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Civil Rule No. 755 (F) of 1952 decided on 2nd February, 1953,

S. 5‑Ignorance and negligence of pleader will not extend time‑Application for leave to appeal in forma pauperis rejected as out of time‑Court‑tee on appeal, however, allowed to be made up under S. 149 C. P. C.

In. the case of an application for leave to appeal in forma pauperis, the limitation prescribed by Article 170 of the Limitation Act is 30 days though the limitation for appeal to the High Court otherwise is 90 days. The appli cation for leave was filed after 30 days and‑ the appellant's plea was that he was misled by his pleader's mistake who advised him that the application for leave to appeal as pauper could be made within 90 days. The pleader in his affidavit had said that the wrong advice was the result of a bona‑fide mistake though it was true that he had never handled a pauper appeal before.

Held, this is a case of ignorance and negligence of the legal adviser. In the circumstances the delay in the presen tation of the application for leave to appeal as a pauper cannot be condoned.

The erroneous advice cannot be said to have been given after due care and attention. The Pleader, no doubt, states in his affidavit that he gave wrong advice in good faith, apparently meaning thereby that he honestly believed that there was no difference with regard to the period of limitation between regular appeals and appeals sought to be filed in forma pauperis in the High Court. But under the Limitation Act nothing shall be deemed to be done in good faith which js not done with due care and attention. The very fact that he had no previous experience of such cases should have made the Pleader look up the law on the subject. A Pleader who gives advice without reference to the law with regard to a matter of which he is ignorant cannot be said to have acted with due care and attention.

Erroneous advice given by a Pleader is not in all cases sufficient for condoning the delay.

Highton v. 2reherne 48 L J K B 167 followed.

Brij Indar Singh v. Kanshi Ram and others 44 I A 218, Rajendra Nath Kankar v. Kamalkrishna Kundu Chaudhury I L R 59 Cal. 1057 (1063), Sunderbai and another v. The Collector of Belgaum and others 46 1 A 15, Kunwar Rajendra Bahadur Singh v. Rai Rajeshwar Bali and others A I R 1937 P C 276 and Surendra Mohan Ray Choudhuri v. Mohendranath Banerji I L R 59 Cal. 797 (807) preferred to.

As the memorandum of appeal was filed in time, Court fee was allowed to be made up under section 149 Civil P. C.

Nellavadia A mmal v. Subramania Pillai and eight others I L R 40 Mad. 687 and Vertannes v. Lawson and others I L R 13 Rang. 50 preferred to.

Md. Nurul Huq Chowdhury, for Petitioner.

Syed A. B. Md. Hussain, Assistant Government Pleader, for Opposite‑Party.

‑This is a petition under section 5 of the Limitation Act for the condonation of delay in the presentation of an application for leave to appeal as a pauper. The petitioner is the plaintiff in M. S. No. 3 of 1950 in the Second Court of Subordinate judge at Chittagong which was filed in forma pauperis. The suit was dismissed and for applying for leave to appeal in forma pauperis the petitioner had time for 30 days excluding the time taken for the grant of copies ; but the application for such leave accompanied by a memorandum of appeal was presented 10 days' out of time. This is conceded by the learned Advocate for the petitioner, but the explanation given is that after tile suit was dismissed the petitioner was told by his Pleader that the time for filing an application in this Court for leave to appeal as a pauper was 90 days and that this advice misled the petitioner. In support of his petition an affidavit from the Pleader Mr. Md. Yunus, who had appeared for the petitioner in the trial Court, has been filed. The affidavit supports the explanation given by the petitioner, In it the Pleader has stated that the petitioner enquired of him about the time within which he could file an application tot leave to appeal in forma pauperis and the Pleader told the petitioner in good faith that he could do so within 90 days. It is also admitted by the Pleader in his affidavit that he was not aware of Article 170 of the Limita tion Act as he had no occasion to deal with any pauper appeal. He however, adds in the affidavit that it was a bona fide mistake on his part and that he gave the advice in good faith.

The learned Advocate for the petitioner argues that in view of this explanation in the affidavit, filed by the Pleader, this is a fit case for the condonation of the delay under section 5 of the Limitation Act. His contention is that wrong advice was given by the Pleader due to a bona fide mistake and as the petitioner himself was not negligent in the matter he should not suffer for the mistake committed by his Pleader. The position taken by the learned Assistant Government Pleader, on the other hand, is that as the advice was not given after due care and attention it cannot be said that there was sufficient cause for the delay.

