P. N. MOOKERJEE, J. ( 1 ) I have had the advantage of reading in advocate the judgment, prepared by my learned brother. I entirely agree with him in his conclusion that this Rule should succeed. The instant case is one of accidental bonafide mistake on the part of the petitioner's learned Advocate and, for the so-called delay in the making of this application, sufficient cause has been shown by the petitioner. These aspects have been fully discussed by my learned brother and, broadly speaking, I am in complete agreement whether him in his above discussions. ( 2 ) ON the point of law involved, namely, Section 5 of the Indian Limitation Act, I have already expressed Munsif in (1) Ram Charitar Singh and another v. Nagendra Chandra Sett and others, 64 CWN 223, where following the line of approach, indicated in the recent decisions of this Court [vide in particular, (2) Kshetramoni Dasi v. Surenda Mohan Kundu and others, 60 CWN 200], I endeavoured to lay down, in broad and general terms the principle, underlying this part of the Statute. I am glad to have this opportunity to restate and reaffirm the same. ( 3 ) THAT, under the aforesaid Section, the Court has a discretion - a judicial discretion - to condone delay, on sufficient cause being shown, is clear on the statute. From the very nature of things, no hard and fast rule can be laid down to govern the matter or control the exercise of such discretion. Each case must depend on its own facts. ( 4 ) IN the application of the Section, it has to be remembered that the words 'sufficient cause' should receive "a liberal construction, so as to advance substantial justice when no negligence nor inaction nor want of bonafides is imputable to the appellant. Each case must depend on its own facts. ( 4 ) IN the application of the Section, it has to be remembered that the words 'sufficient cause' should receive "a liberal construction, so as to advance substantial justice when no negligence nor inaction nor want of bonafides is imputable to the appellant. " In this context of connotation, the broad and general principle, underlying the Section, may well be stated or re-stated as follows:-"if the appellant has done all that he could have done in the matter and has acted bona fide and with reasonable care and the delay is caused or occasioned by something due entirely to his learned Advocate and/or exceptional circumstances then barring, possibly, cases of gross negligence on the part of the learned Advocate, which would not include accidents or accidental or reasonably explicable omissions or mistakes, in all other cases, at least, the delay should be condoned. "this statement in general terms is no attempt to crystallize into a rigid definition the Court's judicial power and discretion under the aforesaid section. The legislature left the matter open to the Courts which of course, meant that the discretion to be exercised, would be 'judicial discretion', and the Courts, in their turn, were content to indicate or lay down merely a working formula, or a workable rule of general guidance for the exercise of that discretion. That rule, from its very terms, as set out hereinbefore, is sufficiently elastic to leave the final determination, primarily, to the facts of each individual case. ( 5 ) THE circumstances, here, are exceptional, the delay, so far as the learned advocate is concerned is accidental and due to exceptional circumstances, and the delay, if any, so far as the appellant is concerned, is due to circumstances, beyond his (appellant's) control, and it has been sufficiently explained by him. ( 5 ) THE circumstances, here, are exceptional, the delay, so far as the learned advocate is concerned is accidental and due to exceptional circumstances, and the delay, if any, so far as the appellant is concerned, is due to circumstances, beyond his (appellant's) control, and it has been sufficiently explained by him. ( 6 ) IN the premises, I would hold that the appellant has succeeded in showing 'sufficient cause' for the delay in question under Section 5 of the Indian Limitation Act and has made out a sufficient case for the exercise of the statutory and/or judicial discretion thereunder in his favour even treating these two matters as separate and dealing with the two aspects involved separately as apparently, done by their Lordships of the Supreme Court in (3) Ramlal and others v. Rewa Coalfields Ltd. , AIR 1962 SC 361 (Vide, in particular, p. 365 of the said Report ). ( 7 ) I would, accordingly, agree in making this Rule absolute condoning the delay under Section 5 of the Indian Limitation Act and directing that, to the above pending appeal, Kumar Kshitipatinath Malia and firm Harsukdas Balkisandas be added as respondents and the said appeal be registered as against them, if otherwise in form. That view, if I may just and with respect would so far as the principle, underlying the aforesaid