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1967 Supreme(Cal) 28
HIGH COURT OF CALCUTTA
C.N. LAIK, A.C.SEN, JJ.
Adwaitya Kr Maity - Appellant
Versus
President W B Board or Secondary Education – Respondent
Decided On : Feb 16, 1967
A.K.Bhattacharyya, Mukti Prasanna Mukharji, Nalin Chandra Banerji, Prosanta Kumar Ghose, Salil Kumar Dutt,
A mistake of law committed by a lawyer can be a sufficient cause for condoning the delay in filing an application for leave to appeal to the Supreme Court under section 5 of the Limitation Act.
Headnote:
LIMITATION ACT - SECTION 5 - SUFFICIENT CAUSE - MISTAKE OF LAWYER - DELAY IN FILING APPLICATION FOR LEAVE TO APPEAL TO SUPREME COURT - WHETHER SUFFICIENT CAUSE - HELD, YES
Fact of the Case:
The Union of India, appellant to the Supreme Court, is the petitioner before the Calcutta High Court. The opposite party, an employee under the Union of India, having been dismissed from service as a result of departmental enquiry instituted a suit far a declaration that the order of dismissal was bad in law and that he was still in service. The suit was decreed by the trial Court and on appeal the suit was dismissed by the lower appellate court. On second appeal to the High court the suit was decreed. The Union of India intends to prefer an appeal to the Supreme Court after obtaining the necessary certificate under Art. 133 of the Constitution. The judgment in the second appeal was delivered on September 28, 1965. The application for leave to appeal to the Supreme Court was filed on August 1, 1966. According to the report of the Additional Stamp reporter dated September 9, 1966 the application would have been in time up to July 5, 1966, but was out of time "by 27 days on the date of filing, namely august 1, 1966. The Union of India has therefore applied under section 5 of the Limitation act for the condonation of this delay of 27 days for reasons stated therein.
Finding of the Court:
The High Court held that the Union of India was not guilty of negligence or want of ordinary prudence in approaching Sri P. K. Ghose, for advice as to the last date for filling the application for leave to appeal to the Supreme Court. The High Court further held that the mistake committed by Sri P. K. Ghose, was bonafide and that it was not committed through misconduct or through negligence nor through want of reasonable skill but such as a skilled person might make.
Issues: Whether the delay in filing the application for leave to appeal to the Supreme Court was due to sufficient cause.
Ratio Decidendi: The High Court held that the mistake committed by Sri P. K. Ghose, the lawyer for the Union of India, in advising the Union of India that the period of limitation would be as laid down in the old limitation Act of 1908 was a good ground for condoning the delay under section 5 of the Limitation Act. The High Court further held that the Union of India acted bonafide and with reasonable care in approaching Sri P. K. Ghose for advice as to the period of limitation.
Final Decision: The High Court allowed the application and condoned the delay of 27 days. The High Court directed that the application be registered if otherwise in form and be proceeded with according to law.
1. The doctrine of sufficient cause (a convenient, rather an imprecise expression) in section 5 of the Indian limitation Act both of the years 1908 and 1963, is one, which has throughout the history of its subject matter, been expressed with considerable generality. The best known formulations, those of lord Dunedin in the case of (J) Brij inder v. Kanshi Ram 44 LA. 218 AIR. (1917) P.C. 156 and of Sir John Edge in the case of (2) Sunder Bai v. Collector of Belgaum, 46 LA. 15 : A.I.R. (1918)P. C. 13"5, adapted in this context by P.N. Mookerjee, and Bijayesh Mukherjee, JJ. in the case of (3) Chandramull v. Goenka 67 C.W.N. 482 and used by p. N. Mookerjee and Niyogi JJ. in the case of (4) Ram Charitar v. Nagendra 64 C.W.N. 223, which I had the privilege of arguing when at the bar, speak generally of the causes, sufficient to condone the delay without any attempt at a particular definition. I am not prepared to refine upon them with any dialectical subtleties, as cases on this section under the statute arose and would arise in future in infinite diversity of circumstances. The concurrence of experienced opinions however is enough, without any additional attempt of my own, to review the subject-matter over again in detail.
2. Often we find, the said expression 'sufficient cause used indifferently to denote, on the one hand in a broad popular sense, and on the other, used as a term of art, which may be regarded as offending judicial discretion. In a few reported cases we also find that instead of segregating the two questions (i) whether it was a gross and inexcusable mistake of a lawyer (ii) whether, it was the applicant's careless choice of a lawyer : the Courts confused the two, by asking whether it was a case of a mistaken advice or by arriving at a compound finding that it is not, satisfied that ignorance of law is not a sufficient cause. There is no need to regret these tendencies, indeed to do so, when consideration of this subject has passed through many notable minds from Mr. S. Erskine in the case of (5) Bhaee Chund v. Purtab Chund, 1 M.I.A. 154 onwards, would indicate a failure to understand its exact and precise nature. This doctrine of sufficient cause, in my mind, has (some times unconsciously) thrived on ambiguity and it would be mistaken, even if it were possible, to try to crystallise its rules or its aspects into neat definite propositions. It is one which is to be applied to factual situations of a particular case as examined in detail in the instant case by my learned brother, which I forbear from repeating, with a broad and flexible rule of judicial discretion and I desire to guard against the dangerous ambition of wishing to regulate and to foresee everything.
This again does not mean that there -would be no degree of any certainty that the doctrine does or does not apply to a given set of facts. It is also not to be supposed or encouraged that a bare allegation of sufficient cause is enough. Positively, there are certain sensitive areas as to which the law will require in a case, the test of sufficient cause to be passed. Such an area has long, been and still is that of utter negligence, carelessness, bad faith of the applicant, his misconduct, his initial approach to the lawyer being not bonafide and the like. Negatively, there are types of cases (and it is one of this that principally concerns us here) such as no inaction of the applicant, no lack of his bonafides, diligence and due care, no gross want of legal skill and laches of his lawyer, no case of deliberate mistake and callous misfortune and the like : as to which the Court should be prepared to say with some confidence that they do not enter into the field. The tests are briefly expressed and I hope that I do justice to them if I say further that the Court should also endeavour to keep it in mind that hard ship, undue generosity and maudlin sympathy are no grounds of sufficient cause and that there should not be concealment or suppression of
