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PETITIONER: LALA MATA DIN

       Vs.

RESPONDENT: A. NARAYANAN

DATE OF JUDGMENT: 25/08/1969

BENCH: HIDAYATULLAH, M. (CJ) BENCH: HIDAYATULLAH, M. (CJ) GROVER, A.N.

CITATION:  1970 AIR 1953            1970 SCR  (2)  90  1969 SCC  (3) 464  CITATOR INFO :  R          1988 SC 897  (7)

ACT: Counsel,  mistake of-When sufficient ground  for   condoning delay  in  filing appeal-Practice  and  procedure-Limitation Act, 1908, s. 5-Punjab Courts Act, s. 39(1).

HEADNOTE: The  appellant’s suit against the respondent  for  rendition of  account and other reliefs was valued at Rs. 5,930/-  for purposes  of  court  fee and  jurisdiction.   The  suit  was decreed  in part and the amount decreed was less.  than  the amount at which he stated his tentative valuation.  He filed an appeal to the District Court stating  the valuation   for purposes  of  appeal  at Rs. 4,880’/-.   The  memorandum  of appeal  showed  the valuation in the original suit  and  the court  fee paid was the same amount as in the  trial  court. The  District  Court returned the memorandum of  appeal  for presentation to the proper court because, under s. 39’(1) of the Punjab Courts Act appeals above the value of Rs. 5,000/- had to filed before the High Court.  The appeal was filed in the  High Court the same day, but it was out of  time.   The appellant  also  filed a revision against the order  of  the District Court.  His counsel placed reliance on r. 4 in  Ch. 3-B  of Vol. 1 of the Rules of the  High Court which  states that  "in  a  suit for the amount  found  due  after  taking accounts it is not the tentative valuation of the  plaintiff but the amount found to be due and decreed by the court that determines  the forum of appeal." The High .Court held  that there  was no ground for extending time under s.  5  of  the Limitation   Act  and  dismissed the  appeal  and  also  the revision.  In appeal to this Court,     HELD: The High Court should have extended time under  s. 5 of the Limitation Act. [9’4 A--B]     (i) The appellant did not have any underhand  motive  in filing the appeal before the District Court, the filing  had to be attributed entirely to the advice of his counsel.  [93 A--B]     There is no general proposition that  mistake of counsel by  itself   is  always a sufficient  ground  for  condoning delay.  It is always a question whether the mistake was bona

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fide or was merely  a device  to cover an ulterior  purpose. [92 F--G]     In  the present case the original valuation   determined the  court  of lowest denomination before which  the  appeal from  the suit had to go and that forum was the High  Court. The counsel seems to have been misled by r. 4 in Ch. 3-B  of Vol. 1 of the Rules and Orders of the High Court. This  rule is  applicable in a case where the amount decreed is  larger than the amount for which the original suit was brought.  It does  not  apply  where  the amount  decreed  is  below  the valuation  in  the original court. There is nothing  in  the case  to  show that the error committed by  the counsel  was tainted by any mala fide motive. [93 C--F; 94 A]

