Research › Browse › Judgment

Sikkim High Court · body

1979 DIGILAW 1 (SIK)

Durga Prasad v. Palden Lama

1979-03-12

A.M.BHATTACHARJEE, MAN MOHAN SINGH GUJRAL

body1979
Judgement BHATTACHARJEE, J.:- The first appeal, giving rise to this second appeal, has been dismissed by the learned District Judge as time-barred. The appellants filed along with the memorandum of appeal an application for condonation of the delay. The learned District Judge has, however, held that under the law relating to limitation in force in Sikkim, the Courts have no power to condone the delay and that, even otherwise on merits, there were no sufficient grounds for such condonation. The learned Judge has accordingly dismissed the first appeal and hence the second appeal by the appellant who was one of the two appellants before the learned District Judge. 2. During the course of the argument before us it has been urged by Mr. Agarwala, the learned Advocate for the plaintiff-respondent, that this second appeal is also time-barred having been filed beyond the period prescribed. Mr. Agarwala has contended that the first appellate judgment was delivered on 29-8-1977 and the copy thereof was applied for on 8-9-1977 and was obtained on the same date. The period prescribed for appeal under the relevant Sikkim Law is 60 days and this appeal, therefore, was to be filed within 29-10-1977, excluding the day on which the copy was applied for and received. On that date, however, the High Court remained closed for the Puja Vacation and reopened on 14-11-1977. Mr. Agarwala, therefore, has contended that the period of limitation having expired during the vacation, the appeal ought to have been filed on 14-11-1977 when the Court reopened and the appeal having been filed on 16-11-1977 must be regarded to have been filed beyond time. Faced with this situation Mr. Sarkar, the learned Advocate-General appearing for the appellant, filed an application on behalf of the appellant, supported by an affidavit and prayed for condonation of this delay for two days on the ground that such was caused by some bona fide but mistaken direction and advice given by the lawyer Mr.S.L. Subba, now deceased, who was entrusted with this appeal. The hearing of the appeal was accordingly adjourned to another date for further hearing on this application for condonation of delay. 3. The first submission of Mr. The hearing of the appeal was accordingly adjourned to another date for further hearing on this application for condonation of delay. 3. The first submission of Mr. Agarwala against this application for condonation of delay is that under the law relating to limitation in force in Sikkim, there is no power in Courts to condone any delay made in initiating any action for which a period has been prescribed. The relevant notification, being No. 3112-80/AC, dated 6-5-1950, prescribing period of limitation for appeals etc. runs as hereunder :- "It is hereby notified for general information that Notification No. 21492349/AC, dated 18-1-1950 is cancelled and that the time of filing appeals, reviews and second reviews will be two months from the date of the delivery of the judgment as provided in Notification No. 3789/G, dated 1-2-1946." 4. Relying on this Notification Mr. Agarwala has contended that while this notification prescribes the period of limitation, there is no provision in this notification or in any other Sikkim Law, like S.5 of the Indian Limitation Act of 1963, empowering the Court to admit any appeal or application after the prescribed period and thus to condone the delay and that in the absence of such statutory provisions as contained in S.5 of the Indian Limitation Act, the Courts in Sikkim cannot have any power to extend the period of limitation and/or to condone the delay. Mr. Agarwala has relied on a decision of the Travancore Cochin High Court and also on a decision of the Calcutta High Court, both noted and considered by the learned District Judge, to fortify his submission that the Court has no inherent power to condone the delay and admit actions initiated after the prescribed period of limitation and has no power to extend or exclude any period apart from the express provisions of the Limitation Act. 5. I am quite sure that the contention of Mr. Agarwala, though very sound under the relevant provisions of the Indian Limitation Act, must be rejected under the laws of Sikkim, as they stand now. 5. I am quite sure that the contention of Mr. Agarwala, though very sound under the relevant provisions of the Indian Limitation Act, must be rejected under the laws of Sikkim, as they stand now. We have held in several earlier cases that in the absence of statutory provisions regulating the matter, the Courts in Sikkim must be held to have inherent power to extend the period of limitation prescribed by the Sikkim Law, if such extension is necessary for the ends of justice and is justified in the circumstances of the case and, as at present advised, I find no reason to depart from our earlier view. The approach