Patna High Court
Subhanand Chaudhary vs Bindeshwari Thakur And Ors. on 29 January, 1959
Equivalent citations: AIR1959PAT365, AIR 1959 PATNA 365
JUDGMENT Raj Kishore Prasad, J.
1. This appeal by the plaintiff is from the judgment and decree dated 19-6-1952, of Mr. Gauri Shankar Prasad Sinha, Subordinate Judge, 1st Court, Muzaffarpur, dismissing his suit for possession.
2. Put briefly, the material facts, for the decision of the present appeal, are these:
3. In the Survey rerord-of-rights, as will appear from the Khatian of village Ghosaut (Exhibit 27), in respect of khata 155, which is the Khata in suit, one Paspat Lal Jha, son of Suba Sant Lal Jha, ancestor of defendants fourth party, is recorded. The landlords, who are defendants second party to the suit brought a rent suit in 1936--Rent Suit No. 3812 of 1936 against defendants third party and obtained a decree for arrears of rent against them on 18-11-1936.
In execution of the said decree in Execution Case No. 605 ot 1937, the disputed khata 155 with an area of 15 bighas 4 kathas 10 dhurs and 14 dhurkis was sold on the 15th November, 1937, and purchased for Rs. 210/- by defendants 1st party, as will appear from the certificate of sale Exhibit A. The auction purchasers, namely, the defendants 1st party, got delivery of possession through court on the 25th April, 1938, as will appear from the writ of delivery of possession and the receipt of receiving possession and the peon's report which are Exhibit H series.
4. On 14-11-1949, the plaintiff instituted the present suit in the court of the Munsif, 1st court, Muzaffarpur, giving the valuation of the suit properties at Rs. 210/- the amount for which the disputed khata had been sold and purchased by the defendants first party. By mistake, however, one of the plots sold and which also appertained to Khata 155, namely, plot No. 1260 was not mentioned in the plaint filed before the Munsif.
On 22-4-1950, the plaintiff filed an application for amendment of the plaint before die Munsif, before whom the present suit was then pending, asking for inclusion of Plot No. 1260, and, for making the corresponding correction in the total area which became 15 bighas and odd, and not 13 bighas and odd, as originally mentioned in the plaint. It will appear from the order-sheet of the court of the Munsif, Exhibit 3 (h) that the amendment was allowed on 26-4-1950.
Subsequently, on an objection having been raised by the defendants 1st party regarding undervaluation of the suit lands, the learned Munsif, after taking evidence and hearing the parties, fixed the valuation of khata 155 with an area of 15 bighas and odd at Rs. 6275, as will appear from order No. 24 dated 19-2-1951, Exhibit 3 (h). On the valuation found by the learned Munsif he had obviously no pecuniary jurisdiction to entertain the suit, and, accordingly, on the same day, that is, the 19th February, 1951 he returned the plaint for re-presentation before the proper court having jurisdiction to try the suit.
The plaint accordingly was re-presented before the court below on the same day, that is, on the 19th February, 1951. An appeal was taken by the plaintiff against the decision of the Munsif dated 19-2-1951, regarding valuation, but his appeal was dismissed by an order dated 21-4-1952 by the appellate court as will appear from its judgment Exhibit E.
5. The plaintiff claimed title to the land in suit by virtue of three sale deeds executed by defendants fourth party, who were the descendants of the recorded tenant. The first sale in favour of the plaintiff by defendants fourth parry was on 11-11-1927, under a registered sale deed, Exhibit 10 (a), under which he purchased a portion of khata 155 including all the plots- purchased at the auction sale by defendants first party, except plot 1260.
Subsequently, on 21-10-1933, under an unregistered sale deed. Exhibit 10 (b), it was alleged by the plaintiff that he purchased plot 1260 along with other plots and was put in possession thereof. Later on, on the 19th September, 1950, a registered sale deed (Exhibit 10) was taken from defendants fourth party in respect of the plots covered by the registered sale deed, Exhibit 10 (b). In this registered document (Exhibit 10) it was recited that tie plaintiff had been in possession and occupation of the vended properties by virtue of the unregistered sale deed, Exhibit 10 (b) from 1933 to that day as absolute owner.
It will appear from the sale certificate (Exhibit A) that only a portion of khata 155 consisting of only plots 1404, 1522, 373, and portions of plot Nos. 1260 and 1731, with an area of 15 Bighas and odd were sold and purchased by defendants first party.
6. The suit, therefore, was brought in respect of the above auction sold lands only for a declaration that the auction sale dated the 15th November, 1937, was a nullity and not binding on the plaintiff and, therefore, he prayed for confirmation of possession and in the alternative for recovery of possession.
