FORBESGANJ JAGDISH MILL LTD Vs. KALORAM

JUDGEMENT

(1.) The respondent filed the suit, out of which this appeal arises, for realisation of a sum of Rs, 4996/- with interest at six percentum per annum on the basis of certain commercial transactions, which was allowed in part. Accordingly a decree for Rs. 4980/- with interest was passed. The defendant appellant filed an appeal before this Court on 2-8-71. The stamp reporter made a note that in view of the low valuation of the suit, the appeal was not maintainable before the High Court. The appellant withdrew the appeal on 18-8-71 and filed the same two days later before the District Judge, Munger, with an application for condonation of delay. The appeal was admitted ex parte without notice to the respondent. When the respondent appeared he raised the question of limitation. By the impugned judgment the lower appellate Court held that the delay was not fit to be condoned. The appeal was accordingly dismissed. The appellant has now come to this Court in second appeal.

(2.) From the memorandum of appeal, which was filed in this Court in the first instance and later before the District Judge, it is clear that the appellant had correctly mentioned the valuation of the suit on the first page of the memorandum at less than Rs. 5000/-. The valuation of the appeal initially was erroneously mentioned as Rs. 996/- only which was later amended as Rs. 4996/-. As is the practice in this Court, the memorandum was filed before the Stamp Reporter on 2-8-71 and the Stamp Reporter took the objection about the maintainability of the appeal on the ground of low valuation as mentioned above. The memorandum was returned to the learned counsel for presentation before the Registrar in accordance with the High Court Rules. In spite of the objection the learned Advocate for the appellant did not desist from filing the appeal in the High Court. The memorandum, however, was returned 16 days later.

(3.) According to the case of the appellant, he had consulted an Advocate of Begusarai and was advised to file the appeal before the High Court. The lower appellate Court has rejected this case on the ground that neither a certificate by a Begusarai Advocate was filed in the case nor even the name of the counsel is mentioned. The reasons given in the impugned judgment appear to be correct. It is to be noted that the period of limitation for filing an appeal before the District Judge had already expired before 2-8-71 when the appeal was filed before the High Court. Even assuming that the delay till 2-8-71 be condoned, it is not possible to allow the prayer under S.5 of the Limitation Act due to the delay between 2-8-71. It has been firmly established that it is not every wrong advice by the legal adviser that will amount to a sufficient cause entitling a party to claim the indulgence under S.5. Acting upon wrong advice will amount to a sufficient cause only when the advice was itself given bona fide, that is, after the exercise of due care and attention. The expression 'good faith" has been defined in S.2(h) of the Limitation Act in the following terms :