JUDGMENT
Suhrawardy, J.
1. This is an application by the appellant for permission to file an appeal out of time on the ground mentioned in the petition, The ground is that there were two suits brought against the appellant by two creditors : one was valued at over Rs. 5,000 and the other much below it. Both the suits were decreed and the decrees put into execution. The appellant’s properties were sold in the suit which was valued at over Rs. 5,000 and the decree-holder in the other execution case applied for rateable distribution of the money realized from the sale of the properties. The appellant applied to have the auction sale set aside under Order 21, Rule 90, Civil P.C. That application was after trial dismissed on 28th February 1927. The appellant’s case is that as he was lying seriously ill at that time he sent the necessary costs and papers to his pleader at Dacca who was a pleader of over 15 years’ standing and having considerable practice. The pleader, under a wrong impression that the appeal related to the suit which was valued below Rs. 5,000, filed the memorandum of appeal in the Court of the District Judge at Dacca on 29th March 1927. On 27th June 1927 it was found that the appeal did not lie to the Court of the District Judge and that it ought to have been presented in the High Court. The District Judge on that day returned his memorandum of appeal to the petitioner -and the appeal was presented by him in this Court on 18th July 1927. On these facts the petitioner prays for extension of time under Section 5, Lim. Act. The question that arises in this case has been very thoroughly argued before us and all the relevant authorities have been placed in support of one view or the other. The questions which present themselves before us for determination, accepting the facts as stated by the petitioner to be true and we do not see any reason to doubt the truth of those facts, are whether when a party acts implicitly relying on the advice of his legal adviser is he entitled to claim the benefit of Section 5, Lim. Act; and, secondly if the advice turns out to be wrong or when the legal adviser acts negligently, namely without due care and attention, is the party not entitled to claim such benefit?
2. The answer to these alternative questions in any way will lead to undesirable results. If the first question is answered in the affirmative it will be putting a premium on the carelessness or incompetency of persons practising law on whom lies a heavy duty and responsibility of giving proper advice to their clients. On the other hand, if the second question is answered in the affirmative an innocent party who has acted on the advice of his lawyer qualified for the purpose of giving advice will suffer injury without any fault of his. The question therefore, that has come up before us in these proceedings is one of considerable difficulty and delicacy. As has been held in several cases Rakhal Chandra Ghose v. Ashutosh Ghose [1913] 17 C.W.N. 807, and Krishna v. Chathappan [1890] 13 Mad. 269, the discretion given by Section 5, Lim. Act, to the Court should not be defined and crystallized so as to convert a discretionary matter into a rigid rule of law. But the discretion in each particular case should be exercised on its own facts with a view to secure furtherance of justice. It has also been held in numerous cases that when the period fixed by the law of limitation for an action or appeal expires the defendant or respondent secures very valuable rights which should not be easily tampered with: see Krishaasami Panikondar v. Ramasami Chettiar A.I.R. 1917 P.C. 179. Keeping these principles in view we have to examine the facts of the present case and the decisions that bear upon them. The explanation given for the delay in filing the appeal in this Court is that the appellants’ pleader to whom the papers were sent was under the impression that the matter arose out of a suit which was valued below Rs. 5,000. It is not clear what was the basis of that impression and we cannot but observe that we are not satisfied that the pleader was so diligent as it was necessary for a lawyer to be in dealing with the interests of his client. But the fact remains that the petitioner was induced by the advice of his pleader to file the appeal in the wrong Court. On similar facts decisions have been pronounced which it is not easy to reconcile. The learned advocate for the opposite party has drawn our attention to several cases in support of his contention that if the pleader acts negligently the client is not entitled to the benefit of Section 5, Lim. Act. Before considering those cases it would be profitable to refer to the section itself which says that an appeal may be admitted after the period of limitation prescribed therefor when the appellant satisfies the Court that he has sufficient cause for not preferring the appeal. The words of the section are that the appellant must satisfy the Court that he, namely the appellant, has sufficient cause for not preferring the appeal in time. It has not been argued before us, nor can it be reasonably said, that in a matter of this kind the pleader acts as an agent of his client and his act or default is binding upon the latter within the meaning of Section 5, Lim. Act. The learned advocate for the opposite party has referred us to several oases which may be examined separately. The first case to which reference has been made is the case of Sarat Ghandra Bose v. Saraswati Debi [1907] 34 Cal. 216. The point on the facts of the case there did not really arise and it was decided upon a very different consideration. The appellant there was a well-known lawyer and his explanation was that he was under the impression that the appeal lay to the Court of the District Judge instead of the High Court. Their Lordships commented upon the fact of the appellant being himself a lawyer and distinguished the cases which supported the appellant’s contention in that case. They conceded that where there was a bona fide mistake on behalf of a client acting on the advice of his-lawyer a good case may be made out under Section 5, Lim. Act. Thereafter their Lordships made the following observation:
But the circumstances we have already described show that there was negligence on the part of the appellant.
