Back
High Court Of Madhya Pradesh
K. L. Pandey, J.
MARIAMBAI - Appellant
Versus
HANIFABAI - Respondents
First Appeal 28 Of 1958
Decided On : 03/26/1963
Per Nawaskar, J. (K.L. Panedey J. agreeing and P.K. Tare, J. contra) – It is well settled that after the period of limitation expires a valuable right accures to the respondent and such a right should only be interfered with for substantial and just grounds. [Para 8]
Where a provision of law is in any manner capable of interpretation sought to be put on it by the appellants' counsel then certainly it is a case of possible difference of opinions and the delay might be condoned. But if it is altogether in capable of interpretation sought to be put on it there could be no condonation. [Para 10]
There is no authority for the view that a mistake of a legal advisor, however gross and inexcusable, if bona fide acted upon by a litigant, will entitle him to the protection of section 5 of the Limitation Act, or will make the proceedings taken by him before a wrong Court as proceedings prosecuted with due deligence and bona fide. AIR 1937 PC 276 & 1962 JLJ 176 relied on. [Para 14]
Where the appeal clearly lay to the High Court, and the appellant presented it to the District Court on the advice of a legal practitioner, and the legal practitioner did not state in his affidavit as regards the circumstances under which he gave the wrong advice, the appellant cannot be given benefit of section 5 of the Limitation Act. [Para 17]
Per K. L. Pandey, J. - An appellant to be able to establish that there was sufficient cause grounded on wrong advice given by his counsel has to show:
(i) that it was given by a competent practitioner;
(ii) that the practitioner, in giving the advice, exercised reasonable care; and
(iii) that the advice given by him is founded on a view which could, in the circumstances of the case, be taken by any competent legal practitioner exercising reasonable care. AIR 1937 PC 276 relied on. [Para 44]
The Madhya Bharat Civil Courts Act, 1949, being clear on this matter was incapable of being interpreted that the appeal could be filed in the District Court, and any legal advice given contrary to this provision cannot form a proper ground for condonation of delay under section 5 of the Limitation Act. [Para 48]
The period of preferring an appeal cannot be extended merely because the appellants' case is a hard one and calls for sympathy nor will the Court extend the period of limitation out of benevolevce to the party seeking relief. 22 MPLC 457 relied on.
[Para 49]
Per P.K. Tare, J., (minority view) - Even a wrong advice given by a competent person well-versed in law can under certain circumstances amount to sufficient cause, but such question will have to be decided with reference to the facts of each case. AIR 1918 PC 135 relied on. [Para 38]
Moreover the phrase 'sufficient-cause' has to be construed ion a liberal manner so as to advance substantial justice, and not to allow it to be defeated on any hypertechnical view which would operate in a penal manner.
In view of the confused state of law in the different regions of the State, even a senior counsel could have committed a mistake with reference to the question of forum of appeal in another region, although ordinarily he would be expected to look into the provisions of the particular region under which the appeal had been filed. But the mistake cannot be so gross as to impose a penalty by refusing to extend time. The appellant would not merit an undeserved penalty, inasmuch as he has throughout acted with extra carefulness and has shown his keenness to prosecute the litigation; and, but for the mistaken advice given by his counsel, he cannot be accused of any lapse or inaction. Under the circumstances the time spent in District Court deserves to be excluded by extension of time on the ground that the facts constituted sufficient cause. Case-law discussed. [Para 40]
( 1 ) THIS case comes before me on a difference between Newaskar. J. and Tare, J. on the question whether, in the circumstances of this case, there is sufficient cause within the meaning of Section 5 of the Limitation Act for extension of the time prescribed for filing this appeal.
( 2 ) THE value of the suit, out of which this appeal arises, is admittedly over Rs. 5,000. It was decided by the Civil Judge, Class I, Khargone, on 24 February 1958 and a decree in pursuance thereof was passed on 26th February 1968. The defendants, who had obtained certified copies of the judgment and decree on 27th february 1958, filed this appeal in the Court of the District Judge, Mandleshwar on 24th March 1958. Thereafter, on 80th June 1958, the defendants applied to that court for return of the memorandum of appeal for presentation to the proper court and, having thus obtained it on 8th July 1958, they presented it in this Court on 9 July 1958.
( 3 ) ALL that is said about the existence of sufficient cause is that a senior counsel, kb. Hifazat Ali, advised the defendants to present their appeal in the Court of the district Judge, Mandleshwar. and they did so. On his part, the counsel has filed an affidavit to say that "at that time I was under the impression that the appeal would lie to the District Court" and, therefore. "i advised and prepared the memo of first appeal and asked Moosa to go and present the same to the District Judge. Nimar, at Mandleshwar" It is no longer disputed that the defend an is had acted on the erroneous advice of their counsel. KB. Hifazat Ali. Newaskar, J. relying upon phoolabhai v. Ashabhai, First Appeal No. 42 of 1954. dated 3-12-1957 (MP ). which followed the view taken in Krishnarao v. Trimbak, ILR (1938) Nag 409 (AIR 1938 nag 150); Hemraj Dhannalal Firm v. Ambaram. 1961 MPLJ 343: (AIR 1961 Madh pra 336' and the observations of the Privy Council in Rajendra Bahadur v. Rajeswar Bali, AIR 1937 PC 276. took the view that each and every mistake committed by a counsel is not a just ground for extending limitation, that, to be a ground available for the purpose, the advice given by the counsel should be sustainable as one which could be entertained by a competent legal practitioner exercising reasonable care and that, where the provision of law governing the point is in itself. or for any other reason, incapable of bearing any other interpretation, the mistake of a counsel is not sufficient cause within the meaning of Section 5 of the Limitation Act. Tare. J. . reviewing a large number of cases, held that there was sufficient cause In taking that view he appears to have relied upon nagindas Motilal v. Nilaji Moroba, ILR 48 Bom 442: (AIR 1924 Bom 899) and bhausaheb Jamburao v. Sonabai, ILR 1946 Bom 481: (AIR 1946 Bom 437 ). His conclusion is:
"therefore, I am of opinion that if a legal adviser in the confused state of law prevailing in the different regions of a State commits a mistake on his impression of the regional law, his act might amount to some sort of negligence, yet it would not amount to gross negligence so as to deserve a censure by refusal to extend time. "
( 4 ) HAVING heard the counsel at some length. I am inclined to agree with the view taken by Newaskar, J. in Ramlal v. Rewa Coalfields Ltd. , AIR 1962 SC 361, the supreme Court quoted with approval the following statement of the Madras High court in Krishna v. Chathappan, (1896) ILR 13 Mad 269 (FB):
"section 6 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words sufficient cause receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant. "
The statement of law, which has been accepted by the Supreme Court, implies that though 'sufficient cause' has to be liberally construed, there will be no sufficien
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
