Punjab-Haryana High Court
Gajjan Singh vs Ram Lok on 11 April, 1978
Equivalent citations: AIR 1978 PUNJAB AND HARYANA 307
ORDER
1. This civil Revision under S. 15 of the East Punjab Urban Rent Restriction Act, 1949, is brought from the judgment of the Appellate Authority, Rupnagar, confirming the order of eviction passed by the Rent Controller, Rupnagar. The petition of the landlord Ram Lok, seeking eviction of the tenant Gajjan Singh, was allowed.
2. Briefly stated, the facts giving rise to the present petition are as below:--
Ram Lok filed a petition under S. 13 of the Act against Gajjan Singh and the allegation, inter alia was that he required the premises for his own use and occupation. The petition was contested by Gajjan Singh on a variety of grounds. After considering the evidence, however, the learned Rent Controller arrived at a finding in favour of the landlord and the petition was granted on 25-7-77. Thereafter, Gajjan Singh applied for a copy of the judgment on 2-8-1977 and on the very same day, the copy was ready for delivery. On 5-8-1977 Gajjan Singh took the delivery of the said copy but the appeal was filed on 23-8-1977. Under S. 15(b) of the Act the limitation prescribed for filing an appeal against the order of eviction is 15 days from the date of such order and in computing the period of 15 days, the time taken to obtain a certified copy of the order appealed against is to be excluded. A simple calculation in the present case would, therefore, indicate that the filing of the appeal was delayed by 12 days. Gajjan Singh filed an application under S. 5 of the Limitation Act for condonation of delay in filing the appeal, on the ground that his counsel Shri Santokh Singh gave him a wrong advice inasmuch as he considered that the period of limitation prescribed for the appeal was one month. It was asserted by Gajjan Singh that he was sick on 25-7-1977 and some time later came to Court and learnt about the decision. However, he applied for a certified copy of the order of eviction on 2-8-1977 which was ready for delivery on the very same day. It was asserted on his behalf that a wrong advice given by his counsel was a sufficient ground for condoning the delay.
3. The plea of Gajjan Singh, However, did not prevail over the learned Appellate Authority and finding that no sufficient cause was disclosed, the application under S. 5 of the Limitation Act was rejected. Obviously, the result was that the appeal was held to be time barred and hence it was dismissed. Being aggrieved against that order, the present revision is filed under S. 15 of the Act.
4. Shri V. K. Vashishta, the learned counsel for the petitioner, strenuously contended that an affidavit was filed by Santokh Singh, Advocate, and the learned Appellate Authority was in error in disregarding that affidavit. In that affidavit, presumably, it was disclosed that the said counsel considered that the period of limitation was one month. The learned counsel relied on Punjabi University v. Acharya Swami Genesh, AIR 1972 SC 1973 and State of West Bengal v. Administrator, Howrah Municipality (1972) 1 SCC 366 : (AIR 1972 SC 749). He further relied on a Division Bench decision of this Court reported as Smt. Shanti Devi v. Satyapal AIR 1964 Punj 289. In all these cases, it was pointed out that a bona fide mistake was committed by the counsel and that he acted in good faith. In other words, neither negligence nor inaction could be attributed and on those grounds it was held that the mistake of the counsel being bona fide, the ground ascribed was sufficient for invoking the aid of S. 5 of the Limitation Act. In the Punjab University's case (supra), the mistake of the counsel was in the calculation of the period prescribed for limitation. The mistake was of only two days and on that basis, it was held that the mistake was bona fide. In State of West Bengal's case (supra) it was observed that there was neither negligence for inaction on the part of the aggrieved party and the counsel gave a wrong advice inasmuch as a petition under Art. 227 of the Constitution of India was preferred in place of the other statutory remedy which was rendered time barred. It was held that the mistake of the counsel being bona fide, could be a good ground for condonation of delay. Their Lordships referred to Kumar Rajendra Bahadur Singh v. Raj Rajeshwar Bali, AIR 1937 PC 276, in which the Judicial Committee made the following observations:
"Mistaken advice given by a legal practitioner may, in the circumstances of a particular case, give rise to sufficient cause within the (meaning of the) section though there is certainly no general doctrine which saves parties from the results of wrong advice."
