wrong advice with the result that the period of limitation expired before' any step was taken, he was no precluded from showing that it was owing to the reliance placed on such advice that he could not present an appeal in the proper forum within the proper time.

In my view, that principle governs this case. Here, further steps against the order in question were to be taken by way of an appeal to the Judge's Court and if the client who, we understand, is an old lady of over 80 years, went to a Judge's Court Pleader, it cannot be said she had not acted with reasonable care.

5. For the reasons given above, this Rule is made 'absolute. The order passed by the learned Judge on 31-3-1954, is set aside. The application made by the petitioner under Section 5, Limitation Act, is allowed and the appeal is directed to be accepted and registered. The Court below will now proceed to deal with the appeal in accordance with law.

6. Costs of this Rule will be costs in the appeal--the hearing-fee being assessed at two gold mohurs.

Lahiri, J.

I agree.


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