of the Sikkim Law of limitation is palpably and materially different from the Indian Limitation Act. The Indian Limitation Act not only prescribes the periods of limitation for different actions but conveys in Sec.3 thereof a clear mandate to dismiss an action initiated after the expiry of the prescribed period, subject to the other provisions of the Act. But any mandate to the Courts to dismiss any action initiated after the periods so prescribed. (sic) Under the Indian Act, therefore, the extension of any period apart from the provisions of the Act would amount to acting directly against the legislative mandate to dismiss an action initiated after such period and would amount to doing something forbidden by law and would thus be overriding the law. There can be no doubt that inherent powers of the Courts cannot be exercised to do something which is expressly forbidden by the statute and, therefore, under the Indian Act, there cannot be any scope for the Court to extend the period of limitation in exercise of its inherent powers. 6. Further, the Indian Act, in S.4 to 23, makes detailed provisions for extension of periods of limitation and for exclusion of periods in computing limitation. As held by the Supreme Court in Ram Chand and Sons Sugar Mills v. Kanhayalal Bhargava, (AIR 1966 SC 1899 at Pp. 1901-2), if there are specific statutory provisions dealing with the particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. Therefore, the Indian Act having expressly. 1901-2), if there are specific statutory provisions dealing with the particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. Therefore, the Indian Act having expressly. dealt with the topic relating to extension and exclusion of time in several provisions, it can reasonably be held that the Courts under the Indian Act do not have any inherent power in respect of matters relating to extension or exclusion of time for the purpose of limitation. The Sikkim Law, however, as already noted, merely prescribes the periods of limitation and does not make any provision whatsoever for extension or exclusion of time in computing such period. It cannot, therefore, be urged that the Courts in Sikkim cannot exercise their inherent powers for the ends of justice in respect of the matters relating to extension or exclusion of time for the purpose of limitation. If there were in the Sikkim Law specific provisions, as in the Indian Act, for extension or exclusion of time, it could have been urged that there was no inherent power in the Courts to deal with such matters and that such matters were to be governed solely by those specific provisions of the law. But since there is no statutory provisions in the Sikkim Law in respect of extension or exclusion of time for the purpose of limitation, "the inherent power of the Court (to use the expression used in S.151, Civil P. C.) to make such orders as may be necessary for the ends of justice" remains unaffected, unfettered and unlimited and such powers, in the absence of statutory provisions governing the matter, would include the power to extend time and to condone the delay in fit cases. 7. Dealing with a similar question " under the law relating to Court-fees in Sikkim, we have very recently held in Kalawati Adhikary v. Rupnarayan Bahun, ((1978) 3 Sikkim LJ 15 at p. 17) as hereunder :- "If the Sikkim Law made specific provisions for refund of Court-fees in certain cases, then it could have been urged on the authority of the Supreme Court decision in Omprakash Gupta's case, (AIR 1955 SC 600) that the Courts do not have any inherent power to order refund of Court-fees in other cases not covered by those specific provisions. But, as already noted, the Sikkim Law does not make any provision for refund of Court-fees in any case and that being so, there is no scope for applying the principle contained in the maxims 'expressio facit cessare tacitum' or 'expressio unius personae est exclusio alterius' or 'for applying the ratio of the Supreme Court decision in Omprakash Gupta's case that the relevant law having expressly provided far refund of Court-fee in certain cases refund of Court-fees in other cases is impliedly barred...........Under the provisions of Laws in Sikkim, the Courts have inherent power to order refund of Court-fees in appropriate case........." 8. Applying the ratio of our earlier decision, I would, therefore, hold that the Sikkim Law relating to limitation, not having expressly provided for extension of the period of limitation in any case, the Courts have inherent power to extend the period of limitation and admit any action after the expiry of the period of limitation after condoning the delay. Even Mr. Agarwala, the learned Advocate for the respondent, while opposing the prayer for extension of time and condonation of delay, submitted that the appellant was entitled to exclude one day that was necessary for obtaining the copy of the judgment and that as the period of limitation after such exclusion was expiring during the period