P.A.N. KAVERI CHETTIAR Vs. THE FIRM OF P.A. SIDHA CHETTIAR AND SAMBALINGA CHETTIAR & SONS. DISSOLVED BY PARTNER P. A. S. PERUMAL CHETTIAR AND ANOTHER

JUDGEMENT

(1.) This revision petition arises out of an interlocutory application I. A. 184 of 1962 in A. S. No. (unnumbered) of 1962 on the file of the District Court, Salem. The learned District Judge of Salem refused to excuse the delay in preferring an appeal against the decree and judgment dated 27th July, 1961 in O. S. No. 1 of 1960 on the file of the Sub -Court, Salem. That was a suit instituted by the petitioner herein for setting aside the sale which was confirmed on 3rd July, 1958 in R. E. P. 253 of 1957 in O. S. 813 of 1955 on the file of the District Munsiff, Sankari, Salem, and for possession of the plaint A schedule properties. He valued the suit at Rs. 10,000. The suit was dismissed on 22nd July, 1961. The petitioner -plaintiff applied for certified copies of the judgment and decree for preferring an appeal on 25th July, 1961 and he got the copies of the same on 28th August, 1961. In the plaint, he had alleged that on the date of the sale the suit property was worth Rs. 10,000 and if proper advertisement of the sale was made, it would even fetch Rs. 14,000. So the appellant thought that the appeal lay to the High Court. Since the valuation was only Rs. 10,000 the appeal should have been filed in the District Court by 16th September, 1961. But since the appellant thought that the appeal lay to the High Court, he took the records to his advocate at Madras. The advocate at Madras also thought just like the appellant and so presented the appeal in the High Court on 1st November, 1961. But the High Court office returned the papers saying that the appeal does not lie in this court but only in the District Court and the papers were returned for being presented to the District Court on 17th February, 1962. From 17th February, 1962 to 22nd February, 1962 the District Court was closed on account of General Elections and so the appeal was presented on 23rd February, 1962 before the District Court. The appellant due to his honest and bona fide belief thought that he had to file the appeal in the High Court and prayed that the delay of about two months may be condoned. The District Judge refused to condone the delay and it is against this refusing to condone the delay in filing the appeal in the District Court that the appellant preferred this revision petition. The learned District Judge came to the conclusion that even though the Advocate practising at Madras gave a wrong advice, the appellant should have been alert in filing this appeal. The appellant was negligent and simply because the Advocate at Madras gave a wrong advice it was not a sufficient cause for presenting the petition to excuse the delay. It is true that the appeal did not lie to the High Court as the valuation is clearly stated to be Rs. 10,000 in view of the provisions of S. 13 of Act 18 of 1873 as amended. Still the question for consideration is whether the client should be punished for a wrong advice given by the Advocate practising at Madras. In Parthasarathi in re, I. L. R.1957 Mad. 1016=70 L.W. 595 their Lordships have held that it is the District Court that has got the jurisdiction to entertain the appeal sought to be appealed and while returning the papers they made the observation that the appeal would be within time if it is presented to the District Court alter the re -opening of that Court. There can be no question of limitation as the appeal to this court was preferred within the time allowed by law for preferring the appeal to the District Court. But having regard to the circumstances of the case and the fact that it was filed Within 90 days allowed by law, and delay in the circumstances should be excused. It is submitted that the appeal is filed within 90 days in this Court, but on a wrong advice given by the Advocate, the appeal was presented in this Court. Learned Counsel for the petitioner drew my attention to a decision reported in Kesharibai v/s. Bai Lilavati : A. I. R. 1963 Guj. 119 where Bhagwati J. observed thus at page 132:

(2.) Relying on this principle I am of the opinion that this is a fit case where the delay should be condoned because the facts in this ease reveal that the papers were returned on 17th February, 1962 for presentation to the District Court. The copy application was made on 25th July, 1961 and the copy was obtained on 28th August, 1961. He filed the appeal in the High Court on 1st November 1961. When the papers were returned by the High Court office stating that the appeal did not lie in the High Court but only in the District Court, he immediately rushed to the District Court. But the District Court was closed on account of general election between 17th February, 1962 and 22nd February, 1962, and so he filed the appeal on 23rd February, 1962. Taking all these facts into consideration I am of the opinion that the principle laid down in Kesharibai v/s. Bai Lilavati, A.I.R. 1963 Guj. 132 should be applicable to the present case. This revision is allowed and the delay is condoned. The appeal Will be numbered and restored to file, but in the circumstances, I direct the petitioner to pay a sum of Rs. 100 towards costs to the respondent herein within a month from this date.