Passey, J. - (1.) THIS appeal which is from a decree of a Sub Judge, First Class was originally presented in the Court of District Judge, Patiala on 12 -12 -1949. On 5 -7 -1950 the District Judge ordered that the appeal be returned to the Appellant for presentation to the High Court on the ground that the District Judge had no Jurisdiction to hear it. There is a note in the handwriting of the District Judge of the same date which shows that the record of the appeal was returned to the Appellant. It was, however, presented in the High Court on 7 -8 -1950.
(2.) TWO questions arise for determination; one whether the appeal was presented bona fide in the Court of the District Judge and second whether there is an explanation for the delay for presentation of the appeal in the High Court. No affidavit has been filed by the Appellant in order to explain either fact. Mr. Ram Niwas prays that he should be allowed time to put in affidavit of the counsel who presented the appeal in they Court of the District Judge and also of the Appellant. The reason that he gives for no putting in any affidavit so far is that he wrote to his client asking him to furnish him with an affidavit and though he got a reply from him that he would be coming himself to look into the matter he has not arrived. Mr. Ram Niwas is unable to say why his client has not turned up. In view, of the importance of the questions involved and also in view of the fact that the date appearing under the note of the District Judge showing that the appeal was returned to the Appellant on 5 -7 -1950 is being challenged, Mr. Ram Niwas is allowed to put in affidavits that he wishes to put in by the 23rd instant on the condition that he pays Rs. 100/ - as costs of adjournment to the other side. If the Respondent so likes he can put in counter affidavits by the 27th. The appeal to come up for hearing on the 28th. Teja singh, C.J. The affidavits as directed by our order of 11 -5 -1953 which should be read as a part of the final order, have been filed. I now proceed to decide whether time should be extended under Section 5, Limitation Act. The Appellant's counsel urges that since his client was misled by the mistaken advice of his counsel whom he engaged to institute the appeal on the analogy of Section 14 the time during which the appeal remained pending in the Court of the District Judge, should be excluded or in the alternative time should be so extended as to include the time spent by the Appellant in prosecuting the appeal in the District Judge's Court. Both sides are agreed that Section 14 does not apply to appeals in terms but in a fit and proper case, benefit of it can be given to an Appellant by granting extension of time under Section 5. As we observed in our previous order two questions have to be taken into consideration: One whether the appeal was presented bona fide in the Court of the District Judge and second whether there is explanation for the delay for presenting the appeal in the High Court.
(3.) AS regards the first point it is necessary to refer briefly to the facts of the litigation out of which the appeal has arisen. The Plaintiff is a Brahmin and is employed in the State as a Naib Tehsildar. His father, .who, we are told, was also a Naib Tehsildar sold a house in Patiala to the Defendant for Rs. 800/ - on 10 -5 -1973 Samvat. 30 years later, i.e. on 14 -5 -2003 the Plaintiff instituted an usual suit for declaration challenging the validity of the sale alleging that his family was governed by agricultural custom, that the house was ancestral qua him and that the sale was without consideration and necessity. The value of the suit for purposes of Jurisdiction was given in the plaint at Rs. 10,000/ -. The trial Sub Judge dismissed the suit on 26 -7 -2006 S (11 -10 -1949 A. D.); Against this decree, the Appellant preferred an appeal to the District Judge on 27 -8 -2006 S (12 -12 1949 A. D.) When the appeal up for hearing before the District Judge on 5 -7 -50 an objection was raised on behalf of the Respondent that the value of the suit being Rs. 10,000/ - the appeal lay to the High Court and not to the District Judge. The correctness of the objection was obvious to everyone and the Appellant's counsel did not make any effort to question it and accordingly the District Judge by his order of the same date, ordered the memorandum of appeal to be returned to the Appellant to be presented in the High Court. The record shows that a copy of the order was prepared there and then and the memo of appeal was handed: over to the Appellant's counsel with the following note in the handwriting of the District Judge: Returned to the Appellant with necessary papers and copies etc. This note also bears the date 5 -7 -1950. The appeal was presented in this Court on 7 -8 -1950. It is not denied by the Appellant's counsel that since the suit had been valued for purposes of jurisdiction at Rs. 10,000/ - the appeal lay direct to the High Court. Counsel also conceded that the valuation of the suit was also correctly given in the copy of the decree -sheet which accompanied the memorandum of appeal in the District Judge's Court and had the counsel who put in the appeal taken the care of turning to the copy he could have no difficulty in finding that the appeal did not lie to the District Court. How the counsel made the mistake is not clear from the affidavit that he has sworn. All that is mentioned in this connection in para 2 of the affidavit is I state on solemn affirmation that I filed this appeal in. the Court of District Judge, Patiala, ' by bona fide mistake as sale money in dispute was only Rs. 800/ -. Taking into consideration the fact that the sale took place 30 years before the suit was instituted and the value of the house must have been increased many times during this period and further in consideration of the fact that on the Plaintiff's own showing the value of the suit for purposes of jurisdiction was Rs. 10,000/ -, I cannot understand how the counsel was influenced by the fact that "the sale money in dispute was Rs. 800/ -". It is not mentioned in the affidavit nor is it alleged before us that the counsel consulted any rules and law or that the mistake arose because he considered that the matter was governed by some particular rule and law in preference to the other. In the circumstances, the only inference that can be drawn is that either the counsel put in the appeal without looking at the decree -sheet and without even consulting the law on the point or both. In either case it was a case of extreme negligence and carelessness and in the view that I take I cannot hold that the mistake made by the counsel can be regarded as bona fide. Sub -Section 7 of Section 2, Limitation Act lays down that nothing shall be deemed to be done in good faith which is not done with due care and attention. I have no doubt in my mind that the Plaintiff's counsel not only acted without due care and attention but he did not apply any care or attention at all.;