Macleod, C.J:— We think that this appeal must be allowed.
2. The learned Judge thought that because the question as to which Court the appeal lay was not involved is doubt, therefore there was not sufficient cause for the appellant not preferring the appeal to the Court of the District Judge within time. But that is not, in my opinion, the right criterion in cases of this kind. I do no think that the learned Judge has read the remarks of Mr. Justice Jardine (Dadabhai v. Maneksha (1) in the way in which they should be read. He has not attached the right meaning to the words “in good faith”. I think that the appellant was entitled to rely upon the advice of his pleader that the appeal lay to the High Court and a party cannot be said to be acting without good faith because he relies upon a person whose status entitled him to give advice to litigants. It may be that the pleader ought to have known that the appeal lay to the District Judge. But there again some questions may appear to be so entirely free from doubt to one person, that only one opinion is possible, and yet another may equally well come to a different conclusion. I do not think it can be said that the appellant has acted in such a way that he should be debarred from his right to appeal. In Ram Ravji Jambhekar v. Pralhaddas Subkarn (2) their Lordships say:
“We feel I unable to accept the argument for the appellant that because the mistake made to filing the suit at Cawnpore was an error of law, that the suit was not a bona fide one. It was a stupid though not an unaccountable blunder; but the ignorance of law, or the ill-advice of a pleader, does not, in out opinion, necessarily or prima facie establish a want of good faith.”
3. And I do not think that Mr. Justice Jardine (Dadabhai v. Maneksha ) used the words “good faith” in the sense that the District Judge thought he did, that is to say, as meaning with due care and attention. Usually no doubt the presiding Judge has to use his discretion whether there is sufficient cause or not in excusing delay; but in this case I think the Judge erred in law.
4. The appeal must be allowed and the case sent back to the District Judge to be heard on its merits.
5. Costs to be costs in the appeal.
Fawcett, J.:— I agree. The Allahabad High Court no doubt has rated that the presentation of an appeal to a wrong Court through a mistake in or ignorance of law is not a “sufficient cause” within the meaning of Section 5 of the Indian Limitation Act: Jag Lal v. Har Narain Singh (3). But this view has not been adopted by the Calcutta, Madras and Bombay High Courts which treat the matter as depending upon the circumstances of each particular case.
6. This is not a case in which the appellant lost time in appealing against the judgment after he knew that the appeal lay to the District Court and not to the High Court so as to fall within the view taken in Daudbhai Musabhai v. Emnabai (4). Though no doubt there was carelessness in the matter, yet I think there is no reason to believe that the appeal in the High Court was not filed “in good faith,” using those words in the sense given to them by the definition. In the General Clauses Act that is to say, honestly, though it may be negligently.
7. I concur therefore, in allowing the appeal.
8. Appeal allowed.