P L D 1958 (W (PLP)

KAIKAUS, J.‑--Foodstuff Supply Company, the appellant, and Irfan Cotton Oil Mills, the respondent, executed an agreement on the 21st of May 1951, by which they referred certain disputes, which had arisen between them with respect to the purchase and sale of gram, to the arbitration of Mian Haji Muhammad Abdullah and Mian Haji Muhammad Nazir. The arbitrators delivered an unstamped award on the 4th of June 1951. On the 2nd of July 1951, the respon dent put in an application for the filing of this award making the appellant and the arbitrators parties. On the 5th of July 1951, the arbitrators, feeling that the previous award being unstamped was not legally valid, gave the same award on a stamped paper. Objections filed by the appellant to this award were rejected by the trial Court on the 5th of February 1953, and the appellant filed an appeal against the order refusing to set aside the award to the District Judge, Lahore, on the 10th of March 1953. An objection was taken to the jurisdiction of the District judge by the respondent on the ground that the value of the subject‑matter on the award was more than Rs. 5,

000. On the 4th of October 1955, the learned District judge returned the appeal for presentation to the High Court and it was in fact lodged in the High Court on the 5th of October 1955. A preliminary objection has been taken by the respondent that this appeal is time‑barred.

2. It is accepted by learned counsel for the appellant that the appeal lay to the High Court and it had been filed in the Court of District judge by a mistake. It is prayed, however, that I should condone the delay and extend time under section 5 of the Limitation Act. There is no regular application but that fact will not stand in my way if there is no prejudice to the respondent and I will proceed to consider whether a case has been made out for extension of time on the materials as they exist on the record. The appeal had been filed under the advice of a counsel, who was at the time one of the leading civil lawyers of Lahore. That it was honestly filed without any desire to delay the pro ceedings is conceded, for nothing at all could have been gained by filing it in a wrong Court. The question, however, is whether the counsel was not negligent in filing the appeal in the Court of the District judge.

3. The decree against which appeal was being filed is in the following words:‑ "I grant the petitioner a decree against respondent No. 1 for the recovery of Rs. 3,000 paid to respondent No. 1 as earnest money and for the recovery of the amount paid by the petitioner to respondent No. 1 as the price of 4 wagons of gram under a separate contract mentioned in the award:" The price of 4 wagons of gram received by the appellant has been admitted to be Rs. 26,

000. So the decree was for Rs. 3,000 plus Rs. 26,000, a total of Rs. 29,

000. I have asked learned counsel for the appellant to explain for what reason and on what theory appeal could have been filed in the Court of the District Judge. The learned counsel who filed the appeal is unfortunately no longer among the living and I am prepared to make all allowances for that fact. If learned counsel for the appellant could give an hypothesis, accepting which the appeal may without negligence have been filed, before the District Judge I would be prepared to accept it but he is unable to do so. Time can be extended if counsel, acting not negligently, adopted a view of law on the basis of which the appeal could be filed in the Court in which he filed it, even though that view be mistaken. Time can be extended even though in taking a particular view he may not have acted with a high degree of care. But in the present case it is impossible to put forward any view of law on the adoption of which the appeal could have been filed in the Court of the District Judge. In the memorandum of appeal to District judge, the jurisdictional value is given as Rs. 3,

000. I fail to see why the price of four wagons, which had already been received by the appellant was not added to it.

4. It has been urged before me that mistaken advice of counsel is sufficient for condoning delay whether it be negligent or not and a number of cases have been cited, which I proceed to consider. In Nishan Lal and another v. Tika and another (A I R 1927 All. 719), it was held that the appellant was not to be punished for the bona fide mistake of his counsel. There is no discussion in the judgment as to whether the counsel acted with due care or not, nor are facts stated in such detail that one may reach conclusion as to whether the counsel had exercised due care. It is, however, stated that the learned judges are in condoning the delay acting in accordance with the principles laid down by their Lordships of the Privy Council in Birj Inder Singh v. Lala Kanshi Ram and others (A I R 1917 P C 156). In that case, although it was not laid down in so many words, their Lordships had extended time only on the assumption that the appellant had acted with diligence. In the Full Bench judgment of the Punjab Chief Court, Karm Bakhsh and others v. Daulat Ram and others (183 PR 1888), which their Lordships quoted with approval, due diligence had been stressed.