7. The suit was contested by the auction-purchasers defendants first party only. They challenged the sale deeds of the plaintiffs as collusive and fraudulent and relied for their title on their auction-purchase dated 15-11-1937 and pleaded that the said auction sale was valid and binding on the plaintiff. They also pleaded limitation.
8. The learned Subordinate Judge found in-favour of the plaintiff that the rent suit had been filed by the landlords defendants-second party against defendants third party, who had no interest in the, holding and who were not tenants in the eye of law of the rent claimed lands, because the defendants fourth party had already been recognised as tenants of the holding, and as such the rent decree and the auction sale had the effect of a money decree, and consequently, the title of the plaintiff acquired from defendants fourth party remained unaffected. He also found that the defendants first party had come in possession of the disputed lands on 25-4-1938 by virtue of the delivery of possession which was served on the spot As regards the-sale deeds of the plaintiffs, he held that Exhibit 10 (a) was genuine, valid and for consideration, but Exhibit 10 (b) was invalid, inoperative and without any consideration, and Exhibit 10, though a registered document, was a collusive one brought into existence when litigation regarding the disputed lands had already started. He, therefore, found that as far as 13 bighas 4 kathas 10 dhurs of land covered by Exhibit 10 (a) were concerned, the plaintiff had acquired a valid title by virtue of the purchase and his title was unaffected by the auction sale and purchase by the defendants first party. He, however, held that the present suit of the plaintiff filed in his court on 19-2-1951, having admittedly been filed after 12 years from the 25th April, 1933, the elate of delivery of possession, was barred by limitation, as the plaintiff was not entitled to seek the aid of Section 14 of the Limitation Act. On these main findings he dismissed the plaintiff's suit.
9. The principal question which has been canvassed in this court by Mr. Brajeshwar Prasad Sinha, on behalf of the plaintiff-appellant, is the question of limitation. His argument was that as the plaintiff had been misled by the wrong advice of his lawyer P. W. 2 it cannot be said that the plaintiff was not prosecuting in good faith his suit before the Munsif where the present plaint was first presented.
He, therefore, contended that the view of law taken by the learned Subordinate Judge on the question of limitation was wrong, and, as such, it should he reversed. He also challenged the finding of the learned Subordinate Judge that the plaintiff's sale deeds, Exhibits 10 (b) and 10. were collusive documents and invalid. He, therefore, contended that the plaintiff's suit should have been decreed in respect of the entire lands covered by Exhibits 10 (a), 10 (b) and 10 claimed in the suit.
10. There is no dispute that on 14-11-1949, when the suit was filed in the Munsif's court, it was admittedly within time and was subject to the law of limitation under the Indian Limitation Act. But when the plaint was returned on 19-2-1951, on the ground of want of pecuniary jurisdiction of the Munsif to entertain the suit and the plaint was refiled on 19-2-1951 it was on the face of it barred by limitation unless the suit was brought within Section 14 of the Indian Limitation Act.
11. Sub-section (1) of Section 14 of the Limitation Act, which admittedly governs the present case, is in these terms:
"14 (1) In computing the period of limitation prescriebd 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 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 quoted above the plaintiff has to show affirmatively:
(1) That he was prosecuting with due diligence the previous suit in the court of the Munsif;
(2) That the previous suit was founded upon the same cause of action;
(3) That it had been prosecuted in good faith; and (4) That that court was unable to entertain that suit on account of defective jurisdiction or other cause of a like nature.
12. There is no dispute between the parties here that conditions (2) and (4) are satisfied. But the parties differ with regard to the first and the third conditions. It has been argued on behalf of the appellant that the learned trial Judge has misdirected himself when he observed that it cannot be held that the plaintiff was prosecuting his case in the Munsif's court with due diligence and in good faith as required by Section 14 (1) of the Limitation Act.
13. The question whether on the facts of the present case it can be said that the plaintiff was prosecuting his suit before the Munsif with due diligence and in good faith or not has very seriously been contested here as in the court below. It was argued on behalf of the appellant that mistaken legal advice of a lawyer was sufficient to show good faith on the part of the plaintiff.
On the other hand, it was argued by Mr. Bal-bhadra Prasad Singh, who appeared for the defendants first party respondents, that, in the present case, on the evidence of the Pleader, P. W. 2, himself, it cannot be said that the finding of the court below that the Lawyer, P. W. 2, was negligent, and, so he cannot be said to have acted in good faith, and, consequently the plaintiff cannot take shelter under the mistaken advice of his pleader, is wrong and unjustified on the evidence on the record.
