THUMU GOVARDHANA RAO Vs. BOLINENI RAMACHANDRAIAH

JUDGEMENT

(1.) THE only question that arises for decision in this application is whether, under the provisions of Section 5 of the Limitation Act, it is not open to this court to excuse the delay in filing the pauper application on the ground that the 1st petitioner acted bona fide on the advice of his Advocate at Guntur. THE period prescribed for filing a regular appeal before the High Court is 90 days, while the period prescribed for filing a pauper appeal is 30 days.THE learned Advocate, who was not aware that in regard to a pauper appeal there is a shorter period of limitation, advised the 1st petitioner that he might fife an appeal within 90 days. When the 1st petitioner came to Hyderabad, he was informed by his Advocate Sri Babulu Reddy that the period of limitation was 30 days. So, he filed an application to excuse the delay under Section 5 of the Limitation Act.2. Section 5 of the Limitation Act provides that if the applicant satisfies the court that he had sufficient cause for not preferring the appeal within the period of limitation, the delay might be excused. If really, the applicant acted bona fide on the advice of his advocate, there can be no doubt that such delay should be excused. Sri Venkata Reddi, the learned Advocate for the respondent, invited my attention to a decision of a single Judge of this Court in Sitharamaiah v. Virraju, 1959-1 Andh WR 59 : (AIR 1959 Andh Pra 507), THE learned Judge held at p. 60 (of Andh WR) : (at p. 508 of AIR), that if the mistake is one of the lawyer, in deserving case.s it might be condoned.But as the mistake was committed by the Advocates clerk in the particular case, he refused to condone the delay. We are unable to see any difference by whom the mistake was committed. It the client had acted bona fide on the advice given by the Advocate or his clerk, we are inclined to think that the delay should be excused. THE only question that has to be considered is whether he acted bona fide on the advice given by the lawyer or his clerk, or, whether the 1st petitioner is putting forward a false excuse. THE distinction pointed out by the learned Judge between ignorance of law and mistake in law is, in our opinion not a sound one.THE decision does not, in our opinion lay down the correct law and is consequently overruled. "What has to be decided under Section 5 of the Limitation Act is whether the petitioner had sufficient cause for not preferring the appeal in time. In administer ing justice, the courts ought not to take too techni cal a view on such matters and punish the litigants for the wrong advice given by their advocates or clerks. On the facts of the present case, we are satisfied that the 1st petitioner acted bona fide in preferring the appeal beyond time, and we excuse the delay. THE petition is accordingly allowed.