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Judgment
Manohar Lall, J.—This is an appeal by the plaintiff against the judgment and decree of the learned District Judge of Santal Parganas dated 24th August 1936 dismissing the appeal of the plaintiff against the judgment and decree of the learned Subordinate Judge dated 29th March 1932 by which the suit of the plaintiff was dismissed.
This suit was instituted for specific performance of contract to sell which was said to have been entered into by defendant 1 with the plaintiff on 22nd April 1928; the defendant second party to the action claimed title to the property in question by virtue of a sale deed executed in his favour by defendant 1 about two months after the contract relied upon by the plaintiff. The principal questions raised by the defence were whether the suit for specific performance of contract was maintainable in the Santal Parganas and secondly whether the defendant second party had notice of the contract of sale in favour of the plaintiff.
One of the issues in the case which has given rise to serious controversy was as to whether the suit had been purposely overvalued and it arose in this way The plaintiffs had valued the suit at Rs. 5100, namely Rs. 4400 as the value of the property and Rs. 700 as the approximate value of the mesne profits from the date of the contract till the date of delivery of possession assessed tentatively at Rs. 700. The learned Subordinate Judge, as already stated, dismissed the suit by his judgment dated 29th March 1932 and the decree which followed the judgment was prepared on 20th April following. Within 12 days thereof the appellant preferred an appeal to this Court which was numbered as First Appeal No. 94 of 1932. One of the grounds in she memorandum of appeal is ground No. 16 which challenged the finding of the trial Court that the plaintiff had calculated the mesne profits to which he was not entitled with the object of overvaluing the suit. This ground was necessary in view of the remarks and finding of the learned Subordinate Judge that the plaintiff had no cause of action with respect to the mesne profits pendente lite and because in his view the amount of mesne profits which could be validly claimed would be only Rs. 83, that is between the date of the contract and the date of the institution of the suit.
When this first appeal came to be heard before a Division Bench of this Court the learned Chief Justice repelled the contention of the appellant that he was entitled to take the course which he had taken in valuing the amount of claim of mesne profits at Rs. 700 (although the appellant had, apparently in support of his contention, drawn the attention of the Court to some observations to be found in a decision of this Court reported in Ram Golam Sahu and Others Vs. Chintaman Singh, ) and held that even if the plaintiff paid court, fee by giving an approximate valuation as to the mesne profits pendente lite this would not have the effect in law of enhancing the valuation for the purpose of jurisdiction.
In these circumstances this Court held that the plaintiff had taken a wrong forum of appeal and the memorandum of appeal should be returned for presentation before the District Judge. This order was passed on 22nd January 1936. The memorandum of appeal was returned to the advocate for the appellant on 29th January 1936 who made it over to the plaintiff at Deoghar on 30th January that is the day after. On 3rd February 1936 the appellant filed the memorandum of appeal before the District Judge at Dumka. It is obvious that the appellant was duly diligent in conducting his appeal from the very moment an adverse decree was passed against him by the trial Court on 20th April 1932 and that he did not allow any unreasonable time to elapse between the time the memorandum of appeal was returned to him at the end of January 1936 and before he presented it to the proper Court. The learned District Judge however, on the point being raised by the respondents before him, took a very serious view and held that the appeal was not entertainable by him as being barred by the law of limitation and that he was unable to excuse the delay, in filing the appeal before him, u/s 5, Lim. Act, He correctly held that
the Court has not any discretion to excuse the delay until a sufficient cause in point of law has been laid before the Court.
The excuse of the appellant for the deduction of the period from 2nd May 1932 to 22nd January 1936 (the period during which the appeal was pending for decision before this Court) was based upon the ground that the appellant bona fid� acted on the advice of his advocate, Mr. S.N. Bose, who had relied upon the decision of the Full Bench case reported in Ram Golam Sahu and Others Vs. Chintaman Singh, . The question therefore which arose for determination was whether this: was a sufficient cause in law for extending the period of limitation in this case.