14. A large number of authorities have been cited at the Bar on both sides, and, therefore, the first thing which has to be decided is whether a mistaken legal advice of a lawyer, unless of course he acted dishonestly, can entitle the plaintiff to say that he was prosecuting his previous suit in good faith.
15. The word "good faith" used in Section 14 (1) of the Limitation Act has been defined in the Limitation Act itself by Section 2, Clause (7). The definition under the Indian Limitation Act of "good faith" is to the effect that "nothing shall be deemed to be done in good faith which is not done with due care and attention." We have, therefore, to see if the institution and prosecution of the suit in the Mun-sif's court at Muzaffarpore was done with "due care and attention".
16. On the evidence of the plaintiff P. W. 7 he got the plaint drafted by his lawyer Pandit Jibach Jha P. W. 2 and on his advice he filed the suit bona fide in the munsif's court. He is supported by his Pleader, P. W. 2 who stated that he was the plaintiff's lawyer for the last 8 or 10 years and that he advised the plaintiff to file this suit. He further stated in the cross-examination that as the plaintiff was challenging the validity of the auction sale so he thought that the jurisdiction of the court would be determined by the sale price.
The plaintiff thereafter as advised by his Pleader P. W. 2 filed the suit on 14-11-1949 before the Munsif immediately after the plaint had been drafted by P. W. 2. After filing of the plaint the plaintiff discovered a mistake in it and therefore he applied for its amendment on 22-4-1950, which was allowed on 28-4-1950, by the Munsif.
The defendants took time to appear in spite of service of summons on them and even after appearance in court took time after time to file their written statements' for about four months and ultimately the defendants 1st pary filed their written statements on 21-8-1950. It does not appear from the order-sheet of the Munsif's court Exhibit 3 (h) that any objection was raised by the Serishtedar of the Munsif's court regarding undervaluation of the suit.
When an objection was raised by the defendants 1st party the question was decided by the Munsif on 19-2-1951, and then, the plaint was returned and refiled on the same day in the court below. It cannot, therefore, be said that the plaintiff was not prosecuting his suit before the Munsif with due diligence and in good faith. What else could the plaintiff have done in these circumstances, I cannot understand. He consulted his old lawyer P. W. 2 and naturally, therefore, he was guided by his advice.
Whether a mistaken legal advice should be deemed to amount to good faith on the part of a litigant will be considered hereafter. If the plaintiff acted. on the legal advice of his lawyer it cannot be said that he acted negligently or without 'due care and attention.' The learned trial Judge has observed that it would appear from the appellate judgment Exhibit E in the valuation matter that the plaintiff even on appeal against the valuation matter insisted that the value of the lands in suit was not beyond the pecuniary jurisdiction of the Munsif.
I do not think an inference of want of due diligence and good faith can be drawn from this circumstance. After the order of the Munsif in the valuation matter the plaintiff realised that the valuation of the suit could not be the sale price, as wrongly advised by his lawyer P. W. 2, but the market value of the lands in suit, and, therefore, after that it was open to him to shew that the value of the lands in suit could not be as fixed by the Munsif but much lower within the pecuniary jurisdiction of the Munsif such an attitude on the part of the plaintiff cannot shew his mala fides or want of due care and attention and of good faith.
17. The learned trial Judge has also observed that no lawyer of Muzaffarpur who had seen the plaint and had given such advice to the plaintiff has been examined in the case by the plaintiff. The plaintiff P. W. 7 stated that the plaint drafted by P W. 2 was filed through Sheomangal Babu Pleader.
Obviously It did not strike Sheomangal Babu even that the valuation was wrong. P. W. 7 further stated in his cross-examination that when the defendants took objection to the valuation of the suit then the lawyers of MiiEaffarpur saw the plaint on this point and they also (.old him that the plaint had been properly filed in the Munsifs court.
It is true if the lawyer consulted by the plaintiff would have been examined it would have been much better. P. W. 7, however, was not asked in his cross-examination as to why the Pleader had not been examined. Whatever be the reason for the non-examination of the lawyer, I do not think the statement of the plaintiff that he consulted other lawyers as well after the objection by the defendants regarding valuation is unnatural or untrue, No adverse inference, therefore, can be drawn against the plaintiff for his omission to examine such lawyer.
18. The next question is, can the plaintiff seek protection and take shelter under the mistaken legal advice of his pleader, P. W. 2?