when this Court was closed for Puja Vacation the appellant was entitled to file an appeal on the date when the Court reopened. This is no doubt the position under the Indian Act, S.4 whereof provides that when the period prescribed expires when the Court is closed, the action may properly be initiated on the day when the Court reopens and S.12 whereof provides that in computing the period of limitation for an appeal, the time requisite for obtaining a copy of the judgment shall be excluded. But, as already noted, in the Sikkim Law there is no provision analogous to the provisions of S.4 or S.12 of the Indian Act and, therefore, the Court in Sikkim cannot admit on the date when the Court reopens any action, the period of limitation whereof has expired when the Court was closed or exclude the time requisite for obtaining the copy of the judgment, unless the Court purports to do so in the exercise of its inherent power. In my view, when the Court is closed, when the period of limitation for any action expires the Court in Sikkim in admitting such action on the date it reopens really extends the period of limitation in the exercise of its inherent power because of the principle contained in the legal maxims 'lex non cogit ad impossibilia' and 'actus curiae neminem gravabit'. Similarly, in my view, when a Sikkim Court admits an appeal or other proceeding after excluding the time requisite for obtaining a copy of the impugned judgment, it does so in the exercise of its inherent power for the ends of justice as it will be against all principles of Justice to require a copy of the impugned judgment to be filed along with the proceeding and yet not to exclude the time requisite for obtaining the copy of the judgment. This aspect need not detain me any further as I am of the opinion that the position in law is too obvious to" require any further discussion and the position is that the Sikkim Law relating to limitation not having expressly provided for extension or exclusion of time, the Courts have inherent power to extend or exclude time for the ends of justice in appropriate cases. 9. Let me, therefore, consider whether this is an appropriate case where we should exercise our inherent power to extend the period of limitation and condone the delay of two days in filing this second appeal. The case put forward by the appellant in his application and affidavit for condonation of delay is that in October, 1977 the appellant entrusted Mr. G.L. Subba. Advocate, now deceased, with filing of this appeal and the said Advocate asked the appellant to contact him again in the middle of November as the High Court was then closed for the Puja Vacation. The appellant was not told about the actual date when the High Court would reopen and he accordingly left Pelling for Gyalsing on 13-11-1977 to catch the bus for Gangtok. On reaching Gyalsing the appellant found that the only bus for Gangtok already left at 6 A.M. in the morning and as such he had no other alternative but to leave Gyalsing for Gangtok by the morning bus on the next date, that is, on 14-11-1977, and reached Gangtok at about 7 P.M. in the evening. The appellant could meet late Mr. The appellant could meet late Mr. G.L. Subba on the next day, being 15-11-1977 and the latter directed him to deposit the necessary amounts of Court-fees in the Bank. Due to heavy rush in the Bank the appellant could not deposit the amount before 2 P.M. and thereafter he met his Advocate late Mr. Subba who asked him to meet him at his chamber in the evening. The appellant again met the lawyer in the evening who then prepared the appeal and instructed the appellant to file it on the next date being 16-11-1977 and also told him that the High Court was reopening on the said date. The appellant then filed the appeal on 16-11-1977. 10. The respondent has not filed any written objection and has not traversed any of these allegations and Mr. Agarwala appearing for the respondent has only urged that these allegations, even assuming them to be true, would not justify any extension of the period and condonation of delay. Let me, therefore, consider that if the appellant, who admittedly resided at a distant village, duly entrusted a lawyer at Gangtok with the filing of the appeal in October, 1977 and the said lawyer directed him to contact him in the middle of November next and the appellant contacted him on 15-11-1977 and filed the appeal on 16-11-1977 on being told by the lawyer that the High Court would reopen on 14-11-1977 there was two days' delay in filing the appeal, whether there is sufficient cause for condoning the delay. 