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IN THE HIGH COURT OF MARAS
Kandaswami Mudaliar And Ors.
Versus
P. Arunachala Chetti And Ors.
Decided On : 19 November, 1923
Delay in Filing Appeal - Careless Arithmetical Mistake - Excusing Delay under Section 5 of the Limitation Act
Fact of the Case:
The delay in filing the appeal was attributed to a careless arithmetical mistake of the appellant's vakil, leading to a dispute over the excusability of the delay.
Finding of the Court:
The court found that the delay was indeed due to the vakil's earlier error in calculation, which was established from the affidavits filed. The court also cited authority in Indian Courts that delay caused by the mistake of the party's vakil is sufficient cause for excusing delay under Section 5 of the Limitation Act.
Issues: The main issue was whether the delay in filing the appeal could be excused due to the careless arithmetical mistake of the appellant's vakil.
Ratio Decidendi: The court relied on the precedent and legal provision under Section 5 of the Limitation Act, which allows for the excusing of delay caused by the mistake of the party's vakil.
Final Decision: The delay in filing the appeal was excused, and the petitioners were ordered to pay the costs of the application.
1. From the affidavits filed, we think that it has been established that the delay in filing the appeal was really due to the careless arithmetical mistake of the appellants vakil. The party had not any opportunity of correcting this mistake in time; for, he mainly relies on his vakils assertion that the appeal need not be filed until August. It would appear that the party had not the money with him, when he first went to the vakil on 1st July; but there is no reason to disbelieve his statement that he had the money on 20th July. The delay till 24th July was due to the vakils earlier error in calculation and therefore we must reject respondents contention that this was not really the case. There is considerable authority in the Indian Courts for the proposition that delay caused by the mistake of the partys vakil is sufficient cause for excusing delay under Section 5 of the Limitation Act; vide Sunderabai v. The Collector of Belgaum A.I.R. 1918 P.C. 135. Bakhal Chandra Ghosh v. Ashutosh Ghosh (1913) 17 C.W.N. 807 and Vaithinatha Aiyar v. Govindasawmi Udayar A.I.R. 1921 Mad. 650; and respondents vakil does not dispute it. The delay is therefore excused, but petitioners must pay the costs of this application.
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