The learned Judge took the view that this was not a sufficient cause for extending the period of limitation "such as is contemplated by Section 5, Limitation Act" because ha held that he was not satisfied that Mr. S.N. Bose acted with due care and caution His finding upon this point may be reproduced in his own words:
The forum of appeal is also determined by the, value of the suit. The defendants-respondents from the very beginning asserted that the plaintiff-appellant had purposely and maliciously overvalued the suit with a view to change the venue of appeal. This made it all the more necessary and incumbent on the appellant who has extensive money-lending business and his legal adviser: Mr. S.N. Bose, an advocate, to carefully consider the law on the subject before filing the appeal, before the Hon''ble High Court. But instead of doing so the advocate who filed the memorandum of appeal and signed it stating in para. 16 merely as follows: (the quotation has already been given above). In view of the definite assertions of the defendant respondents on the point of over valuation, this plea of bona fide mistake cannot stand. The law was clear on the point and it has been clearly stated in the judgment of the Hon''ble the Chief Justice. The defendant-respondents had made definite assertions of male fide on the part of the plaintiff-appellant over the question of the overvaluation of the suit. Yet no are and caution appear to have been taken in determining in which Court the appeal lay. The conduct of the plaintiff-appellant throughout betrays want of bona fide. A mere statement that the mistake was bona fide in the memorandum of appeal is certainly not sufficient.... In the circumstances, I am not satisfied that the delay in filing the appeal before this Court was due to a bona fide mistake on the part of the appellant''s legal adviser.
This quotation from the judgment in appeal seems to indicate that the learned Judge was confusing the mala fides of the appellant with the carelessness or mala fide (as alleged) of the advocate for the appellant who advised him to file this appeal. In my opinion the learned Judge erred in law in refusing to extend the time u/s 5, Limitation Act. The duty of the appellant was over when he consulted a lawyer of the standing of Mr. S.N. Bose who admittedly is known as a careful advocate of this Court. The appellant was entitled to challenge the finding of the learned Subordinate Judge upon Issues 2 and 7 both on question of fact and on question of law. He had apparently an authority in his favour which was cited by his advocate before the learned Chief Justice.
It is true that the learned Chief Justice had no difficulty whatsoever in distinguishing that case but until that case was distinguished it was open to any learned advocate of this Court to take the view as Mr. S.N. Bose did. That view cannot be said to have been unreasonable and no amount of care or diligence on the part of any advocate can make him anticipate what view the Judge of this Court would take upon such a difficult matter as the valuation of a suit for the purpose of court-fees where the value depended upon an addition or subtraction of the amount claimed as mesne profits, past, present and future. It may be observed that on examining the memorandum of appeal which was presented to this Court on 2nd May 1932, I find that the Stamp Reporter sent for the record of the case from the Court below and on 26th May 1932, he made the following report "Examined the plaint in the case. The court-fee paid is sufficient according to valuation." I have no hesitation whatsoever in holding that upon the facts found in the present case the learned Judge committed an error of law in refusing to extend the period of limitation.
It was vehemently contended by the learned advocate for the respondents that this Court had no jurisdiction whatsoever to interfere with the findings of fact however gross and inexcusable the error may be which the lower Appellate Court had committed in arriving at these findings. The proposition so stated must be accepted.
This is supported by numerous decisions of their Lordships of the Privy Council which were reviewed compendiously in the latest cases in Anup Mahto v. Mita Dusadh A.I.R.1934. P.C. 5 and AIR 1934 112 (Privy Council) It must be conceded that this Court has no jurisdiction to interfere with the findings of fact but at the same time it is the duty of this Court to carefully disentangle the findings of fact from the inferences which may be drawn from these facts and to review the legal conclusion if erroneous: see the Privy Council cases in Ramgopal v. Shamskhaton (1893) 20 Cal. 93 at page 99 and Nafar Chandra v. Sheikh AIR 1918 PC 92 at page 195.
