JAILA Vs. MOJIYA

JUDGEMENT

(1.) This is an application in revision wrongly styled as a second appeal against an appellate order of the learned Addl. Commissioner, Jaipur dated 10.10.56, in a proceeding on application relating to redemption of mortgage which was rejected by both the lower courts on different grounds. The facts of the case in brief are as follows - - Jaliya, the applicant filed an application before the court of the Nazim (S.D.O.) Amber against the opposite party for redemption of a mortgage under item 5 Group D of the Revenue Courts (Procedure and Jurisdiction) Act. The opposite -party resisted the claim on several grounds. The trial court after necessary enquiry in the matter rejected the application on 6.7.54 as in its opinion the applicant failed to prove the factum of mortgage. An appeal against that order was filed by the applicant before the learned Addl. Commissioner who dismissed the same on the ground that it was presented beyond the prescribed period of limitation. The applicant has now come in revision before us.

(2.) We have heard the learned counsel for the parties and have examined the record. It appears that the applicant having obtained a copy of the decision of the trial court dated 6.7.54 on the same date filed an appeal through his counsel Shri Dawarka Prasad Gupta before the learned Addl. Commissioner. On 17.8.54 the learned Addl. Commissioner directed that the appellant should show the law under which he filed this appeal to this court. On 15.11.54 after hearing Shri Radha Krishna Rastogi senior counsel for the applicant, the learned court admitted this appeal and directed process to be issued for the opposite party. On the next date of hearing i.e. 20.1.55 the counsel for the opposite -party raised an objection that in view of sec. 19 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act a first appeal against an order passed on an application by an S.D.O. or Asstt. Collector lay to the Collector and not to the Addl. Commissioner. This contention prevailed with the learned Addl Commissioner and accordingly he directed on 20.1.55 that the appeal be returned to the applicant for presentation to the proper court. The appeal was then instituted before the learned Addl. Collector on the next day i.e. 21.1.56. There again the learned counsel for the opposite -party contested this appeal on the ground that it was barred by limitation. On the subsequent date the appeal was dismissed in default of the applicant It was again restored to its original number on the same day on an application for restoration by the applicant. On 4.1.56 the learned Additional Collector observed that the Rajasthan Tenancy Act had come in force and the appeal may be transferred to the court of the Additional Commissioner under sec. 206(2) read with sec. 225 of the Act which lays down that from an order passed by an Assistant Collector or S.D.O. an appeal was competent to the Commissioner. This appeal thus came up for hearing before the learned Additional Commissioner. The learned counsel for the opposite party again contested the maintainability of the appeal on the ground that it was barred by limitation. It may be noted here that in the meantime an application under sec. 5 of the Indian Limitation Act was filed before the learned Addl. Collector by the learned counsel for the applicant praying in view of his bonafide mistake in not understanding the provisions of law relating to the filing of appeals under the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, the period of limitation be extended and condoned To this effect an affidavit was also given by the counsel Shri Dwarka Prasad Gupta. The learned Additional Commissioner examined the contents of this affidavit and the provisions of sec. 5 of the Indian Limitation Act. He observed that the mistake committed by the lawyer did not appear to be a bonafide one and the advice tendered by him to his client seems to have been given without sufficient care and attention and accordingly the application under sec. 5 was rejected, and the appeal was dismissed as time -barred. It is against this decision of the learned Additional Commissioner that the present revision has been filed. The contention of the learned counsel for the applicant is that he was misled by reading the heading of the judgment of the trial court in which the word Dava" (Suit) was mentioned. He ha3 stated at the bar that he did not read the copy of the judgment which was with him when he drafted the appeal, otherwise the said mistake would not have occurred. He also urged that on account of the said mistake on his part he drafted the appeal as if it was an appeal against a decree and filed it in good faith before the Additional Commissioner. It was prayed that as it was a bonafide mistake on the part of the counsel, the applicant need not be penalised on this account and the benefit of sec. 5 of the Limitation Act be given to him. In support of these contentions he cited A.I.R. 1918 Privy Council, 135; A.I.R. 1921 Bom., 302; A.I.R. 1933 Lahore 541; A.I R. 1928 Calcutta, 468 and A.I.R. 1942 Lahore 94 The learned counsel for the opposite party repelled all these argument by stating that the impugned appeal was filed by Shri Dwarka Prasad himself acting admittedly under the guidance of his senior namely Shri Radha Krishna Rastogi Advocate of long standing and experience. It was also pointed out that the Revenue Courts (P. & J) Act had been in force since 1951 and the applicants lawyer was supposed to know all about the provisions for filing an appeal under the Act and that if he did not actually remember the period of limitation prescribed under the Act he should have consulted the book It was also urged that it was