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Brij Bhushan And Others v. Madan Mohan Lal
Factual and Procedural Background
The plaintiffs (appellants) filed a suit for a declaration claiming to be the exclusive owners of the business carried on under the name Messrs Ralla Ram Siri Ram. The respondent, Madan Mohan Lal, contested the suit by propounding a will and claiming a share in the firm's business. Plaintiff No. 1, Brij Bhushan, is the brother of the respondent; plaintiffs No. 2 and No. 3, Lachhmi Devi and Tara Wati, are the mother and sister respectively of the two brothers.
While the suit was pending the plaintiffs applied under rule 1 of Order 40 of the Civil Procedure Code for the appointment of a receiver over the firm's business and other property to preserve their share of property and profits. The respondent opposed that application. By an order dated 22 October 1970 the Subordinate Judge First Class, Ambala, declined to appoint a receiver but instead appointed a local commissioner to prepare an inventory of the properties mentioned in the suit and of the firm's assets, and to sign the bahis of the firm at conspicuous places; the bahis were to be kept in sealed boxes in Court for three months for inspection by the parties. Aggrieved by the refusal to appoint a receiver, the plaintiffs appealed to the High Court.
A preliminary objection was raised by the respondent that the appeal to the High Court was time-barred. The appellants sought condonation of delay, explaining that their counsel had advised that the appeal lay to the District Judge. The appellants had, within the period of limitation, filed an appeal in the Court of the District Judge, Ambala; that appeal was disposed of on 5 April 1971 and returned for presentation to the High Court, and the appeal was filed in this Court on 6 April 1971. It was accepted that if the time spent prosecuting the appeal in the Additional District Judge's Court were excluded, the appeal would be within time.
Legal Issues Presented
- Whether the delay in presenting the appeal to the High Court should be condoned under Section 5 of the Limitation Act on the ground that the appellants' counsel made a bona fide mistake in advising that the appeal lay to the District Judge.
- Whether a mistake by counsel arising from negligence or want of reasonable skill can be treated as “good faith” under the Limitation Act (as defined in the statute) so as to attract Section 14 and permit extension of time under Section 5.
Arguments of the Parties
Appellants' Arguments
- The appellants sought condonation of the delay on the ground that their counsel, Shri Gian Chand Garg, bona fide advised them that the appeal lay to the Court of the District Judge, and that this advice caused the appellants to first prosecute the appeal in that court within the period of limitation.
- The appellants relied on precedent (The Punjab University v. Acharya Swami Ganesh) where a counsel's calculation mistake was treated as bona fide and delay was condoned.
Respondent's Arguments
- The respondent raised a preliminary objection that the appeal was time-barred and that condonation of delay should be refused.
- It was contended that where a counsel does not act in good faith (i.e., without due care and attention) and makes a mistake due to negligence or lack of reasonable skill, the litigant is not entitled to relief under Section 14 (good faith) or to an extension under Section 5 of the Limitation Act. The respondent relied on Mrs. J.H. Nelson v. Thkur Singh and similar authorities to support this contention.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mrs. J.H. Nelson v. Thkur Singh | That a litigant seeking relief under Section 5 (Limitation Act) for mistaken advice of counsel must place material to show the counsel acted in “good faith” (i.e., with due care and attention); mere broad assertion of legal advice is insufficient; a mistake due to negligence or want of reasonable skill will not amount to good faith. | The court held these observations fully applicable: there was no affidavit of the legal adviser, and the counsel failed to ascertain an elementary point (forum of appeal determined by value). The court concluded the counsel's mistake was negligent and not in good faith. |
| Dina Nath v. Munsi Ram (AIR 1953 Punjab 298) | In a conditional decree the court-fee (and hence jurisdictional value) follows the amount of the condition; counsel should have checked elementary sources (Court-fees law and Suits Valuation Act); good faith requires due care and attention as defined in Section 2(7) of the Limitation Act. | The court cited this case as influencing its conclusion that no good faith had been shown — counsel should have ascertained the jurisdictional value and thus the forum of appeal. |
| The Punjab University v. Acharya Swami Ganesh (1972 ISCWR 606) | A mistake in calculating the last day for filing an appeal by counsel may, in some cases, be a bona fide mistake not attributable to negligence, and such mistakes can justify condonation of delay. | The court distinguished this authority: the Supreme Court in that case found the mistake could occur despite due care. The present facts were different, and the court found the authority did not help the appellants. |
| State of Kerala v. Krishna Kurup Madhaya Kurup (AIR 1971 Kerala 211) | Where the law as to the proper forum is ambiguous, a counsel's mistaken advice about the proper forum may be bona fide and justify condonation. | The court regarded this case as of limited assistance: it was based on ambiguity of law, which was not the situation in the present case. |
Court's Reasoning and Analysis
The court's analysis focused on whether the appellants had shown “good faith” sufficient to attract Section 14 of the Limitation Act and thereby justify an extension of time under Section 5. The court proceeded in the following steps:
- The court noted the factual sequence: the appellants had first filed an appeal in the District Judge's Court within the limitation period, that appeal was returned for presentation to the High Court, and the appellants then filed in the High Court on 6 April 1971. If time spent pursuing the District Judge appeal were excluded, the filing would have been within time.