11. Though it cannot always be put into a straight-jacket of a general doctrine of universal application, it has been repeatedly held by the Courts that mistake or mistaken advice of a lawyer may be a good ground for condoning the delay resulting from such mistake or mistaken advice. Relying on the Privy Council decision in Kunwar Rajendra Bahadur Singh v. Rai Rajeswar Bali, (AIR 1937 PC 276), it has been held by the Supreme Court in State of West Bengal v. Howrah Municipality, (AIR 1972 SC 749 at p. 757) that "if a party had acted in a particular manner on a wrong advice given by his legal adviser he cannot be guilty of negligence so as to disentitle the party to plead sufficient cause under S.5 of the Limitation Act". Relying on these observations and the aforesaid Privy Council decision, it has again been held by the Supreme Court in Punjab University v. A.S. Ganesh (AIR 1972 SC 1973 at pp. 1974-75) that "a mistake by a lawyer is good ground for condoning the dealy in filing the appeal". 12. Mr. Agarwala, appearing for the respondent, has mainly relied on the decision of my Lord the Chief Justice, while in the Punjab High Court on Brij Bhushan v. Madan Mohan Lal (AIR 1973 Punjab 269) to support his contention that the delay in this case cannot be condoned. In that Punjab case, an appeal, which according to the valuation of the suit, ought to have been filed directly in the High Court was, however, filed in the District Court due to the wrong advice of the lawyer concerned. After the District Court dismissed the appeal for want of jurisdiction, the party filed the appeal in the High Court and contended that the time spent in prosecuting the appeal before the District Court was to be excluded under Sec.14 of the Limitation Act as the said appeal was filed and prosecuted bona fide under legal advice. My Lord in that case was pleased to point out that there was only a broad and general averment about acting under legal advice without any particulars about the advice or any affidavit of the legal adviser. My Lord, however, further held that "the Counsel who filed the appeal was expected to know that the forum of appeal would be determined by the value of the original suit for the purpose of jurisdiction and ignorance of this elementary matter cannot be considered to fall within the definition of good faith". It should, however, be noted that in that case my Lord was not considering the question of extension of time under S.5 of the Limitation Act but was considering the question of exclusion of time under S.14 of the Act, whereunder time spent in an earlier proceeding is to be excluded under circumstances mentioned in the section, provided the earlier proceeding was prosecuted with 'due diligence' and in 'good faith' and that under the express provisions of Sec.2 of the Act, "nothing shall be deemed to be done in good faith which is not done with due care and attention". It was in that context observed by my Lord that "failure on the part of a legal practitioner to ascertain the value of the original suit for purposes of jurisdiction and to see where the appeal would lie on that basis would be a mistake due to negligence or want of reasonable skill and in such a case it cannot be deduced that the counsel acted in good faith". (Emphasis supplied). It should be noted that this rather strict definition of "good faith", excluding all degrees of negligence, on which the aforesaid decision was based, does not apply in Sikkim. The General Clauses Act, 1897, which has been extended to Sikkim, provides in Sec.3(22) that "a thing shall be deemed to be done in good faith where it is in fact done honestly, whether it is done negligently or not". In Ramlal v. Rewa Coalfield Ltd. (AIR 1962 SC 361) the Supreme Court has pointed out (at p. 365) that the scope of S.14 and of S.5 of the Limitation Act are different and that consideration of good faith and due diligence "which has been expressly made material and relevant by the provisions of S.14 cannot to the same extent and in the same manner be invoked in dealing with application which falls to be decided only under S.5 without reference to S.14." I am, therefore, of the view that the aforesaid decision of my Lord in Brij Bhushan's case (AIR 1973 Punjab 269) being a decision based on the provisions of S.14 read with the definition of 'good faith' in S.2(h) of the Limitation Act, will not apply to the case at hand and that we should in this case govern ourselves by the abovenoted decisions of the Supreme Court in State of West Bengal v. Howrah Municipality (AIR 1972 SC 749) and in Punjabi University v. A.S. Ganesh (AIR 1972 SC 1973) laying down that "if a party had acted in a particular manner on a wrong advice given by his legal adviser he could not be guilty of negligence so as to disentitle the party to plead sufficient cause under S.5 of the Limitation Act" and "that a mistake by a lawyer is good ground for condoning the delay". In this case the legal adviser Mr. Subba being admittedly dead, we cannot expect any statement or affidavit from him. In this case the legal adviser Mr. Subba being admittedly dead, we cannot expect any statement or affidavit from him. But the averments made by the appellant that he engaged Mr. Subba for filing this appeal and that he filed the appeal on 16-11-1977 on being instructed by Mr. Subba that the High Court would reopen on that date, have not been controverted by the respondent in any way. In the circumstances, I would hold that the appellant can successfully plead sufficient cause for not preferring the appeal within the period prescribed and would condone the delay of two days in filing the appeal in the exercise of our inherent powers. 