JUDGMENT: CIVIL  APPELLATE JURISDICTION:  Civil Appeal Nos.  2410  and 2411 of 1966. 91     Appeal from the judgment ,and order dated March 20, 1963 of  the Punjab High Court, Circuit Bench at Delhi in  R.F.A. No. 122-D of 1962.     Bishan  Narain, K. K. Raizada and A.G. Ratnaparkhi,  for the appellant (in both the appeals).     A.S.  Nambiar,  K.R. Nambiar and Lily  Thomas,  for  the respondent (in both the appeals). The Judgment of the Court was delivered by     Hidayatullah,   C.J.   This is  an appeal  against   the judgment, dated March 20, 1963,  of  a  Division  Bench   of the  Punjab High Court dismissing an appeal and  a  revision filed by the present appellant.  The appeal arises under the following  circumstances: A suit was filed by the  appellant in  the  Court  of the Senior  Sub-Judge,  Delhi  for  three reliefs  in  respect  of  a business in which the respondent was  stated to be the manager and also for ejectment of  the respondent from the premises in which the business was being carried  on  The same valuation was adopted for purposes  of court-fee   and   jurisdiction.  The valuation  was  divided into  three parts: Rs. 4,000/- were taken as  the  valuation for rendition of accounts or arrears of  rent, Rs. 130/- for injunction and Rs. 710/-  for  ejectment--Total Rs. 4,840/-. During  the  hearing  of the suit and on  objection  by  the defendant,  the= valuation for  ejectment  was   raised   to Rs.  1,800/-.   It  appears  that  the  appellant  paid  the additional  court-fee but did not amend the plant. The  suit was decreed in part on May 11, 1961.  The appellant obtained a decree for Rs. 600/- as arrears of rent for  3/4   portion off  the   shop  and Rs. 463.33 P.  as   damages  for    1/4 portion  of the shop ejectment from which portion  was  also decreed in his favour.  But the suit was dismissed as to the remaining  arrears  of rent or for accounts  and  ejectments from 3/4 of the premises.     The  plaintiff (appellant) thereupon filed an appeal  in the  District Court of Delhi.  In stating the valuation  for appeal,  he correctly described the:  three-fold   valuation in   the   suit as Rs. 4,000/-, Rs. 130/-  and  Rs.  1,800/- (total  Rs.  5,930/-).  He  however  valued  the  appeal  as follows:                  Rs. 3,400/- as the valuation for arrears of               rent or   for rendition of accounts, Rs. 130/-               for   injunction   and     Rs.   1,350/-   for               ejectment--(Total Rs. 4,880/-).     Now it is obvious that if the valuation was Rs.  4,880/- appeal  would  have lain in the District Court, but  if  the

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appeal  had to be valued at Rs. 5,930/- it had to go  before the High Court.  When the notice of the appeal was served on the  defendent  (respondent) he flied a  cross-objection  in the same  court 92 but  did  not  take any exception to the  valuation  of  the appeal  in  the District Court on its presentation  in  that Court.   On July 25, 1962, the District Judge made an  order upholding  a preliminary objection taken before him  at  the hearing  that  the  memorandum of appeal was  liable  to  be returned  for  presentation  to the  proper  court,  and  he ordered  the  memorandum  of appeal to be  so  returned.  It appears  that  it was filed in the High Court the  same  day and, therefore, there was no loss of time after  the  return of  the memorandum.  The appeal was delayed by  nearly   one year.     It  may,  however,  be  mentioned  that  the   plaintiff (appellant)  did not submit to the decision of the  District Court but took the matter in revision before the High Court. The  appeal as represented and the application for  revision were disposed of by the common judgment under appeal  before us.   The  High  Court held that there  was  no  ground  for extending  time under  s. 5 of the Limitation Act for  which purpose  an  application had been sub-joined to  the  appeal filed in the High Court.     The question in this case is whether the High Court  was fight  in  dealing with this problem as it  did.   The  High Court seemed to be of the opinion that an Advocate (Mr. K.K. Raizada)  of 34 years’ standing could not possibly make  the mistake  in view of the clear provisions on the  subject  of appeals   existing   in s. 39(1) of the Punjab  Courts  Act. That sub-section  at  that time clearly showed that  appeals of  the  value  of  Rs. 5,000/- must  be  filed  before  the District  Court  but appeals above Rs. 5’000/must  be  filed before  the High Court.  The High Court also  felt that  the learned  counsel  persisted in pursuing his  own  theory  by willing  a  revision.  It is on this account that  time  was denied  to  the present appellant in the appeal.   The  only question  is whether the decision of the High Court  can  be accepted.     The  law  is  settled that mistake of  counsel  may   in certain  circumstances  be taken into account  in  condoning delay although there is no general proposition that  mistake of  counsel by itself is always a sufficient ground.  It  is always  a question whether the mistake was bona fide or  was merely device to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an  underhand  way.   The  High  Court  unfortunately  never considered the matter from this angle.  If it had, it  would have  seen quite clearly that there was no attempt to  avoid the Limitation Act but rather to follow it albeit on a wrong reading of the situation.   It  is quite clear that the limitation for the  appeal  to the  High  Court was three times as much as it was  for  the District  Court. When the appeal was filed, litigant had  as much as two months 93 in hand to file the same in the High Court.  Further he  did not  attempt  to save court-fee on the appeal but  paid  the same  courtfee  which would have been payable  in  the  High Court.   It does not appear that he had an underhand  motive for filing the appeal in the District Court.  Therefore, the filing  of  the appeal must be attributed  entirely  to  the advice  of  the counsel.  Here again, the  counsel  did  not suppress anything.  As has been stated earlier, he put  down

