TMI Blog1970 (2) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... at Mavelikara as A. S. No. 123 of 1967 on 16-8-1967. Later, that court returned the appeal for re-presentation to the High Court on 27-6-1969 and in the order of return a period of one month was granted for presentation to the proper court. Before expiry of this period, the appeal was re-presented in this Court on. 19-7-1969 The last date for filing-the appeal to this court was 17-10-1907 and since it was actually instituted only on 19-7-1969 this long span of nearly two years was sought to be bridged by the petition for condonation of the delay. 3. The petitioner stated that he was entitled to exclusion of the period between 16-8-1967 and 27-6-1969 during which the appeal had been pending before the District Court at Mavelikara and that he was also entitled to tack on one month, which the District Court had granted to him for presentation to the proper court. If these exclusions were allowed, the arithmetic is in favour of the appellant and he will be in time; but counsel for the respondent strenuously contended that the appellant had no justification for filing the appeal in the District Court since the provision of law in the Travancore Land Acquisition Act was plain enough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ikara on 16-8-1967. The forum was chosen on legal advice, or rather as the affidavit of the concerned clerk states: This was done on the written instruction of the District Government Pleader. Aleppey dated 8-8-1967 . This advice, bona fide given, was bona fide believed in by the petitioner and the appeal was instituted in the District Court taking it to be the proper court-The appeal was ordered to be returned, as stated earlier, on 27-6-1969, granting one month's time for re-presentation. Government thought that this being an order of a court could be acted upon, and assumed reasonably that the time so allowed was available for filing the appeal in the High Court. That was why the appeal was actually instituted on 19-7-1969, well before the sands of time had run out. The case set out in the affidavit is that Section 14 will apply and that the exclusion claimed is permissible. 5. Even a tyro will agree--and the Government Pleader readily agreed--that Section 14 has nothing to do with the exclusion of time in filing appeals. So the Case has to be considered on the basis of Section 5 of the Limitation Act only. There are three areas of delay which will have to be separately ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e we are concerned with is the date of the Full Bench decision or its reporting in the law journals. Counsel argues that the State was a party to the decision and knew the correct law at least then and, therefore, could not justify its inaction, in not getting a return of its appeal from the District Court. Had I been hypertechnical, I might have agreed with the submission. The State, it is true, is not entitled to special treatment in a court. I respectfully agree with the obsevations made by a Division Bench of this Court in 1963 Ker. LJ 979 to the effect: The law of limitation operates equally for or against a private individual as also a government. No special indul-gence can be shown to the government which in similar circumstances is not to be shown to an individual suitor. If it is felt that the Government departments delay matters so much that the periods of limitation already prescribed in the Limitation Act viz., 3 months is not long enough for the government or its agents, then the better course is to obtain amendment of the law through the legislature rather than to make an application to the court, invoking its power under Section 5 of the Limitation Act. We ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Limitation Act, to give a further time to the plaintiff to re-present in the proper court. I agree that the limitation provided by the law cannot be varied by acts of forensic philanthropy and a court which has no jurisdiction on its own showing. The said direction Is void and indeed, is misleading to the litigant as 1 will presently state. Had the proceedings been a suit to which Section 5 of the Limitation Act would not apply and which could be salvaged only by Section 14 of the Limitation Act, I would have had no be station in holding that the institution of the proceeding here was far out of time. Section 14, under which the various rulings I have referred to were 'given, does not apply to appeals and a direction of the sort contained in the present order of the District Court cannot serve to exclude that spell from the period of limitation fixed by the statute. However, the real question that fells for consideration is whether the provisions of Section 5 are complied with and sufficient cause has been made out- 8. It is trite law that a person seeking condonation of delay has to explain every day's delay and that principle applies when Section 5 of the Limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p. 168). that advice betrays negligence or ignorance or gross want of legal skill . His Lordship also added--an observation which the legal profession will take serious note of -- In such cases, the party has his remedy against his legal adviser but meantime must suffer. See in this connection. Sur-endra Mohan v. Mohendra Nath. (AIR 1932 Cal 589) . 10. Counsel for the appellant drew my attention to a ruling reported in AIR 1904 SC 1897. 1902 where an obvious mistake had been made by the State counsel and acting on that patently mistaken advice the State came up to the Supreme Court to receive a reproof from that court. I may usefully extract excerpts from paragraph 10 of that judgment. The reason for the delay given in the affidavit is that the Law Officer was of the opinion that the application for a certificate was maintainable under Article 134(1) of the Constitution. We do not see any justification for this opinion. There is no conflict of judicial opinion on this question. The only question that was before the Law Officer was whether the order sought to be appealed from was a final order. The order ex facie was an interlocutory order and so far as the Government of U. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this approach. I am of the view that legal advice given by the members of the legal profession may sometimes be wrong even as pronouncement on questions of law by courts are sometimes wrong. An amount of latitude is expected in such cases for to err is human and lay men as litigants are, may legitimately lean on exoert counsel in legal as in other departments, without probing the professional competence of the advice. The court must of course, see whether, in such cases there is any taint of mala fides or element of recklessness or ruse. If neither is present, legal advice honestly sought and actually given, must be treated as sufficient cause when an application under Section 5 of the Limitation Act is being considered. The State has not acted improperly in re-lying on its legal advisers. 11. In the present case, however the more important question is whether reliance by the State on the period of one month illegally given to it by the District Court was permissible and could be treated as sufficient cause- The narrow question is whether it can at least amount to good cause even if it be a bad order. Counsel for the appellant relies upon a ruling of the Supreme Court report ..... X X X X Extracts X X X X X X X X Extracts X X X X
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