KESHARIBHAI JESINGBHAI Vs. BAI LILAVATI WD O GABHAI JESINGBHAI

JUDGEMENT

(1.) This application to condone delay in filing the appeal under sec. 5 of the Limitation Act arises from a suit filed by the appellant against the respondents in the Court of the Third Joint Civil Judge Senior Division Ahmedabad on 19th March 1952. The appellant claimed relief in respect of three categories of properties. The first category consisted of properties which according to the appellant belonged to his father Jesingbhai at the time of his death and were bequeathed by Jesingbhai to the appellant and his brother Jagabhai-being the only two sons of Jesingbhai-by a will. These properties alleged the appellant came into the hands of Jagabhai on the death of Jesingbhai and the appellant was entitled to one-half share in these properties. The second category comprised certain other properties which were inherited by the appellant and Jagabhai from their grandmother Bai Mena in equal shares and which on the death of Jesingbhai again came into the hands of Jagabhai on the allegation of the appellant. The appellant contended in relation to the aforesaid properties that an oral partition which had taken place between the appellant and Jagabhai was fraudulent and not binding on the appellant and that notwithstanding such partition the appellant was entitled to claim his one-half share in such properties. The appellant therefore claimed in prayer (a) of the plaint that the oral partition was not valid and binding on the appellant and that all the properties belonging to Jesingbhai at the time of his death as also all properties belonging to Bai Mena which were received by Jagabhai on the death of Jesingbhai should be accounted for by the respondents respondent No. 1 being the widow and respondents Nos.2 to 4 being the sons of Jagabhai since deceased and that the appellants one half share in these properties should be ascertained declared and duly paid over to the appellant. T he appellant also claimed in the alternative that if it was held that the properties which belonged to Jesingbhai at the time of his death were joint family properties and that he had no right to make a will in respect of the same these properties on the death of Jesingbhai belonged to the appellant and Jagabhai as joint family properties and that Jagabhai having received these properties on the death of Jesingbhai Jagabhai and after his death the respondents were liable to account for these properties and these properties should therefore be ascertained and declared and after excluding such of them as were already partitioned the rest should be divided and the appellants half share should be awarded to him. The appellant also contended that at the time of the death of Jesingbhai there were certain shares lying with Jesingbhai which belonged to the appellant as his separate property and that on the death of Jesingbhai these shares were received by Jagabhai and that Jagabhai and after his death the respondents were in the position of trustees in respect of these shares and were liable to account for the same. The appellant accordingly claimed in prayer (b) of the plaint that whatever amount was ascertained as due and payable by the respondents to the appellant at the foot of the accounts in respect of these shares should be paid and these shares together with any accretions which might have been received and arty other shares into which they might have been converted should be handed over to the appellant. These shares constituted the third category of properties claimed by the appellant The appellant valued prayers (a) and (b) of the plaint at Rs. 200/each for the purpose of court-fees and paid court-fees on the total valuation of Rs. 400.00. So far as the valuation of the subject matter of the suit for the purposes of jurisdiction and advocates fees was concerned the appellant in the original draft of the plaint put the valuation at Rs. 400/but subsequently before filing the plaint altered it to Rs. 75 0 The respondents resisted the suit on various grounds which it is not necessary for me to set out for the purpose of the present application. Suffice it to state that one of the grounds taken up by the respondents was that the appellant had deliberately undervalued the suit for the purpose of court-fees. It was because of this plea raised by the respondents that amongst various issues was raised issue No. 22 which was in the following terms :- -

