TMI Blog1980 (5) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... ereafter Om Prakash became a statutory tenant. Om Prakash died on 16-3-1975 and at the time of his death he was in possession of the said room as statutory tenant and now the legal representatives (respondents) are in illegal occupation of the premises in dispute. 4. The respondents contested the suit, inter alia, on the ground that the civil court had no jurisdiction to try the suit as there exists relationship of landlord and tenant between the parties and the defendant-respondents had inherited tenancy rights of their father who was a contractual tenant in the suit premises and the tenancy of Om Prakash was never terminated. 5. From the pleadings of the parties, the learned trial court had, inter alia, framed the following issues: (1) Whether the civil court has got no jurisdiction in the case? (2) Whether the plaintiff legally terminated the tenancy of Om Prakash? If so, its effect? 6. The issue relating to the question whether the civil Court has got no jurisdiction in the case was treated as a preliminary issue and the learned trial Court by order dated 7-4-1976 took the view that the respondents has inherited the tenancy rights of deceased Om Prakash and, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 13-10-1976 LCV , Advocate enquired it from the Registry of the High Court as to why the revision petition was not listed for hearing and he was told that the revision was lying under objection for being returned. The revision petition was taken back from the Registry on the same day i.e 13-10-1976. LCV read the objection and the revision petition, studied the matter and realised that due to bona fide mistake the revision petition had been filed instead of an appeal. The Advocate called the petitioner in Court on 14-10-1976 and told him the above stated facts and was also informed that the revision petition, which was filed in the High Court was being filed as an appeal. It was also stated that the petitioner-appellant had been bona fide prosecuting with due diligence another proceedings against the impugned order and he bona fide believed that the revision petition was to be filed against the impugned order and there is sufficient cause for preferring the appeal within the period prescribed. 13. In the affidavit filed in support thereof was sworn by LCV who stated that the petitioner has contacted him on 7-7-1976 along with the certified copy of the judgment under appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his knowledge no steps had been taken and filing of appeal after such a long delay cannot be attributed entirely to the advice of the counsel. The learned Additional District Judge also took the view that there is no bona fide mistake in filing the revision petition and thus held that there is no ground for condonation of delay, 16. Mr. Gopal Narain, learned counsel for the petitioner, has assailed the order of learned Additional District Judge, inter alia, on the ground that the revision petition was filed by the petitioner on the bona fide advice of a counsel of long standing and it was due to his mistaken advice that instead of filing an appeal a revision petition had been filed in the High Court and as soon as the memorandum of revision petition was returned by the High Court, immediately on the next day the memorandum of the revision was filed in the court of the District Judge with a request to treat the revision petition as an appeal along with an application for condonation of delay supported by an affidavit of the counsel and thus there was sufficient cause for condonation of delay under Section 5 of the Act and also there was good ground for exclusion of time under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the court why he honestly gave that opinion. What was it that led him to give the mistaken advice? Was it something in the impugned judgment which led him to give such an advice or was there something in the law which made him give the mistaken advice, it is not sufficient in such cases to merely state that I am a senior counsel or I am a very experienced counsel and I gave the opinion . Which is of no use. The Court naturally expects that the counsel concerned while choosing to file an affidavit for giving mistaken advice would also state what led him to give such an advice. If this much is not expected from a counsel, it may lead to arbitrary decisions by Courts. 23. So far as the litigant public is concerned, they have engaged a counsel and every counsel is supposed to have the necessary knowledge of law. Merely because the mistake is committed by a senior counsel does not necessarily mean that the mistaken advice was given bona fide or that it should constitute sufficient cause. Nature of the mistaken advice being bona fide would depend on the facts as to what led the learned counsel to give such an advice. 24. Unfortunately, as I have stated earlier, the affidavit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... District Judge). 30. The Registry of this Court immediately points out that only appeal is competent and the revision petition be returned. The counsel gives no reply as to why he chooses to file the revision petition and instead accepts the petition and files same by way of an appeal before the District Judge. This really shows that the opinion given by the learned counsel was not given in good faith and in such a case the mistaken advice of the learned counsel will neither constitute good faith under Section 14 of the Act nor sufficient cause under Section 5 of the Act for exclusion of time and/or for condonation of delay. 31. There is no formula that a person is merely to plead mistaken legal advice. The basis of mistaken legal advice should also be disclosed to enable the court to see whether the advice tendered was bona fide or reckless. Such a basis of explanation was neither given before the Additional District Judge nor before this Court entitling the petitioner for condonation of delay. 32. There is yet another way of looking at the problem. The revision petition was filed on 3-9-1976. For more than five weeks neither the counsel nor the petitioner made any e ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