13. Before parting with this point, I would like to refer to a recent decision of the Supreme Court in Balbir Singh v. Bogh Singh (AIR 1974 SC 650) where an appeal from a suit valued at Rupees 21,000/- was filed in the District Court though it ought to have been filed directly in the High Court because of the value of the original suit. The Supreme Court held that "the appellant and his legal adviser somehow prosecuted the first appeal before the Additional District Judge bona fide and on some kind of mistaken beliefs for which the appellant should not suffer" and condoned the delay in filing the appeal before the High Court under Section 5 of the Limitation Act. 14. This brings me to the question as to whether the first, appeal before the learned District Judge was barred by limitation and whether the learned District Judge was right in rejecting the prayer for the condonation of delay. It is not disputed that if the period of limitation is to be counted from the date of the delivery of the judgment, the first appeal was palpably barred by time. The learned Advocate-General has, however, contended that as the judgment of the trial Court was not pronounced immediately after the case was heard by the trial Judge, the judgment could be pronounced on a future day only after giving due notice to the parties under the provisions of O.XX, Rule 1, and as the records of the trial Court show that no such notice was served on one of the defendants, being the defendant No.1, the time for appeal shall commence to run against him only from the date of his knowledge of the decree. It appears from the records of the trial Court that on 28-7-1976 the trial Court fixed 28-8-1976 as the date for judgment, in the absence of the defendants and without giving any notice to them. On 28-8-1976, the date was again adjourned to 17-9-1976 and that also in the absence of and without any notice to the defendants. On 17-9-1976, both the parties were absent and the date was adjourned to 27-9-1976 without, however, giving any notice to the parties. On that date, however, the plaintiff and the defendant No.2 were present, but the defendant No.1 was absent and the date was again adjourned to 6-11-1976 with a direction to issue notice to the defendant No.1. From the records, however, it does not appear that any such notice was either issued or served on the defendant No.1. On the said date, both the defendants were absent and the case was again adjourned for judgment to 7-12-1976 and the judgment was ultimately delivered on that date in the absence of the defendants. It, therefore, appears that the defendant No.1 was not informed about the date of judgment in any way though under the provisions of O.XX, Rule 1, the judgment not having been pronounced immediately after the hearing, the defendants were entitled to due notice about the date of judgment. The learned Advocate-General has contended that in the circumstances, so far as the defendant No.1 is concerned, the period prescribed for appeal is to be counted from the date when the defendant No.1 came to know about the judgment and has relied on the decisions of the Allahabad High Court in Mata Prasad v. Dewakar Bharti, (AIR 1964 All 228) and of the Lahore High Court in Mahomed Zaman v. Hans Raj Shah (AIR 1938 Lahore 707). In the Allahabad case it has been held, construing the provisions of Order XX, Rule 1, that if the judgment is not delivered immediately after the hearing and if no notice is sent to a party conveying the information about the date of the judgment, the limitation for filing appeal shall commence to run from the date of the knowledge of the passing of the judgment. In the Lahore case, it was held, relying on an earlier Division Bench decision of the Allahabad High Court that if a judgment was not pronounced immediately after the hearing but was pronounced on a later date without intimating such date to the parties, the date on which the judgment was communicated to the parties or their lawyers was to be regarded as the date of judgment. I would like to point out that even in a case where there are no statutory provisions analogous to O.XX, Rule 1, it has been held by the Supreme Court that the knowledge of the party affected by the decision, either actual or constructive, is an essential requirement of fair play and natural justice and the decision should be taken to have been effectively pronounced only from the date of such knowledge. In Harishchandra v. Deputy Land Acquisition Officer (AIR 1961 SC 1500) the Supreme Court was construing the proviso to Section 18 of the Land Acquisition Act, 1894, whereunder applications for reference to Court under Section 18 are to be made within certain periods "from the date of the Collector's award" and observed (at 1503-4) as