19. To answer this question it would be necessary to examine the cases cited by the learned Counsel for the parties in order to decide if a mistaken legal advice of a lawyer could be said to be a sufficient ground for holding that there was the want of due care and attention and good faith on the part of a plaintiff, and, that, therefore, here also, in the circumstances, the plaintiff must be deemed to be prosecuting his suit before the Munsif with due diligence and in good faith.
20. Before I examine the cases of the different High Courts however, I wish first to refer to the recent decision of the Supreme Court in Madhavrao Narayanrao v. Ram Krishna Govind Bhanu, 1958 SCJ 963: (AIR 1958 SC 767), in which B. P. Sinha J., who pronounced the unanimous opinion of the court, had to consider the question of 'good faith' within the meaning of Section 14 (1) of the Limitation Act.
21. In that case, of course, the plaintiff was not guided by any legal advice since the plaint of that suit had been entirely written by him in both the suits and he himself conducted the suits in the trial court, in the words of the trial court, as quoted in the judgment of the Supreme Court, ''in a manner worthy of a senior Counsel". The plaintiff, however, alleged that the omission on his part to mention the value of the properties involved in the suit was due to his pleader's mistake, but this contention was rejected by the trial court by observing that he made this contention with a view to shield himself behind a wrong legal advice. His Lordship held that the plaintiff was not entitled to seek the protection of Section 14 (1) of the Limitation Act, because, to quote his Lordship "the court, therefore, rightly came to the conclusion that the plaintiff himself was responsible for drafting the plaint and for presenting it in court, and that no Pleader had any responsibility in the matter."
From the above case, therefore, it is clear that the plaintiff of that suit was held not entitled to seek the aid of Section 14 (1) of the Act because the plaintiff was himself responsible for drafting the plaint and presenting it in court and no lawyer had any responsibility in the matter. In my opinion, the above observation of their Lordships of the Supreme Court does impfiedly lend support to the view that a mistaken legal advice of a lawyer may be a suffi cient 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 due diligence and in good faith in prosecuting his suit before the first Court. It may also be noted that the case before their Lordships of the Supreme Court was not a case in which an auction sale was being challenged.
22. It may be mentioned that the learned Counsel for the defendants, first patty respondents, frankly conceded that they had not been able to find out any case in which the facts were similar to the facts of the present case in which what is challenged is the auction sale and the value given by the plaintiff is the price fetched at the auction sale.
In my opinion, in a case where an auction sale is challenged, a lawyer in giving the valuation of the suit to be the value of the sale proceeds may bona fide make a mistake in law, unless it is established that the lawyer deliberately and dishonestly misled the plaintiff. In the present case, P. W. 2 is a Pleader, who was plaintiff's lawyer for 8 or 10 years. He stated that he drafted the plaint and in this case the plaintiff was challenging the validity of the auction sale, so he thought that the pecuniary jurisdiction of the court would be determined by the sale price and accordingly he thought that the first court of the Munsif at Muzaffarpore had the necessary pecuniary jurisdiction to try the suit.
On this advice given by his lawyer P. W. 2 the suit was filed by the plaintiff in the court of the Munsif. The learned Subordinate Judge has taken the view that as the lawyer P. W. 2 advised the plaintiff to file the suit in the MunsiFs court, which was not the proper court without consulting any law book, on his general impression only, he must be deemed to be negligent, and he cannot be taken to have acted in good faith, and, therefore, the plaintiff was not entitled to take shelter under the mistaken legal advice of his lawyer.
He has also observed that, although P. W. 2 was a lawyer of 28 years' standing, it was not understandable as to how he could advice the plaintiff to value the suit lands at the amount for which they were sold in the execution case when the relief was for declaration of title with consequential relief, seeking confirmation of possession. He has further observed that because P. W. 2 had been working as a lawyer for the plaintiff for the last 7 or 8 years the suggestion of the defendants first party that he might be therefore interested in the plaintiff cannot be entirely overruled.
I am afraid I cannot subscribe to this view of the learned Subordinate Judge that because a lawyer has been working for his client for a number of years he will go to the length of supporting him falsely and dishonestly. On the other hand, the fact that P. W. 2 was the older lawyer of the plaintiff, he had naturally more confidence on him, unless it is established, that either in the past or in the present the plaintiff had lost confidence in him and he distrusted his lawyer P.. W. 2.
The more number of years for which a lawyer works for his client the greater confidence he creates in his client, and, in such a case the client would obviously accept the advice of his lawyer. The fact that the lawyer did not consult any law book before giving the advice is also not a sufficient reason for holding that the lawyer's mistaken legal advice was either dishonest or deliberate, and not due to ignorance of law.
