JUDGMENT
A.M. Bhattacharjee, J.
1. These
are two applications praying that the two
concerned First Miscellaneous Appeals filed
beyond the period of limitation be admitted
either by excluding, under Section 14 of the
Limitation Act, the period taken in
prosecuting similar appeals in the court of
the District Judge or by extending the period
of limitation for sufficient cause under Section 5 of
the Act.
2. Section 14 of the Limitation Act no doubt provides for exclusion of the period taken in prosecuting with diligence and good faith another civil proceeding against the settle
parties in respect of the same matter in another Court which is unable to entertain the same for want of jurisdiction or other causes of a like nature. In terms, however, Section 14 ex facie applies in computing the period of limitation for suits and applications only and not to appeals. But the Privy Council decision in Brij Indar Singh v. Kanshi Ram, AIR 1917 PC 156 appears to be a sufficient authority for the view that even in the case of an appeal, prosecution of another civil proceeding in the circumstances contemplated in Section 14 may constitute sufficient cause for extension of the period of limitation for the appeal under Section 5 of the Limitation Act. In fact, this Privy Council decision in Brij Indar Singh (supra) as well as the two later decisions of the Board in Sunderbai v. Collector of Belgaum, AIR 1918 PC 135 and in Kunwar Rajendra Bahadur v. Raj Rajeshwari Bali. AIR 1937 PC 276 purport to lay down that although Section 14 of the Limitation Act is not applicable to appeals ex proprio vigore, the principles underlying the section should be applied also in considering an application under Section 5 of the Act in respect of appeals, in the Division Bench decision of this Court in Purna Chandra v. Mabub Baksh, AIR 1923 Cal 29 1(1) the principles under Section 14 appear to have been applied in condoning the delay in filing appeals. It is true that even though Section 14 in terms does not apply to appeals, yet, as pointed out by the Supreme Court in Ram Lal v. Rewa Coalfields Ltd., invocation of its principles while considering an application under Section 5 would very often solve the hardship that would have otherwise resulted because of non-application of Section 14 to appeals in terms. But even then, we have every reason to respectfully agree with the view of the Law Commission of India in its 89th Report on the Limitation Act, 1963, submitted in 1983 (para 14,12 page 35) to the effect t hat “a right should be given to an appellant to exclude the time taken in proceeding bona fide in a Court without jurisdiction, rather than leaving the matter to the discretion of the court under Section 5 to be exercised for ‘sufficient cause’, because “while interpreting the expression ‘sufficient cause’, the Courts may take conflicting views which appear to be worth avoiding on such matters”. The Law Commission has in fact recommended the
extension of Section 14 to appeals by express phraseology and has suggested (para 14.23, page 38) insertion of a new Sub-section (2A) applying the section to appeals in express terms. But until that is done (and sooner the better and better late than never), in appeals, we Would have to go by the Section 5 way. Now to the facts.
3. The two appeals were initially filed in the Court of the District Judge. But even though those were appeals from orders, the suit in which the orders were passed having been valued at more than Rs. 25,000/-, the appeals were required to be filed in the High Court under the provisions of Section 21 of the Benal. Agra and Assam Civil Courts Act, 1887 read with Section 106 of the Civil P.C. It appears from the certified copy of the relevant order-sheet that the respondents also lodged Caveat in the District Court and the appeals were admitted by the District Judge in the presence of and after hearing the parties. The respondents subsequently moved this Court in revision against such admission and those appeals were then withdrawn by the appellants from the District Court and have thereafter been filed in this Court. It is not disputed that if the delay caused by the time taken in prosecuting those appeals in the District Court is condoned or excluded then the present appeals in this Court would be within time. The only question for our determination, therefore, is whether there is sufficient cause to condone the delay and extend the time under Section 5 of the Limitation Act.
4. In Ram Lal v. Rewa Coalfields, (supra) the Supreme Court has quoted with approval the observations of the Madras High Court in Krishna v. Chathappan, (1890) ILR 13 Mad 269 to the effect that “the words ‘sufficient cause’ receiving a liberal construction so as to advance justice when no negligence nor inaction nor want of bona fide is imputable to the appellant. Now though our procedural laws, in theory, permit a party to conduct his case in person without a lawyer, the labyrinth of our laws, both procedural and substantive, and the enigmatic features prevailing under our present adversary legal system leave him almost with no opt ion but to engage a Counsel to prosecute his case. In such a case, to quote from the
Supreme Court decision in Rafiq v. Munshilal, , “the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things” as “after engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest”. If a party has done that, then, as the Supreme Court has proceeded to have observed further in the form of a question, “what is the fault of the party who having done everything in his power and expected of him would suffer because of default of his advocate”. This has again been reiterated by the Supreme Court in Goswami Krishna Murarilal v. Dhan Prakash, and these observations have again been quoted with approval in a later decision of the Supreme Court in Lachi Tewari v. Director of Land Records, . It should be noted that in Rafiq v. Munshilal (supra), the Supreme Court, after raising the question as to whether a party should suffer for the inaction, negligence or other fault of the advocate, has answered by declaring that “the answer is obviously in the negative”.
