Lala Mata Din Vs. A. Narayanan 
INSC 201 (25 August 1969)
25/08/1969 HIDAYATULLAH, M. (CJ)
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)
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).
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 fide or was merely a device to cover an
[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 council was tainted by any mala fide
motive. [93 C--F; 94 A]
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 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
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 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 court fee 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 council did not suppress anything. As has been stated earlier, he put down
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
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.