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both  the valuations in the forefront of his  memorandum  of appeal,  that  is to say, the valuation of the suit  in  the original  court and the valuation of the appeal.  No   doubt the  counsel was one with some experience and ought to  have known that an appeal above Rs. 5,000/- must be filed in  the High Court and not the District Court and therefore, we have to  see  whether he was genuinely under a  mistake  or  not. Here  there is proof that he adhered to this  view,  because not  only he filed the appeal but also took a revision  from the  order  of the District Court to the High  Court,  still labouring under the same mistaken view. Further he, seems to have been misled by a rule, i.e.r. 4 in Ch. 3B of Vol. 1  of the  rules  and  orders  of the High  Court  which  read  as follows:                     "In  a suit for the amount found to   be               due  after taking into accounts, it is not the               tentative  valuation of the plaintiff, but the               amount  found  to be due  and decreed  by  the               court that determines  the  forum  of appeal." This  rule  is  applicable in a case  in  which  the  amount decreed  is  larger than the amount for which  the  original suit  was brought. Now it is well-known that in a  suit  for accounts,  the plaintiff is not obliged to state  the  exact amount  which would result after the taking of accounts.  He may  do so if he is able to; but if he is not, he can put  a tentative  valuation upon his suit for accounts taking  care that  the  valuation is adequate and reasonable in  all  the circumstances  of the case.  But the rule also obtains  that if  the amount which is found is larger than the  amount  at which  he stated his tentative valuation, he must  file  the appeal  against  the larger amount and in the  forum  before which  an appeal of that valuation can go.  This  rule  does not apply where the amount decreed is below the valuation in the  original  court. Here the original valuation holds good both  to find the forum and to put a valuation.   After  the amendment of the valuation on account of ejectment the total claim  was  Rs.  5,930/- and that determined  the  court  of lowest  denomination before which the appeal from  the  suit had  to go.  That according to the other rule which we  have cited  was the High Court.  The second rule, which  we  have later  cited,  does  not cut across the  first  rule.   This appears  to be the error which was committed by Mr.  Raizada and we do not 94 find  anything  in  the case to show  that  this  error  was tainted  by any mala-fide motive on the part of the  counsel for  the  litigant. In the circumstances we think  that  the High Court would have been justified in extending time under s.  5  of the Limitation Act and the reasoning of  the  High Court unfortunately started from a wrong angle.     We accordingly set aside the order of the High Court and remit the appeal for hearing and disposal according to  law. The  appellant  will  however  pay  all  the  costs  of  the respondent which have been incurred till today  irrespective of the result.     We may mention that there are two appeals pending before us.   The other appeal is from the revisional order  of  the High  Court and we think that there is no need to  pronounce any decision in that appeal, because it becomes  infructuous by  reason  of our decision in this appeal.  As  the  appeal before. the High Court is an old one, we hope that the  High Court will be able to give it priority. y.p.                                                  Appeal remitted. 95

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