- The court examined whether the appellants' counsel had acted in “good faith” (defined in Section 2(7) of the Limitation Act as requiring due care and attention). It recalled authorities holding that mere assertion of legal advice is insufficient and that litigants must produce material (for example an affidavit by the legal adviser) from which good faith can be deduced.
- Applying Mrs. J.H. Nelson v. Thkur Singh, the court emphasized the absence of any affidavit from the legal adviser and observed that the elementary inquiry required of counsel was simply to determine the jurisdictional value of the original suit to decide the forum of appeal. Ignorance of such an elementary point could not be excused as good faith.
- The court relied also on Dina Nath v. Munsi Ram to reinforce that basic statutory and procedural points (court-fee, valuation) were matters that competent counsel should check, and that failure to do so indicates a lack of due care.
- The court considered decisions cited by the appellants (Punjab University and State of Kerala). It distinguished them on facts: in Punjab University the mistake was a calculation error that could occur despite due care and therefore was treated as bona fide; in State of Kerala the law was ambiguous, which justified counsel's mistake. The court found neither decision analogous to the present case.
- On this basis the court concluded the appellants had not shown good faith or due care on the part of their counsel; the mistake was attributable to negligence or want of reasonable skill. Consequently, the appellants were not entitled to an extension of time under Section 5 of the Limitation Act.
Holding and Implications
HOLDING: The appeal is dismissed.
Direct consequences:
- The application for condonation of delay was refused; the preliminary objection that the appeal was time-barred succeeded.
- The appeal therefore fails. The parties were ordered to bear their own costs.
The opinion's reasoning is confined to the question of condonation of delay and the application of established authorities regarding what constitutes "good faith" by counsel for the purposes of the Limitation Act. The opinion does not elaborate broader legal implications beyond its application of those authorities to the facts of this case.
Man Mohan Singh Gujral, J.:— The appellants had filed a suit for a declaration claiming themselves to be exclusive owners of the business run in the name of Messrs Ralla Ram Siri Ram. This suit was contested by the respondent, Madan Mohan Lal, who propounded a will and claimed his share in the business of that firm. It may be stated at this stage that plaintiff No. 1 Brij Bhushan is the brother of respondent Madan Mohan Lal while plaintiff No. 2 Lachhmi Devi and plaintiff No. 3 Tara Wati are the mother and sister respectively of the two brothers. During the pendency of the suit the plaintiffs made an application under rule 1 of Order 40 of the Civil Procedure Code praying for the appointment of a receiver of the business of the firm of Messrs Ralla Ram Siri Ram and also of the other property so that their share of the property and profits could be preserved. This application was contested by the respondent and by order dated 22nd October, 1970 the Subordinate Judge First Class. Ambala, declined to appoint a receiver but appointed a local commissioner for the limited purpose of preparing an inventory of the properties mentioned in the suit together with that of the assets of the firm of Messrs Ralla Ram Siri Ram and for signing the bahis of the firm at conspicuous places. The bahis were ordered to be kept in sealed boxes in the Court for a period of three months in the first instance. The parties were directed to inspect the bahis in the Court during this period. Being aggrieved against the order by which the appointment of a receiver was declined, the plaintiffs have come up in appeal to this Court.
2. On behalf of the respondent, a preliminary objection has been raised that the appeal is time-barred. As this fact is not disputed, on behalf of the appellants it is prayed that the delay occasioned in filing the appeal be condoned as this was caused by the bona fide mistake of their counsel, Shri Gian Chand Garg, who had advised that the appeal lay to the Court of the District Judge.
3. The facts necessary for the decision of this point are not in dispute. After obtaining a copy of the impugned order the appellants filed an appeal in the Court of the District Judge, Ambala, within the period of limitation. This appeal was disposed of on 5th April, 1971 when it was returned for presentation to the High Court. On 6th April, 1971 the appeal was filed in this Court as the copy of the order passed by the Additional District Judge could not be obtained till late in the evening on 5th April, 1971. It is not challenged that if the time spent in prosecuting the appeal in the Court of the Additional District Judge is not taken into consideration in the computation of the period of limitation the appeal would be within time.
