Report No. 89
III Erroneous Legal Advice
5.5. Erroneous legal advice.- In section 5 the expression "sufficient cause" for not preferring an appeal or making an application within the prescribed period has been interpreted by the Supreme Court1 to include lawyers' ignorance about the law regarding calculation of the period of limitation. In that case, the High Court had refused to condone the delay and to admit the Company's appeal, but the Supreme Court, reversing the judgment of the High Court, observed as under:
"A Company relies on its Legal Adviser and the Manager's expertise is in company management, and not in law. There is no particular reason why, when a company or other person retains a lawyer to advise it or him on legal affairs, reliance should not be placed on such counsel."
1. Concord of India Insurance Co. v. Nirmala Devi, AIR 1979 SC 1666.
5.6. Reasonable care expected of counsel.- The principle, is in fact, well established. At the same time, courts have been circumspect in scrutinising the claim of a party that he was misled by a wrong legal advice. For example, a plea was made before the Madhya Pradesh High Court1 by a counsel that he had relied on a Full Bench ruling of that High Court under the old Act.
The Court refused to countenance such an argument, when, in point of time, the new Act had come into force a year before the event. Similarly, the Delhi High Court2 rejected the plea for condonation of delay, when it was argued that the appellant acted upon the advice of an eminent counsel who had, in computing limitation, relied on an overruled judgment of that Court.
1. Chunilal v. State of Madhya Pradesh, AIR 1957 AP 127 (128).
2. Banwarilal v. Union of India, AIR 1973 Del 24.
5.7. The fact that the appellant was misguided by the wrong advice given by his legal adviser, has not, alone and by itself, been held to be tantamount to "sufficient" cause within the meaning of section 5. The Courts have inquired that the lawyer who gave the opinion exercised reasonable care. In other words, the advice should have been the result of a bona fide mistake not attributable to negligence or want of skill and the view taken by the lawyer was such as would have been entertained by a competent person exercising reasonable skill1.
As the Privy Council observed2, "there is certainly no general doctrine which saves parties from the results of wrong advice". The Supreme Court3, while interpreting the words "sufficient cause" in section 5, has observed that the words "should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party." In an English case4, Brett, L.J. observed:
"In cases where a suitor has suffered from the negligence or ignorance or gross want of legal skill of his Legal Adviser, he has his remedy against that Legal Adviser, and meantime the suitor must suffer. But where there has been a bona fide mistake, not through misconduct not through negligence nor through want of a reasonable skill but such as a skilled person might make.
I very much dislike the idea that the rights of the client should be thereby forfeited".
1. Bharti Mondal v. Khagendra, AIR 1968 Cal 69; R. Trading Co. v. M. Trading Agency, AIR 1971 Cal 313.
2. Kunwar Rajendra Bahadur Singh v. Rajeshwar Bali, AIR 1937 PC 276.
3. State of West Bengal v. Howrah Municipality, AIR 1972 SC 749 (755).
4. Highten v. Treherne, (1878) 39 Law Times 411.
5.8. Questions connected with the requirement of care.- If that requirement has to be read into section 5 some questions arise. Though the expression "good faith" has been defined in section 2(h), that expression does not find a place in section 5. Taking note of this, Abdur Rahman, J. in a Lahore case,1 observed:
"It must be, however, conceded that in finding a 'sufficient cause' under section 5 of the Act, a 'good faith' is more in general sense of that word as grammatically understood rather than in the sense in which it has been defined in section 3(7), Limitation Act.
It may not be irrelevant to recall the definition of 'good faith' in section 3(2). General Clauses Act in that connection. An act according to that definition, may be done honestly and in perfect good faith although it may have been done negligently. Let me, however, not be understood to say that an act, however negligent whether grossly or otherwise should always be regarded as falling within the term 'sufficient cause' employed in section 5, Limitation Act if it is found to have been done honestly.
It would depend upon the circumstances of each case although I am free to confess that it would go a long way to help a person who asks for indulgence under section 5 if he can satisfy the Court that he had been acting honestly."
1. Arura v. Koram Din, AIR 1947 Lah 77.
5.9. Ignorance of Counsel.- Though the Supreme Court case1 concerned itself with the counsel's ignorance about the law regarding computation of period of limitation, some observations in an earlier case of the Supreme Court2 seem to suggest that the Court might be prepared to condone negligence on the part of the Counsel in special circumstances:
"37. Even otherwise, in the entire circumstances of the case disclosing sheer indifference, perhaps ignorance, on the part of the advocate, Shri Bharaitinder Singh and no ladies, whatever on the part of the appellant, we would have been inclined to condone the delay of 12 days under section 5 of the Limitation Act".