I have no manner of doubt that the advice given by this lawyer was not dishonest, but was due to his ignorance of law, and, although ignorance of law is no excuse, yet this maxim cannot be carried to the extent of saying that the ignorance of law of the lawyer would not be a sufficient ground for his client to urge that the mistaken legal advice ol his lawyer was sufficient to establish his own good faith in filing the suit in the wrong court with the valuation as advised by his lawyer.
In my opinion, therefore, in the present case the mistaken advice of the lawyer P. W. 2, however, regrettable it may be, was quite sufficient to enable the plaintiff to seek protection under Section 14 (1) of (he Limitation Act,
23. This view of mine is supported by a decision of Das J., as he then was, in Santlal Mahato v. Lala Prasad Mahato, S. A. No. 853 of 1949, D/-25-11-1953 (Pat), which was affirmed on a Letters Patent Appeal in Kali Prasad Mahton v. Santlal Mahton, 1957 BLJR 537: (AIR 1957 Pat 442). In that case also similar was the position. In that case as well an auction sale was challenged and the suit was originally valued at the price for which the suit land was sold and ad-valorem court-fee was paid thereon.
The Trial Judge held that there was good faith, but that finding was reversed by the District Judge in appeal. On a Second Appeal to this court the decision of the learned District Judge was reversed, and that of the first court was restored. His Lordship, Das J., while considering this question, observed:
"There are two lines of decisions on this question : there are cases where the plaintiff deliberately undervalues the suit and such deliberate undervaluation has been held to take the suit out of good faith. There is another, line of cases in which the undervaluation is due to a mistake of category or otherwise, and the mis-take is found to be bona fide mistake. Such cases have been held to be within the protection of Section 14 of the Limitation Act."
His Lordship held that the case before him came within the second line of decisions.
24. In my opinion, the present case also comes within the second line of decisions pointed out by his Lordship in the above case. The appellant's lawyer P. W. 2 rightly or wrongly thought that the present suit, in which the plaintiff had merely asked for a declaration that the auction sale was a nullity with consequential relief, could be valued at the price for which the land had been auction sold, because the appellant was challenging only the validity of the auction sale.
The appellant, acting solely on the advice of his lawyer and as directed by him, filed the suit in the court of the Munsif with the valuation as suggested by his lawyer. It is'true, as observed by Das, J., in the just mentioned case that in a suit to obtain a declaratory decree with consequential relief, the Court is empowered under the law to revise the valuation put by the plaintiff, and, if it is of opinion that the valuation is insufficient or arbitrary, it has jurisdiction to fix a right value.
But that does not, however, mean that if a plaintiff wrongly puts the valuation which he considers to be the proper valuation for a suit under Section 7 (iv) (c), his act is necessarily mala fide1. His Lordship considered the decisions in Bibi Sairah v. Mt. Golab Knar, AIR 1919 Patna 345 and in Ramachandra v. Khodatiatulkubra. ILR 24 Patna 462 ; (AIR 1945 Pat 369), on which reliance was placed by the respondents in this court also,
25. In the first case the suit was a suit under Order 21 Rule 63 of the Code of Civil Procedure and the finding was that the plaintiff of that suit, in order to avoid the Court of the Subordinate Judge who had given an adverse decision to the plaintiff of that suit under Order 21 Rule 58 of the Code of Civil Procedure, deliberately under-valued the suit and brought it before the Munsif, In other words, in that suit the finding was that there was a deliberate attempt to avoid the Court of the Subordinate Judge.
26. In the second case, which was also a suit under Order 21, Rule 63 of the Code of Civil Procedure, the finding was that there was a deliberate undervaluation, and, therefore, it was held that the plaintiff of that suit was not entitled to the benefit of Section 14 of the Limitation Act. His Lordship Das, J. while considering the contention that the market value of the tenure in that suit was much more than what was given in the suit before him, observed : --
"That is so; but it is to be remembered that the appellant was valuing his suit under Section 7 (iv) (c) and he was entitled to put his own valuation on the relief sought by him. It may be that he wrongly thought, or under wrong advice thought that the value of the relief which he claimed should be the price for which the tenure was sold at the rent sale. I do not think that such a mistake on the part of the appellant can be said to be mala fide."
27. His Lordship, therefore, held that the appellant before him was entitled to the benefit of Section 14 of the Limitation Act, and, he was, therefore, entitled to exclude the time taken in prosecuting the suit before the Munsif and as such the suit was not barred by limitation. I am in respectful agreement with the above observation of his Lordship.