It has been laid down recently by their Lordships of the Judicial Committee in AIR 1937 276 (Privy Council) that a reasonable care by a competent lawyer would be a sufficient cause within the meaning of Section 5, Limitation Act (the advice given by Mr. S.N. Bose satisfies both these conditions. The advice given by him was based upon a Pull Bench decision of this Court and he is a competent lawyer).
In Krishmasami Panikondar v. Ramasami Chettiar AIR 1917 PC 179 the Judicial Committee apparently would have been disposed to interfere with the decision of the subordinate Court refusing to extend time u/s 5, Limitation Act if it had been shown that the High Court had fallen into any error. Sir Dawson Miller in S.C. Dey v. Mt. Rajwanti Kuer AIR 1923 Pat. 140 adopted the view that to attract the operation of Section 5, Limitation Act it was enough if it was shown that the mistake was of such a description that it may arise even amongst practitioners of experience and that the litigants should not be made to suffer for such an error.
In Brij Indar Singh v. Kanshi Ram A.I.R.1917. P.C. 156 Lord Dunedin in delivering the judgment of the Privy Council laid down the mode in which discretion should be exercised in cases u/s 5, Lim Act by pointing out that although each case depended upon its own circumstances but this depended on the idea that there can be a general rule regulating all such cases, that the discretion must be judicial and not arbitrary and that if the Judge who purports to exercise the discretion does so uuder the view that there is no general rule, when in fact there is one, if he has, to use an expression often used in another class of cases, misdirected himself as to the law to be applied to the case, he cannot exercise a judicial discretion, and the Superior Court in this case this Board must either remit the case or exercise the discretion themselves.
In Sunderbai v. Collector of Belgaum AIR 1918 P.C. 135 the identical question before us was raised. Under the mistaken advice of the Legal Remembrancer of the Bombay Government the defendant appealed to the High Court at Bombay on 19th July 1910 and this was well within 90 days allowed for appeal to the High Court (as in the present case). The High Court on 11th March 1912 decided that the appeal lay to the Court of the District Judge and not to the, High Court (there also the forum of appeal depended upon the valuation to be, fixed by the reliefs claimed). The High Court thereupon directed that the memorandum of appeal should be returned to the appellant for presentation to the District Judge. On 16th March 1912 that is within five days, the defendant presented the memorandum of appeal to the Court of the District Judge alleging that the appeal had been presented to the High Court by him under the bona fide belief based upon legal advice that the appeal lay to that Court and prayed that it might be admitted. It is interesting to note that the District Judge to whom the memorandum of appeal was presented was himself the Legal Remembrancer under whose advice the appeal bad been preferred to the High Court. The question as to whether the discretion u/s 5, Lim. Act should be exercised was elaborately considered by the High Court and the learned Judges pointed out at page 23 that
the fact that the defendants had acted on mistaken advice as to the law in appealing to the High Court in 1910 did not preclude them from showing that it was owing to their reliance on that advice that they had not presented the appeal to the Court of the District Judge within the prescribed period of limitation: see Brij Indar Singh v. Kanshi Ram A.I.R.1917. P.C. 156.
In Sunder Koer v. Raghunath Sahai (1911) 12 I.C. 677 Mookerjee and Carnduff JJ. laid down the following test in such matters:
The test therefore to be applied to the case before us is, whether there has been any negligence or inaction or want of bona fides on the part of the appellant. We are satisfied upon the materials which have been placed before us that the question must be answered in the negative.
the mistake made by the petitioner was in calculating the time within which the appeal should have been filed and it was based upon the advice she got from the pleader in the matter which turned out to be wrong and they considered that a mistake of that description may arise even amongst practitioners of experience. It may be noticed that the learned Judges interfered in revision and extended the time. In Nagindas Motilalk v. Nilaji Moroba Naik AIR 1924 Bom. 399 Marten, J. in ex. haustively dealing with the question held that.
if a party acts on the advice of his pleader ha comes within the protection of Section 6, Limitation Act.