4. On behalf of the respondent, it is contended that if a counsel does not act in good faith, i.e, with due care and caution and commits a mistake due to his negligence or want of reasonable skill a litigant is not entitled to the benefit of section 14 of the Limitation Act. Support for this contention is sought from Mrs. J.H Nelson v. Thkur Singh,1 wherein the following observations were made:—
“The averment that under legal advice and bona fide belief the tenant thought that only an appeal lay against the ex parte order was, in my opinion, on the fact and circumstances of this case wholly futile. There was no disclosure made in the application as to which legal adviser had given the said advice. In a case of the present type, it was incumbent on the tenant to give full particulars of the legal advice and if possible to support it by an affidavit of the legal adviser that he had given such advice after due care and attention. Mere broad and general plea that the tenant had under legal advice and bona fide belief been prosecuting with the due diligence another proceeding for getting the ex parte order set aside is, in my opinion, not enough on the facts and circumstances of the present case. Due diligence and caution are, in my view, essential pre-requisites before section 14, Limitation Act, can be attracted. The litigants seeking relief under section 5, Limitation Act, on the ground of mistaken advice of their counsel must place material before the Court from which it is possible to deduce that the counsel acted in “good faith”; in other words, with “due care and attention”. A mistake due to negligence or want of reasonable skill can scarcely be considered to fall within the definition of good faith as defined in the Limitation Act. If the counsel had merely gone through the provisions of order 9 of the Code of Civil Procedure, he would have been (seen?) that under Order 9, Rule 13, it is open to a defendant against whom an ex parte order has been made to apply to the Court for an order to set it aside. Ignorance of this elementary provision is not excusable in a legal practitioner, whatever his standing at the bar, and by itself may not constitute a sufficient cause within a purview of section 5. The professional tar, it must be remembered, is an essential and integral component of our judicial processes and if this judicial process is to satisfy the litigants seeking justice, the minimum standard of skill, industry and knowledge of law on the part of the members of the bar must be maintained. Any unreasonable lowering of the standard of efficiency must inevitably reflect prejudicially on the quality of justice in this Republic”.
5. The above observations are fully attracted to the facts of the present case. There is no affidavit of the legal adviser and, moreover, all that the legal adviser had to ascertain was as to what was the value for the purpose of jurisdiction of the suit out of which the appeal had arisen. The counsel who filed the appeal was expected to know that of the forum of appeal would be determined by the value of the original suit for the purpose of jurisdiction and ignorance of this elementary matter cannot be considered to fall within the definition of good faith. Failure on the part of a legal practitioner to ascertain the value of the original suit for the purpose of jurisdiction and to see where the appeal would lie on that basis would be a mistake due to his negligence or want of reasonable skill and in such a case it cannot be deduced that the counsel had acted in good faith.
6. In coming to this conclusion I am also influenced by an earlier decision of this Court in Dina Nath v. Munsi Ram . AIR 1953 Punjab 298. wherein the following observations appear:—
“All these authorities show that in a conditional decree such as the one which was in this case the court-fee payable would be the amount of the condition which the plaintiff's sought to get removed, i.e, sum of Rs. 5,535/5/8 and therefore the jurisdictional value would follow that amount. The appeal would lie to this Court. No question of bona fide mistake arises nor does it show any good faith because if the legal advisers appellant had only taken the trouble of looking up any elementary book on Court-fees and Suits Valuation Act, they would have discovered this. Good faith has been defined in the law of Limitation in Section 2(7) as follows:
“(7) “good faith”, nothing shall be deemed to be done in good faith which is not done with due care and attention:”
7. In my opinion no good faith has been shown and there is no reason for the extension of time under Section 5, “Limitation Act”
8. On behalf of the appellant, in the main reliance is placed on The Punjab University etc. v. Acharya Swami Ganesh . 1972 ISCWR 606.. In this case appeal against the judgment of the District Judge was filed two days after the period of limitation had expired and the reason given in the application under section 5 of the Limitation Act was that the counsel for the Punjab University had miscalculated the last day on which the appeal was to be filed. This mistake was held not to be due to negligence and it was observed as under:—
“It is true that counsel for the University committed a mistake in his calculation. But that is not the same thing as negligence. In matters of calculation it is common knowledge that people do commit mistakes. They are bonafide mistakes and these mistakes have got to be taken note of by courts in considering whether the delay in filing the appeal should be condoned or not. It has been repeatedly held by courts that a mistake by a lawyer is a good ground for condoning the delay in filing the appeal. It is clear that the appeal come to be filed two days after the period of limitation solely because of the wrong calculation made by counsel. The High Court is therefore directed to admit the appeals and dispose of the same in accordance with law.”
9. In the above case, the Supreme Court has not departed from the principles of law enunciated in the above two authorities but came to the conclusion that the mistake in that particular case was a bona fide one, i.e, that the mistake could have occurred even by the exercise of due care and caution. I am therefore, of the view that this authority does not advance the case of the appellants.
10. Reference was also made to State of Kerala v. Krishna Kurup Madhaya Kurup . AIR 1971 Kearla 211.. In this case it was found that the appeal had been instituted in the wrong Court on the advice of the counsel but the wrong advice was due to the fact that the law as to proper forum prevailing at the time of filing the appeal was ambiguous and this had led to the mistake by the counsel. On the facts of that case it was held that the counsel had acted in good faith. This authority again is of not much help to the appellants.
11. For the reasons stated above, I am clearly of the view that no ground for condoning delay has been made out and it is of no consequence that even the respondent had filed an appeal against the impugned order in the Court of the District Judge. The counsel for the respondent may have been equally negligent and his negligence cannot furnish a reason for holding that the appellant's counsel acted in good faith. Consequently the appeal fails and is dismissed but the parties are left to bear their own costs.
R.M.S
12. Appeal dismissed.
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