GULAL v. ASSISTANT CUSTODIAN (RURAL), NEW DELHI — 1966 DIGILAW 71 (DEL)

Dur ( 1 ) THIS is a Regular Second Appeal from the order of the learned Additional District Judge dated 17th December, 1865 holding the appeal to be barrel by time after declining to condone the delay and rejecting the application for that purpose. ( 2 ) THE suit out of which the appeal arises was dismissed by the Court of first instance on 5th March, 1964. From the record of the lower Appellate Court, it appears that the memorandum of appeal was typed out for the purpose of presenting the appeal in the Court of the District Judge at Delhi. The typed word "district", however, was scored out by pen and ink and the words "senior Sub" inserted in lieu thereof. The appeal was indisputably presented in the Court of the Senior Sub3rdinate Judge on 28th April, 1964. The period of limitation for the appeal was, however, to extend up to 3rd May, 1934. The appeal kept pending in the Court of the learned Senior Subordinate Judge till 2nd March, 1965 when that Court made the following order :- "present : Counsel for the appellant. ORDER This is a land suit involving a value of Rs. 300. 00 for purposes of jurisdiction. This is clearly stated in the memorandum of appeal. This Court has jurisdiction to hear appeals in land suits up to a maximum value of Rs. 250. 00 only. The memorandum of appeal will, therefore, be returned to the appellant for presentation to the proper Court. " On that day, it is obvious that only counsel for the appellant was present and there was no representation on bahalf of the respondents. The same dav the appeal was represented in the Court of the learned District Judge An application was also made in the Court of the District Judge praying for condonation of delay. It was urged that the memo. of appeal had been typed out for filing the same in the Court of the learned District Judge, Delhi, but on presenting the same with the Clerk of the Court of the District Judge, the clerk of the appellant s counsel was in formed that there had been amendment in the jurisdictional value of appeals in the Court of the District Judge and that the present appeal was entertainable by the learned Senior Subordinate Judge, its jurisdictional value being Rs. 300. 300. 00 The appeal was in consequence presented in the Court of the Senior Subordinate Judge who entertained it. In the affidavit of the clerk of the counsel for the appellant supporting this application, reference to amendment in the Jurisdictional value was not included, but it was clearly stated that the Clerk of Court of the District Judge s Court had suggested that the suit being an unclassed suit, the value of which was below to Rs. 500. 00 the appeal lay with the Senior Subordinate Judge. ( 3 ) THE learned Additional District Judge has in his order been influenced by the fact that the appellant s counsel had been appearing in the Court of the Senior Subordinate Judge ever since the presentation of the Appeal in that Court, though it is not understood how this factor could make any difference in determining the question of the condonation of delay. The learned Additional District Judge has, however, not been impressed by an affidavit sworn by the clerk of the counsel for the appellant because, according to him, such an affidavit constitutes no proof of the fact that the Clerk of Court of the District Judge s Court had refused to entertain the appeal. The learned Judge of the Court of first Appeal has proceeded to observe that even if it be assumed as correct that the Clerk of Court of the District Judge s Court had declined to entertain the appeal, the Counsel for the appellant should have insisted on presenting the appeal in that very Court and to fail to do so amounted to negligence and, therefore to want of good faith. Reliance by the Court below was placed on a Bench decision of this Court in Sarmukh Singh v. Chanan Singh in which it is observed, inter alia, that the litigant seeking relief under section 5, Limitation Act. on the ground of mistaken advice of the counsel in filing an appeal in wrong Court must place material before the Court from which it is possible to deduce that the counsel acted in "good faith", in other words, "with due care and attention". A mistake due to negligence or misconduct or want of reasonable skill can by no stretch be considered to fall within the definition of good faith" as contained in section 2 (7), Limitation Act. A mistake due to negligence or misconduct or want of reasonable skill can by no stretch be considered to fall within the definition of good faith" as contained in section 2 (7), Limitation Act. Ignorance of the elementary provisions of section 39 of the Punjab Courts Act was considered in the reported case to be inexcusable in a legal practitioner and such ignorance could not constitute a sufficient cause within the purview of section 5, Limitation Act. Of course, it was also decided in the reported case that the principle underlying section 14 can legitimately be taken into account while considering the question of "sufficient cause" under section 5 for not preferring the appeal within the prescribed period of limitation. The appeal in the case In hand, as observed earlier was dismissed as barred by time. ( 4 ) ON second appeal, after narrating the facts, the learned counsel for the appellant has submitted that the circumstances of the memorandum of appeal having been typed out far the purpose of presenting it in the Court of the learned District Judge quite clearly supports the suggestion made in the affidavit of the clerk of the counsel for the appellant in the Court of first Appeal that something