TMI Blog1927 (11) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... ney realized from the sale of the properties. The appellant applied to have the auction sale set aside under Order 21, Rule 90, Civil P.C. That application was after trial dismissed on 28th February 1927. The appellant's case is that as he was lying seriously ill at that time he sent the necessary costs and papers to his pleader at Dacca who was a pleader of over 15 years' standing and having considerable practice. The pleader, under a wrong impression that the appeal related to the suit which was valued below ₹ 5,000, filed the memorandum of appeal in the Court of the District Judge at Dacca on 29th March 1927. On 27th June 1927 it was found that the appeal did not lie to the Court of the District Judge and that it ought t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of his. The question therefore, that has come up before us in these proceedings is one of considerable difficulty and delicacy. As has been held in several cases Rakhal Chandra Ghose v. Ashutosh Ghose [1913] 17 C.W.N. 807, and Krishna v. Chathappan [1890] 13 Mad. 269, the discretion given by Section 5, Lim. Act, to the Court should not be defined and crystallized so as to convert a discretionary matter into a rigid rule of law. But the discretion in each particular case should be exercised on its own facts with a view to secure furtherance of justice. It has also been held in numerous cases that when the period fixed by the law of limitation for an action or appeal expires the defendant or respondent secures very valuable rights which shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for not preferring the appeal in time. It has not been argued before us, nor can it be reasonably said, that in a matter of this kind the pleader acts as an agent of his client and his act or default is binding upon the latter within the meaning of Section 5, Lim. Act. The learned advocate for the opposite party has referred us to several oases which may be examined separately. The first case to which reference has been made is the case of Sarat Ghandra Bose v. Saraswati Debi [1907] 34 Cal. 216. The point on the facts of the case there did not really arise and it was decided upon a very different consideration. The appellant there was a well-known lawyer and his explanation was that he was under the impression that the appeal lay to the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e pleader's office. The learned Chief Justice in expressing the above view relied upon a decision of this Court in Sunder Kuer v. Raghunath Sahai [1911] 12 I.C. 677. There, the mistake made by the petitioner was in calculating the time within which he should have filed the appeal in this Court taking into account the period occupied in taking copies of necessary papers. He based his case upon the advice he got from a pleader in the mofussil in that matter which turned out to be wrong. The learned Judges after considering the various cases relating to the point made the following observation: The test therefore, to be applied to the ease before us is whether there has been any negligence or inaction or want of bona fides on the part o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Sunder Kuer v. Raghunath Sahai [1911] 12 I.C. 677. In that case, in execution of a decree in a suit valued at more than ₹ 5,000, an appeal from an order of the Subordinate Judge was preferred to the District Judge after the period for appealing to this Court had expired. The District Judge dismissed the appeal on merits. A second appeal was filed in this Court against the decree of the District Judge. At the hearing of the second appeal it was discovered that no appeal lay to the District Judge and their Lordships allowed the memorandum of second appeal to be converted into that of first appeal and directed that the appeal might be taken to have been presented to this Court on the day on which they passed the order and ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of Section 5, Lim. Act, was canvassed at great length and 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 therefor had expired was a good ground for the application in favour of the would be appellant of the provisions of Section 5, Lim. Act. I am not prepared to differ from the views expressed by so many learned Judges, but at the same time I want to guard myself for the present against laying down a general rule of law the a mistake of a pleader, however obvious it may be, can always and under every circumstance afford ground for extension of time under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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