How fa a mistake committed by a lawyer can be regarded as “sufficient cause” within the meaning of section 5 of the Limitation Act is the ever important and long debated question posed in this petition for condonation of delay in filing an application under section 115 of the Civil Procedure Code by which a judgment and decree of the learned Munsiff No. I, North Lakhimpur dated 30.1.82 has been challenged.
2. The lawyers are supposed to be legal experts; but they too like every human-being are prone to err. But a litigant can legitimately lean on the professional advice. Here the petitioners sent papers (perhaps with all material instructions) to approach this Court against the aforesaid judgment and decree. Shri A. Bari, an old and respected lawyer, thought that no revision might lie and so he invoked the writ jurisdiction of this Court by filing a petition under Article 226 of the Constitution of India on 12.5.82 That application was dismissed in limine on 17.5.82 The learned counsel then detected from (he records of the suit “that it was a suit under section 5 of the Specific Relief Act, against which a revision lies” and so he filed this application on 20.5.82, by which date he was made late by 16 days. Hence the condonation petition.
3. Shri Bari has himself filed an affidavit stating that the delay has been caused due to his “bonafide mistake and not due to any negligence on his part. Now, it is a settled law that if a delay be not imputable to any negligence or inaction or Want of bonafide belief of a party, the delay should be condoned depending on the facts and circumstances of the the case, as the expression “sufficient cause” in section 6 is to be liberally construed so as to advance substantial justice, as stated in Sandhye Rani v. Sudharani, (1978) 2 SCC 116 : AIR 1978 SC 537. But then a vested right of the other side cannot be lightly taken away and a Court has to be satisfied about the correctness and relevancy of the cause shown. The negligence etc. of the party has been emphasised by me because it has been recently held by the Supreme Court in Rafiq v. Munshilal, (1981) 2 SCC 788 : AIR 1981 SC 1400 that a party who as per the present adversary legal system, has selected his advocate, briefed him and paid him fee can remain supremely confident that his lawyer will look after his interest and such innocent party should not suffer for the inaction, deliberate omission, or misdemeanour of his counsel. In this case the appeal dismissed for default of the counsel was restored and the cost was ordered to be recovered from the lawyer.
4. In this context reference may by made to Concord of India Insurance Company Ltd. v. Nirmala Devi, (1979) 4 SCC 365 : AIR 1979 SC 1666 where the shield of legal opinion was made available to an Insurance Company also which has literate and qualified persons to manage its affairs. It was pointed out that despite Page: 266the manager's expretise in management, a company can place reliance for legal affairs on its counsel. Of course if there is gross delay too patent even for layman or if there is incomprehensible indifference the shield of legal opinion may become vulnerable.
5. Before coming to the case cited by Shri Phukan, who has travelled far and wide in making his selection, reference may be made to Mata Din v. A. Narayan, (1969) 2 SCC 770 : AIR 1970 SC 1953, relied on by Shri Bari. It was held there that mistake of a counsel will not be a good ground in every case. But if there is nothing in the case to show that error of the counsel was tainted by any mala fide motive, a court would be justified in extending time. A similar view was taken in Rajendra Bahadur v. Rejeshwar Bali, AIR (1937) PC 276 by stating that 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, limitation Act, though there is certainly no general doctrine which saves parties from the results of wrong advice.
6. We may now take up the cases cited by Shri Phukan. He starts from Mithoo Lal v. Jamna Prasad, AIR 1933 Oudh 523, a Full Bench decision, which has held that though the erroneous advice of a pleader however gross or negligent it may be, cannot be a sufficient cause for extension of time, a litigant acting bonafide upon the advice of his counsel would not also be disentitled to his protection, if the counsel has acted negligently in giving the advice.
7. Another Full Bench decision referred to by Shri Phukan is that of this Court in Hlmatsingka Timber Ltd. v. Kumudini, AIR (1952) Assam 100. The majority in that case did not condone the delay though it was of only three days, because the Court was not satisfied if the counsel was really not aware of the Assam ruling in question, the ruling being that the date of limitation would be counted from the date of judgment and not from the date of signing of the decree. The two Calcutta decisions relied on by Shri Phukan, these being Bijanlata Bassak v. Bhudhar Chandra, AIR (1955) Calcutta 578 and the The Rajputana Trading Co. Pvt. Ltd.…Applicant; v. Malaya Trading Agency…., AIR (1971) Calcutta 313, have held that mistake of a counsel can be accepted Page: 267as a sufficient cause but where the matter is beyond dispute, a statement that the lawyer did not know the law cannot be accepted. In Chand v. Tripat Singh, AIR 1963 Jammu & Kashmir, 83, it was stated that it cannot be laid down as a general role that a mistake of a pleader, however obvious it might be, can always and in every circumstance afford ground for extension of time. It was pointed out the counsel must show that there was a bona fide mistake on his part and inspite of care and attention, he could not avoid the mistake. The last decision to be mentioned is Brij Bhusan v. Madan Mohan, AIR (1974) P&H 269. Shri Phukan particularly read out to me a portion of that Court's judgment quoted in paragraph 3 which had stated that any unreasonable lowering of the standard of efficiency of the Bar must inevitably reflect prejudically on the quality of justice in this Republic. I do not propose to say anything on the quality of the members of this Bar. It is not doubt correct that if the quality of the Bench and Bar deteriorates, justice suffers.
8. The cases relied ‘on by Sri’ Phukan show that each and every mistake of a counsel cannot be regarded as a sufficient cause, but then a party should not also suffer due to bona fide act of omission or commission by his lawyer.
9. Let It be seen in the’ present case whether the mistake in approaching the court under Article 226 of the Constitution was a bonafide. mistake or a pretended cause. After the papers had Been received by the learned counsel, if he chose to invoke the writ jurisdiction instead of filing the revision application, I would hesitate to say that this action was tainted by mala fide intention on the part of Shri Bari. It must have been his honest belief that ordinary jurisdiction of this Court which is also broadly a revisional jurisdiction. But when this Court dismissed that petition in limine on 17.5.82, practically no time was ost in re-thinking and in filing the revision application on 20.5.82 Shri Phukan is no doubt right in submitting that how is it that the learned Counsel would detect only on 19.5.82, as stated in the condonation petition, that he knew that the suit was under section 6 of the Specific Relief Act. He is further right in contending that this fact must have come to be known when the petition under Article 226 was moved. Shri Bari in his affidavit has, however, owned this mistake and he has stated that the same was committed due to over-sight. It may be Page: 268that as the impugned judgment has not specifically slated that it was under the provisions of the Specific Relief Act, this missed Shri Bari. Be that as it may, in committing this mistake, there is nothing to doubt the bonafide of Sri Bari. In any case the party was not negligent and I do not think if it would be proper on the facts and circumstances of the case to take a strict view of the delay of 16 days.
10. Accordingly, I would condone the delay on being satisfied that this has occurred due to the bonafide mistake, on the part of Shri Bari and that it cannot be attributed to any negligence or inaction of the party or counsel. The petition is therefore, allowed.