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Municipal Corporation Of Delhi v. Bharat Oxygen Gass Co.
Structured Summary of the Opinion (S.N. Andley, J.)
Factual and Procedural Background
The respondent instituted Suit No. 46 of 1966 in the Court of the Subordinate Judge 1st Class, Delhi, seeking a mandatory injunction directing the appellant to issue a licence to store gases at premises No. 16, Darya Ganj, Delhi. For the purposes of court-fee the suit was valued at Rs. 130, and for purposes of jurisdiction the value was fixed at Rs. 20,000. By judgment and decree dated 21 August 1969 the Subordinate Judge granted the injunction sought.
The appellant filed an appeal to the Senior Subordinate Judge, Delhi, listing the same valuations in the memorandum of appeal. The respondent objected to the appellate Court's jurisdiction on the ground that the jurisdictional value made the Senior Subordinate Judge incompetent; the Additional Senior Subordinate Judge upheld that objection by order dated 4 May 1970 and directed the appeal to be returned for presentation to the Court of competent jurisdiction.
The memorandum of appeal was returned to the appellant on 6 May 1970. The appeal was alleged to have been received by Mr. Tarachand Brijmohanlal (counsel engaged later) on 14 May 1970 and filed in the High Court on 16 May 1970. The earlier counsel who had filed the appeal in the first appellate Court was Mr. V. P. Joshi.
The appellant applied under section 5 of the Limitation Act, 1963 for condonation of delay in presenting the appeal in the High Court and filed a further affidavit (dated 9 February 1971) of J. R. Sharma explaining the internal steps, notes and dates showing consideration by the appellant's legal officers and the eventual engagement of Mr. Tarachand Brijmohanlal who filed the appeal in the High Court.
Legal Issues Presented
- Whether the delay in filing the appeal in the High Court could be condoned under section 5 of the Limitation Act, 1963.
- Whether the mistake of counsel (filing the appeal in the Court of the Senior Subordinate Judge despite the jurisdictional value shown) was a bona fide mistake that could justify condonation of delay.
- Whether the period between the return of the memorandum of appeal and its filing in the High Court was unreasonable or otherwise justified by the circumstances shown in the further affidavit.
Arguments of the Parties
Appellant's Arguments
- The appellant sought condonation of delay under section 5 of the Limitation Act and relied on the explanation in the further affidavit of J. R. Sharma setting out a series of internal observations, legal advice and administrative steps taken between 6 May 1970 and 16 May 1970 which culminated in instructing Mr. Tarachand Brijmohanlal to file the appeal in the High Court.
- It was asserted (by way of the note of Mr. V. P. Joshi and subsequent internal notes) that there was a bona fide doubt whether the appeal should be pursued in the first appellate Court or be filed in the High Court, and that this uncertainty explained and justified the time taken before presentation in the High Court.
- The appellant also relied on the contention that the valuation confusion had been created by the respondent’s placing the jurisdictional value at Rs. 20,000 when, in the appellant’s view applying section 8 of the Suits Valuation Act, the value for jurisdiction should have been Rs. 130.
Respondent's Arguments
- The respondent opposed the application, contending that it would have been obvious to any lawyer that an appeal with a jurisdictional value of Rs. 20,000 could not properly be entertained by the Senior Subordinate Judge and that the only competent forum would be the High Court.
- The respondent argued that negligence or mistake of counsel is not a ground for condonation of delay unless the mistake is bona fide and made with due care and attention; it relied on precedents to support that proposition.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| A.I.R. 1933 Lahore 568 — Uttam Chand v. Vishan Das | The mistake of a legal adviser to justify extension of limitation must be bona fide and made with due care and attention. | The Court cited this authority for the principle that a counsel's mistake will justify condonation only if bona fide and careful; it considered whether Mr. Joshi's act met that standard. |
| A.I.R. 1938 Lahore 81 — Amrit Lal and others v. Phool Chand and others | Misleading or mistaken advice of counsel is not sufficient to extend time under section 5 of the Limitation Act unless the advice was given in good faith and with due care. | The Court relied on this principle in assessing whether the filing in the Senior Subordinate Judge was a bona fide mistake or negligence lacking due care. |
| A.I.R. 1970 Supreme Court 1953 — Lala Mata Din v. A. Narayanan | Mistake of counsel may in certain circumstances be considered in condoning delay; the critical question is whether the mistake was bona fide or a device to cover an ulterior purpose (e.g., laches or an attempt to defeat limitation). | The Court applied the Supreme Court's exposition to hold that Mr. Joshi's conduct did not indicate an ulterior purpose and could be treated as a bona fide mistake warranting condonation. |
Court's Reasoning and Analysis
The Court proceeded by examining the documentary record, the note made by Mr. V. P. Joshi on 7 May 1970, and the further affidavit of J. R. Sharma detailing the sequence of administrative and legal consideration within the appellant's organisation.
