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    Jai Ram Dass v. Som Parkash And Others

    P.C. Pandit, J. - This order will dispose of application (C.M. 822-C of 1966) under Section 5 of the Indian Limitation Act filed by the appellant Jai Ram Dass in R.F.A. 143 of 1966. The Regular First Appeal was filed in this Court on 8th of March 1966, but the appellant had not attached with it a receipt for a sum of Rs. 100/- which, according to Rule 9 in Chapter 2-A of High Court Rules and Orders Volume V, had to be deposited with the Treasurer of this Court to cover the cost of printing the record. The last date for filing this appeal was admittedly 16th March, 1966. The office pointed out this mistake to the counsel and returned the appeal to him on 10th of March, 1966 for being refiled within a week. The said amount of the advance printing fee was, however, deposited in this Court on 21st of March 1966, when the appeal was re filed. On this date, an application under Section 5 of the limitation Act was also made for condoning the delay in filing the appeal within limitation. It is this application which is being disposed of by this order. 2. According to the affidavit of the counsel for the appellant, he wrote a letter to the appellant on the 11th of March 1966 regarding the deposit of Rs. 100 as required by the office. The client contacted the counsel on Sunday the 20th March, 1966 and handed over the amount of Rs. 100/- to him. The said amount was then deposited in this Court on 21st of March 1966. His case was that this was the first Regular First Appeal which he had filed in this Court and he had to quote his own words, "skipped over to deposit Rs. 100/- as advance printing fee." The mistake on his part, according to him, was not intentional but was by over sight. The appellant had also filed his affidavit, according to which he had received the letter of his counsel on 18th of March, 1966 as he was out of Patiala for five days and had reached there on that very date. According to him, the counsel had asked him to contact him on Saturday the 19th of March, 1966 in the district Court, Patiala, regarding the payment of this amount of Rs. 100/-. The said amount, according to the appellant, had been handed over to the counsel on 19th of March, 1966. On these facts, the question for decision is whether the appellant can have the benefit of Section 5 of the Indian Limitation Act, according to which an appeal can be admitted after the period of limitation, if the appellant satisfies the Court that he had sufficient cause for not preferring the appeal with such period. 3. The case of the appellant was that his counsel was a junior one and had recently started practice in this Court. As a matter of fact this was the first Regular First Appeal that he had filed and he was not aware of Rule 9 according to which the advance printing fee of Rs. 100/- had to be deposited along with the filing of the appeal. The moment he came to know of this defect, he wrote to the client and deposited this amount the very next day when it was handed over to him. Under these circumstances it was a bona fide mistake on his part which he rectified quickly and the appellant was thus entitled to have the benefit of Section 5 of the limitation Act. It was also argued by the learned counsel that Rule 9 was directly and not mandatory in nature and its non-compliance could not result in the dismissal of the appeal. 4. It is true, as held by the Privy Counsel in Kunwar Rajendra Bahadur Singh v. Raj Raeshwar Bali and others, AIR 1937 Privy Counsel 276, that a mistaken advice given by a legal practitioner may, in the circumstances of a particular case, give rise to sufficient cause within the meaning of Section 5 of the limitation Act though there was certainly no general doctrine which saved parties from the results of wrong advice. It may also be correct that in certain cases ignorance of law on the part of a counsel can be a ground for extending the period of limitation under Section 5 of the limitation Act. But the appellant in the instant case cannot derive any benefit from these propositions of law. In the first place, the counsel who filed the appeal should have known of the existence of Rule 9 which had been framed a long time back and was printed in the High Court Rules and Orders Volume V. If he had just taken the trouble of looking up this volume before filing the appeal especially when this was his first case of that type, he would have become aware of the existence of this rule. Or it he had consulted some senior counsel, he would have been told that the deposit of the advance printing fee was a pre-requisite for the filing of the appeal. As held by a Division Bench of this Court in Dina Nath v. Munshi Ram and others, AIR 1953 Punjab 298, if the mistake of a party's legal adviser was such that if he had only taken the trouble of looking up any elementary book on the subject he would have discovered it, then no question of a bona fide mistake or good faith arose and time could not be extended under Section 5 of the limitation Act. Good faith' has been defined in Section 2(7) of the Limitation Act as : `nothing shall be deemed to be done in good faith which is not done with due care and attention'. In the instant case, therefore, it cannot be said that ignorance of law on the part of the counsel was of such a nature which could attract the provisions of Section 5 of the limitation Act. But even assuming for the sake of argument that the counsel could not be aware of the existence of Rule 9 even after making his best efforts, the appellant has not been able to show that he had sufficient cause for not preferring the appeal within limitation as provided in Section 5 of the limitation Act. It is common ground that the office had returned and appeal on the 10th of March 1966 informing the counsel that the advance printing fee had to be deposited. On that day the appellant had still a week at his disposal to deposit this mount, because as already mentioned above, the last day for filing the appeal was 16th of March 1966. Thus, when the office pointed out this omission to the counsel, then at any rate, on that date, it should have dawned on him that there was Rule 9 which had to be complied with. He should have then immediately called the client and got the amount of Rs. 100/- deposited by him within limitation and not merely written to him to contact him in Patiala on the 19th of March 1966, on which date incidentally the appeal would have been barred by limitation, regarding the deposit of this amount. If reasonable care and due diligence had been shown, the amount could have been easily deposited within the period of limitation i.e 16th of March 1966 and there is no reasonable explanation on the record as to why it was not done. Under these circumstances, in my opinion, no case has been made out for giving the appellant the benefit of Section 5 of the limitation Act. 5. It is unnecessary to decide the question as to whether Rule 9 is mandatory or directory in nature. Even if it was directory, still it had to be complied with and it could not be violated. After the existence of this Rule was pointed out to the counsel he should have deposited the amount and this he could have easily done in the present case within the period of limitation. While dealing with Rule 9, a Division Bench of this Court in Jagdish Chandra Gupta v. Union of India, AIR 1965 Punjab 129, pointed out that even a directory provision was intended to be obeyed and it did not authorise its deliberate and conscious violation or breach. 6. The result is that this appeal was filed beyond limitation and is, therefore, dismissed on that ground. There will, however, be no order as to costs. Shamsher Bahadur, J. - I agree. Appeal dismissed.

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    Jai Ram Dass v. Som Parkash And Others
    (Jul 25, 1967)