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Munshi Ram and anr. Vs. Raghubir Chand - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtHimachal Pradesh High Court
Decided On
Case NumberFirst Appeal No. 18 of 1951
Judge
Reported inAIR1953HP15
ActsLimitation Act, 1908 - Sections 2(7), 5 and 14; ;General Clauses Act, 1897 - Section 3
AppellantMunshi Ram and anr.
RespondentRaghubir Chand
Appellant Advocate Daulat Ram Manchanda, Adv.
Respondent Advocate Tek Chand, Adv.
DispositionApplication allowed
Cases ReferredNagindas Motilal v. Nilaji Moroba
Excerpt:
- .....the defendants-appellants themselves is concerned, i have no doubt whatsoever with regard to their good faith and due diligence. they applied for necessary copies two days after the decision of the trial court. they then, filed the appeal, though in a wrong court, long before the expiry of the period of limitation under article 152, to say nothing of the longer period to which they were entitled under article 156. they had engaged sri amar chand sud advocate as their counsel in the trial court, and it was he who presented the appeal first in the court of the district judge and then in this court. sri amar chand sud is an advocate of both this court and the punjab high court, and he is an advocate of standing. it is difficult to conceive what more could be expected of the.....
Judgment:

Chowdhry, J.C.

1. This is a defendants' first appeal arising out of a suit for recovery of Rs. 8,838/8/3 as price of potatoes, which was decreed by the Senior Subordinate Judge of Mahasu on 2-5-1951 for Rs. 4,496/5/-. Under paragraph 31 of the Himachal Pradesh (Courts) Order, 1948, the appeal being from a decree of a Subordinate Judge in a suit, of value exceeding Rs. 5,000/-, it should have been filed in this Court. And the 90-day period of limitation for such an appeal under Article 156 of the Limitation Act, after allowing for the twenty-two days taken by the defendants-appellants in obtaining the necessary copies, expired on 22-8-1953. The present appeal was, however, filed two days too late, i.e., on 24-8-1951. The preliminary question for determination before me at this stage is whether the appeal should be dismissed as time-barred.

2. There is an application for condonation of delay on behalf of the defendants-appellants under Sections 5 and 14 of the Limitation Act. In order to understand the plea taken in this application it is necessary to set forth certain facts. As already stated, the decree of the trial Court was passed on 2-5-1951. The defendants-appellants applied for the necessary copies on 4-5-1951, and the same were ready and delivered on 25-5-1951. Allowing for these 22 days taken in obtaining the copies, the period of appeal to the District Judge under Article 152 expired on 23-6-1951. Well within that period of limitation, i.e., on 19-6-1951, the defendants-appellants filed an appeal, in that Court. An objection as to the maintainability of the appeal in that Court was taken on behalf of the plaintiff-respondent. The objection, as already shown, was well founded, and it was allowed by the District Judge on 24-8-1.951. He ordered that the appeal be returned for presentation to the proper Court, and the same day the present appeal was filed in this Court. In the said application for condonation of delay it is alleged by the defendants-appellants that it was on. account of the mistaken advice of their counsel that they filed the appeal in the wrong Court. That this was so is apparent from the fact that the appeal in the Court of the District Judge was presented by the appellants' counsel, Sri Amar Chand Sud.

3. Now Section 14 of the Limitation Act is not in terms applicable since it does not speak of an appeal, but exclusion of time of proceeding bona fide taken in Court without 'jurisdiction being claimed as the reason for condonation of delay, the principle of that section must apply for finding out whether there was sufficient cause for the delay. -- 'Rajendra Bahadur v. Rajeshwar Bali', AIR 1937 P C 278 at page 278.

4. So far as the conduct of the defendants-appellants themselves is concerned, I have no doubt whatsoever with regard to their good faith and due diligence. They applied for necessary copies two days after the decision of the trial Court. They then, filed the appeal, though in a wrong Court, long before the expiry of the period of limitation under Article 152, to say nothing of the longer period to which they were entitled under Article 156. They had engaged Sri Amar Chand Sud Advocate as their counsel in the trial Court, and it was he who presented the appeal first in the Court of the District Judge and then in this Court. Sri Amar Chand Sud is an Advocate of both this Court and the Punjab High Court, and he is an advocate of standing. It is difficult to conceive what more could be expected of the defendants-appellants. So far as they themselves are concerned, therefore, the requirements of due diligence and good faith are fully satisfied.