28. In Nrisingha Charan Nandy v. Trigunand Jha Khoware AIR 1938 Pat 413 it was held that the duty of an appellant is over when he consults a lawyer of standing who is known as a careful advocate and in such a case it was held that extension of time should be granted for filing the appeal in the proper Court. In that case the appellant before their Lordships bona fide acted on the advice of his advocate who was a very senior advocate of this Court, and, therefore, the question which arose for determination was whether this was a sufficient cause in law for extending the period of limitation in the case.
After a consideration of the cases on the point it was held that the mistaken legal advice of the lawyer was a sufficient cause for extending the period of limitation under Section 5 of the Limitation Act. Manohar Lall, J. with whom Dhavle, J. agreed in-a concurring judgment, reviewed all the authorities on the point including an earlier decision of the distinguished Chief Justice of this Court, Sir Dawson-Miller. In S.C. Dey v. Mt. Rajwanti Kuer, 6 Pat LJ 237 : AIR 1923 Pat 140 in which the learned Chief Justice adopted the view that to attract the provi-sion of Section 5 of the Limitation Act it was enough that the mistake was of such a description that it might arise even among practitioners of experience and the litigant should not be made to suffer for such an error.
29. This question arose also before the Judi-cial Committee of the Privy Council in Rajendra Bahadur Singh v. Rejeshwar Bali, 18 Pat LT 878 : (AIR 1937 PC 276), and, their Lordships of the Privy Council held that mistaken advice given by a legal practitioner may, in the circumstances of a particular case, give rise to sufficient cause within the meaning of Section 5 of the Limitation Act, though there is no such general doctrine which saves litigants from the results of wrong advice. In the circumstances of that case their Lordships held that the bona fides and diligence of the appellant before them could not be impugned.
30. A Full Bench of this Court in Lall Bihari Lall v. Bani Madhava Kbatri, ILR 28 Pat 102 : (AIR 1949 Pat 293), pointed out that the principle underlying S, 14 of the Limitation Act was that the bar of limitation should not affect a person honestly doing his best to get his case tried on merits but failing through the Court being unable to give him such a trial, and that the principle is clearly applicable not only to cases in which a man brings his suit in the Court, that is, a court having no jurisdiction to entertain it, but also where he brings the suit in the wrong court in consequence of bona fide mistake of law or defect of procedure.
There also a civil Revision was filed in the High Court by the appellants in that case on the pressing advice of their lawyer. Their Lordships, however, on the facts of that case, held that the plaintiffs were entitled, to protection under Section 14 of the Limitation Act.
31. There are many other cases on the question that a mistaken advice of a lawyer is a sufficient cause. Such cases are ; Ram Ravji Jambliekar v. Prahladdas Subkarn, ILR 20 Bom 133; Sridhar Upa-dhya v. Lakshmi Prasad, AIR 1953 All 106; Sitaram Ramcharan v. M N. Nagrashna, AIR 1954 Bombay 537; and S. Pefumal Pillai v. T. Pandaram, AIR 1951 Trav-Co. 26 which have been relied upon by the appellant.
In my opinion, however, it is not necessary to discuss them because each case has been decided on its own facts and circumstances. In the present case, oh the evidence of P.W, 2 it is manifest that the plaintiff had acted under his legal advice. That advice of the lawyer may be mistaken in law, but that did not preclude the plaintiff from acting on this mistaken advice of his lawyer.
There is no evidence in the case that the lawyer, who was an experienced lawyer, having put in 28 years of practice at the Bar, had ever acted dishonestly or had the reputation of being a careless or negligent lawyer. In these circumstances. I think it must be held that the appellant acted in good faith, on the advice of his pleader, honestly given although wrong in law, within the meaning of Section 14 (1) of the Limitation Act, in instituting the suit before the Munsif.
32. The learned advocate for the respondents also relied on a number of cases, such, as Sam Narain Singh v. Raghubans Mani Prasad, AIR 1952 Pat 4, Gopi Nath Pandey v. Bhukhan, 1954 BLJR 574 : ((S) AIR 1955 Pat 301) Chisulal Ganeshi Lal v. Gumbhirnmll, AIR 1938 Cal 377, Ghulam Moham-mad v. Usman, AIR 1933 Lah 541, K. Raghavayya v. E. Vasudevayya, AIR 1944 Mad 47, and, also on a Bench decision of this Court in Ramanandan Singh v. Jatan Singh, ILR 33 Pat 894 decided b/ Das and Banerji, JJ.
It is not necessary to notice all these cases, relied upon by the respondents, because on their own admission in none of these cases the facts were similar to those of the present case. I will, however, deal with the Bench decision of Das and Banerji, JJ. in ILR 33 Pat 894 on which strong reliance was placed. In that case it was found that the plaintiff-respondents deliberately undervalued the relief and as a result of such under-valuation, had filed the plaint in a Court which had no jurisdiction to deal with it, and, therefore, such deliberate undervaluation could not amount to good faith within the meaning of Section 14 of the Limitation Act.
In that case also no doubt the subject matter of the suit and the appeal before their Lordships was an auction sale, but it was not the plaintiff's case there that due to any mistaken legal advice of his lawyer the suit was filed in the court of the Munsif. In those circumstances, I think, that case can have no application here.
33. The learned Subordinate Judge has relied on two Bench decisions of this Court in AIR 1952 Pat 4 and AIR 1945 Pat 369 : ILR 24 Pat 462. I have already dealt with ILR 24 Pat 462 : AIR 1945 Pat 369 in the earlier part of this judgment. The learned Counsel for the respondents also placed strong reliance on AIR 1952 Pat 4 in which a Division Bench of this Court held that if there is negligence on the part of the pleader he could not be said to have acted in good faith, and, therefore, the decree-holder could not take shelter under the mistaken advice of the pleader and as such he was not entitled to the benefit of Section 14 of the Limitation Act.
In that case what happened was that the decree holder's pleader, without caring to look into the judgment, referred only to the heading of the decree and advised the decree holder to file his application for execution in a wrong Court which subsequently returned it for presentation to the proper Court, and in those circumstances, it was held that it was barred by limitation.
34. The principles which can be extracted from the above authorities and which can be safely laid down seem to be these :
35. 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 circumstances of a particular case, amount to 'good faith' within the meaning of Section 14 of the Limitation Act. If a senior lawyer relying on his general impression of law, which he does not think or even 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.
It is enough that the mistake committed by the lawyer was of such a description that it might arise even among practitioners 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. A mistake in advice of a lawyer, or his mistake in law, does not shew his bad faith. If the mistake of the lawyer is a bona fide mistake, such a case will come within the protection of Section 14 of the Limitation Act.
36. If the plaintiff, however, deliberately undervalues his suit, such deliberate undervaluation could not amount to 'good faith' within the meaning of Section 14 of the Limitation Act and it will take the suit out of 'good faith'. But if the undervaluation is due to a 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 Section 14 of the Limitation Act.
37. If, therefore, in a suit challenging the validity of an auction sale, the plaintiff wrongly, under a wrong legal advice, thought that the value of the relief which he claimed should be the price for which the land was sold at the Court auction, such a mistake on his part cannot be said to be mala fide so as to amount to want of 'good faith' on his part.
The duty of a client is over when he consults, a lawyer of standing, who is known as a careful lawyer, and if he bona fide acts on his advice, such a mistaken legal advice of his lawyer would be a sufficient ground for holding that the client acted in 'good faith' within the meaning of Section 14 of the Limi-tation Act. If, however, there is negligence on the part of the lawyer, and he does not act bona fide then certainly he could not be said to have acted in good faith, and, in such a case, the client could act take shelter under the mistaken advice of his pleader so as to be entitled to the benefit of Section 14 of the Limitation Act.
38. As I have said before every case has to be decided on its own facts and circumstances. Whether in a given case the mistaken advice of a pleader would amount to. 'good faith' within the meaning of Section 14 (1) of the Limitation Act or not has to be jjdecided on die circumstances of each individual case. In the present case, as I have said before, it has not Been shown that this pleader, P.W. 2 had the reputation of being careless or dishonest. The learned Subordinate Judge took the view that because F.W. 2, who drafted the plaint, has stated that he did not know the area of the land for which the suit had been filed, and that space for writing oul the area was left blank in the draft (exhibit 16), Be drafted the plaint on the instruction of the plaintiff, he had no idea about the valuation of the land of Minapur thana, and that the suit was for confirma-tion of possession, it must be held that he was negligent and he did not act in good faith.
But the learned Trial Judge ignores the basic fact that the lawyer P.W. 2 thought, of course wrongly, that as the plaintiff was challenging the validity of the auction, the jurisdiction of the Court would be determined by the sale price. In this view the area of the land or the like was immaterial, It has not been shown in the present case ihat the mistake committed by the lawer P. W. 2 was of such a description which might not at all arise amongst lawyers of experience.