section, is concerned, be well in accord with inter alia the two oft-quoted decisions of this Court in the case of (4) Prosanna Kumari v. Ram Chandra, 17 CLJ 66 (Vide p. 69) and (5) Karali Charan v. Apurba Krishna, 34 CWN 1119, and would in substance conform to the same and as to the form of the order too, our above order would be in sufficient conformity and compliance with the view, expressed by the Federal Court in (6) Bank of Commerce Ltd. , Khulna v. Protap Chandra Ghosh and others, AIR 1946 F. C. 13. ( 8 ) I also agree in making the order for costs, as proposed by me learned brother. ( 9 ) ON April 10, 1962 should the appellant petitioner be allowed to add as respondents two persons (opposite parties 11 and 12) left out in the memorandum of appeal presented to this Court on December 21, 1956 after condoning the delay under Section 5 f the Limitation Act, 9 of 1908? ( 9 ) ON April 10, 1962 should the appellant petitioner be allowed to add as respondents two persons (opposite parties 11 and 12) left out in the memorandum of appeal presented to this Court on December 21, 1956 after condoning the delay under Section 5 f the Limitation Act, 9 of 1908? This is the point we have been called upon to decide in this Rule obtained by the appellant on April 19, 1962 on the basis of an application filed in Court on April 10 preceding. ( 10 ) OPPOSITE party No. 11 (Kumar Kashitipatinath Maliah), the fourth defendant in the trial Court, opposes the Rule. Opposite party No. 12 (the firm of Harsukdas Balkisandas), the sixth defendant in the trial Court, does not. Two more oppose the Rule: opposite parties 1 and 2 (respondents 1 and 2), the two Goenkas, Jogmohan and Keshorilal, who were the first two defendants in this trial Court. ( 11 ) WE have heard at length the learned advocates appearing for the different parties. The period to be considered is December 21, 1956 to April 10, 1962. On materials we have had put before us, this period may best be divided into two parts - December 21, 1956 to February 5, 1962 and February 5, 1962 to April 10, 1962. ( 12 ) TAKING the first part first, December 21, 1956 is the last open day of this Court on this side of the Christmas vacation of that year. The vacation commenced from December 22, 1956. December 21, 1956 is the last day of limitation too of filing the appeal. So everything has to be gone through with the utmost hurry. The requisite Court-fees have to be purchased from the Collectorate. An application under Order 22, Rule 10 of the Procedure Code so necessary for the appeal has to be got ready and affirmed. Grounds of the appeal after perusal of the trial Court's judgment running to twenty-nine pages - and of a suit heard for twenty days - have to be drawn up. All this done with dexterity and expedition, the memorandum of appeal comes back to the advocate concerned. Mr. Provash Chandra Basu, who while revising it notices a gap in that the name of the ninth respondent is not there, fills it up and sends down the memorandum for filing. All this done with dexterity and expedition, the memorandum of appeal comes back to the advocate concerned. Mr. Provash Chandra Basu, who while revising it notices a gap in that the name of the ninth respondent is not there, fills it up and sends down the memorandum for filing. There the matter rests till February 5, 1962, so far as the filing advocate is concerned, the appeal dragging its slow length for this step and that. ( 13 ) ON February 1, 1962 opposite party No. 12 entered appearance through Mr. Narottam Chatterjee, a learned advocate. That put the Court's office in a fix. Because opposite party No. 12 did not figure as a party respondent in the memorandum of appeal. The matter was placed before the Registrar in lawazima on February 5, 1962 when Mr. Basu came to know for the first time of this omission and the omission of another: opposite party No. 11. ( 14 ) WHAT does this narration of facts so self-evident on a perusal of the record (nothing to say of the affidavit relied on by the petitioner) disclose? It discloses neither negligence nor inaction nor bad faith on the part of the petitioner. It is all very well to say as has been said on behalf of the opposing opposite parties: why did not they come earlier than December 21, 1956? The certified copies of the judgment and the decree were ready for delivery on November 16, 1956. They were delivered either on November 22 or December 21, 1956. "22. 12. 56" under the caption "date of making over the copy to the applicant" is clearly a mistake either for 22. 11. 56 or 21. 12. 