STATE OF U P Vs. MALIK ZARID KHALID

JUDGEMENT

(1.) THE State of U.P. has filed this revision under Section 25 of the Small Causes Courts Act two days after expiry of limitation. Earlier they had filed a writ petition on 4 -12 -84 which was eleven days before the expiry of limitation for filing a revision. On 17 -12 -84 i.e. one day before the expiry of limitation, they made an application for conversion of the writ petition into a revision. However, the application could not be disposed of by 18 -12 -84. The application was however rejected on 20 -12 -84 and the writ petition was also dismissed on 20 -12 -84, on ground of availability of alternative remedy of revision. The revision was thereafter filed on 21 -12 -84 after obtaining certified copy of the judgment of the trial court which had been filed in the writ petition.

(2.) THE State has filed an application under Section 5 of the Limitation Act for condonation of delay. It has been pointed out that the writ petition was filed on the basis of wrong advice of the counsel. Indeed it is not only the writ petition but even the application for conversion of the writ petition into revision which was filed on the basis of wrong advice of the counsel. It is very unfortunate that such mistaken advice are given by the State Counsel.

(3.) LEARNED Counsel for the Respondent Sri Chhabia has relied on Babu Ram v. Devinder Mohan Kaura, AIR 1981 Del 14. In this decision a learned single judge of Delhi High Court has distinguished Mata Din v. Narayanan : AIR 1970 SC 1953. The learned Judge has taken the view that even in a case of mistaken advice the counsel should be able to explain as to what led him to give the wrong advice. The Hon'ble Supreme Court In Mata Dins case had observed that although the advice given by the counsel was wrong the error was not shown to be tainted by any mala fide motive, vide para 7 of the report. In para 6 of the report their Lordships pointed out that the mistake of the counsel may in certain circumstances be taken into account for condoning delay, although there is no general proposition that mistake of counsel by itself is always a sufficient ground. Their Lordships added that it was always a question whether the mistake was bonafide or was merely device to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an underhand way. In the instant case the facts recited do not show that the wrong advice is being advanced as an device only to cover up some laches on the part of the Government or as an attempt to save limitation in an underhand way. The interpretation placed on the Supreme Court ruling by the learned Judge of Delhi High Court does not, with due respect, appeal to me. Whenever a lawyer advises his client wrongly he may not always be in a position to explain how the mistaken advice was given. The mere failure to explain the mistake does not make the advice to be mala fide. At any rate, this is it not what their Lordships of the Supreme Court have held in para 7 of the report. Considering the entirety of the circumstances, I hold that there is sufficient cause for delay and allow the application under Section 5. The revision shall now be heard on merits.