MARIAMBAI Vs. HANIFABAI

JUDGEMENT

(1.) THIS case comes before me on a difference between Newaskar. J. and Tare, J. on the question whether, in the circumstances of this case, there is sufficient cause within the meaning of Section 5 of the Limitation Act for extension of the time prescribed for filing this appeal.

(2.) THE value of the suit, out of which this appeal arises, is admittedly over Rs. 5,000. It was decided by the Civil Judge, Class I, Khargone, on 24 February 1958 and a decree in pursuance thereof was passed on 26th February 1968. The defendants, who had obtained certified copies of the judgment and decree on 27th february 1958, filed this appeal in the Court of the District Judge, Mandleshwar on 24th March 1958. Thereafter, on 80th June 1958, the defendants applied to that court for return of the memorandum of appeal for presentation to the proper court and, having thus obtained it on 8th July 1958, they presented it in this Court on 9 July 1958.

(3.) ALL that is said about the existence of sufficient cause is that a senior counsel, kb. Hifazat Ali, advised the defendants to present their appeal in the Court of the district Judge, Mandleshwar. and they did so. On his part, the counsel has filed an affidavit to say that "at that time I was under the impression that the appeal would lie to the District Court" and, therefore. "i advised and prepared the memo of first appeal and asked Moosa to go and present the same to the District Judge. Nimar, at Mandleshwar" It is no longer disputed that the defend an is had acted on the erroneous advice of their counsel. KB. Hifazat Ali. Newaskar, J. relying upon phoolabhai v. Ashabhai, First Appeal No. 42 of 1954. dated 3-12-1957 (MP ). which followed the view taken in Krishnarao v. Trimbak, ILR (1938) Nag 409 (AIR 1938 nag 150); Hemraj Dhannalal Firm v. Ambaram. 1961 MPLJ 343: (AIR 1961 Madh pra 336' and the observations of the Privy Council in Rajendra Bahadur v. Rajeswar Bali, AIR 1937 PC 276. took the view that each and every mistake committed by a counsel is not a just ground for extending limitation, that, to be a ground available for the purpose, the advice given by the counsel should be sustainable as one which could be entertained by a competent legal practitioner exercising reasonable care and that, where the provision of law governing the point is in itself. or for any other reason, incapable of bearing any other interpretation, the mistake of a counsel is not sufficient cause within the meaning of Section 5 of the Limitation Act. Tare. J. . reviewing a large number of cases, held that there was sufficient cause In taking that view he appears to have relied upon nagindas Motilal v. Nilaji Moroba, ILR 48 Bom 442: (AIR 1924 Bom 899) and bhausaheb Jamburao v. Sonabai, ILR 1946 Bom 481: (AIR 1946 Bom 437 ). His conclusion is: