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Judgment
The plaintiffs are the appellants. They filed the suit under S. 77 of the Registration Act for the compulsory registration of a sale deed executed on
25th January 1962 by the defendant. The document was presented for registration to the Sub-Registrar, Orathanad, who refused to register the
same. An application to the District Registrar was also dismissed on 4th January 1963. The plaint was originally presented in the court of the
District Munsif, Tanjore, on 31st January 1963. The District Munsif returned it on 18th March 1963 holding that he had no jurisdiction to entertain
the suit and en that very day, it was represented to the District Mursif, Pattukottai, who had jurisdiction to entertain the suit. Along with the plaint
en application under Ss. 5 and 14 of the Limitation Act was also filed for condoning the delay with the allegation that the property conveyed was
within the jurisdiction of the District Munsif, Tanjore, and as the order of the District Registrar was pronounced at Tanjore, the plaint had been
presented bona fide to the court of the District Munsif, Tanjore on 31st January 1963. Both the courts below have refused to excuse the delay. In
this second appeal by the plaintiffs, the first objection taken on behalf of the defendant is that no question of law arises and that this court in second
appeal cannot give any relief to the plaintiffs. Reliance is placed upon the decision in Raghavayya v Vadudevayya Chettl A. I. R. (1944) Mad. 47.
In that case King J observed.
The only question of law which It realty arises in this appeal is whether the good faith of the advocate is at all relevant. It is not referred to
expressly fn S. 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 most 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
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.
I am afraid the learned Judge was not quite correct in assuming that the question whether due care and attention has been shown is a question of
fact. In Ramgopal v. Shanshaton 191. A. 229 the Privy Council after referring to their decision in Ramratan Sukal v. Nandu 191.A.1 that a third
court cannot entertain an appeal upon any question as to the soundness of findings of fact, by a second court however unsatisfactory such finding, if
examined, may be pointed out that the facts found need not be questioned and that it is the soundness of the conclusions from them that was in
question and that was a matter of law. In Nafar Chandra pal v. Shukar 45 I. A. 113 P. C. the Privy Council again pointed out that questions of law
and of fact are difficult to disentangle and the proper legal effect of a proved fact is essentially a question of law; but the question whether the fact
has been proved, when evidence for and against has been properly admitted, is necessarily a pure question of fact. In Kameswaramma v. Subba
Rao AIR 1963 S.C. 884 the Supreme court has pointed out that the (legal inference from proved facts may raise a question of law. Thus it is clear
that the question for decision in this case is a question of law.
There is no dispute about the facts of this case. The only question is whether on the facts proved the matter falls within S. 14 of the Limitation
Act, S. 14 (1) is as follows.
In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil
proceeding, whether in a court of first instance or in a court of Appeal, against the defendant, shall be excluded, where the proceeding is founded
upon the same cause of action and is prosecuted in good faith in a court which from defect of jurisdiction, or other cause of a like nature, is unable
to entertain it.
In order to bring his case within the section a plaintiff has to show:
that he had been prosecuting with due diligence the previous suit;
that the previous suit was founded upon the same cause of action;
that it has been prosecuted in good faith in that court; and
that the court was enable to entertain that suit on account of defect of jurisdiction or other cause of a ""like nature"".
There can be no dispute that in this case, conditions 2 and 4 are satisfied. I do not think that there can be any doubt either about the plaintiffs
prosecuting with due diligence the previous suit in the Tanjore Munsif court. Therefore, the only question that remains is whether it had been
prosecuted in good faith in that court.
For purposes of S. 14 of the Limitation Act, the definition of good faith as contained in the General Clauses Act to the effect that a thing shall be
deemed to be done in good faith where it is in fact done honestly, whether it is done negligently or not, does not apply as the Limitation Act
contains its own definition of good faith in S. 2 (7) that nothing shall be deemed to be done in good faith which is not done with due care and
attention. What is urged on behalf of the respondent is that S. 77 of the Registration Act is quite clear and that there can be no doubt at all that the
document in this case having been presented for registration before the Sub Registrar of Orathanad, the court which had the jurisdiction to entertain
the suit, was only the court at Pattukottai, and in presenting the plaint before the court at Tanjore, the plaintiffs failed to show due care and
attention. In respect of the choice of a wrong court a litigant himself cannot be deemed to be wanting in due care and attention once he has
entrusted the matter to a competent lawyer. A litigant is not expected to know which is the proper court in which the suit should be instituted. The
original plaint was presented in time and therefore, there was no avoidable delay in filing the original suit. The lawyer seems to have thought that
because the properties were within the jurisdiction of the Tanjore Munsif''s court, the suit could be instituted in the Tanjore Munsif''s court, though
the office of the Sub Registrar to whom the document had been presented lay within the jurisdiction of the Pattukottal Munsif court. There was the
further fact that an appeal against the order of the Sub Registrar refusing to register had been dismissed by the District Registrar of Tanjore and the
lawyer could very well have thought that the cause of action arose on the refusal by the District Registrar to order the registration of the document.
The normal rule being that a suit with regard to any particular property must be instituted in the court within whose jurisdiction that property lies
and another rule also being that a suit can be instituted where the cause of action or a part of the cause of action arose, it cannot be said that the
lawyer was completely unjustified in advising the suit to be filed In Tanjore Munsif Court. I agree with the contention of the respondent that if only
the lawyer had looked into S. 77 of the Registration Act, he could not have made such a mistake. But the lawyer who, taking into consideration the
normal rules regarding the jurisdiction of a court to entertain a suit, advised his client to file the suit in the court of the Tanjore Munsif''s Court, in
this case cannot be said to have been grossly negligent. A distinction must always be drawn between a case of negligence on the part of a client
and negligence on the part of the lawyer. Take for instance a case where the jurisdiction is determined by the value to be placed on the property.
In such a case, it is only the litigant that can be expected to know the value of the property. If In such a case the client either grossly undervalues or
overvalues the property and files the original suit in a court of wrong jurisdiction, It cannot be said that be has done it with due care and attention.
In such a case, the mare fact that he has engaged a lawyer will not help him. But when the question of jurisdiction is determined by a particular
provision in the court fees and Suits Valuation Act, and depends upon the interpretation to be placed on a particular section, the responsibility
would be that of the lawyer, and if the lawyer makes a mistake, it is obvious that the fault is not that of the client, but that of the lawyer alone.
Could it be said that if the lawyer on a wrong interpretation of the particular section which applies, advises the filing of a suit id a court of wrong
jurisdiction the client should suffer as a consequence ? I should think not. In Kullayappa v. Lakshmipathi 12 Mad 467 a Bench of this court, in
considering the facts of a case where a plaintiff first filed the suit in a small cause Court, but as the Small Cause Court had no jurisdiction, later filed
it in the Munsif''s Court, had observed as fellows :
The Judge observed that the plaintiff did not act in good faith as it had been decided long before he filed the suit that such suit would not lie in a
Small Cause Court. No doubt every one is supposed to know the law, and the law is always certain; but if that principle was to be strictly applied,
then S. 14 of the Act would be useless, so far as regards the defect of jurisdiction. I think the Judge was in error in this respect.
In Krishna v. Chathappa 13 Mad. 269 another Bench of this court pointed out thus :
The true rule is whether under the special circumstances of each case, the appellant acted under an honest, though mistaken, belief formed with due
care and attention. S, 14 of the Limitation Act indicates that the legislature Intended to show Indulgence to a party acting bona fide under a
mistake. We think that S. 5 gives the courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and
the discretion ought to be exercised upon principles which are well understood; the words ''sufficient'' cause receiving a liberal construction so as to
advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant.
This passage was referred to with approval by the Supreme Court in Ramlal v. Rewa Coal-fields Ltd, A.I. R. 1962 S.C. 361.
The point of view from which this question should be approached being clear let us see some of the decided cases on the subject. Madhavrao
Narayannra Patwardhan v. Govind Bhanu (1958) S C.J. 963 to which I have already referred contains discussion on the principles to be applied
in such cases In that case the plaint was entirely written by the plaintiff himself and he did not depend upon any legal advice and he himself
conducted the suits. The plaintiff did not prosecute the earlier soft with due diligence as shown by the fact that the previous suit remained pending
for over ten years in the court. That case is not therefore of help in deciding the present case. Maya Singh v. Udham Singh A. I R. 1938 Lah. 704
was a ease where the defendant originally belonged to a village in the Jullunder Dt. where he had some lands, though he had no house. But for a
considerable period he had resided in Lyalpur Dt. The suit was instituted in Jullunder. The defendant pleaded that he was a resident of Lyalpur.
The Jullunder court finding that it had not jurisdiction, returned the plaint for presentation to the proper court and it also held that he did not make
such an error as to disentitle him to the benefit of S. 14 in lodging the suit in Jullundur where the defendant had land and where he originally
belonged. In Bhagirathi Padhan v. Achutha Padhan A. I. R. 1965 Orissa 193 it was held that a bona fide mistake of a lawyer in calculating the
period may constitute sufficient cause, but that the question whether miscalculation is sufficient cause in particular case depends on facts and
circumstances of that case. In Thirumala Bhaskara Rao Naidu v. Panasa Narayumma AIR 1956 Orissa 124 it Was held that the plaintiff is entitled
to the exclusion of the period under S. 14 of the Act only when It is established that the mistake was due in spite of due care and attention, that is
to say, that the mistake was due not on account of the negligence of the party or his legal adviser who was left in charge of the case, that the party
is not completely absolved of all his responsibilities and automatically become entitled to the protection under the provisions of S. 14, merely by
entrusting all his work on a very worthy lawyer of the locality, but the court has got to examine and scrutinise the conduct of the lawyer. It was
pointed out that if on such scrutiny it is found that the conduct of the lawyer was probably negligent and that the view taken by him was
unreasonable, the plaintiff has got to suffer for the conduct of his counsel. But if the finding is otherwise, that in the position of the law then existing,
the counsel could reasonably take the view even though mistaken, that is to say, if the lawyer was not papably negligent, the plaintiff is to be
allowed protection under S. 14 of the Act. It was also pointed out that mere absence of dishonesty and mala fide on the part of a lawyer is not
sufficient for the plaintiff to invoke in his aid the provisions of S. 14 of the Act. This is the strongest case in support of the position taken by the
respondent. The Bench that decided that ease relied upon the decision of the Privy Council in Rajendra Bahadur v. Rajeswari Bali A. I. R. 1937
P. C. 276 The Privy Council in that case had observed as follows:-
Indeed, the error is not shown to be attributable to bias The Chief court''s refusal to admit the appeal was based on the view that counsel did not
exercise due care and attention and acted with gross negligence in the matter. If this opinion be correct, their Lordships will assume that in the
present case, it would suffice to justify the dismissal of the Appeal. It clearly involves however that the view taken was not such as could have been
entertained by a competent practitioner exercising reasonable care.
While the Bench of the Orissa High Court might be correct in saying that the party is not completely absolved of all his responsibilities and
automatically become entitled to the protection under the provisions of S. 14 merely by entrusting all his work on a very worthy lawyer of the
locality and the court has got to examine and scrutinise the conduct of the lawyer, the point of view from which the matter should be approached
seems to be indicated in the passage from the Privy Council judgment Itself. If it could be shown that the error is not shown to be attributable to
bias, that itself would be a strong point in favour of the party as welt as the advocate. The party gets no particular advantage by filing a suit in the
wrong court. There has been no avoidable delay in the case and it cannot be said that the party was merely trying to protract the proceedings.
Thus, whether the party or Ms lawyer had any bias is a very relevant consideration.
The Privy Council decision proceeded on the basis that assuming that the counsel did not exercise due care and attention and acted with gross
negligence, that would suffice to justify the dismissal. They point out that it involes that the view taken was not such at could have been entertained
by a competent practitioner exercising reasonable care. They did not hold that would be enough, their Lordships have clearly indicated that If the
view taken by the lawyer was one which could have been entertained by a competent practitioner exercising reasonable care, that would be
enough to Justify the exercise of the power under S. 14. They did not agree that there was gross negligence. Even the decision in Highton v.
Treherne 48 L. J. QB.167 referred to by that Bench merely stated that where there has been a bona fide mistake, not through misconduct nor
through negligence, nor through want of reasonable skill, but such a skilled person might make, the rights of the client should not be thereby
forfeited. In Nartsinga Charan v. Trlgunand Ja A.I. R. 1938 pat. 413 after reviewing the facts of the case it was held that the mistake could have
been committed by any senior member of the Bar and as such the client was entitled to condo-nation of delay In Ambikaranjan v. Mantkgnai Loan
office Ltd, A.I. R. 1928 Cal. 468 one of the Judges pointed out that a general rule of law cannot be laid down that a mistake of a pleader,
however obvious it may be, can always and under every circumstance afford a ground for extension of time under S. 5. But the other Judge
observed that it would be certainly a case of great hard-ship to the appellant if, in the circumstances that have happened, he should lose his right of
appeal and that there can be no doubt that the appellant''s pleader was was guilty of great carelessness in filing the appeal in the wrong court, but it
seems to be impossible to hold that the appellant had acted otherwise than bona fide in the matter. The Orissa Bench deferred from this learned
Judge on the statement of the principle applicable. A single Judge of the Orissa High Court, however, in Baladeb Jew Thakur v. Dhaneswar AIR
1961 Oris. 54 held that the mistaken legal advice of a lawyer may be a sufficient cause for holding that the plaintiff, acting on the mistaken legal
advice of his lawyer, was mis-directed and therefore, he must be held to have acted with diligence and In good faith in prosecuting his suit before
the first court and that where the plaintiff upon a wrong advice given by his lawyer, who was a very senior advocate of the Bar, bona fide given,
files a suit In a wrong court within limitation, time taken for prosecution of the case thus wrongly instituted can be excluded in computing the period
of limitation of the suit. The strongest case from the point of view of the appellants is the one In Subbanand v. Bindeswari A.I. R. 1959 Pat. 365
where it was held that though there is no general doctrine which saves litigants from the results of wrong advice of their lawyer, still a mistaken
advice given by a legal practitioner may in the circumstance of a particular case amount to good faith within the meaning of S. 14 of the Limitation
Act, that if a senior lawyer relying on his general impression of law, which he does not think or eves suspect to be wrong, even without consulting
any law book on the point, bona fide gives a wrong legal advice, he cannot necessarily be said to be negligent, that It is enough that the mistake
committed by the lawyer was of such a description that it might arise even among practitoners of experience and in such a case due to the mistaken
legal advice given bona fide by a lawyer the litigant should not be made to suffer for such an error that a mistake in the advice of a lawyer, or is
mistaken in law does not show his bad faith, and that if the mistake of the lawyer is a bona fide mistake, such a case will come within the protection
of S. 14 of the Limitation Act. The same learned Judge also pointed out that if the plaintiff, however, deliberately undervalues his suit, such
deliberate undervaluation could not amount to good faith within the meaning of S. 14 of the Limitation Act and it will take the suit out of good faith.
But if the undervaluation is due to mistake, of category or otherwise, of a Lawyer and the mistake is found to be a bona fide mistake, such a case
will come within the protection of S. 14 of the Limitation Act.
Summing up, the position may be stated as follows: Where the mistake is that of the litigant himself or the litigant''s action shows lack of bona
fides, he will not be entitled to the benefit of S. 14. On the other hand, even if he has acted upon the advice of a lawyer that would not
automatically entitle him to the benefit of S. 14. But in the absence of any bias, the court is entitled to assume that the lawyer was acting bona fide.
It is enough, if the advice given by the lawyer is such as weald prima facie be correct, though on a thorough research and enquiry it might turn out
to be not correct. The very fact that it out subsequently that the advice was not correct, cannot show that the lawyer was either wanting in bona
fides or was negligent or careless. Otherwise S. 14 of the Limitation Act would have no place at all as pointed out by this court in Kullayappa v.
Lakshimipathi 12. Mad. 467. The basic fact, however, should not be forgotten that the powers of S. 5 as well as S. 14 of the Limitation Act
should be exercised in furtherance of the cause. It is only in rare cases that a plaintiff would be refused relief under S. 14, cases more or less of
deliberate attempt to drag on the proceedings of justice. Applying these tests, it appears to me that it cannot be said that the advocate, who
advised the appellants in this case, was either acting with bias or with gross negligence, or without due care and prompt attention and that the view
as to jurisdiction based on the jurisdiction of the court within which the property is situate, as also on the last order with reference to which the suit
is filed as that of the District Registrar in this case, is so palpably unreasonable, that the plaintiffs in this ease should be made to suffer. In the
circumstances, I hold that the plaintiffs are entitled to the benefit of S. 14 of the Limitation Act, and to have the time taken by the pendency of the
suit in the Taajore Mundif''s court excluded in computing the period of limitation. The second appeal is allowed. The result will be that the trial
court should restore the suit to its file and dispose of it on merits. The parties will bear their own costs throughout.