KSHETRAMONI DASI Vs. SURENDRA MOHAN KUNDU

JUDGEMENT

(1.) In our opinion, this Rule should be made absolute. The petitioner wanted to take steps against art order passed in a partition suit by which defendant No. 3 was allowed to purchase her own share and that of defendant No. 1. She was advised that an application in revision would lie to this Court and under that impression she came and interviewed Mr. Janah with the necessary papers. Mr. Janah, who is appearing for the petitioner in this Rule, informed her that she had been mis-advised and that the order against which she wanted to take steps was an appealable order and that such an appeal would fie before the learned District Judge. The petitioner then went back and filed her appeal, but when she did so eleven days had already expired from the last day or limitation.

(2.) The petitioner made an application under Section 5, Limitation Act, as she was bound to do and the sufficient cause relied upon by her was that she had acted bona fide throughout but that she had been misled by the wrong advice given to her by her lawyer. The learned District Judge has rejected this plea on the ground that whether an order made under the Partition Act was or was not appealable, did not admit of two opinions and therefore if the petitioner's pleader had advised the petitioner that an application in revision would lie against the order, he had done so without due care and attention. The learned Judge thought that the principle applicable was that one had to enquire whether the mistake or ignorance of law displayed by the lawyer was itself a bona fide or excusable mistake and that if it was not bona fide or excusable, it would be the client who would be affected.

(3.) It appears on the authorities that the view taken by the learned Judge is not correct. What a client has to prove in such cases is that in approaching a particular lawyer whom he had approached, he had acted hona fide and with reasonable care. If he proves so much, the onus lying upon him is discharged. If the lawyer, on being so approached, gives misleading advice and acting upon tnat advice the client allows the period of limitation to expire, he is entitled to rely upon such wrong advice as sufficient cause for the delay, provided always that his initial approach to the particular lawyer had been bona fide and the choice of the lawyer had not been, careless or unreasonable. The reason why this distinction has been made in the cases is that as regards advising clients in such matters, lawyers do not act as agents of the client and therefore the effect of any mistake which they may commit is-limited to themselves, but does not extend to affect the lay client.