The same view was accepted in the Full Bench case in Shib Dayal and Another Vs. Jagannath Prasad, where the learned Judges unanimously held that:
An honest mistake on the part of a litigant caused by erroneous advice given to him by his vakil in the district, by reason of which an appeal was not filed until the period of limitation there for had expired, is a good ground for the application in favour of the would be appellant of the provisions of Section 5, Limitation Act.
In Ambika Ranjan Majumdar Vs. Manikganj Loan Office Ltd., Suhrawardy and Graham JJ. granted a relief to the applicant in revision although it was held that the appellant''s pleader was guilty of great carelessness and filed the appeal in the wrong Court but it was impossible to hold that the appellant had acted otherwise than bona fide in the matter. In Dattatraya Sitaram Gadkari Vs. The Secretary of State for India, the advice by a pleader was held to be sufficient in law to entitle the litigant to the benefit of Section 5, Lim. Act. In Seth Jahar Mal Vs. G.M. Pritchard, Sir Dawson-Miller, C.J. in dealing with the identical question pointed out that:
Although he (District Judge) was entitled, and in fact it was his duty to exercise his discretion, if one finds that the conclusions of fact at which he arrived which were the basis of his decision were not such as could possibly support that decision then I think this Court is entitled, and, indeed, is bound, to say that that discretion was not exercised in a legal and proper manner.
This was a second appeal and although the District Judge had in his discretion extended the time for filing the appeal before him but inasmuch as he exercised his discretion in favour of the appellant by choosing to excuse the remissness or negligence of the litigant''s servants, the learned Chief Justice held:
That is not a ground upon which the Courts ought to exercise in their discretion any indulgence in favour of litigants, and therefore I think that the decision of the learned District Judge in allowing the time to be extended for filing this appeal cannot possibly stand.
Roe, J. in agreeing pointed out that upon the facts found the order of the District Court was directly contrary to the principle that the master is responsible for the negligence of his servant and he associated ''himself entirely with the views of the ''learned Chief Justice upon the other matter. I find on examination of a large number of cases (some of which have been referred by me above), that there is a cursus curia that the Superior Court has power to interfere with a wrong exercise of discretion by the Subordinate Courts in such cases both ;in its revisional and appellate jurisdiction. It remains to consider the case in Dibe Charan Lal v. Mehdi Hussain A.I.R.1916. Pat. 317 where the learned Chief Justice pointed out at page 487:
It is now settled that where a Court, after considering all the circumstances of the case, has, come to the conclusion that sufficient cause has or has not been established for not filing an appeal within time, the High Court in second appeal will ''Dot interfere.
Reliance is placed upon this passage by the learned advocate for the respondents in support of his contention that this Court is powerless to interfere with the decision for the learned District Judge refusing to extend time. In my opinion the authority under consideration does not militate against the principle which I have extracted ''from the various decisions already referred to by me; this decision merely affirms the proposition that where upon a consideration of the facts the lower Appellate Court ''is not satisfied that the appellant has reason to come beyond the time fixed by law the refusal to extend time is final but it is no authority for the proposition that where upon the facts found the discretion is not judicially exercised so that the refusal to extend time is based upon the Court misdirecting itself on a point of law the High Court cannot interfere in second appeal. This case was approved by the learned Chief Justice in a recent case in Baijanath Prasad Singh v. Umeshwar Singh A.I.R.1937. Pat. 550 when he delivered the leading judgment in the Full Bench case which dealt with the question whether the Subordinate Court is bound to grant an extension of time in case of deficit court-fee upon the plaint which has been presented. The learned Chief Justice observed:
If the discretion were exercised in an outrageous fashion it would be quite right for the person injured, that is to say the defendant, to come to this Court for relief.
Our attention was also invited to a recent decision of the Calcutta High Court in Surendra Mohan Rai v. Mohendar Nath Banerjee, A.I.R.1932. Cal. 589 where upon a review of a large number of authorities it was laid down that head-note of Surendra Mohan Rai Choudhury Vs. Mohendra Nath Banerjee and Others,
There is no authority for the view that a mistake of a legal adviser, however gross and inexcusable, if bona fide acted upon by a litigant, will entitle him to the protection of Section 5 of the Act. Bach case of this sort depends on its facts but the sound working formula would be this: In cases where a suitor has suffered from negligence 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 or through negligence nor through want of reasonable skill but such as a skilled person might make, the client is entitled to indulgence.