3. In that case, therefore, it was found that there was negligence on the part of the party and that he was not entitled to any indulgence The next case is S.C. Dey v. Mt. Rajwanti Kuer A.I.R. 1923 Pat. 140. In that case Dawson-Miller, C.J., has expressed an opinion that if a party pleads that he has been misled by the mistake of his legal adviser the principle on which the Court acts is that the mistake must be of such a. description that it might arise even amongst practitioners of experience. But the judgment of the Court did not depend upon this view of the law, for on the facts the learned Judges found that the allegations made by the petitioner in that case were not sufficient. In the concluding portion of his judgment the learned Chief Justice says that the affidavit of the petitioner before him did not say who made the mistake, whether it was some practitioner of experience or whether it was made by some clerk in the pleader’s office. The learned Chief Justice in expressing the above view relied upon a decision of this Court in Sunder Kuer v. Raghunath Sahai [1911] 12 I.C. 677. There, the mistake made by the petitioner was in calculating the time within which he should have filed the appeal in this Court taking into account the period occupied in taking copies of necessary papers. He based his case upon the advice he got from a pleader in the mofussil in that matter which turned out to be wrong. The learned Judges after considering the various cases relating to the point made the following observation:
The test therefore, to be applied to the ease before us is whether there has been any negligence or inaction or want of bona fides on the part of the appellant. We are satisfied upon the materials which have been placed before us that the question must be answered in the negative. The appellant who is a pardanashin lady, appeared to have acted bona fide and her agent consulted her pleader who assured him that he was entitled to a deduction of all the periods mentioned.
4. After making this observation the learned Judges proceeded to observe further that the basis on which the wrong calculation was made was strenuously maintained by the learned vakil who appeared before their Lordships on behalf of the petitioner which fact to their Lordships indicated that a mistake of that description might arise even amongst practitioners of experience. The decision in Sundar Kuer v. Raghunath Sahai [1911] 12 I.C. 677, therefore, does not support the observation of the learned Chief Justice of the Patna High Court in the case of S.C. Dey v. Rajwanti Kuer A.I.R. 1923 Pat. 140 in support of the view expressed therein. We have a large number of cases bearing on this point and some of them are decisions of great authority. It is not necessary to refer to all these cases and I confine myself to some that may be taken as typical. Reference may be made to the decision in the case of Kumudini Boy v. Kamala Kanta Sen A.I.R. 1922 Cal. 247. The importance of this decision lies in the fact that it is of Mookerjee, J., who was a party to the decision in the case of Sarat Chandra Bose v. Saraswati Debi [1907] 34 Cal. 216 as well as to that in the case of Sunder Kuer v. Raghunath Sahai [1911] 12 I.C. 677. In that case, in execution of a decree in a suit valued at more than Rs. 5,000, an appeal from an order of the Subordinate Judge was preferred to the District Judge after the period for appealing to this Court had expired. The District Judge dismissed the appeal on merits. A second appeal was filed in this Court against the decree of the District Judge. At the hearing of the second appeal it was discovered that no appeal lay to the District Judge and their Lordships allowed the memorandum of second appeal to be converted into that of first appeal and directed that the appeal might be taken to have been presented to this Court on the day on which they passed the order and accepted it as filed within time. It may be sufficient for the present purpose to refer to two decisions of two other High Courts on this point. In Nagindas Motilal v. Nilaji Moraba Naik A.I.R. 1924 Bom. 399, Marten, J., has very exhaustively dealt with the English and Indian law on this point and held that if a party acts on the advice of his pleader he comes within the protection of Section 5, Lim. Act. There an application for leave to appeal to the Privy Council was made within six months according to the period prescribed in the Limitation Act before its amendment by Act 26 of 1920, but after three months as is provided by the latter Act. This was done on the advice of a mofussil pleader and the learned Judge held that it was a sufficient excuse entitling the appellant to extension of time. This point came up for consideration before a Pull Bench of Allahabad High Court recently. In Sib Dayal v. Jagannath Prasad A.I.R. 1922 All. 490, a second appeal was filed on the last day prescribed by the law of limitation without a copy of the judgment of the first Court. When that judgment was filed and the case was properly constituted, the appeal was time barred The appellant pleaded that the failure to comply with the rules of the Court was due to the error of the vakil of the district who had informed him that the judgment and decree of the lower appellate Court were alone necessary.
5. The question as to whether a mistake of the lawyer was a sufficient excuse within the meaning of Section 5, Lim. Act, was canvassed at great length and the learned Judges unanimously held that an honest mistake on the part of a litigant caused by erroneous advice given to him by his vakil in the district by reason of which an appeal was not filed until the period of limitation therefor had expired was a good ground for the application in favour of the would be appellant of the provisions of Section 5, Lim. Act. I am not prepared to differ from the views expressed by so many learned Judges, but at the same time I want to guard myself for the present against laying down a general rule of law the a mistake of a pleader, however obvious it may be, can always and under every circumstance afford ground for extension of time under Section 5, Lim. Act. I may also refer in this connexion to the case of Sunderabai v. Collector of Belgaum A.I.R. 1918 P.C. 135, which supports the view I have taken. In the present case we accept the statement that the appeal was filed before the District Judge on the advice of a pleader of some standing and on whose word the petitioner had good reason to rely.
6. In this view the rule must be made absolute. Let the appeal be registered. The petitioner, however, will pay to the opposite party the costs of this hearing which we assess at three gold mohurs.
Graham, J.
7. The question of law involved in this rule is by no means free from difficulty, and that difficulty is not solved, nor indeed it can be said to be diminished by a reference to the numerous decisions on the subject, which are far from being uniform. On the whole, however, having regard to the particular facts of this case I, think the appeal should be admitted under Section 5, Lim. Act. It would certainly be a case of great hardship to the appellant if, in the circumstances that have happened, he should lose his right of appeal. There can be no doubt that the appellant’s pleader was guilty of great carelessness in filing the appeal in the wrong Court; but it seems to me to be impossible to hold that the appellant has acted otherwise than bona fide in the matter; and that he has succeeded in showing sufficient cause for not presenting the appeal within time.
8. I agree, therefore, that this rule should be made absolute.