(2.) The suit was tried by the Third Joint Civil Judge Senior Division. The learned trial Judge instead of holding an inquiry whether proper and adequate court-fees were paid by the appellant on the plaint proceeded to dispose of the suit by trying all the issues. The learned trial Judge came to the conclusion that the appellant was not entitled to any of the reliefs claimed by him and he accordingly dismissed the suit with costs. The learned trial Judge in view of the fact that he dismissed the suit with costs did not decide Issue No. 22 on the ground that it did not survive. The result was that the question whether proper and adequate court-fees were or were not paid by the appellant on the plaint remained undecided and the suit with Court-fees paid on the basis of the value being Rs.400/was tried and disposed of on merits. It may be mentioned at this stage that prior to the fifing of the suit the appellant gave a notice dated 17th January 1952 exhibit 123 to the respondents and in that notice the appellant valued at Rs. 1 0 0 the ornaments which were received by Jagabhai on the death of Jesingbhai and in which according to tee appellant he was entitled to one half share. Another fact which must be mentioned at this stage is that in the affidavit Exhibit 28 made by the appellant on the application for appointment of a receiver of the properties alleged to be lying in the hands of the respondents the appellant stated that the shares belonging to the appellant and in respect of which claim was made by the appellant in prayer (b) of the plaint were of the value of Rs. 1 0 0 I have set out these two facts since considerable reliance was placed by the learned Advocate General appearing on behalf of the respondents on these two facts in support of his contention that there was no sufficient cause for admitting the appeal beyond the period of limitation within the meaning of sec. 5 of the Limitation Act To continue the narration the suit was as mentioned above dismissed by the learned trial Judge without deciding issue No. 22 as regards the proper and adequate Court-fees payable on the plaint. The dismissal of the suit took place on 31st March 1959. The proceedings for drawing up the decree were taken immediately after the dismissal of the suit and in the course of those proceedings the question arose as to what was the basis of calculation of advocates fees since the suit was dismissed with costs and costs were therefore payable by the appellant to the respondents. The appellant made an application to the learned trial Judge on 29th April 1959 the application being Exhibit 803 and contended that the Advocates fees should be fixed on the basis of the value of the subject matter in dispute in the suit being Rs. 400.00. The basis for the contention was that the plaint was valued at Rs. 400/for the purpose of Court-fees and that the same valuation should therefore govern both for the purpose of jurisdiction and advocates fees. The contention was however negatived by the learned trial Judge by an order dated 29 April 1959. The learned trial Judge observed in the order that the value of the subject matter in dispute in the suit was Rs. 75 0 since that was the valuation put by the appellant himself in the plaint and that the advocates fees should therefore be determined on the basis of such valuation. The decree was accordingly drawn up providing advocates fees on the basis of the value. of the subject matter in dispute in the suit being Rs. 75 0 The appellant was obviously aggrieved by the dismissal of his suit and he therefore decided to file an appeal against the same. The appellant consulted two lawyers namely Shri Premchand v. Shah and Shri J. D. Pandya who are both senior lawyers practising until recently in the erstwhile District Court of Ahmedabad and now practising in the City Civil Court and Sessions Court in Ahmedabad. Both these lawyers are undisputed by lawyers of considerable standing and repute and of them Shri Premchand V. Shah is at present the Government Pleader in the City Civil Court and Sessions Court in Ahmedabad. The appellant was advised by these two lawyers that the appeal from the dismissal of the suit would lie to the District Court and the appellant therefore filed Appeal No. 332 of 1959 in the District Court on 31st July 1959. The respondents it appears made an application Exhibit 9 to the District Court contending that the appeal from the dismissal of the suit lay to the High Court and not to the District Court and that the District Court had therefore no jurisdiction to entertain the appeal. This application was heard by the Joint District Judge Ahmedabad. The learned Joint Judge came to the conclusion that the value of the subject matter of the suit for the purpose of jurisdiction was Rs. 75 0 that the appeal from the dismissal of the suit therefore lay to the High Court and not to the District Court. The learned Joint Judge therefore by an order dated 7th January 1961 directed that the memo of appeal be returned to the appellant for presentation to the proper Court. The memo of appeal was actually returned to the appellant for presentation to the proper Court on 9th January 1961 and on the same day the appellant filed the same in this Court; The time prescribed for filing an appeal in this Court being ninety days from the date of the decree appealed against excluding the time requisite for obtaining certified copies of the judgment and decree it is obvious that the appeal was timebarred at the date when the memo of appeal was filed in this Court. The appellant therefore made the present application for condonation of delay in filing the appeal under section 5 of the Limitation Act It is this application which has now come up for hearing before me. This application has been resisted very strenuously on behalf of the respondents for it is clear that if this application is not granted the appeal must fail on the ground that it is barred by the law of limitation.

(3.) The only ground urged by Mr. S. B. Vakil learned advocate appearing on behalf of the appellant in support of this application was that the appellant consulted Shri Premchand V. Shah and Shri J. D. Pandya two senior lawyers who enjoyed high status and reputation in the legal profession in Ahmedabad and the appellant was advised by them that the appeal from the dismissal of the suit lay to the District Court and it was in reliance on their advice that the appellant filed the appeal in the District Court. Mr. S. B. Vakil contended that the appellant acted in good faith in prosecuting the appeal in the District Court and that as soon as the District Court held that the proper forum of appeal was the High Court and not the District Court and returned the memo of appeal to the appellant for presentation to the High Court the appellant wasted no time and immediately filed the memo of appeal in the High Court. Mr. S. B. Vakil urged that under the circumstances the appellant had sufficient cause for not filing the appeal in the High Court within the prescribed period and that the delay in filing the appeal should therefore be condoned under section 5 of the Limitation Act. The learned Advocate General appearing on behalf of the respondents on the other hand contended that mistaken advice given to the appellant by his lawyers was not sufficient to save the appellant from the bar of limitation and that the appellant could not be said to have made out sufficient cause within the meaning of section 5 of the Limitation Act unless he produced material before the Court to show that his lawyers acted in good faith i. e. with due care and attention. The learned Advocate General argued that the two lawyers Shri Premchand V. Shah and Shri J. D. Pandya who advised the appellant did not act with due care and attention in advising the appellant to file the appeal in the District Court inasmuch as according to the learned Advocate General it was clear that the appeal lay to the High Court and not to the District Court and that the view that the appeal lay to the District Court was not a reasonable view which could be come to by any competent lawyers exercising reasonable care and skill. The contention of the learned Advocate General was that the advice given by these two lawyers to the appellant being negligent advice not given with due care and attention the appellant was not protected by such advice and if the appellant followed such advice and prosecuted the appeal in the District Court which was not the proper forum for filing the appeal and thereafter filed the appeal in the High Court beyond the period of limitation the appellant could not be said to have sufficient cause for not filing the appeal within the prescribed time. the learned Advocate General urged that under the circumstances -no sufficient cause having been made out by the appellant for the exercise of discretion under section 5 of the Limitation Act the delay in filing the appeal should not be condoned and the application should be rejected. These were broadly the rival contentions urged before me and I shall now proceed to examine the validity of these contentions.