The learned Judges accepted the rule expressed by Brett M.R. in Highton v. Treherne (1878) 48 L.J. Ex 167 as a sound working formula. The Calcutta case 19 under consideration dealt with the situation which arose on account of the appellant not having filed an appeal from a preliminary mortgage decree and in attempting to argue the appeal from the final decree he wanted to show that the grounds stated therein also assailed the validity of the preliminary decree. The case having been adjourned an affidavit was put in on the next day with a prayer, that the formal defects, if any, in the memorandum of appeal might be allowed to be amended and a short delay in filing the appeal specifically against the preliminary decree may be excused and a certified copy of the preliminary decree annexed herewith might be received.
It was also sought to be proved by means of an affidavit that the appellant sent his papers to Dr. Kanjilal, a well-known advocate of the Calcutta High Court since dead, and Dr. Kanjilal advised that a copy of the final decree should be obtained which was then applied for and actually received in time and thereafter the appellant person, ally made over to Dr. Kanjilal copies of the judgment and of the preliminary and final decree and all relevant papers and thereafter Mr. Qasim, an advocate of that Court, filed the appeal; and Dr. Kanjilal then informed the appellant that the appeal was filed within time. Upon this the learned Judges observed as follows:
These circumstances were made out there would be a very strong case for allowing the appellant extension of time for preferring an appeal from the preliminary decree and for converting the present appeal in the way asked for. Unfortunately for the appellant a material portion of this story, at any rate, is not true, and in particular they pointed, out that the statement that a copy of the preliminary decree had been obtained before the present appeal was filed on 25th June 1927 was wholly false and that a certified copy of the preliminary decree which was now being filed was not obtained before July 1931. Upon these facts it is clear to my mind that the facts in the Calcutta case did not establish that the litigant was prevented from filing an appeal under a mistaken or careless advice given by his lawyer and the learned Judges were forced to take the view:
The result is that the explanation which the appellant has given for not having preferred an appeal from the preliminary decree fails; and the appeal having been filed on the very last day that it could be filed, in view of the dates on the copy of the final decree that he had obtained, no question of any particular diligence on his part arises.
It is to be noticed that there was no other statement of fact made by Mr. Qasim, the advocate who had filed the appeal under consideration and that on the facts found it was not necessary to decide the question which the learned Judges so elaborately discussed as to whether a litigant is entitled to an extension of time on account of a mistake made on the part of his advocate. Their observations are entitled to respect and must be considered whenever the question arises before the Courts in dealing with an extension of time based upon the allegation that the delay is due to the mistaken or careless advice given by the lawyer; but I may respectfully point out that the remedy suggested to the litigant against his legal adviser for negligent or unskilful advice is no more than a nominal remedy. In my opinion this case also does not lay down any proposition of law contrary to those indicated by me above.
I would point out that the Courts of fact should be very careful in deciding such cases when the excuse pleaded is the advice given by a lawyer and they should ask themselves whether the litigant should be allowed to suffer for no fault of his there than that he filed his appeal in the forum relying upon that advice of his lawyer.
Upon a careful consideration of the facts and circumstances, I am unhesitatingly of opinion that the learned District Judge has misdirected himself on a point of law and that he committed an error of law in refusing to extend the time upon the findings of fact which he arrived at. I would therefore set aside the judgment appealed against and remand the case to the learned District Judge for disposal in accordance with law.