hereunder :- "it is clear that the said decision ultimately affects the rights of the owner of the property and in that sense, like all decisions which affect persons, it is essentially fair and just that the said decision should be communicated to the said party. The knowledge of the party affected by such a decision, either actual or constructive, is an essential element which must be satisfied before the decision can be brought into force. Thus considered the making of the award cannot consist merely in the physical Act of writing the award or signing it or even filing it in the office of the Collector; it must involve the communication of the said award to the party concerned either actually or constructively. If the award is pronounced in the presence of the party whose rights are affected by it, it can be said to be made when pronounced. If the date for pronouncement of the award is communicated to the party and it is accordingly pronounced on the date previously announced, the award is said to be communicated to the said party even if the said party is not actually present on the date of its pronouncement. If the date for pronouncement of the award is communicated to the party and it is accordingly pronounced on the date previously announced, the award is said to be communicated to the said party even if the said party is not actually present on the date of its pronouncement. Similarly if without notice of the date of its pronouncement an award is pronounced and a party is not present the award can be said to be made when it is communicated to the party later. The knowledge of the party affected by the award, either actual or constructive, being an essential requirement of fair play and natural justice the expression 'the date of the award' used in the proviso must mean the date when the award is either communicated to the party or is known by him either actually or constructively. In our opinion, therefore, it would be unreasonable to construe the words 'from the date of the Collector's award' used in the proviso to S.18 in a literal or mechanical way". 15. In State of Punjab v. Qaisar Jehan Begam (AIR 1963 SC 1604) the Supreme Court again considered the said provisions and relying on Raja Harishchandra's case observed (at p. 1606) as hereunder.- "a literal and mechanical construction of the words 'six months from the date of the Collector's award' occurring in the second part of clause (b) of the proviso would not be appropriate and the knowledge of the party affected by the award, either actual or constructive, being an essential requirement of fair play and natural justice, the expression '...............used in the proviso must mean the date when the award is either communicated to the party or is known by him either actually or constructively'. Admittedly the award was never communicated to the respondents. Therefore, the question before us boils down to this. When did the respondents know the award either actually or constructively?" 16. Applying these principles to the case at hand, I would hold that if due notice of the date of delivery of the judgment was given to the defendant No. 1 and the judgment was delivered on that date, the defendant No. 1 would have been deemed to have known about the judgment, at least constructively, even if he was not present in the Court. But, as already noted, no notice of the date of judgment was at all given to the defendant No. 1 and as such under the provisions of Order XX, Rule 1, as explained in the Allahabad and the Lahore decisions noted above and also under the general principles of law as enunciated by the Supreme Court in the decisions noted above, the defendant No. 1 would be deemed to have known about the judgment on the date on which he actually came to know about it and the period of limitation, so far as the defendant No. 1 is concerned, would commence to run from that date. 17. In their application for condonation of delay filed before the learned District Judge, the appellants stated that they came to know about the judgment only on 21-4-1977, when they appeared before the District Officer at Gyalsing on receipt of summous relating to execution of the judgment. This averment has not been controverted by the respondent in any way and that being so there is nothing on record to disbelieve their uncontroverted assertion. As I have already pointed out, when no notice was given to the defendant No. 1 about the date of judgment, time for filing appeal against the judgment shall, so far as the defendant No. 1 is concerned, commence to run from the date when he came to know about the judgment. There is no doubt that if the period for appeal is, as it should be calculated from the date of such knowledge, then the first appeal before the learned District Judge was perfectly within time. 18. Mr. Agarwala has, however, urged that even if the defendant No. 1 was entitled to an extended period of limitation for not being served with a notice of the judgment, the defendant No. 2, who was also a co-appellant in the first appeal, and who was present in Court on 27-9-76 when the next date for delivery of judgment was fixed is not entitled to any such extension and, therefore, the first appeal was to be dismissed so far it relates to the said defendant No. 2 as barred by time. But the decree in this case was a joint and indivisible one and if one of the appellants-defendants was entitled to file and maintain the appeal, it would obviously enure for the benefit of the other defendant, whether he has joined or has been joined as a co-appellant or a co-respondent. 