ridiculous to argue that he did not know the type of cases which were to be instituted on an application or on a suit and the forum for appeals in both It was also argued that if a lawyer does not read a judgment before filling an appeal, it was clearly a case of negligence and want of good faith and that in such circumstances the benefit of sec. 5 of the Limitation Act could not be given. It was also pointed out that there was nothing in the decision of the trial court which could mislead the counsel. The proceedings before it clearly started on an application and in the body of the decision it had been definitely stated that the application was rejected. If the word Dava was somehow written through a clerical error or over sight in the heading of the decision of the trial court it was very unnatural for the counsel for the applicant to have understood that it was a suit and not an application which was dismissed by the trial court. In support of this he referred to AIR 1953 Punjab, 229; AIR 1954 Raj. 25; AIR 1918 Lahore 67; AIR 1950 Raj. 2. All these citations relied upon by the learned counsel for both the parties lay down the accepted rule of law that in order to allow an extension of time under sec. 5 of the Limitation Act the court should be satisfied that the party praying indulgence of the court was actually misled by a mistaken advise given by his counsel who acted in good faith which term as defined in sec. 2 of the Limitation Act means with due care and attention in not preferring an appeal within the stipulated period of limitation. 4. We have given our careful consideration to the points involved in this case viz. whether on 9.8.54 the appeal which should have been presented to the Collector under sec. 19 of the Revenue Courts (P. &J.) Act was time barred; whether there was a bona fide mistake committed in good faith on the part of the counsel for the applicant in preferring the said appeal before the learned Additional Commissioner instead of the Collector and whether it constitutes a sufficient cause within the meaning of sec. 5 of the Limitation Act justifying the extension of time It is admitted that on 6.7.54 when the application was allowed, the parties and their counsel were present in the court and a copy of the decision was also supplied the same day to the applicant on his application. According to sec 19 of the Revenue Courts (P. & J) Act an appeal against the said order was competent to the Collector within 30 days from the date of the decision. The appeal in question seems to have been drafted on the 7th August and it was filed on 9.8.54 i.e. 33 days after deducting a day obtaining a copy of the decision. Thus it was clearly presented three days after the expiry of the period of limitation. The question then arises whether there was a bonafide mistake on the part of the counsel Shri Dwarka Prasad Gupta in not filing the appeal within the stipulated period before the Collector and that instead of it he did so in good faith before the Additional Commissioner. The contention of the learned council Shri Gupta that he was misled by the use of the word Dava in the heading of the judgment without caring to read it in full does not appeal to us. The decision of the trial court is clearly a decision on an application, a fact which is stated in unambiguous words in the body of the judgment. If the lawyer did not read it carefully it is evident that he did not act in good faith. A lawyer is supposed to possess necessary legal skill and when a client engages him he is duty bound to consult the relevant provisions of law before drafting and filing an appeal to such a court as may be competent to entertain it. The word good faith has been defined in sec. 2 of the Limitation Act and it means that nothing will be considered to have been done in good faith unless it is done with due care and attention. We are therefore inclined to think that Shri Dwarka Prasad Gupta did not act in good faith in preferring the said appeal before a wrong court. Never -the -less there is nothing on the record to justify an inference that he was not honest in doing so. On the other hand we find that as soon as it was pointed out to him that the appeal was prima facie time barred he applied before the Additional Commissioner under sec. 5 of the Limitation Act. AIR 1921 Bom., 302 lays down "that where an appeal is preferred in the wrong court on the advice of a pleader want of good faith need not be necessarily presumed" in good faith means honestly though negligently. Looking to the circumstances under which this appeal was at first admitted by the learned Additional Commissioner when it was presented to him, and the manner in which it remained pending before him and the Additional Collector, as well as the affidavit of the counsel himself in which he has frankly confessed his mistake, we think it to be a fit case in equity in which we should exercise our judicial discretion under sec. 5 of the Limitation Act in favour of the applicant. For, after all, it is the applicant who shall stand penalised and justice denied to him if on account of a delay by three days on account of an honest mistake of his counsel the said appeal was to be dismissed merely on this ground. It is nobodys case that there was any negligence on the part of the applicant, nor do we find anything on record to this effect. It is also significant to note that the Revenue Courts (P. & J.) Act having been repealed the said appeal is now competent to the Additional Commissioner, Taking this aspect of the matter into consideration, we allow this application, set aside the order of the learned Additional Commissioner and direct that he should re -admit the appeal and dispose it of on merits.