The delay caused by the wrong advice given by the counsel can constitute sufficient cause for condonation under S. 5 of the Limitation Act.

C. R. P. No. 894 of 1970

1. This revision petition is filed against an order of the District Judge of Ernakulam, whereby I. A. No. 47 of 1969 for condoning the delay in the presentation of C. M. A. No. 3 of 1969 before the District Court, was dismissed. The petitioner filed O. P. No. 7 of 1965 for permission to sue in forma pauperis in the Munsif's court of Cochin. That petition was dismissed by the order of the court dated 18 81967. The petitioner filed a C. R. P. in the High Court against the order, which was dismissed on the ground that no C.R.P. was maintainable as the proper remedy was to file an appeal. The petitioner then filed C.M.A. No. 3 of 1969 and along with it filed I. A. No. 47 of 1969 for condoning the delay. The ground alleged by the petitioner for the delay was that his legal adviser had, under a mistaken impression, advised him to file the C R.P. and that he did so bona fide and came to know that no revision petition lay only when it was dismissed by the High Court. According to the petitioner, as soon as the certified copy produced in the High Court along with the C.R.P. was got back by the petitioner, the C.M.A. and the LA. for condoning the delay were filed in the District Court.

2. The order under challenge has proceeded on the basis that the CRP. had been filed deliberately to get over the period of limitation in filing the appeal and no affidavit had been filed from the counsel stating that it was because of the wrong advice given by the counsel that the CRP. had been filed. The lower court has also stated that even if the allegation of mistaken advice given by the counsel is true, that is not sufficient reason as contemplated by S.5 of the Limitation Act and, therefore, there is no justification to condone the delay. Shri. Harihara Iyer, learned counsel for the petitioner, contended that the mere fact that an affidavit had not been filed by him should not have been taken as a ground for rejecting the contention of the petitioner, that in the affidavit filed by the petitioner it has been clearly stated that the mistake arose because of the wrong advice given by the petitioner's counsel and that the said affidavit bad been attested by Shri. Harihara Iyer and that he himself had filed the I. A. and the CMA. before the lower court. His contention was that if all these circumstances bad been taken into account, it would be very clear that the counsel had to admit that it was because of the wrong advice given by him that the C.R.P. came to be filed and that there was no deliberate intention on the part of the petitioner to protract the proceedings. The learned counsel for the respondents strenuously contended that in the absence of an affidavit from the counsel, the lower court was fully justified in refusing to accept the version of the petitioner and also that this court sitting in its revisional jurisdiction, should not interfere with the discretion exercised by the lower court in the matter of refusal to condone the delay. After having heard counsel on both sides at great length, I am satisfied that the dealy in filing the Civil Miscellaneous Appeal arose because of the wrong opinion given by the counsel and that it would therefore constitute sufficient cause for the condonation of the delay under S 5 of the Limitation Act. Various authorities were cited on both sides on the question as to whether wrong advice given by the counsel would constitute sufficient cause for the condonation of the delay. The preponderance of judicial authority is in favour of the view that if the delay was occasioned by the wrong advice given by the counsel, it would ordinarily constitute sufficient reason for the condonation of the dealy. I do not think it necessary to refer to the various decisions as the position is well settled that in the absence of laches on the part of the petitioner, the dealy caused by the mistake of the counsel should be treated as sufficient cause. Mr. Venketeswara Iyer for the respondents