BADDUNISA BEGUM Vs. STATE OF RAJASTHAN
LAWS(RAJ)-1967-1-33
HIGH COURT OF RAJASTHAN
Decided on January 11,1967

BADDUNISA BEGUM Appellant
VERSUS
STATE OF RAJASTHAN Respondents

JUDGEMENT

- (1.) THIS is a revision petition against the order of the learned Revenue Appellate Authority, Kota dated the 20th March, 1965 whereby he held the appeal filed by the petitioner to be beyond limitation. The proceedings started with an appeal against the order of the Tehsildar Pidawa dated 14. 5. 61 allotting land to Ratanalal respondent. The appeal was dismissed by the Collector Jhalawar on 29. 6. 63 whereupon the petitioner filed a revision petition before the Board of Revenue on 9. 8. 63 which was also dismissed on 10. 2. 64 with the observation that the revision had been wrongly filed before this court. While rejecting the revision petition the learned Member directed the petitioner to file a regular appeal before the appropriate court according to law. Following this the petitioner filed an appeal before the learned Revenue Appellate Authority on 13. 2. 64 along with an application for condoning the delay. As stated above, the same was held to be beyond limitation and rejected by the learned Revenue Appellate Authority.
(2.) THE only point urged by the learned counsel for the petitioner is that the revision was filed by the petitioner within limitation on the advice of a lawyer and as such there was no negligence on the part of the petitioner. It is urged that the time spent in revision should have been taken into account by the appellate court and the petitioner should have been given the benefit of sec. 5 of the Limitation Act. In support of this contention the learned counsel for the petitioner relies upon the rule laid down in Kesharbhai Jesingbhai vs. Bai Lilavati (AIR 1963 Gujarat p. 119 ). This authority seeks to enunciate the law governing sec. 5 of the Limitation Act and lays down as follows - "the true guide for the Court in the exercise of its discretion under sec. 5 of the Limitation Act is whether the appellant has acted with reasonable diligence in prosecuting his appeal, and the appellant ought oridinarily be deemed to have acted with reasonable diligence, if the whole period between the date of the decree or order appealed against and the date of presenting the appeal does not, after excluding the time spent in prosecuting with due diligence and in good faith another proceeding in a wrong tribunal or before a wrong forum, exceed the period prescribed by law for presenting the appeal. THE time spent in prosecuting with due diligence and in good faith another proceeding in a wrong tribunal or before a wrong forum would be liable to be excluded on the analogy of the principle embodied in sec. 14 of the Limitation Act and if after excluding such time the appeal is within the period of limitation, that would constitute sufficient cause within the meaning of sec. 5 of the Limitation Act. " It further goes on to say - "if the appellant has prosecuted another proceeding in a wrong tribunal or before a wrong forum in reliance on mistaken advice given to him by his lawyer, the appellant would fall within the general rule embodied in the last mentioned proposition even though the mistaken advice given by the lawyer was careless or negligent and the lawyer did not act in good faith, i. e. , with due care and attention in giving such mistaken advice; provided of course the appellant acted diligently and in good faith, i. e. , with due care and attention in consulting the lawyer, seeking advice from him and prosecuting the other proceeding in reliance on such advice. " He further cited M. Dorayya vs. Baleswaraswami Varu and Sri Vengopala Swamy Varu a deity represented by its trustee A. Adinarayana Murty and another (AIR 1966 A. P. p. 259) wherein also it has been held that the period spent in prosecuting the case before a wrong tribunal is sufficient cause within the meaning of sec. 5 of the Limitation Act and that period should be deemed to be added to the period allowed for presenting appeal. The above two authorities lend full support to the petitioner. The learned counsel for the non-petitioner as well as the learned Government Advocate concede this position. They would only like costs to be awarded for the harassment caused to the non-petitioners. This is reasonable. In the result, therefore, I am of the opinion that the learned appellate court has committed an illegality in ignoring the rule of law as laid down in the above two authorities and the impugned order cannot be sustained. Accordingly, this revision petition is accepted and the order of the Revenue Appellate Authority is set aside on payment of cost of Rs. 50/- to each of the non-petitioners. . ;


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