HIGH COURT OF MADHYA PRADESH
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Shinde, C.J. -
(1.) THIS is an application accompanied by a memorandum of appeal for permission to appeal as a pauper under Order 44, Rule 1, Code of Civil Proceduce. The decree was passed on 18 -11 -1954 and application was filed on 17 -2 -1955. Leave to appeal in 'forma pauperis' must be sought within 30 days from the date of tine decree.
The Counsel for the applicant contends that owing to wrong advice given by the Counsel with regard to the period of limitation the application has been filed after 30 days; as bona fide mistake has been committed by the applicant owing to the wrong advice of the Counsel the delay may be condoned. The applicant has also filed an affidavit in support of this application under Section 5, Limitation Act.
(2.) THE applicant states that he consulted many leading lawyers of Indore who all told him that the period of limitation was 90 days. The applicant for some reason best known to him has not chosen to disclose the names of these able Counsels. He has however mentioned the name Shri A.R. Lahori who also advised him that the period of limitation was 90 days. The question for consideration therefore is whether there is sufficient cause for not making the application within the prescribed period.
Generally speaking the test to be applied for deciding whether the cause is sufficient or not is whether the applicant has shown reasonable diligence for the prosecution of proceedings or not. In this case the applicant vaguely mentions that he consulted many good and able lawyers but he has not given the name of any lawyer except that of Mr. A.R. Lahori whom he consulted.
Mr. Lahori who appeared on behalf of the stated before us that he was under the impression that the period of limitation was days. In support of his contention that the wrong advice tendered by a lawyer is sufficient cause under Section 5, Limitation Act, Mr. Lahori referred us to 'Rajendra Bahadur v. Rajeshwar Bali : AIR 1937 P.C. 276 (A).
In this case their Lordships of the Privy Council in the particular circumstances of the case held that mistaken advice given by a law practitioner may in the circumstances of a particular case give rise to sufficient cause within the meaning of Section 5, though there is certainly no general doctrine which saves parties from the results of wrong advice.
This case therefore does not lay down any general principle to the effect that wrong advice tendered by a Counsel is sufficient cause under Section 5, Limitation Act in every case. The second case on which reliance has been placed is one reported in 'Ahmed Arabi V. Osman Isa', AIR 1951 Sau 12 (B). This case also does not lay down any general principle. In the circumstances of that particular case the learned Judge held that the neglect shown by the advocate is not of such gross mature that the client should suffer for it.
Acting upon wrong advice amounts to a sufficient cause when the advice is itself given bona fide i.e., after the exercise of due care and attention and when the party himself has acted with due care and attention in seeking and relying upon such advice. In 'Highton v. Treherne', 39 LT 411 (C) Bret L.J. observed as follows:
In cases where suitor has suffered from the negligence, or ignorance or, gross want of legal kill of his legal adviser, he has his remedy against his legal adviser, and meantime the suitor must suffer. But where there has been a bona fide mistake, not through misconduct nor through negligence, nor through want of reasonable skill, but such as a skilled person might make. I very much dislike the idea that the rights of client should, be thereby forfeited.
This view is generally followed by the High Courts in India. Where there is no exercise of due care and attention the cause cannot be said to be sufficient. In 'Padmaraj Phulchand v. Mitsui Bushan Kesha Ltd.', AIR 1924 Nag 279 (D); a Division Bench of the Nagpur Judicial Comissioner's Court observed as follows:
The applicants were represented in the First Appeal by an eminent Counsel practising in this Court who we presume was conversant with the provisions of the new Amendment Act, and if the applicants instead of consulting him or any other lawyer practising in this Court who had frequent occasions to deal with petitions for leave to appeal to His Majesty in the Privy Counsel go and consult a District Court practitioner, who may not have had occasion to deal with the matter, they must thank themselves for the mistake.
We think that the mistake was one which with due care and attention the applicants could have avoided. The applicants do not for reasons best known to themselves like to disclose the name of the pleader whose ill advice they say had misled them.
We cannot, therefore, accept the statement of facts alleged in the affidavit as a true statement of facts that really prevented the applicants from making this petition within the time limited by the amended law of limitation. We think that the non -applicant's contention that this valuable right should not be lightly taken away has great force, supported as it is by a long series of decisions both English and Indian.
In 'S.C. Day v. Mt. Rajwanti Kuer', AIR 1923 Pat 140 (E), a Division Bench of the Patna High Court held as follows:
It could not be laid down as an inflexible rule of law that in no case can the circumstance that a litigant has under the erroneous advice of Counsel or pleader, presented an appeal out of time, be deemed a 'sufficient cause' within the meaning of Section 5. Where the mistake is of such a description that it may arise even amongst practitioners of experience, a litigant, amongst not be made to suffer for such an error.
In 'Lakshmikanthamma v. Ranganayakulu' : AIR 1929 Mad 91 (F), a Division Bench of the Madras High Court held that the mistake of the 'Vakil' may be pleaded as sufficient ground under Section 5 to excuse limitation, but such mistake is not in all circumstances conclusive ground. In 'Muhammad Amin v. Chanan Mai', 110 Ind Cas 533 (Lah) (G), a Division Bench of the Lahore High Court held as follows:
Whether a mistake made by Counsel does or does not amount to sufficient ground for extending time within Section 5, Limitation Act depends upon the peculiar facts, of each case and it is not possible to lay down a hard and fast rule applicable to all cases. There is no warrant for the broad proposition that unless it is found that Counsel has acted dishonestly or with ulterior motive in presenting the appeal in a wrong Court, the High Court should invariably condone the delay under the Section.
In cases where the mistake on the part of the Counsel cannot be said to be due to inadvertence or ignorance but is manifestly the result of sheer carelessness a total lack of due care and attention, it cannot be a ground for extending time.
(3.) IT is clear from these authorities that unless the legal practitioner exercises due care and attention his mistaken advice would not amount to sufficient cause. In the present case period of 30 days for leave to appeal in 'forma pauperis' has been in force for a considerable time. If therefore the Counsel had taken due care and attention he could not have given wrong advice with regard to the period of limitation. The applicant himself cannot be said to have acted with due care and attention.
In his application he has not disclosed the name of any leading Counsel whom according to him he consulted. No practitioner of some standing can possibly make such a mistake if he exercises due care and attention. In these circumstances wrong advice does not amount to a sufficient cause in this case. The application therefore cannot be accepted.;
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