56. What we see on record completely satisfies us that the certified copies of the judgment and the decree were filed in this Court along with the memorandum of appeal on December 21, 1956. So the date of delivery of the copies could not have been in any event December 22, 1956. Be the date of delivery one or the other - November 22 or December 21, 1956 - a lot more is needed than mere certified copies of the judgment and the decree to file an appeal to this Court. So nothing can turn on the petitioner's officer meeting Mr. Basu on the last date: December 21, 1956. Be the date of delivery one or the other - November 22 or December 21, 1956 - a lot more is needed than mere certified copies of the judgment and the decree to file an appeal to this Court. So nothing can turn on the petitioner's officer meeting Mr. Basu on the last date: December 21, 1956. It would have been better if he had come earlier. But that is another matter. To say that the intending appellant should bestir himself plenty of time ahead and avoid presenting his appeal on the last date is sound advice no doubt, but at the same time to say so is in a manner to abridge the period of limitation. [see (5) Karali Charan v. Apurba Krishna, ILR 58 Calcutta 549)]. And then a mistake is mistake. No litigant otherwise so earnest about his appeal by expanding money for copies and legal help deliberately commits a mistake. No advocate doing all he can to help his client from whom he earns his fees and shall earn still more does so either. A mistake as we notice here may occur on the last date or even a month ahead thereof. ( 15 ) AND what the mistake is like has been noticed. Mr. Basu is a senior advocate whose services are in constant request. Not that he gets a brief occasionally. Hence if perchance he fails to detect the two omissions, though he supplies another (so prominent coming between No. 8 and No. 10 in the list of pro forma respondents), no party should be allowed to make a capital of it. And it is well to remember that the a mistake like the one we see may occur in spite of the greatest care that is taken. We all know from our experience that however much we may revise a manuscript, there are certain mistakes which have the inconvenient knack of eluding us. The mistake Mr. Basu commits is that. It is a mistake which you and I commit and shall continue to commit from time to time, in spite of our efforts not to do so. It is not negligence. For less is it misconduct. Why should the petitioner be then penalized for a mistake which a skilled person with all his skill and a careful person with all his care may make? It is not negligence. For less is it misconduct. Why should the petitioner be then penalized for a mistake which a skilled person with all his skill and a careful person with all his care may make? ( 16 ) IT is said that the time having run out, a very valuable right has accrued to the petitioner's adversaries, the successful defendants in the Court of first instance. That is true. But equally true it is that this is not an absolute right. This is a right that must yield in favour of the petitioner having shown sufficient cause for the delay - which the petitioner has shown. The Court always leans against a fluke. ( 17 ) MUCH too much is being made of the delay of a little over five years from December 21, 1956. There lies a fallacy. What counts is not the length of the delay but the sufficiency of the cause. A day's delay without sufficient cause may evoke maudlin sympathy but will not be excused. A year's delay and even more with sufficient cause shall on the other hand be condoned. And once the memorandum of appeal gets into the Court's office and rests there, the petitioner will have hardly any occasion to know of such an omission, so long as no noise is made about it. And the noise was made on the appearance of opposite party No. 12 on February 1, 1962, the petitioner having come to know of it on February 5 following in due course. So we see sufficient cause for the delay between December 21, 1956 and February 5, 1962. ( 18 ) TO the second part now: February 5, 1962 to April 10 following - a period of sixty-four days. On such a revelation confirmed by the inspection of the memorandum of appeal and the certified copy of the decree under appeal. Mr. Basu realised what he was up against. Forthwith he wrote to the petitioner to send the officer concerned, Amarendra Nath Chatterjee, who was responsible for getting the memorandum typed and filed in Court. Amarendra had died meanwhile. The other officer of the petitioner, Sudhir Kumar Mukherji, old and living in the district of Murshidabad, could not come earlier than April 6, 1962 - a Friday. Forthwith he wrote to the petitioner to send the officer concerned, Amarendra Nath Chatterjee, who was responsible for getting the memorandum typed and filed in Court. Amarendra had died meanwhile. The other officer of the petitioner, Sudhir Kumar Mukherji, old and living in the district of Murshidabad, could not come earlier than April 6, 1962 - a Friday. The application on which the Rule rests was drawn up with such materials as could be gathered in absence of Amarendra, the most knowledgeable person, and affirmed on April 9, 1962 to be