19. The present second appeal has, however, been filed by the defendant No. 2 only as the sole appellant without making the defendant No. 1 a party to the appeal in any way. In my view, it would have been proper to make the defendant No. 1 a party to this appeal whether as a co-appellant or as a co-respondent. But his non-joinder is not fatal as no relief has been prayed against him. Under the provisions of Rule 4 read with Rule 33 of Order XLI, which apply to second appeals also, there can be no doubt that one of the defendants can file an appeal without impleading the other defendants as respondents and if the appeal proceeds on a ground common to the defendants, the appellate Court may exercise the power to varying the decree under appeal in favour of the non-appealing defendants, though they have not been parties to the appeal. This power is only subject to this limitation that the appellate Court is authorised to vary or pass a decree in favour of a person, even though he is not impleaded as a party, but cannot vary or pass a decree against such party. The proposition is too well settled to require any citation; but yet reference may be made to the Full Bench decision of the Patna High Court in Parwati Kuer v. Manna Lal Khetan (AIR 1956 Patna 414 at p. 416) and also to the decision of the Supreme Court in Mahabir Prasad v. Jage Ram (AIR 1971 SC 742) where it has been observed (at p. 744) as hereunder :- "Power of the appellate Court under Order 41, Rule 4 to vary or modify the decree of a Subordinate Court arises when one of the persons out of many against whom a decree or an order had been made on a ground which was common to him and others has appealed. That power may be exercised when other persons who were parties to the proceeding before the subordinate Court and against whom a decree proceeded on a ground which was common to the appellant and to those other persons, are either not impleaded as parties to the appeal or are impleaded as respondents". 20. I would, therefore, allow this appeal, set aside the judgment of the learned District Judge dismissing the first appeal before him as time-barred and would send the first appeal back to the learned Judge for disposal according to law. The appellant before us shall be entitled to refund of the amount of Court-fees paid by him in this appeal and, save as aforesaid, I would make no order as to costs. 21GUJRAL, C. J. :- . I have had the advantage of reading the judgment of my learned brother Bhattacharjee, J., and fully agree with the findings and conclusions arrived at by him and the order proposed. There is no manner of doubt that the appeal has to be allowed. However, as Mr. Agarwala, the learned counsel for the respondent has built the entire edifice of his arguments on an earlier decision given by me in Brij Bhushan v. Madan Mohan Lal (AIR 1973 Punjab 269) I feel it necessary to re-examine the true scope and meaning of S.5 and 14 of the Indian Limitation Act and to restate the law at it emerges from the interplay of these provisions. 22. To appreciate the argument of Mr. Agarwala, it would be necessary to examine S.5 and 14 in depth. The relevant portion of these sections is, therefore, set down for facility of reference. S.5 Any appeal or any application, other than an application under any of the provisions, of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. S.14(1) - In computing the period of limitation for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding whether in a Court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates in the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. 23. A bare perusal of the above would clearly highlight that whereas Sec.5 deals with appeals, S.14 relates to suits and that the two provisions deal with different situations. Whereas S.5 affords an extension of time for sufficient cause, S.14 provides for exclusion of time during which the plaintiff had been prosecuting a former proceeding in another Court which, on account of defect of jurisdiction or other cause of a like nature, was unable to entertain it. Another distinction between the two provisions is that under S.5 the Court has the discretion to decline the relief even if sufficient cause has been made out but S.14 makes the exclusion of time obigatory if the requisite conditions are satisfied. It may further be noticed that under S.14 of the Limitation Act the question of exclusion of time only arises when earlier proceedings have been instituted in a wrong Court whereas under S.5 of the Act the question of sufficient cause may arise in a variety of circumstances and may embrace numerous situations including the institution of the appeal in a wrong Court. In other words, S.5 is broader in its sweep in the sense that a number of widely different reasons can be advanced and established to show that there was sufficient cause in not filing the appeal within time. It would be needless to attempt to enumerate all the circumstances and reasons which can be put forth for bringing the case within the ambit of S.5 and it may suffice to mention that the mistaken advice bona fide given by the Counsel has generally been considered a good reason. 