5. The learned counsel for the defendants-appellants seemed to argue that having looked into the conduct of the appellants and found it satisfactory, it was not necessary to go further and also look into' the conduct of their counsel, Sri Amar Chand Sud. The mistake of the counsel being the excuse put forward for condonation of the delay, such an argument is not open to the appellants. The argument is also contrary to precedents. A large number of rulings were cited by the learned counsel for the parties, but it, is sufficient to cite only two Privy Council rulings. The first is -- 'Sunderbai v. The Collector of Belgaum', 43 Bom 376 (PC), and the other, the one already cited, -- 'Rajendra Bahadur v. Rajeshwar Bali', A. I. R. 1937 P. C. 276. Both were cases, like the present, of. the appellant choosing a wrong forum of appeal on the mistaken advice of the counsel. It was laid down in the former ruling as follows:

'The fact that the defendants had acted on mistaken advice as to the law in appealing to the High. Court in 1910 did not preclude them from showing that it was owing to their reliance on that advice that they had not presented the appeal to the Court of the 'District Judge within the prescribed period of limitation.'

Before laying clown the above dictum their Lordships had however taken into consideration the conduct of the Legal Remembrancer (who was the District Judge) due to whose mistaken advice the appeal was filed in a wrong Court beyond the period of limitation, as appears from the following observation:

'The District Judge knowing that the appeal would probably be removed into the High Court may reasonably have preferred (sic) that the High Court should decide the question under Section 5 of the Act.'

It appears that the word preferred is a misprint for inferred. Again, their Lordships observed in the other ruling as follows:

'Mistaken advice given by a legal practitioner may in the circumstances of a particular case give rise to sufficient cause within the section (meaning Section 14) though there is certainly no general doctrine which saves parties from the results of wrong advice.'

Their Lordships then took the circumstances of that case into consideration and came to the conclusion that it did not appear that the wrong view taken by the appellant's counsel was unreasonable or that he could be deemed to have been negligent in valuing the appeal.

6. The above 1937 Privy Council ruling was interpreted in -- 'Nrisingha Charan v. Trigunand Jha', AIR 1938 Pat 413, and it was observed by Dhavle, J., that the true rule about mistaken advice from a legal practitioner must now be taken to be that the circumstances of each particular case should be examined to see whether such advice gives rise to sufficient cause within Section 5 of the Limitation Act. What is the standard of care and diligence required of a counsel in such cases has not been specifically laid down in, but is deductible from, the said Privy Council rulings. This much at least is, however, certain that it has not been laid down that the requirements of due diligence and good faith, as laid down in Section 14 in the case of the party himself, would, also be applicable when scrutinising the conduct of his counsel. Indeed, to put the onus of such a double test on a party would be to go beyond the terms of Section 14, which only speaks of due diliglence and good faith of the party. Good faith; has been defined in Section 3 of the General, Clauses Act as follows: 'A thing shall be deemed to be done in good faith where in fact it is done honestly, whether it is done negligently or not.' Section 2 (7) of the Limitation Act however provides that 'nothing shall be deemed to be done in good faith which is not done with due care and attention.' It is clear that the standard of good faith laid down in the latter definition is much higher. A perusal of the aforesaid 1937 Privy Council ruling will show that it purported specifically to follow the principles laid down in the aforesaid earlier ruling, -- 'Sunderbai v. the Collector of Belgaum', 43 Bombay 376. In that case their Lordships condoned the erroneous conduct of the counsel on the mere ground of its being reasonable, without taking into consideration whether it was negligent or not. Likewise, in the 1937 ruling their Lordships observed that it did not appear that the erroneous view taken, by the appellant's counsel was unreasonable. No doubt, their Lordships went further and observed that the counsel could not be deemed to have acted negligently; but in following, as their Lordships specifically did, the principle laid down in the earlier ruling, that was unnecessary. The determining factor in judging the conduct of the counsel in such cases appear; according to their Lordships of the Judicial Committee to be its reasonableness or otherwise. On the other hand, in judging the conduct of the party himself their Lordships used the term 'good faith' in the said 1937 ruling. It appears to me that such an interpretation of the counsel's conduct is compatible with the application to that conduct of the definition of 'good faith' as given in the General Clauses Act rather than as that contained in the Limitation Act.

7. Such an interpretation is also in consonance with justice, equity and good conscience. It would be unfair on the face of it to exact a greater degree of good faith from a party who is forced, from the specialised nature of the task, to engage a counsel than if he were acting by himself, specially where he has acted with due care and attention in engaging, in the language of their Lordships in the 1937 Privy Council case, a 'competent practitioner'. Nor does the above view do any violence to the provisions of the Limitation Act. As already stated, Section 14 speaks of only the party. Only for judging the conduct of the party himself should therefore the stricter definition of 'good faith' as given in the Act be applied. But in judging of the conduct of his counsel, quite different considerations arise. They are considerations governing the relations of a principal and his agent. And there is no reason why to such considerations good faith as defined in the General Clauses Act rather than as defined in the Limitation Act should not be applied. I hold that in a case of mistaken legal advice good faith can be attributable to the party himself only if he has acted with due care and attention, but it should be attributed to his counsel if he has acted honestly, whether he has acted negligently or not.