The attention of the learned District Judge is directed to the well-known observation of the Judicial Committee in Tarakant Bannerjee v. Puddomoney Dossee (1863) 10 M.I.A. 476 at p. 488 where it was pointed out that the Courts below, in appeal able cases, by forbearing from deciding on all the issues joined, not infrequently oblige the superior Courts to remand a case which might otherwise be finally settled on appeal and observed:
This is certainly a serious evil to the parties-litigant, as it may involve the expense of a second appeal as well as that of another hearing below. It is much to be desired therefore that in appeal able cases the Courts below should as far as may be practicable, pronounce their opinions on all the important points. In the present case, the merits not having been entered into in the Courts below, their Lordships find themselves unable to dispose of the suit.
These observations were repeated by the Judicial Committee in Mahomed Solaiman v. Birendra Chandra Singh A.I.R.1922. P.C. 405 Sir George Lowndes in delivering the judgment of the Judicial Committee in Jagannath Rao v. Rambharosa A.I.R.1933. P.C. 33 at p. 324 observed as follows:
It has been repeatedly pointed out by this Board that it is the duty of the Courts below to pronounce their opinion on all the important points in an appeal able case and that a failure to do so not infrequently necessitates a remand with the consequence of heavy additional costs.
In the present case if the learned Judge had disposed of the other questions of fact which arose before him, for example the question of notice or want of notice to defendant-second-party, this Court would have been able to terminate this litigation, which unfortunately has to be prolonged even after a lapse of ten years.
Dhayle, J.
I agree. In the recent case in AIR 1937 276 (Privy Council) Sir George Rankin observed that:
Mistaken advice given by a legal practitioner may, in the circumstances of a particular case, give rise to sufficient cause within Section 5, Lim. Act, though there is certainly no general doctrine which saves parties from the results of wrong advice.
The facts of the case were examined on the footing adopted in the High Court (without however pronouncing it to be correct) that if counsel, on whose advice the appellant had acted, did not exercise due care and attention and acted with gross negligence in the matter, that would suffice to justify the dismissal of the appeal; and it was pointed out that this involved that the view taken by counsel was not such as could have been entertained by a competent practitioner exercising reasonable care. It seems to me that on this decision it may well be doubted whether the Judicial Committee entirely approve of the rule that for wrong professional advice to afford sufficient cause within Section 5, the mistake must be of such a description that it may arise even amongst practitioners of experience.
In S.C. Dey v. Mt. Rajwanti Kuer A.I.R.1923. Pat. 140 Dawson Miller C.J. (with whom Mullick, J. agreed) found such a rule laid down in Sunder Koer v. Raghunath Sahai (1911) 12 I.C. 677 and was prepared to adopt it, though the actual decision of the case turned on the failure of the appellant to make out that it was a pleader that had given the wrong advice.
This rule has been criticised as perhaps a little too narrow in Surendra Mohan Rai Choudhury Vs. Mohendra Nath Banerjee and Others, A Full Bench of the Allahabad High Court held in Shib Dayal and Another Vs. Jagannath Prasad, that an honest mistake, even though a negligent one, ought not in the present state of the profession in the districts to be allowed to operate to the prejudice of clients: the negilgence in that case (it may be added) was not of a gross, inexcusable description.
In Bombay the ill advice of a pleader containing "a stupid, though not an unaccountable, blunder" was not taken "necessarily or prima facie to establish a want of good faith," Ram Raoji v. Pralhaddas (1896) 20 Bom. 133 and a party, who wrongly filed an appeal in the High Court acting on the advice of a pleader, was held not to be acting without good faith merely because he relied upon a person whose status entitled him to give advice to litigants: Dattatraya Sitaram Gadkari Vs. The Secretary of State for India, followed in Nagindas Motilalk v. Nilaji Moroba Naik A.I.R.1924. Bom. 399. This view receives direct support from the decision of the Privy Council in Dattatraya Sitaram v. Secy. of State A.I.R.1921. Bom. 302 where it was held that the fact that an appellant has acted on mistaken advice as to the law in appealing to the High Court that ''appeal, it may be observed in passing, was filed long after the expiry of the period of 30 days allowed for an appeal to the District Judge, does not preclude him from showing that it was owing to his reliance on that advice that he had not presented the appeal to the Court of the District Judge within the period of limitation.