filed in Court on the day following. We see nothing unbelievable in all this and hold that there was sufficient cause in moving the Court not earlier than April 10, 1962. ( 19 ) THE cases cited at the Bar turn on their own facts. And we shall presently notice what these cases are, supplementing them by other case. But as observed in a Bench decision of this Court: (7) Surendramohan Ray Chaudhuri v. Mahendranath Banerji, ILR 59 Calcutta 781 at page 787, when confronted with the question whether or not an appellant should be granted an extension of time so as to convert an appeal against the final decree into one against the preliminary decree, he having acted bona fide by entrusting the case to an advocate of this Court:"this argument brings us to a question, on which the decisions in this country unfortunately AIR far from uniform, and as regards which it has been said more often than once that an attempt to reconcile the conflict is fruitless and hopeless. In the midst of this diversity noticeable in the crowd of decisions, one sees emergence of two broad principles. First: a litigant misled by erroneous legal advice by an advocate whom he entrusts his litigation with is entitled to plead sufficient cause within the meaning of Section 5 of the Limitation Act [ (8) Brij Indar Singh v. Kaushi Ram, 44 IA 218, and (9) Sunderbai v. Collector of Belgaum, 46 IA 15]. How far is erroneous legal advice by an advocate from an error (as is to be seen here) committed by him: one upon whom a litigant as of necessity relies wholly? Not very. How far is erroneous legal advice by an advocate from an error (as is to be seen here) committed by him: one upon whom a litigant as of necessity relies wholly? Not very. Second: it is a matter of discretion which is judicial and not arbitrary, the words "sufficient cause" receiving 'a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant", a passage from (10) Krishna v. Chathappan, ILR 13 Madras 269 F. B. , which the Supreme Court quotes with approval in (11) Dinabandhu Sahu v. Jadumoni Mangaraj and others (an election appeal): 1954 SCJ 605 at page 609, with the remark that it "has become classic". To this may be added another passage, which has become more than classic, from the judgment of Jenkins, C. J. in (12) In re An Attorney, ILR 41 Calcutta 446 at page 457: "not one jot or one title can be taken away from or added to the plain and express provisions of the Legislature by any decision of the Court; nor can this discretion vested by the section [section 195 of the Code of Criminal Procedure] in the Court be crystallized or restricted by any series of cases: it remains free and untrammeled to be fairly exercised according to the exigencies of each case. "here the plain and express provisions of the Legislature are Section 5 of the Limitation Act, 9 of 1908. By virtue thereof an appeal, though presented after the period of limitation, may be admitted when the appellant satisfies the Court that he had sufficient cause for not preferring the appeal within such period. Such plain provisions vesting in the Court absolute and unqualified discretion have been made plainer still by the Explanation to Section 5 providing that it may be sufficient cause if the appellant is misled by certain matters. It is illustrative and not exhaustive. By parity of reasoning, therefore, the petitioner before us having been left high and dry by an excusable oversight on the part of his advocate, Mr. Basu, it should be regarded as sufficient cause within the meaning of Section 5. It is illustrative and not exhaustive. By parity of reasoning, therefore, the petitioner before us having been left high and dry by an excusable oversight on the part of his advocate, Mr. Basu, it should be regarded as sufficient cause within the meaning of Section 5. ( 20 ) THE truism that each case should be judged on its own facts and circumstances is not necessarily destructive of the idea that there can be a general rule, certain general principles, the Courts should govern themselves by the exercise of their discretion [ (8) Brij Indar Singh's case supra laying down what enures to the benefit of the plaintiff under Section 14 is available to the appellant under Section 5 as sufficient cause]. This only broadens the judicial discretion. To sum up, our discretion in the matter we are now seized of is free to be exercised (as we are exercising) untrammeled by any judge-made grooves in which this discretion should run. ( 21 ) WITH this observation, the cases cited at the Bar may be noticed. (13) V. P. R. V. Chokalingam Chetty v. Seethai Acha and others, 55 IA 7, is a case where the attempt on the part of the plaintiff appellant to add as respondents certain defendants not made parties to the appeals failed. It failed, because the defendants against whom the right of appeal had become barred were no longer "interested in the result of the