1. Concord of India Insurance Co. v. Nirmala Devi, AIR 1979 SC 1666.
2. Chinubahai v. R.C. Bali, AIR 1977 SC 2319.
5.10. The scope of the expression "sufficient cause" in relation to lapse on the part of a counsel came up for consideration before the Supreme Court1 again recently. A Senior Sub-Judge of Narnaul had been authorised by the High Court to hear appeals, but as the counsel was ignorant of this fact, he had filed the appeal in the court of the Additional District Judge in 1960. In 1961, when the appeal came up for hearing, the objection regarding want of jurisdiction was sustained and the memorandum of appeal was returned to the appellants.
The appellants filed the memorandum before the Senior Sub-Judge, the proper appellate Court and prayed for condonation of the delay of 185 days, being the period of pendency of the appeal in the court of the Additional District Judge. Though the Senior Sub-Judge condoned the delay, the High Court disagreed. The Supreme Court found that the High Court was in error in refusing to condone the delay, and remanded the appeal to the High Court.
1. Badlu v. Shiv Charan, (1980) 4 SCC 401.
5.11. Limits of the concept of "sufficient cause".- Apart from the aspect of effect of negligence, there is another aspect to be considered. The 'sufficient cause' must have arisen before expiry of the period of limitation.
A peculiar situation arose in a case from Gujarat1, in which an appeal was preferred under the Supreme Court (Enlargement of Criminal Jurisdiction) Act, 1970 against the judgment and order of the High Court of Gujarat, setting aside the acquittal of the appellant and convicting and sentencing him for serious offences under section 302, read with section 34, Indian Penal Code and under section 326, read with section 34 of that Code.
The only fact of relevance to the present inquiry is that the appeal to the High Court was filed three months after the period of limitation had expired and this delay was condoned by the High Court. The Supreme Court, however, did not countenance this action of the High Court of condoning the delay of three months tinder section 5 of the Limitation Act and observed:
"It appears that initially the State Government took a decision not to file appeal and it allowed the period of limitation to lapse. Subsequently, on certain observations made by the High Court while considering a revision petition by Bhulabhai that it was a fit case where the State Government should file an appeal and on notice being issued by the High Court to the State Government in the matter, the appeal was filed. It was filed three months after limitation had expired.
A faint attempt was made to show that when the initial decision was taken not to file an appeal all the papers had not been considered by the department concerned, but we are not impressed by that allegation. The truth appears to be that the appeal was not filed at first because the State Government saw no case on the merits for an appeal, and it was filed only because the High Court had observ.-and that was long after limitation had expired that the case was fit for appeal by the State Government.
Now, it is true that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstances arising before limitation expired it was not possible to file the appeal within time. No event or circumstance arising after the expiry of limitation can constitute such sufficient cause.
There may be events or circumstances subsequent to the expiry of limitation which may further delay the filing of the appeal. But, that the limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation. In the present case, there was no such cause, and the High Court erred in condoning the delay."
The Supreme Court, has in the observations quoted above, underscored an important aspect of section 5, by stating that the "sufficient cause" must be traced to a cause arising within the period of limitation.
1. Ajit Singh Thakur Singh v. State of Gujarat, AIR 1981 SC 733: (1981) 1 SCC 495 (497).
5.12. Need for codification of the law on the subject of legal advice.- We have, on an examination of all aspects of the matter, come to the conclusion that the position on the subject of legal advice given erroneously needs to be codified. However, it would make for a better appreciation of evidence and merits of a claim under this section if the court has before it, in black and white, the advice given by counsel.
While stressing the importance of a written legal advice, we are not oblivious of the fact that the regulation of the legal profession has been entrusted by the Advocates Act, 1961, to the Bar Council of India. Hence, we recommend1 that the Central Government should request the Bar Council of India to frame rules making it obligatory upon an advocate to tender a written legal advice in matters concerning limitation. We hope that the Bar Council of India would appreciate the necessity of such a rule when the fate of an otherwise good claim hangs on the technical plea of limitation.
We are recommending a suitable Explanation to be inserted below section 5 on the subject of erroneous legal advice2. The draft that we propose will show, in a concrete form, the salient features.
1. For implementation by the Central Government.
2. See para. 5.14, infra.