P.W. 2 was a lawyer of standing and no doubt it is unfortunate he gave a wrong advice, on his general impression, but the fact that he did not consult his law books was not a sufficient ground for holding that he was negligent or that he did not act in good faith.
39. I, therefore, hold, in disagreement with the Court below that on the evidence and on the facts of the present case, the plaintiff has established that he was prosecuting his suit in the court of the Munsil with due diligence and in good faith. The first and the third conditions of Section 14 (1) of the Limitation Act had also been satisfied in the present case and, as such the plaintiff was entitled to exclude the period from the 14th November, 1949, to the 19th February, 1951, occupied in prosecuting the suit before the Munsif under Section 14 of the Limitation Act.
40. The next question is, is the plaintiff entitled to a decree, even if his present suit is not barred by limitation. It was contended by Mr. Padmanand Jha, who also appeared for the respondents, that the finding of the learned Subordinate Judge that the plaintiff's tide acquired under Exhibit 10 (a) was not affected by the auction sale of the respondents is not correct. He submitted that there was no evi-dence to show that the plaintiff actually got into possession after the execution of the document in 1927 and for that reason he contended, the learned Subordinate Judge himself observed that there was no satisfactory evidence to prove that the plaintiff had come into possession of the disputed property.
It appears from the judgment, however, that he has not recorded any definite finding as to whether the plaintiff got into possession after the execution of the sate deed, Exhibit 10 (a) or not. He, however, recorded the finding that after the delivery of possession on the 25th April, 1938; to the defendants respondents 1st party the plaintiff had never been in possession of the disputed land.
If the suit is considered to have been instituted, as I have held, on the 14th November, 1949, then obviously the plaintiff's suit would not be barred by limitation, because the period of limitation of twelve years would commence from the 25th April, 1938, since when the plaintiff was not in possession. On the finding of the learned Subordinate Judge that the sale deed Exhibit 10 (a) dated the 11th November, 1927, in favour of the plaintiff by defendants fourth party was a genuine document and for consideration and valid and that the auction sale has not affected his interest to the lands purchased by this document I cannot understand how it can be said that this sale deed was not given effect to.
If it was not given effect to and it remained inoperative because the plaintiff did not get into possession or for any other like reason then it would not be valid at all. The witnesses examined on behalf of the plaintiff have proved the possession of the plaintiff. My attention was drawn to Exhibit 9, which is a petition filed on behalf of some persons from amongst the defendants fourth party in an execution case on 17-9-1934, to the effect that defendants fourth party had nothing to do with the lands in suit which were sold in an execution case, and they were now being owned by the plaintiff of the present suit.
Nothing has been shewn to me which can persuade me to differ from the finding of the learned Subordinate Judge that Exhibit 10 (a), the sale deed of the plaintiff of 1927 is genuine, valid and for consideration and, therefore, his title to the lands covered by this sale deed is not affected. The plaintiff's suit will accordingly be decreed in respect of the lands covered by Exhibit 10 (a).
41. The next question, however, is whether the plaintiff is entitled to a decree for possession of 2 bighas and odd which were covered by Exhibits 10(b) and 10, and which have been found by the Court below to be collusive documents produced for the purpose of the present suit. I cannot understand why when the sale deed in 1927 was taken under a registered document the second sale deed in 1933 which is exhibit 10 (b) was not registered.
It appears to me that this registered sale deed dated 19-9-1950 was brought into existence during the pendency of the suit before the Munsif. This, unregistered sale deed Ext. 10 (b) was also brought into' existence to support the title of the plaintiff and to give it retrospective effect from 1933 to show that no suspicion could attach to it. I am not at all impressed by the argument of Mr. B. P. Samayyar, who followed Mr. Brajeshwar Prasad Singh, in reply that I should differ from the learned Subordinate Judge and hold that these two sale deeds 10 (b) and 10 were also valid and not collusive and for consideration.
I would, therefore, affirm the finding of the trial Judge that Exhibits 1(r) (b) and 10 are collusive documents brought into existence when the litigation started and, therefore, they are invalid and ineffective and without consideration.
42. For these reasons, I would allow the appeal, set aside the judgment and decree of the Court below partly and decree the plaintiff's suit in part only in respect of the lands covered bv the sale deed dated the llth November, 1927, Exhibit 10 (a), and, the plaintiffs claim in respect of the remaining kind covered by the two sale deeds exhibits 10 (b) and iO is dismissed. The plaintiff will be entitled to recover possession of the lands covered by the sale deed Exhibit 10 (a). There will be no order for costs of this Court, but the plaintiff will be entitled to his costs of the Court below.