appeal" within the meaning of Order 41, Rule 20 the appellant had relied on. It failed, also because the Judicial Committee saw no sufficient reason for interfering with the refusal of the appellate Court to take action under Order 41, Rule 33, assuming that under the rule the Court in a proper case might add a defendant as respondent. ( 22 ) CHOKALINGAM Chetty's case (Mr. Sen Gupta for opposite parties 1 and 2 cites and Mr. Dutt for opposite party No. 11 adopts) must however be read in the context of its facts. What the plaintiff Chokalingam Chetty sued for he had valued for three lakhs of rupees but had acquired "for the trifling sum of Rs. 580/-". The District Judge dismissed both his suits. The plaintiff appealed. Dutt for opposite party No. 11 adopts) must however be read in the context of its facts. What the plaintiff Chokalingam Chetty sued for he had valued for three lakhs of rupees but had acquired "for the trifling sum of Rs. 580/-". The District Judge dismissed both his suits. The plaintiff appealed. "when the appeals came on for argument it was pointed out that the foundation of title of all the defendants was the sale deed to the first defendant" whom the plaintiff had not made a party to the appeals. This failure to make him a respondent made the point at issue res judicata between the plaintiff and the first defendant and the other respondents who claimed through the first defendant. That led the plaintiff to apply under Order 41, Rule 20 to add the omitted person as respondent and to ask the appellate Court (High Court at Rangoon) to take action under Order 41, Rule 33. Both the prayers were refused. And the refusal was upheld by the Privy Council. ( 23 ) NOTHING like Section 5 of the Limitation Act is seen here; nor a venial slip on the part of a busy advocate racing against time. So it can be of little help to the point for decision before us. As soon as the delay is condoned - and it is condoned by us - the two omitted opposite parties (one of whom does not even oppose the Rule) become very much interested in the result of the appeal. ( 24 ) A distinguished Judge of the Federal Court (Sulaiman, J.) has gone so far as to hold that in suitable cases, Order 41, Rule 20 apart, the appellate Court has the inherent power to add a party (14) United Provinces v. Mst. Atiqa Begum, 45 CWN 27 F. R. ). There a Provincial Act the vires of which was in controversy had come into force during the pendency of the second appeal, there having been thus no occasion to add the Government (whose Act it was) earlier. True, adding the two omitted opposite parties here comes nowhere near it. But this only shows a Judge's anxiety to see that his power is equal to his desire to do what he feels should be done for the ends of justice. True, adding the two omitted opposite parties here comes nowhere near it. But this only shows a Judge's anxiety to see that his power is equal to his desire to do what he feels should be done for the ends of justice. An accidental success which the opposing opposite parties have secured and are anxious to retain is negation of justice. ( 25 ) OTHER reported decisions referred to at the Bar are (7) Surendramohan Ray Chaudhuri's case supra [where "a material portion of the story" seeking to make out sufficient cause is held to be untrue - just the opposite of what we hold here], Bank of Commerce Ltd. v. Protap Chandra Ghosh and others (6) 1946 FCR 32 [where the appellant's ignorance of the death of Amal Krishna Ghosh on September 23, 1944, the appeal having been filed on September 29, 1944 showing him as alive, is regarded as sufficient cause within the meaning of Section 5 of the Limitation Act and the delay in making the application for adding the deceased's mother as a respondent is excused], (2) Kshetromoni Dasi v. Surendra Mohan Kundu and others, 60 CWN 200 [which is an authority for the proposition that a litigant who could not prefer an appeal within the period of limitation on the wrong advice of her lawyer that a revision would lie in entitled to rely on such wrong advice as sufficient cause for the delay] and (1) Ram Charitar Singh and another v. Nagendra Chandra Sett and others, 64 CWN 223 [which considers forgetfulness on the part of an advocate (the pending brief having got accidentally mixed up with the briefs of disposed of cases) as sufficient cause]. It only remains to be added that in the last-mentioned case - a Bench decision - one of us was a party. None of these cases militate against the conclusion we have come to. ( 26 ) IN the result, we make the Rule absolute, condone the delay and allow the petitioner to add opposite parties 11 and 12 as respondents to the appeal. ( 27 ) OPPOSITE parties 1, 2 and 11 will get their costs from the petitioner. We assess the hearing fee (two sets) at 5 gold mohurs - one set for opposite parties 1 and 2 and another for opposite party No. 11. Appeal allowed.