On the question of counsel's mistake, the Court accepted that the authorities require any mistake of counsel relied upon to be bona fide and to have been made with due care; it specifically referred to Uttam Chand v. Vishan Das and Amrit Lal v. Phool Chand as establishing that principle and to Lala Mata Din v. A. Narayanan for the proposition that a counsel's mistake may be considered unless it is a device to cover an ulterior purpose.
The Court analysed the valuation issue under the Court Fees' Act and the Suits Valuation Act. It observed that for a suit for injunction the court-fee payable is governed by section 7(iv)(d) of the Court Fees' Act and that section 8 of the Suits Valuation Act provides that the value determinable for computation of court-fees and the value for jurisdiction are the same in such cases. On that basis the Court noted there was scope for genuine confusion: the respondent had fixed the jurisdictional value at Rs. 20,000 though for court-fee purposes the value was Rs. 130 under section 8.
The Court found on the evidence (the note of Mr. Joshi and the further affidavit) that Mr. Joshi genuinely believed the appeal had been properly filed in the Senior Subordinate Judge. The Court also found that the time taken between return of the memorandum (6 May 1970) and filing in the High Court (16 May 1970) was taken up by bona fide internal consideration — notes, advice from the Law Officer and legal adviser, administrative orders by Deputy Commissioner (E) and subsequent engagement of a High Court counsel — and therefore was not unreasonable or unjustifiable.
Weighing the authorities and the facts, the Court concluded that the filing in the first appellate Court was not a device to avoid the Limitation Act but a bona fide mistake arising in part from the confusion over valuation, and that the delay in filing the appeal in the High Court was sufficiently explained.
Holding and Implications
Holding: The Court found that there was sufficient cause to condone the delay in filing the appeal in the High Court under section 5 of the Limitation Act, 1963, and accordingly the delay was condoned. The appellant-Corporation was ordered to pay Rs. 150 as costs to the respondent. The appeal was directed to be listed for admission before the Court.
Implications:
- Direct effect: The delay in presenting the appeal to the High Court was condoned and the appeal will proceed to be listed for admission; the appellant must pay Rs. 150 costs to the respondent.
- Broader implications: The opinion applies existing authority that counsel's mistake may justify condonation only if bona fide and not a device to cover an ulterior purpose, and it emphasises that factual circumstances (including confusing valuations and internal deliberations) can make such a mistake bona fide. The opinion does not purport to lay down any new legal principle beyond these applications of established authorities.
This summary is confined strictly to the material and reasoning contained in the provided opinion and does not add any information not present in that text.
S.N Andley, J.:— This is an application under section 5 of the Indian Limitation Act, 1963, praying for condonation of the delay in filling the appeal in this Court.
The respondent had filed Suit No. 46 of 1966 in the Court of the Subordinate Judge 1st Class, Delhi, against the appellant for a mandatory injunction directing it to issue a licence to them for storing gases in the premises bearing No. 16, Darya Ganj, Delhi. The value of the suit for the purposes of court-fee was fixed at Rs. 130/- while its value for purposes of jurisdiction was fixed at Rs. 20,000/-. By his judgment and decree dated August 21, 1969 the Subordinate Judge issued the injunction prayed for. Against this decree, the appellant filed an appeal in the Court of the Senior Subordinate Judge, Delhi. In the memo, of appeal the same valuations were shown for the purposes of court-fee and jurisdiction as had been shown in the suit. The respondent objected to the jurisdiction of the Senior Subordinate Judge to hear the appeal as the jurisdictional value of the appeal was Rs. 20,000/ and this objection was upheld by the Additional Senior Subordinate Judge, Delhi, who heard the appeal by his order dated May 4, 1970. The appellate Court directed the appeal to be returned for presentation to the Court of competent jurisdiction.
