(1) This is an application against the order of the D J. Jammu dated 10-2-73 dismissing the appeal of the petitioner by rejecting his application for condonation of delay.
(2) It appears that a suit for declaration was filed by the plaintiff-respondent in the court of the City Judge, Jammu. While the suit was pending an application was filed by the plaintiff praying that the defendant be called upon to produce certain documents which were legally unenforceable. In obedience to the orders of the court, the defendants produced these documents and the court found that they were unduly stamped and it accordingly impounded them and imposed a penalty of Rs. 2248 62. The defendant came up in revision to this court against the order imposing penalty on him. During the course of the bearing of the revision petition, Mr. Chowdhury appearing before the High Court then raised a preliminary objection that the revision was not maintainable because an appeal lay to the Court of the District Judge. Bakshi Ishwar Singh J. who heard the revision accepted the preliminary objection of the counsel for the plaintiff and directed the defendant to file an appeal before the proper court and pray for condonation of the delay for the time spent in prosecuting the revision. As a result of the order of the learned Judge the entire papers were given back to the petitioner. The petitioner then filed an appeal immediately in the court of the D J. mentioning these facts and praying that as he had filed a revision in the High Court under a mistake and bonafide advice of his senior counsel, Mr. I. K. Kotwal, therefore the time spent in prosecuting the revision and getting the paper be condoned. The appeal was admitted by the D. J., but when the matter came up for final hearing, counsel for the respondent raised two objections In the first place it was submitted that the appeal was really in the form of a revision and therefore it could not be treated as an appeal, and secondly that no ground for condonation had been made because the advice given by the counsel was not bonafide. This contention of the counsel appears to have found favour with the learned D. J. who dismissed the appeal as being not maintainable. It is against this order that the present revision has been filed.
Here again Mr. Chowdbury, counsel for the plaintiff, has raised a preliminary objection that this revision is not maintainable because the order of the court below cannot be said to be a case decided and does not affect the rights of the parties. It was also submitted that as the court had found that there was no bonafide mistake on the part of the counsel, therefore no case for condonation was made out.
(4) I have heard the learned counsel for the parties and have given my anxious consideration to the arguments advanced by them, As regards the preliminary objection it appeare to me to be without any substance. Under the order of the High Court the defendant was directed to file an appeal to the court of the District Judge and accordingly an appeal was filed before him, along-with an application for condonation of delay under Ss. 5 and 14 of the Limitation Act, The District Judge rejected the application and dismissed the appeal. This order, therefore, undoubtedly affected the rights of the parties very much because the petitioner was deprived of the appeal being considered on merits by the D. J by virtue of a wrong order passed by that court. This certainly would be a case decided so as to fall within the ambit of S. 115 of Civil P. C. This first contention raised by Mr. Chowdhury is therefore over-ruled,
(5) It was then contended that the learned Judge had no jurisdiction to convert a civil revision into an appeal This argument is based on a serious mis-conception of the real facts. What the petitioner did was to file an appeal accompanied by an application under Ss 5 and 14 of the Limitation Act and in doing so he filed the same papers before the D J. which he had filed in- the High Court and perhaps labelled the application as revision to be treated as an appeal. In pith and substance, however, the application and the Memo, of appeal was really an appeal filed before the D. J as directed by the court. In these circumstances there could be no question of the D. J. converting a civil re-vision into an appeal because the D. J. knew full-well that he had no powers of civil revision. The D. J. therefore committed a glaring error in being under the impression that the appeal before him was really an application for converting a revision into an appeal when he himself mentioned in his own judgment the facts leading to the filing of the appeal before him. namely, that the matter had gone up to the High Court and the High Court having held that the revision was not maintainable an appeal should be filed before the court.
(6) Lastly it was argued by Mr. Chowdhry, counsel for the plaintiff-respondent, that on the facts of the present case no ground for condonation of the delay had been made out because the mistake committed by the counsel for the defendant was not a bonafide one and was committed without due care and caution. I am, however, unable to agree with this contention. It would appear from a perusal of S. 61 Sub-Ss. (1) and (5) of the Stamp Act that the statute provides for an appeal in two contingencies : one contemplated by sub-S. (1) and the other contemplated by sub-S. (5). It is common ground that the order impugned is not covered by sub-S. (1) but by sub-S. (5) which runs thus :-
"Any other order made by a court under the provisions of this Act shall be appealable in the ordinary way."
(7) I might mention here that so far as sub-S. (5) of S. 61 (Supra) is concerned that is completely absent from the Stamp Act which applies to India. Mr. Kotwal had filed a personal affidavit that he had given a mistaken advice because he bonafide thought on an interpretation of S. 61 that no appeal would lie to the District Court but would lie only to the High Court. It may be that the learned counsel by sheer oversight was looking into the provisions of the Indian Stamp Act rather than the State Act and even if this is so, it cannot be said that the advice of the learned counsel was tainted by any malafide motive. Further I might mention that even the D J' who tried to sit in appeal over the High Court has in fact held that no appeal, lay to him, This shows that the advice of the learned counsel could not be anything but bonafide. The matter was considered by a recent decision of the Supreme Court in AIR 1970 SC 1952 in all its comprehensive aspects and their Lordships observed that where there was nothing in the case to show that the error of the counsel was tainted by malafide motive, the court was justified in extending the time.
(8) Applying this test to the present case, it is obvious that no malafides were involved in the advice given by Mr. Kotwal. In these circumstances the learned D J misdirected himself in not condoning the delay. In fact I cannot conceive of a better case in which the learned D J. ought to have exercised his discretion in condoning the delay than the present case.
(9) For these reasons the petition is allowed, the order of the D. J. is set aside, the delay in filing the appeal before the D. J. is condoned and the appeal is sent back to the D. J. for decision on merits. Parties are directed to appear before the D- J. on 17-12-73 failing which the learned judge shall proceed ex parte against the party which does not appear.
(10) In the circumstances of this case there will be no order as to costs.