8. The above view in effect finds support from the following cases. In -- 'Shib Dayal v. Jagannath', 44 All 638 (FB), the delay in filing appeal was caused due to the mistaken advice of counsel that copy of the judgment of the Court of first instance was not required. The delay was condoned on the ground that an honest mistake, even though a negligent one, ought not to be allowed to prejudice the client. This view in judging the conduct of the counsel is clearly in accord with the definition of 'good faith' in the General Clauses Act but not, with the stricter definition of the Limitation Act. In -- 'Dattatraya Sitaram v. Secretary of State', which resulted in the appeal being filed in a 45 Bom 607, the wrong advice of the lawyer which resulted in the appeal being filed in a wrong Court first and eventually in the right Court long after the prescribed time was due, as in the present case, to not taking into consideration correctly the valuation of the suit. The lawyer cannot be said to have acted with due care and attention, nevertheless the delay was condoned. Macleod, C. J., observed: 'It may be that the pleader ought to have known that the appeal lay to the District Judge. But then again some questions may appear to be so entirely free from doubt to one person, that only one opinion is possible, and yet another may equally well come to a different conclusion.' In the same case Fawcett, J., recognised the fact that 'there was carelessness in the matter'. It is clear that, good faith of the lawyer was judged in the more lenient sense of that term as defined in the General Clauses Act. In -- 'Ambika Ranjan v. Manikganj Loan Office Ltd.', AIR 1928 Cal 468, also the pleader's mistake arose out of misapprehension as to the value of the suit, but delay on the part of the party acting on such a mistaken advice of the lawyer was condoned relying upon the said 1918 Privy Council ruling arid the said Allahabad ruling. The conduct of the pleader could not obviously be justified according to the stricter view of 'good faith'.

9. I have been referred by the learned counsel for the plaintiff-respondent to the rulings at the other end of the scale, like -- 'J.N. Surty v. T.S. Chettyar Firm', AIR 1927 Rang 20, where good faith of the lawyer as well as of the party has been judged according to the stricter view. I am also not unaware of the stricter view which has been adopted in some cases on the authority of the English case of -- 'Highton v. Treherne', (1878) 48 L. J. Ex. 167. But I prefer to follow the view I have held above and for which I find support from the said Privy Council rulings. I do so because, as remarked by Marten. J., in -- 'Nagindas Motilal v. Nilaji Moroba', 48 Bom 442, in India litigants are treated with more indulgence in the matter of time than in England. The reasons for such indulgence are not far to seek, and they appear, with regard to counsel and client alike, in the rulings referred to above. The advent of time for application of the stricter standards is a consummation devoutly to be wished for, but that time is not yet (?)

10. The conduct of the counsel in the present case may now be judged according to the above test. The question of bias was taken into consideration both in the 1937 Privy Council ruling and in the aforesaid 1938 Patna case. It has however not been suggested that the error of Sri Amar Chand Sud, who advised the appellants to file the appeal in a wrong Court, was attributable to any bias. Another point taken into consideration in both the cases was the question of court-fee. But in the present case also the court-fee payable was the same whether the appeal was filed in the Court of the District Judge or in this Court. The fact that the appeal before the District Judge was filed well within limitation has already been referred to. There could therefore be no doubt as regards the honesty and bona fides of the defendants-appellants' counsel. The head and front of the charge against him is that he filed the appeal in a wrong Court in disregard of the said provisions of the Himachal Pradesh (Courts) Order. As to that, the only possible explanation seems to be that he was led away by the amount for which the suit was decreed Rs. 4,496/5/-. It was no doubt a foolish mistake, and one which a counsel of Sri Amar Chand Sud's standing should not have committed. And yet it is nothing more than an honest mistake. It cannot certainly be gainsaid that he acted in disregard of the simple and daily-occurring provisions of paragraph 31 of the Himachal Pradesh (Courts) Order, 1948, and therefore acted negligently, but, such negligence notwithstanding, he will be deemed to have acted in good faith, according to the standard laid down above, since he acted honestly.

11. In the result, I hold that there is sufficient cause for condonation of the delay of two days in filing this appeal. The defendants-appellants' application under Sections 5 and 14 of the Limitation Act is therefore allowed. The appeal will now, be put up for hearing after preparation of the record in due course.


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