The petition of appeal was actually returned to the appellant on May 6, 1970 and it was alleged that it was received by Mr. Tarachand Brijmohanlal, counsel for the appellant, on May 14, 1970 and was filed in this Court on May 16, 1970. It may be mentioned that the counsel for the appellant who appeared in the first appellate Court and who had filed the appeal there was Mr. V.P Joshi. Since there was no explanation in the application as to why the appeal was filed in this Court on May 16, 1970, while the petition of appeal had been returned to the appellant on May 6, 1970, opportunity was given by an order of this Court to the appellant to file a further affidavit. In pursuance of this order, a further affidavit dated February 9, 1971 of J.R Sharma, Legal Assistant of the appellant was filed.
In this further affidavit it is stated that on receiving the petition of appeal on May 6, 1970 Mr. V.P Joshi wrote a note on May 7, 1970 on the file of the said appeal. In this note Mr. Joshi has stated, inter alia, that the appellant had a right to file an appeal against the order of the Additional Senior Subordinate Judge but if the appellant's High Court lawyer advises that the said order be accepted, then the appeal should be got filed in the High Court. It is further stated in the further affidavit that the said note and the file were sent to the Law Officer of the appellant who looked into the file on May 8, 1970 in the afternoon and made a note there on May 11, 1970 (May 9 and 10, 1970 being holidays) that the case may be examined by the legal adviser of the appellant and marked the same as most immediate. Thereupon, the Law Officer of the appellant agreeing with the opinion of the Legal Adviser directed that the matter be entrusted to Mr. Tarachand Brijmohanalal immediately and sent the file to Mr. J.N Singh, Deputy Commissioner (E) of the appellant-Corporation for orders. Mr. Singh passed the orders on May 12, 1970, agreeing with the opinion of the Law Officer, and returned the file on the evening of that very day. The engagement letter was addressed to Mr. Tarachand Brijmohanlal on May 13, 1970 who received the entire file on May 14, 1970. Mr. Tarachand Brijmohanlal examined the matter on May 15, 1970 (erroneously typed 1971) and filed the appeal in this Court on May 16, 1970.
The application is strongly opposed by the respondent. It is contended that there could not have been any doubt in the mind of any person, particularly a lawyer, that in view of the jurisdictional value of the appeal shown in the memo, of appeal, the Court of the Senior Subordinate Judge will not have any jurisdiction to entertain the appeal and the only Court would he this Court. It is contended that the negligence of the counsel cannot be a ground for condonation of delay.
Mr. V.P Joshi has not filed any affidavit as to the circumstances under which he filed the appeal in the Court of the Senior Subordinate Judge but it appears from his aforesaid note on the file which was made on May 7, 1970, that he did not accept the correctness of the order of the first appellate Court in holding that it had no jurisdiction to entertain the appeal because he was of the opinion that the appellant had a right to file an appeal against that order. At the same time, he stated that the appeal against the order may not be filed if the High Court lawyer of the appellant advised that the said order be accepted in which case the appeal should be got filed in the High Court. In fact, Mr. Joshi had argued before the first appellate Court that the appeal had been properly filed in the Court of the Senior Subordinate Judge. From these circumstances, we are pursuaded to hold the view that Mr. Joshi believed that in view of the value of the appeal for purposes of court-fee, the appeal had properly been filed in the Court of the Senior Subordinate Judge and not in the High Court.
Mr. R.L Aggarwal, learned counsel for the respondent, has relied upon the Division Bench decision reported in A.I.R 1933 Lahore 568 in re: Uttam Chand v. Vishan Das (1), where it is stated that “a legal adviser's mistake to justify extension of limitation must be a bona fide one, that is, it must be done with due care and attention.” He has also relied upon a Single Bench decision reported in A.I.R 1938 Lahore 81 in re :. Amrit Lal and others v. Phool Chand and others (2) wherein it is stated that a mistaken advice of counsel is not sufficient to justify extension of time being granted under section 5 of the Limitation Act unless the advice was given in good faith, that is, with due care and attention. It is contended on the basis of these two decisions that the filing of the appeal in the Court of the Senior Subordinate Judge when in the memo, of appeal itself the jurisdictional value was fixed at Rs. 20,000/- could not have been with due care and attention and it did not amount to a bona fide mistake.