In dealing with a similar mistake in Krishna v. Chathappan (1890) 13 Mad. 269 the Madras High Court pointed out that the section gives the Courts a discretion in respect of jurisdiction which is to be exercised in the way in which all judicial power and discretion ought to be exercised, the words "sufficient cause" receiving a liberal construction so as to advance substantial justice where no negligence or inaction nor want of bona fides is imputable to the appellant.
The true rule about mistaken advice from a legal practitioner must now be taken to be that the circumstances of each particular case should be examined to see whether such advice gives rise to sufficient cause within the section.
Let us therefore examine the circumstances on the lines followed in Rajendra Bahadur Singh v. Rajeshwar Bali A.I.R.1936. P.C. 276. The error of the advocate who advised the appellant is clearly not attributable to bias. The court, fee on the appeal as filed in the High Court was in excess of that payable on an appeal to the District Judge; and though the period of limitation for an appeal to the High Court was much longer, the appeal was in fact filed within the much shorter period prescribed for an appeal to the District Judge. The observations of Mullick, J. in the Full Bench case in Ramgulam Sahu v. Chintaman Singh A.I.R.1926. Pat. 218 at p. 379 related to the question of court-fees, a point on which there had been differences of opinion, and the advocate who advised the appellant erroneously took them to be applicable to the question of jurisdiction, a question on which there was apparently no previous decision to the contrary--we have certainly not been referred to any. The District Judge considers that the appellant and his advocate should have been all the more careful to consider the law before filing the appeal in the High Court because the defendants from the very beginning asserted that the plaintiff-appellant had purposely and maliciously over valued the suit with a view to change the venue of appeal.
But para. 14 of the written statement of defendant 1 said nothing about changing the venue of appeal and only spoke of the suit being purposely overvalued "in order to ruin and harass the defendants." The assertion, such as it was, was accepted by the trial Court merely because there was no cause of action at the commencement of the suit for the mesne profits pendente lite, while it was these mesne profits that increased the plaintiff''s claim to just beyond Rs. 5000, the pecuniary limit of an appeal to the District Judge. The finding of the trial Court on Issue 2 that the suit had been purposely overvalued was thus clearly open to a bona fide attack, and was attacked in para. 16 of the memorandum of appeal on the ground.
that the Court below is wrong in holding that the plaintiff included the mesne profits to which he is not entitled with the object of overvaluing his suit, whereas it should have been held that at best it is a bona fide mistake on his part.
In holding that the suit had been purposely overvalued, the trial Court had failed to consider whether a practitioner of experience may not have honestly, and indeed correctly according to the observations of Mullick, J. in Ram Golam Sahu and Others Vs. Chintaman Singh, advised the plaintiff to include in the claim on which court-fees were to be paid the mesne profits pendente lite, especially as the inclusion of these profits did not affect the jurisdiction of the trial Court. The learned District Judge also did not advert to this aspect of the matter, nor did he refer to any ground worth the name for holding that the appellant had not proceeded bona fide in acting on the advocate''s advice for the appeal. It is difficult to see what could be required of the appellant beyond consulting a legal practitioner of the standing of Mr. S.N. Bose, to find out the Court to which the appeal lay. The District Judge apparently thought that the advocate''s mistake was not bona fide because he failed to consider the law with the care that was required in the circumstances, and further that this by itself disentitled the plaintiff-appellant to the benefit of the plea of bona fide mistake which, if made out, would have been sufficient within Section 5, Lim. Act. To describe the mistaken advice given by the advocate in the circumstances of this case as other than bona fide is to visit him with a censure undeserved, and to use the expression bona fide (which does not occur in the section) in an unnecessarily severe sense. The learned District Judge refers to the fact that the appellant has extensive money lending business as if it had much bearing on the defence assertion of mala fides on his part, but I am unable to see how it can in any way lead to the conclusion that he acted without good faith in relying upon the advice of an advocate whose standing certainly entitled him to advise litigants and who only fell into a not unaccountable blunder in failing to notice that Mullick, J.''s observations did not relate to the question of jurisdiction. On the footing also that the suit was deliberately overvalued in order to change the venue of appeal the respondents have little to complain of, for they have had no difficulty in opposing the plaintiff at every stage.