5. In the case at hand, it is not disputed that the appellants engaged lawyers to prefer appeals against the impugned order and these appeals were filed in a wrong Court in accordance with the advice of their lawyers. It is also on record that the respondents themselves also lodged caveat in that wrong Court and that the said Court also had no hesitation to admit those appeals after hearing the lawyers for both the parties and also to keep the appeals on its file for all these days. If these appeals could get entry in this wrong Court only because of the obviously wrong and/or negligent advice of the lawyers and also inaction and negligence on the part of the Court, then it is difficult to understand as to why the appellants shall not be regarded to have made out sufficient cause for the condonation of the delay resulting from such wrong institution. As already stated, our laws and forensic procedure compel a party to engage a lawyer in proceedings in Courts and, therefore, the Courts must see that the parties do not suffer because their lawyers have blundered.
6. Even if it cannot be always put into a straight-jacket formula of universal
application, it has been repeatedly held by both our pre-independence and post-independence apex Courts that mistake or mistaken advice of lawyer may be a good ground for condoning the delay resulting from such mistake or mistaken advice. Relying on the Privy Council decision in Kunwar Rajendra Bahadur v. Raj Rajeshwari Bali, AIR 1937 PC 276 (supra), it has been held by the Supreme Court in State of West Bengal v. Howrah Muncipality, that “if a party had acted in a particular manner on a wrong advice given by his legal adviser, he cannot be guilty of negligence so as to disentitle the party to plead sufficient cause under Section 5 of the Limitation Act”. And relying on those observations, and also the aforesaid Privy Council decision, it has again been held by the Supreme Court in Punjabi University v. A. Section Ganesh, that “a mistake by a lawyer is good ground for condoning the delay in filing the appeal”.
7. What we have stated hereinbefore is sufficient to dispose of these two applications for condonation and to justify our granting the same. But we think that we must take note of a very recent decision of the Supreme Court in Collector, Land Acquisition v. Katiji, , where the Supreme Court has regretted that, though it has been making liberal approach in matters relating to condonation of delay”, “its message does not appear to have percolated down to all the other Courts in the hierarchy”. The message, as formulated therein (at 1354) appears to be that since an appellant does not stand to gain, but runs a serious risk, by lodging an appeal late and since refusal to condone delay might result in a meritorious appeal being shut out at the threshold, while condonation would at its highest result in a hearing of the appeal on merits with due notice to the parties, and since substantial justice after hearing on merits should whenever possible, be preferred to technical consideration scuttling such hearing, non-deliberate delay would deserve a liberal approach. As to the rule that “every day’s delay must be explained”, the Supreme Court has, while disapproving a pedantic or mechanical approach, recommended a rational, commonsense and pragmatic application thereof and has endeavoured to
demonstrate the futility of a strict adherence to that rule by posing the question “why not every hour’s delay, even second’s delay?” We would have, however, thought, and this we say with great respect, that even a strict adherence to the rule would have never required explanation of delay of every hour, minute or second as under our Law of Limitation the smallest units for the computation of periods are days and never seconds or minutes or hours, and we are unable to visualise a case where limitation would have to be counted or condonation to be refused on the basis of such fractions of a day. Be that as it may, we would have thought that while considering the question of extension of time for condonation of delay under Section 5, Limitation Act, the relevant question is ‘whether there is sufficient cause to extend or condone?’, but as a result of this message we may have now to recast the question as ‘whether there is sufficient cause not to extend or condone?’ In other words, the question may not be ‘why to condone’ but may be ‘why not to condone’.
8. As already indicated, for the reasons stated by us hereinbefore even without the aid of this latest Supreme-Court decision in Collector, Land Acquisition v. Katiji, (supra), we would grant these two applications and, therefore, we propose to consider this decision and ascertain its message on a more suitable occasion so that the same may percolate to us, the courts below and hence this may not be pursued here any further.
9. We, therefore, allow these two applications for condonation of delay in preferring these two appeals and direct that the appeals may be admitted, if otherwise in form and be placed for hearing under Order 41, Rule 11 of the Civil P.C. We would, however, make no order as to costs.
Ajit Kumar Nayak, J.
10. I
agree.