5. In Shankar Pas v. Mst. Dhan Devi (1933 Lah. 53), an appeal would, in accordance with two Full Bench decisions, one of the Punjab Chief Court and the other of the Lahore High Court, have lain to the High Court but it had been presented to the District Court. Counsel for the appellant, who was a leading counsel of Mianwali, had filed an affidavit that he had presented the appeal in the District Court because, on the authority of certain decisions of the Allahabad High Court and other High Courts, he was of the opinion that it lay to the District Court. If, even after going through the Full Bench judgments mentioned above it was possible to take the view that an appeal lay to the District Court, it was a proper case for extension of time. If, on the other hand, the mistake was due to the fact that counsel did not discover the Full Bench authorities the case would be one of negligence. The judgment does not make it clear as to whether counsel knew of the Full Bench decisions and whether it was possible in spite of those decisions to take the view that the appeal lay to the District Court. The principle laid down in the judgment is that a litigant is not to be "penalized for having acted on mistaken advice given bona fide by his pleader." 'Bona fide is not explained and there is no discussion as to whether time can be extended even if counsel is negligent but the case is stated to be within the rule laid down in Ambika Ranjan Majumdar v. Manikgunge Loan Office, Ltd. (A I R 1928 Cal. 468). In that case the counsel had been negligent. One of the two learned judges, Suhrawardy, J. found the answer to the question as to whether a person who placed implicit faith on the advice of counsel was entitled to extension of time, a matter of great difficulty. He said:‑ "If the question is answered in the affirmative it will be putting a premium on the carelessness or incompetency of persons practising law on whom lies a heavy duty and responsibility of giving proper advice to their clients. On the other hand, if the question is answered in the negative an innocent party who has acted on the advice of his lawyer qualified for the purpose of giving advice will suffer injury without any fault 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 (19 I C 931) and Krishna v. Chathapan (13 Mad. 269) the discretion given by section 5 Limitation 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 dis cretion in each particular case should be exercised on its own facts With a view to secure furtherance of justice." The learned Judge was not prepared to lay down that mistaken advice of counsel was always a good ground for extension and he said so clearly. The other learned Judge Graham, J. too was of the opinion that the question that arose was one of difficulty but that he would extend time having regard to the particular facts of the case.

6. Shib Dayal and another v. Jaganath (A I R 1922 All. 490) is a Full Bench case. There a second appeal had been filed without copies of the judgment and decree of the trial Court, which was necessary under the rules of the Allahabad High Court. The omission was due to the advice of a counsel from the mofussil. The learned judges accepted the correct rule to be the one accepted by the English Courts, namely, that a default by counsel was not a good ground for extending time, but held that on account of the lower standard of efficiency among mofussil lawyers the application of the rule was likely to work great hardship and, therefore, it should not be applied till conditions improve.

7. In Arura v. Karam Din (48 P L R 325), justice Sir Abdur Rahman condoned the mistake of a lawyer who had filed an appeal in the wrong Court. The District Judge had held that counsel had not acted in good faith because he had not acted with due care and attention as was required by the definition of "good faith" in section 2 (7) of the Limitation Act. Justice Sir Abdur Rahman pointed out that the words "good faith" did not occur in section 5 and, therefore, due care and attention was not essential for extension of time under section

5. The learned judge was careful however to point out that he was not prepared to condone negligence in every case and the decision of each case would depend upon its own circumstances. Confronted with two previous Lahore cases, Fateh and another v. Bhanju Ram and others (96 P R 1917) and Uttam Chand v. Vishan Das (A I R 1933 Lah. 568), wherein mistake of counsel had not been regarded a ground of extension, the learned judge expressed the opinion that when a person who does not himself know the rules of procedure engages a counsel he acts with due care and attention, and this aspect of the matter not having been considered in the two cases, he was not prepared to follow them, particularly when their Lordships of the Privy Council had stated the proposition with respect to advice of a counsel in different words in Sunderbai and another v. Collector of Belgeaum and others (A I R 1918 P C 135). With respect to the proposition that when a person has engaged a counsel he has acted with due care and attention (and, therefore, the result of wrong advice should not affect him) let me state with respect that if this is accepted even gross negligence of counsel would have to be condoned although the learned judge was not prepared to condone even ordinary negligence of counsel in all cases.

8. It will appear from the cases referred to above (as can also appear from a good many cases which have not been cited) that, influenced by the hardship that would otherwise result, judges have been condoning negligence of counsel in cases before them justifying their decisions on one ground or another, but they have never laid down a rule that mistaken advice of counsel, even though negligent, would afford a good ground for extension of time. They could not have laid down such a proposition in view of the extremely undesirable results that would follow. Even if they had laid down such a proposition it would not have been good law in view of the judgment of their Lordships of the Privy Council in Kanwar Rajendra Bahadur Singh v. Rai Rajeshwar Bali and others (A I R 1937 P C 276), where their Lordships said that while on the particular facts of a case mistaken advice may afford a ground for extension, it could not do so in all cases. Their Lordships had in that case considered the question of negligence and found that counsel was not negligent.

9. The correct rule appears to me to be that mistaken advice by a counsel is a good ground for extension if counsel does not act negligently but the standard of care to be applied will depend on the particular circumstances of a case.

10. In the present case, learned Counsel for the appellants is unable to satisfy me, even if I am not to apply any high standard of care that counsel could have regarded District Judge's Court as the Court of appeal. This appeal is dismissed without any order as to costs. S. D. A./A. H. Appeal dismissed.