The suit out of which this appeal arises was a suit for injunction and court-fee was payable under section 7 (iv) (d) of the Court Fees' Act where the court-fee is payable according to the amount at which the relief sought is valued in the plaint or in the memo, of appeal. For purposes of court-fee the respondent-plaintiff valued the suit at Rs. 130/- In such a case and as provided by section 8 of the Suits Valuation Act, 1887, the value as determinable for computation of court-fees and the value for purposes of jurisdiction is the same. Mr. Joshi could easily have thought on the basis of section 8 of the Suits Valuation Act that the value for purposes of jurisdiction also should have been Rs. 130/- and he, therefore, filed the appeal in the Court of the Senior Subordinate Judge even though in the memo of appeal, the jurisdictional value was placed at Rs. 20,000/- as in the suit. No objection appears to have been taken in the suit as to the jurisdictional value and it is the contention of Mr. Aggarwal that value could not be challenged in appeal as provided by section 11 of the Suits Valuation Act. Even so, the question is whether Mr. Joshi was under a bona fide mistake.
In the case reported in A.I.R 1970 Supreme Court 1953 in re: Lala Mata Din v. A. Narayanan† , the suit was valued at Rs. 4,000/- for rendition of accounts or arrears of rent, at Rs. 130/- for injunction and at Rs. 710/- for ejectment totalling Rs. 4,840/-. During the trial of the suit, the valuation for ejectment was raised to Rs. 1800/- thus taking the total valuation to Rs. 5,930/-. The decree passed was for Rs. 600/- as arrears of rent and Rs. 463.33 as damages for ejectment but the suit was dismissed as to the remaining arrears of rent or for accounts and for ejectment from a part of the premises. An appeal was filed in the Court of the District Judge, Delhi. The valuation of the appeal was fixed at Rs. 3400/- for arrears of rent or for rendition of accounts; at Rs. 130/ for injunction and Rs. 1,350/- for ejectment totalling Rs. 4,880/-. It was contended that the valuation of the appeal should have been the same as the value of the suit which would be an aggregate of Rs. 5,930/- and, therefore, the Court of the District judge will have no jurisdiction as the appeal should have been filed in the High Court. The appeal was returned for presentation to the High Court and was filed there. The High Court refused to extend the time. An appeal was then taken to the Supreme Court. On these facts the Supreme Court laid down the following proposition: —
“The law is settled that mistake of counsel may in certain circumstances be taken into account in condoning delay although there is no general proposition that mistake of counsel by itself is always a sufficient ground. It is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an underhand way. The High Court unfortunately never considered the matter from this angle. If it had, it would have seen quite clearly that there was no attempt to avoid the Limitation Act but rather to follow it albeit on a wrong reading of the situation.”
It, therefore, follows that if the mistake is not a device to cover an ulterior purpose it cannot be described as a mistake which was not bona fide. In the present case we do not find any justification for holding that the filing of the appeal in the Court of the Senior Subordinate Judge was merely a device to cover an ulterior purpose such as is mentioned by the Supreme Court.
The confusion was created by the respondent itself in wrongly fixing the jurisdictional value of the suit at Rs. 20,000/- while it should have been fixed at Rs. 130/- under section 8 of the Suits Valuation Act and even though, in the absence of any objection in the suit, the jurisdictional value cannot be challenged in appeal we find it difficult to say that there was no bona fide mistake on the part of Mr. Joshi to have filed the appeal in the Court of the Senior Subordinate Judge.
As to the time taken between the return of the memo of appeal and its filing in this Court, the circumstances mentioned in the further affidavit which have been adverted to earlier, are sufficient, in our opinion to show that the delay in filing the appeal in this Court was not unjustified in view of the question posed by Mr. Joshi as to whether an appeal should be filed against the order of the Senior Subordinate Judge or whether the returned memo, of appeal should be presented to this Court. The time taken by the appellant-Corporation in making up their mind was not, in the circumstances of this case, unreasonable. The opinions of the various officers and the decisions taken have been sufficiently mentioned in the further affidavit which shows that the matter was receiving the attention of the proper officers for the further prosecution of the appeal and there was no unjustifiable delay.
In these circumstances, we think there was sufficient cause for the delay in filing the appeal in this Court and we hereby condone the same. The Corporation will, however, pay Rs. 150/- as costs to the respondent.
The appeal will now be listed for admission before the Court.
Order accordingly.
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