In support of his contention the learned Advocate for the petitioner has drawn our attention to several decisions but none of them lays down that erroneous advice given by a C Pleader is in all cases sufficient for condoning the delay In Brij Indar Singh v. Kanshi Ram and others (44 I A 218), the question for consideration was whether the time occupied by an application in good faith for review, though made on a mistaken view of the law, should be deemed as added to the period allowed for presenting an appeal. This question was, no doubt, answered in the affirmative, but their Lordships did not lay down that in every case of erroneous advice given by the Pleader the delay should: be condoned. As pointed out in Rajendra Nath Kandar v. Kamalkrishna Kundu Chaudhury (I L R 59 Cal. 1057 (1063)) there is no reason whatever for extending the principle of the decision in 44 I A 218 (supra) to applications which are not applications for review. In a Sunderbai and another v. The Collector of Belgaum and others (46 I A 15) an appeal which lay to the District Court was presented, under competent legal advice, to the High Court of Bombay and the memorandum was returned for presentation to the District Court but when it was presented to the District Court it had become time‑barred. The appeal was then withdrawn from the District Court and under section 5 of the Limitation Act the Bombay High Court held that there was sufficient cause for the delay. This decision with regard to section 5 was upheld by their Lordships of the Privy Council, who observed that "the fact that the defendants had acted on mistaken advise as to the law in appealing to the High Court in 1910 did not preclude them from showing that it was owing to their reliance on that advice that they had not presented the appeal to the Court of District Judge within the prescribed period of limitation". But this obser vation by itself does not mean that in every case where erroneous advice is given delay can be excused under section 5 of the Limitation Act. On the other hand, in Kunwar Rajendra Bahadur Singh v. Rai Rajeshwar Bali and others (A I R 1937 P C 276), their Lordships observed that there was no general doctrine which saved parties from the result of wrong advice but that mistaken advise given by a legal practitioner might, in the circumstances of a particular case give rise t sufficient cause. In that case, however, they came to the conclusion that there was no negligence on the part of the legal adviser. The general question, as to how far and in what circumstances an honest mistake on the part of the litigant caused by an erroneous advice, given to him by his lawyer, can be a ground entitling him to the protection under section 5 of the Limita tion Act, was not discussed in the above‑mentioned decisions of the Privy Council.

That question was considered in full in Surendra Mohan Roy Choudhuri v. Mahendranath Banerji (I L R 59 Cal. 797 (807)). There, decisions English and Indian and the decisions of the Judicial Committee in 44 I A 218 (supra) and 46 I A 15 (supra) referred to above were considered by the learned Judges of the Calcutta High Court. One of the English decisions referred to there is Highton v. Treherne (48 L J K B 167) and the following passage from the judgment of Brett M. R. in that case is quoted at page 798:

"In cases where a suitor has suffered from the negligence or ignorance or gross want of legal skill of his legal adviser he has his remedy against that legal adviser, and meantime the suitor must suffer. But where there bas been a bona fide mistake, not through misconduct nor through negligence nor through want of reasonable skill, but such as a skilled person might make, I very much dislike the idea that the rights of the client should be thereby forfeited. It seems to be obvious that the Court has jurisdiction to enlarge the time under some circumstances. Therefore, why not on the present occasion It has been said that when the time for appealing is past the person who would be respon dent has a vested right to retain his judgment. But obviously it is not an absolute right, and I am perfectly confident that the practice of all the Courts has been to treat it as not an absolute right, though the Courts are chary of enlarging the time when the time allowed by rule has run out".

The learned Judges of the Calcutta High Court came, to the conclusion that there was no‑ authority for the view' that a. mistake of a legal practitioner, however, gross and inexcusable if bona fide acted upon by a litigant will entitle him to the protection of section 5 of the Limitation Act. On the other hand they were of opinion that the rule expressed in the above passage quoted from the judgment of Brett M. R. in Hington v. Treherne embodied a sound working formula and was supported by the general trend of judicial decisions in India. We have considered this decision of the Calcutta High Court and we agree with the above observations of the learned judges.

Applying the rule laid down in the case of Highton v. Treherne mentioned above, to the case before us we find ourselves unable to accept the contention of the learned Advocate for the petitioner. The erroneous advice in this case cannot be said to have been given after due care and attention. The Pleader, no doubt, states in his affidavit that he gave wrong advice in good faith, apparently meaning thereby that he honestly believed that there was no difference with regard to the period of limitation between regular appeals B and appeals sought to be filed in forma pauperis in the High Court. But under the Limitation Act nothing shall be deemed to be done in good faith which is not done with due care and attention. The very fact that he had no previous experience of such cases should have made the Pleader look up the law on the subject. A Pleader who gives advice without reference to the law with regard to a matter of which he is ignorant cannot be said to have acted with due care and attention. This, in our opinion, is a case of ignorance and negligence of the legal adviser. . In the circumstances the delay in the presentation of the application for leave to appeal as a pauper cannot be condoned and the application must be dismissed.

The learned Advocate for the petitioner then contends that if this application is to be dismissed his client should be given some time for borrowing money to pay the requisite Court‑fee and that this can be done under section 149 of the Civil Procedure Code, having regard to the fact that as required under Order XLIV, rule 1, of the Civil Procedure Code the application for permission to appeal in forma pauperis was accompanied by a memorandum of appeal and this was presented within the period, of limitation allowed for filing a regular appeal in this Court. The learned Assistant Government Pleader argues that this cannot be done and relies on the decision in Vertannes v. Lawson and others (I L R 13 Rang. 50). There are observations in this decision which support the position taken by the learned Assistant Govern ment Pleader, but we prefer to follow the view taken by the Madras High Court in Nellavadia Ammal v. Subramania Pillai and eight others (I L R 40 Mad. 687) where this question has been fully discussed ‑on pages 695 to 697. We agree with the view expressed therein and hold that the request of the learned Advocate for the petitioner can be granted under section 149 of the Code of Civil Procedure.

We, therefore, while discharging this Rule and dismissing the application for leave to appeal in forma pauperis as out of time, grant the petitioner three months' time from to‑day for paying the requisite Court‑fee on the memorandum of appeal, which at present is on record unstamped.

There will be no order as to costs of this Rule.

IBRAHIM, J.‑I agree.

A. H. Rule discharged.

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