Kondepu Raghavayya vs Elukooru Vasudevayya Chetty

King, J.—The appellant is a merchant living in Bezwada. In September, 1935, he entered into two contracts with the respondent, a

merchant of Nandyal: In April, 1936, appellant, alleging that the contracts had been broken by the respondent, filed a suit for damages against him

in the Court of the District Munsiff of Bezwada. In his written statement respondent pleaded, amongst other contentions, that one of the terms of

the contracts themselves was that all suits arising out of them should be filed only in Nandyal, and therefore the Bezwada Court had no jurisdiction.

In reply to this contention a further sub-paragraph was inserted in the plaint in March, 1937, in which it was stated that the term relied upon by the

respondent offended against Section 23 of the Contract Act. The District Munsiff of Bezwada held that he had no jurisdiction to try the suit and

returned the plaint. On appeal, the Subordinate Judge of Bezwada confirmed this decision.

Appellant thereupon presented the plaint in the Court of the District Munsiff of Nandyal on 10th January, 1940. Respondent pleaded that the

suit was barred by limitation. Both the learned District Munsiff and the learned Subordinate Judge of Kurnel have accepted this view and dismissed

the suit. Hence the present second appeal.

The question of limitation depends upon whether the appellant can or cannot take advantage of the provisions of Section 14 of the Limitation

Act. If he can, even to the extent of excluding only the period spent in the trial of the suit by the District Munsiff, Bezwada, his suit in Nandyal will

be in time. If he cannot, it is clearly barred. The question which must therefore be decided is whether the appellant in prosecuting his suit in

Bezwada was acting in good faith, i.e., with due care and attention.

In support of his plea of good faith appellant relied upon two facts:

(i) He was unaware of the term in the contracts which required him to file his suit in Nandyal; and

(ii) He filed it in Bezwada upon the advice of his advocate, whom he naturally trusted to decide such a question of law for him.

The lower Appellate Court has held against the first contention on the ground that appellant did not dare to assert it in the witness-box. On the

second contention it has held that the advocate himself did not act in good faith, and therefore appellant cannot rely upon his advice as establishing

his own good faith. It is. on this second contention that the arguments in second appeal have turned.

The decision of the learned Subordinate Judge against the good faith of the advocate is clearly one of fact and it has not, and cannot, be urged

that that decision is open to attack in second appeal as one based upon no evidence, for the advocate has himself given evidence on behalf of the

appellant. In the course of that evidence he said that in his opinion Section 23 of the Contract Act rendered the particular term in the contracts

unenforceable. He did not look up any authorities to satisfy himself on this point, as he regarded his opinion to be as completely free from doubt as

the proposition that a son is heir to his father.

It is argued on behalf of the appellant that there are rulings of the Lahore Court which support his view and that he may therefore have honestly

held it. On the other hand there is a ruling of this High Court (by Madhavan Nair, J., in Achratlal Kesavlal Mehta and Co., by Proprietor Achratlal

and Kesavlal Vs. Vijayam and Co., which holds that u/s 28 of the Contract Act, a section which clearly applies far more directly than Section 23

to facts of the kind with which we have now to deal, such a clause in a contract is not illegal. This ruling has been followed by other High Courts,

e.g., Calcutta, Bombay and Allahabad, and, so far as I am aware, has never been dissented from. The learned Subordinate Judge points out that

the least research would have acquainted the advocate with this state of the law in Madras.

I do not think it is open to me to find that the learned Subordinate Judge is wrong on a question of fact of this kind, but, if it were, I should have

no hesitation in confirming his view. It may be that in the first instance an advocate might assume hastily but honestly that a clause restricting the

filing of a suit in Bezwada was illegal, and that he might be so sure of the accuracy of his own opinion that he considered it unnecessary to confirm

it by reference to any authorities or text-books; but the facts here show that the advocate must have acted upon this opinion on four separate

occasions:

(i) when he advised the filing of the plaint in Bezwada;

(ii) when he had it amended to meet respondent''s plea;

(iii) when he advised the filing of an appeal; and

(iv) when he advised the filing of a second appeal, (though this time appellant was shrewd enough not to take his advice).

It is impossible, I think, to discover any trace of due care and attention in persistent conduct of this kind. Much more likely is it that the

dominating motive in the mind of the advocate was to secure and retain this brief for himself for as long and remunerative a period as possible.

The only question of law which really arises in this appeal is whether the good faith of the advocate is at all relevant. It is not referred to

expressly in Section 14. Can it be argued that the good faith of the party alone need be considered; good faith which would normally be

established by the mere act of relying upon professional advice? Mr. Appa Rao for the appellant cannot argue that the law, can be stated so

comprehensively. All he says is that something equivalent to dishonesty or gross negligence must be found before the appellant should be made to

suffer by reason of his advocate''s shortcomings. No authority, however, has been cited which goes even this far. It is true that in certain cases,

mistakes or slips on the part of an advocate have been condoned. It is human to err and such mistakes may be consistent with a general mental

attitude on the part of an advocate to apply due care and attention to his professional work. But here we return to the realm of fact. Whether an

advocate has shown due care and attention is a question of fact to be decided on the evidence adduced in any particular case. No absolute rule of

law can be laid down, and whether a Judge''s decision on this point be right or wrong, it cannot be upset in second appeal on the ground that he

has transgressed such a rule of law.

In the result this appeal must fail, and it is dismissed with costs.

Leave refused.