As regards the delay that has occurred, the respondents cannot be regarded as having ever had more than a conditional right to treat the plaintiff''s suit as at an end, since the appellant actually challenged the decision of the trial Court within even the shorter period of limitation prescribed for an appeal to the District Judge. The question to which Court an appeal lies is such that legal advisers often differ in their opinion about it, as is shown by reported decisions from all the High Courts. It is also a question on which litigants have to be guided by the advice of their lawyers. The mistake of the advocate in this case was, in my opinion, by no means of such a description as to disentitle the plaintiff-appellant to the indulgence provided u/s 5. Lim. Act, nor does the plaintiff appellant appear to have proceeded without diligence or good faith (using this expression here in the strict sense given to it in Section 2(7), of the Act) in relying on that advice. It was also contended on behalf of the respondents that the finding of the District Judge against the sufficiency of the mistaken advice of the advocate as a cause for not preferring the appeal to that Court within the period of limitation is a finding of fact which is binding upon this Court in second appeal. Now, it is a well-settled rule that:
Where a Court, after considering all the circumstances of the case, has come to the conclusion that sufficient cause has or has not been established for not filing an appeal within time, the High Court in second appeal will not interfere.
But it may be observed that the question whether the Court of first appeal has correctly found that sufficient cause has or has not been established will only arise in second appeals, and I am not aware of any decision in which it has been held that the High Court in second appeal will not interfere with the conclusion of the lower Appellate Court on the point on the ground that it is a finding of fact. Questions of law and of fact are sometimes difficult to disentangle, but the proper legal effect of a proved fact is essentially a question of law. The power u/s 5, Lim. Act to admit an appeal after the period of limitation prescribed there for has been always recognized as a discretionary power, and the discretion must be a judicial and not an arbitrary discretion; and the High Courts have repeatedly interfered in second appeal on the ground, as expressed in Kichilappa Naicker v. Ramanujam Pillai (1902) 25 Mad. 166 (where previous cases are referred to) that the exercise of the discretion was judicially unsound, though they have declined to interfere merely on the ground that they themselves would have drawn a different inference from the facts where a lower Appellate Court had exercised its discretion after appreciation and consideration of all the facts material for the purpose of exercising a judicial discretion and after the application of the right principle to those facts.
In Jahar Mal v. G.M. Pritchard A.I.R.1919. Pat. 503 this Court in second appeal interfered with the discretion of the lower Appellate Court u/s 5, Lim. Act, because it had been exercised on a ground upon which the Courts ought not, in their discretion, to allow any indulgence in favour of litigants. The facts on which the discretion is exercised must be distinguished from the question whether in law they amount to sufficient cause within Section 5. This distinction may be supported by an analogy. Proviso (b) to Section 14, Sub-section (1), (English) Workmen''s Compensation Act, 1925, provides that the failure to make a claim within six months shall not be a bar to the maintenance of proceedings for the recovery of compensation for an injury if it is found that the failure was occasioned by a mistake, absence or other reasonable cause; and in Shotts Iron Co. Ltd. v. Fordyce (1930) A.C. 503 it was decided by the House of Lords that the question whether the facts found constitute reasonable cause is a question of law. As Viscount Dunedin put it, the inference to be drawn from the facts found "is not an inference in fact but is an inference in law". The analogy to Section 5, Lim. Act is close, and helps in understanding how all the High Courts have consistently interfered in second appeal with the discretion of Courts of first appeal in the matter of the admission of appeals beyond time if the discretion has not been exercised in a legal and proper manner. The contention that we in second appeal are bound by the view of the lower Appellate Court as by a finding of fact must therefore be rejected; the facts themselves are not in dispute here, and the District Judge has fallen into more than one error of law in holding that the advice received by the appellant from his advocate did not entitle him to the benefit of Section 5.