It is, therefore, evident that every mistaken advice given by a counsel would not be a good ground to prove the sufficient cause for condoning the delay as the subsequent decisions of the Supreme Court as well as this Court indicate that only bona fide mistakes committed in good faith are to be regarded as sufficient cause under S. 5 of the Limitation Act, Shri Vasishta further relied on Smt Shanti Devi's case (supra), but in that case also, the Division Bench found that the counsel had acted in good faith inasmuch as, because of wrong valuation, some other forum was chosen and the proceedings were instituted. It was held that the wrong advice given by the counsel in good faith was a sufficient cause. It is, therefore, evident that the crux of the matter would be the standing and status of the counsel, the circumstances under which a mistake is committed and absence of negligence or inaction so as to brand the conduct as one in good faith, and these factors would be taken into account while holding that a wrong advice given by a counsel would or would not be a sufficient cause under S. 5 of the Limitation Act.
5. Shri H. L Sarin, the learned counsel for the respondent relied on three decisions which definitely indicate the correct legal position and very much adhere to the principle enunciated above. Firstly, he relied on Dina Nath v. Munshi Ram, AIR 1953 Punj 298 a Division Bench decision of this Court. It was a case of a mistake of party's legal adviser as to the jurisdictional value and court--fee. It was observed that the mistake was such that if the legal adviser had only taken the trouble of looking up any elementary book on Court--fees and Suits Valuation Act, he would have discovered it. As such, no question of bona fide mistake or good faith arose and the time was not extended under S. 5 the Limitation Act. Shri Sarin pointed out that the period for the filing of appeal was prescribed as 15 days right from 1949 when the rent legislation was enacted. Again, according to the learned counsel, Shri Santokh Singh, Advocate, was having sufficiently long standing and he must have himself filed so many appeals taking regard to that provision. It is, therefore, very apposite to point out that had the counsel taken the trouble of looking up the provisions or of refreshing his memory he would have discovered that the period of limitation was only 15 days. Hence, the mistake committed by him was not bona fide. Shri Sarin then relied on Jai Ram Dass v. Som Parkash 1967 Cur LJ 857(Punj). It is again a Division Bench case of this Court and it was observed in this case that if a reasonable care and due diligence had been shown by the counsel and the mistake could not be avoided, it could afford a reasonable ground for condoning the delay. In Banwarilal and Sons. Pri. Ltd. v. Union of India, AIR 1973 Delhi 24, a Division Bench of Delhi High Court found a "very able counsel of long standing" giving opinion contrary to the latest and widely known pronouncement of law by Supreme Court and High Court. It was held that the mistake committed was not bona fide. The ratio of this case equally applies to the present situation.
6. The learned Appellate Authority has also mentioned that the affidavit filed by Shri Santokh Singh was not pressed into service under O. 19, R. 1, of the CPC. It appears, therefore, that Shri Santokh Singh was not produced as a witness. His affidavit was filed without any prayer having been made or without any order having been passed by the Court for enabling the counsel to give his evidence on affidavit. In this mannor, O. 19, R. 1 of the CPC was contravened and the learned Appellate Authority was right in concluding that the affidavit could not by itself constitute evidence to be considered in the case. It cannot be disputed that the principle behind O. 19, R. 1 of the CPC is equally applicable to proceedings under the Rent Control Act. In that view of the matter, there was no sufficient evidence to indicate that the counsel at all committed any mistake, what to say a bona fide mistake for not filing the appeal within time. The decision of the learned Appellate Authority cannot be considered to be improper and hence the present revision is without any force and is dismissed with costs.
7. Revision dismissed.