Moti Lal Dhar vs State of Jammu & Kashmir

(1) This is a suit filed by the plaintiff, Moti Lal Dhar, against the defendant, State of Jammu and Kashmir, for the recovery of a sum of Rs. 20,000/

on account of compensation for breach of contract. The suit was instituted first, on 31101963, in the court of District Judge. Srinagar. The District

Judge transferred it for hearing and disposal to the court of Additional District Judge. Srinagar. By his judgment dated 3091972, the Additional

District Judge decreed the suit for a sum of Rs. 17,000/. The State appealed. The appeal was heard by a Division Bench of this court consisting of

the Chief Justice and Jaswant Singh J, as he then was. The learned Judges held that the claim being for a sum of Rs. 20,000/ plus interest, the suit

ought to have been instituted in this court rather than in the courtof District Judge, Srinagar, as required by section 56 of the Constitution Act of

1996 read with section 102 of the Constitution of Jammu and Kashmir. Accordingly they accepted the appeal; set aside the decree t and, directed

that the plaint be returned to the plaintiff for presentation to the proper court. The plaintiff has now filed this suit in this court along with, an

application praying that the time spent by him in the .previous litigation may be excluded under section 14 of the Limitation Act and the suit treated

to have been filed within time. The plaintiff avers in the application that it was due to the mistake of his lawyer Mr. A.N. Raina Advocate, that the

suit was originally filed in the court of District Judge Srinagar, adding that the mistake could not be detect""d either by the defendant State or by the

trial court who proceeded with the trial without raising any objection as regard the defect in jurisdiction. The Defendant State has opposed the

application and pleaded that, in the circumstances of the case, the mistake of the lawyer cannot be considered to be a good ground for exclusion of

timeunder section 14 of the Limitation Act.

(2) The law is well settled that the mistake of a counsel, by itself, is not always a good ground for condonation of delay under section 14 of the

Limitation Act. Such mistake can be a good ground only if it was a bona fide mistake. Bonafides signifies good faith. By section 2 (7), the

Limitation Act defines the expression 'good faith' as under :

''good faith: nothing shall be deemed to be done in good faith which is not done with due care and attention.

(3) The question then is whether, in the present case, the mistake can be said to be bona fide in the sense explained above. Here, there is no

personal affidavit of Mr. Raina to show that the mistake was based upon. On his own affidavit the plaintiff has vaguely stated) quoting words used

in the affidavit, ""that the counsel of the plaintiff was under a bona fide belief labouring under the Civil Courts Act implying, perhaps, that his counsel

relied on his general impression of law in the matter based on the provisions of the Civil Courts Act which he did not suspect to be incorrect. The

relevant provisions of the Civil Court Act are, however, so clear and explicit that there is hardly any room for doubt and uncertainty about their

meaning Section 20, which is directly in point, reads:

Except as otherwise provided by any enactment for the time being in force, the Court of the District Judge shall have jurisdiction in original civil

suits without limit as regards the value.

(4) To any one having legal sense particularly when he is a lawyer, the opening words should serve as a pointer to the fact that the section is

controlled by some other enactment and set him on an inquiry about what that enactment is. If one undertakes that inquiry it should not be difficult

for him to discover that the provisions of this section are controlled by section 56 of the Constitution Act 1996 read with section 102 of the

Constitution of Jammu and Kashmir. Section 56 (2) of the Constitution Act, 1996 provides ;

The High Court shall have jurisdiction to bear and determine any Original civil suit or other proceedings of which the value is not less than rupees

twenty thousand and every such suit or proceeding, shall be instituted in the High Court.

The jurisdiction so conferred on the High Court has been kept in tact by the Constitution of Jammu and Kashmir which superseded the

Constitution Act, 1996 and came into force in the year 1957. Section 102 of the Constitution of Jammu and Kashmir says

''Subject to the provisions of this Constitution and to the provisions of any law for the time being in force, the jurisdiction of and the law

administered in the High Court and the respective power of the judges thereof in relation to the administration of justice in the Court, including any

power to make rules of Court and to regulate the sitting of the Court and of members thereof, sitting alone or in Division Courts, shall be the same

as immediately before the commencement of this Constitution."" (5) It is difficult to imagine that a senior lawyer like Mr. A. N. Raina, who first

acted as Public Prosecutor, Srinagar and then as Advocate General of the State for a number of years could not be able to discover these

provisions, if only he had cared to make an effort. Accordingly the impression of law held by Mr. Raina cannot be said to be an impression of such

description as might arise even among lawyers of experience like him. More so, when he and other lawyers like him, appearing in the State High

Court, see that the High Court hears and determines civil suits on its original sidean experience enough to set every one of them thinking that the

power and jurisdiction of District Court to entertain suits cannot be unbridled and must be hedged in by restraints which he must locate to secure

precision and clarity. Therefore I am in agreement with the view advanced at the bar by the Advocate General appearing for the defendant State,

that the mistake of the plaintiff's counsel had resulted from lack of due care and attention. The negligence of the plaintiffs counsel is not mitigated by

the circumstance that the defendant and, equally so, the trial court failed to notice the mistake at the trial, as suggested by the plaintiff. May be, that

the counsel for the defendant advisedly chose to remain silent or in any case he was negligent. His negligence cannot be pleaded as a set off against

the negligence of the plaintiffs counsel. The trial court could not obviously notice the defect because there was no objection about it. In this

background the mistake of the plaintiff's counsel cannot be said to be a bona fide mistake on which condonation may be grounded under section

14 of the Limitation Act.

(6) Reliance was placed on behalf of the plaintiff on the decisions reported as AIR 1957, Hyd. 4; AIR 1959 Patna' 365; AIR 1961 All, 564, AIR

1969 S. C. 23: AIR 1970, S C. 1953; and J K L R 1974, 44. Out of these decisions, those reported as AIR 1959 Patna, 365; AIR 1961 ALL,

564; A. I R 1970 S. C, 1953 and JKLR 1974, 45 alone deal with the condonation of delay based on the mistake of counsel. These decisions lay

down the proposition of law that the mistake of a 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. The principle is unexceptionable. On the facts of each case

the courts have granted condonation in these cases. The facts of none of these cases are, however, similar to the present case. Accordingly the

decisions do not advance the case of the plaintiff in the present case.

(7) In the result the application for condonation of delay is hereby dismissed and with it the suit as well which is admittedly time barred. The parties

will, however, bear their own costs.