must have transpired which induced the appellant or his counsel to change the form of the memorandum of appeal and to present the same in the Court of the leaned Senior Subordinate Judge. I think the contention has merit and the learned Additional District Judge did not seem to have adverted to this aspect and given the importance this circumstance deserved. It is suggested on behalf of the respondents that there is normally a box outside the Court of the learned District Judge in which petitions and appeals are put and that there was hardly any occasion for the clerk of counsel to go to the-Clerk of Court of the District Judge s Court for presenting the appeal. Whether or not there is in fact a box placed outside the Court of the learned District Judge and whether or not all appeals and petitions must necessarily be put into the box and no appeal can be presented personally to the Clerk of Court, is a matter on which, on the existing record, I am unable to express any considered opinion. I, however, find that paragraph No. 5 inchapter 14-B (B), High Court Rules and Orders, Vol. I, lays down the following instructions : - "in District Courts/the usual practice is for the Clerk of the Court or Superintendent to receive in the first instance the memorandum of appeal. There is no objection to this practice which is a convenient one fir both the Court and suitors. It must, however, be distinctly remembered that the only duty which can legally be delegated to the clerk of the Court or Superintendent is to receive the memorandum of appeal and note thereon the date of its receipt. The order as to its admission or rejection can be passed only by the Court itself. "this rule does seem to suggest that there is in vogue practice in some District Courts of the appeals being received by the Clerk of the Court. Be that as it may, the fact remains that even otherwise when the appeal was presented in the Court of the learned Senior Subordinate Judge on 28th April. 1964, if the appeal did not lie in that Court, it was incumbent on the said Court to return the memorandum of appeal within reasonable time after 28th April, 19s4 The note at the margin of the memorandum of appeal suggests that the opening sheet had not been attached, with the reslitthat no report could be made, there being no statement about the value for jurisdiction and court-fee. Apparently, the opening sheet was presented some time later because I find that on the opening sheet there is a note dated 7th May, 1964 to the effect that court-fee was correct. On 30th April 1964, the next date of hearing was fixed for 6th May 1964. It appears thatno one appeared on that day for the appellant. On 6th May, 1964, report was called for 11th May, 1964. On that day, the appeal was directed to be registered and the next date was fixed for 10th June, 1964. On 10th June, 1964, record it the Court below had not arrived and the case was adlourned to 4th. August. 1964 when again, the case was adjourned to 18th August, 1984. On that day, the appeal was directed to be registered and the next date was fixed for 10th June, 1964. On 10th June, 1964, record it the Court below had not arrived and the case was adlourned to 4th. August. 1964 when again, the case was adjourned to 18th August, 1984. Thereafter, all that I find is that on 2nd March, 1965, the learned Senior Subordinate Judge ordered that the memorandum of appeal be returned to the appellant for presenting to the proper Cour t. From the resume of the progress of the appeal in the Court of the learned Senior Subordinate Judge, it appears to me that had that Court devoted sufficient attention to this appeal when it was presented therein and applied its mind to the question whether or not the appeal lay in that Court, the present trouble would not have arisen. I do not propose to lay down that either refusal by the Clerk of Court of the learned District Judge s Court to entertain the appeal or reception of the appeal by the Court of "the learned Senior Subordinate Judge by itself completely absolved the learned counsel for the appellant in the Court below from his obligation as a legal practitioner to look up the law and to present the appeal in the proper Court. Some laps on the part of the learned Advocate is certainly there. The question, however, is. Do the facts and circumstances of this case make out a sufficient cause for condoning the delay in presenting the appeal in the Court of the learned District Judge ? The rule of law applicable to the exercise of discretion under sections 5 and 14, Limitation Act, is well-settled. The difficulty which the Courts normally face is in applying the settled rule to given facts. The matter is undoubtedly one of discretion conferred by the aforesaid sections read together, but the discretion being iudicial, the Court is expected in its exercise to discern between shadow and substance, between equity and colourable glasses and pretences, and act according to reason and justice. The possessor of discretion must put his mind in the case and really use Judgment in coming to a decision keeping in view the true dictates of justice. The possessor of discretion must put his mind in the case and really use Judgment in coming to a decision keeping in view the true dictates of justice. No precedent can possibly serve as an absolute guids for all future cases because it is extremely rare that facts in two cases are exactly similar. As commom experience shows, it is impossible in all cases of precedent or alleged precedent to go by analogy of facts because few cases arise in ordinary life, or in law Courts, in which such analogy is complete and unlesis it is complete, it is likely to lead to dangerous or at least unsatisfactory conclusions Cases are valuable in so far as they contain principles of law ; they may also be of use to show the way in which Judges regard facts, in which case they are only used as illustrations. What one wants is to weigh probabilities, if there be proof of facts sufficient to enable one to have some foot-hold or ground for comparing and balancing probabilities at their respective value, the one against the other: Otherwise each decision is applicable to the particular facts proved or assumed to be proved. A Judge, it may not be forgotten, has to review every precedent cited, not necessarily as a precise formulation of a genera] rule of law like an Article of a statutory Code but as a concrete application of or as an argument in favour of some rule or supposed rule of law and has to decide whether the case cited is truly apposite to the circumstances in question. The broad propisition enunciated in the cases cited, in my view, provides only a direction for thinkng and the means by which the specific question can be answered on the peculiar facts and circumstances of a given case. Adverting to the facts of the case in hand, however, I do not entertain any serious doubt about the clerk of the appellant s counsel having gone to the office of the Court of the District Judge and having been suggested that the appeal in the present case lay in the Court of the Senior Subordinate Judge. Adverting to the facts of the case in hand, however, I do not entertain any serious doubt about the clerk of the appellant s counsel having gone to the office of the Court of the District Judge and having been suggested that the appeal in the present case lay in the Court of the Senior Subordinate Judge. The question whether the case in hand was of the nature of an unclassed suit or of a land suit may well have posed a problem which could not prima facie suggest a clear-cut solution one way or the other. Keeping in view the normal or usual manner in which things are done in the Courts in this part of the country. I am clearly disinclined to penalise the poor ignorant litigant for what the clerk of his counsel did in the present case. When the appeal was presented to the Court of the learned Senior Subordinate Judge, it was, in my opinion, clearly incumbent on that Court to advert to the question of competency of the appeal with somewhat greater care then was apparently devoted to the case. Courts and their staff entrusted with the duty of receiving the memorandum of appeals are expected to put their mind into the cases they have to deal with in the discharge of their official functions. On the peculiar facts and circumstances of the present case, the circumstances that the Court of the Senior Subordinate Judge entertained the appeal without objection and the fact that the appeal remained pending in that Court till 2nd March, 1965, are of considerable significance. They at least do seem to suggest that the error committed by the appellant s counsel was also attributable to the officer receiving and registering the appeal in the Court of the learned Senior Subordinate Judge. Remembering the rule that the act of the Court and of its Officers is ordinarily not to injure the suitors, in my opinion, the present is a fit case in which the cause of justice demands that the time should have been extended under sections 5 and 14, Limitation Act. The Court below has apparently failed to evaluate all the relevant circumstances bearing on the question it had to determine and has adopted a somewhat arbitrary, if not a superficial approach. A rigid doctrinaire attitude in such a case is apt to mislead. The Court below has apparently failed to evaluate all the relevant circumstances bearing on the question it had to determine and has adopted a somewhat arbitrary, if not a superficial approach. A rigid doctrinaire attitude in such a case is apt to mislead. Before concluding, I may strike a note of warning reminding the members of the Bar that time has arrived when this Court will have to adopt a somewhat more strict attitude in expecting a greater sense of responsibility and a better standard of care, efficiency and industry from the practising lawyers in dealing with the Court cases of their clients. They are, from one point of view, in a fiduciary capacity and the care which such capacity enjoins must be taken by them in a system founded on Rule of Law, the lawyer and his clerk both play an exremely important role and any undue lowering of standard of efficiency on their part is calculated, to an extent, in the final analysis, to impair the confidence of the seekers of Justice in our judicial process. The professional Bar, which is an indispensible part of our judicial process, owes a duty to our democratic set-up and to the people to take suitable steps to improve the general standard of its efficiency, plugging the holes as soon as they are discovered : in my view, the efficiency of the professional Bar also, in a large measure, reacts on the efficiency of the Bench, on both of which in turn depends the efficiency of the administration of Justice. For the foregoing reasons, I allow the appeal and setting aside the impugned order remit the case back to the Court of the learned Additional District Judge for fresh decision of the appeal in that Court on the merits in accordance with law and in the light of the observations made above. There would be no order as to costs. The parties are directed to appear in the Court below on 6th June, 1966 when another date would be given for further proceedings in accordance with law in the light of this order.