24. It would be needless to attempt to enumerate all the circumstances and reasons which can be put forth for bringing the case within the ambit of S.5 and it may suffice to mention that the mistaken advice bona fide given by the Counsel has generally been considered a good reason. 24. Though S.14 applies in terms only to suits and applications, but it is well settled that its principle is applicable to appeals also where the institution of appeal in a wrong Court is the ground for the grant of extension of time and is projected as a sufficient cause for not preferring the appeal in the proper Court within the period of limitation. 25. It is nor necessary to trace the entire history of the case law on this point and it would suffice to mention a few authorities. In Kunwar Rajendra Bahadur Singh v. Rai Rajeshwar Bali (AIR 1937 PC 276) it was found that the Counsel was not negligent in valuing the appeal and that the facts disclosed sufficient cause within the meaning of S.5. It was held by the Privy Council that in applying S.5 to such a case, the principle of S.14 should be applied by analogy. Support for this view was derived from earlier decisions of the Privy Council reported in AIR 1971 PC 156 and AIR 1918 PC 35. The above principle has been consistently followed in the Courts in India. In Munshiram v. Raghubir Chand (AIR 1953 Him Pra 15) it was noticed as follows (at p. 16) :- "S.14 of the Limitation Act is not in terms applicable to appeals since it does not speak of an appeal, but exclusion of time of proceeding bona fide taken in Court without jurisdiction being claimed as the reason for condonation of delay, the principle of that Section must apply for finding out whether there was sufficient cause for the delay". In such cases where both S.5 and 14 are attracted considerations of bona fides are always material and relevant and circumstances have to be made out from which inference of good faith, as defined in S.2(7) of the Limitation Act, can be deduced. In such cases where both S.5 and 14 are attracted considerations of bona fides are always material and relevant and circumstances have to be made out from which inference of good faith, as defined in S.2(7) of the Limitation Act, can be deduced. From this it would, by necessary implication, follow that those cases, which fall to be decided only under S.5 without reference to S.14, would not attract the considerations, which are material and relevant under S.14 to the same extent and in the same manner as in those cases which fall both under S.5 and 14. The Supreme Court in Ramlal v. Rewa Coalfields Ltd. (AIR 1962 SC 361) considered this aspect in these words (at p. 365): "Considerations of bona tides or due diligence are always material and relevant when the Court is dealing with applications made under S.14 of the Limitation Act. In dealing with such applications the Court is called upon to consider the effect of the combined provisions of S.5 and 14. Therefore, considerations which have been expressly made material and relevant by the provisions of S.14 cannot to the same extent and in the same manner be invoked in dealing with applications which fall to be decided only under S.5 without reference to S.14." 26. Having examined the legal position the stage has now arrived for considering the facts of the present case in the light of what has been stated above. In this regard, it may be stated at the outset that the present one is not a case where principle of S.14 the Limitation Act is attracted. On the other hand, the application for condonation of delay is to be decided with reference to S.5 alone as the cause of the delay is not institution of the appeal in a wrong Court but institution in the proper Court though beyond the period of limitation because of the wrong advice given by the Counsel. The principle underlying S.14(1) of the Limitation Act would not, therefore, be applicable. 27. In Brij Bhushan v. Madan Mohan Lal's case (AIR 1973 Punjab 269) the appellant had initially filed the appeal in the Court of the District Judge with the result that when it was instituted in the High Court the period of limitation had expired. The principle underlying S.14(1) of the Limitation Act would not, therefore, be applicable. 27. In Brij Bhushan v. Madan Mohan Lal's case (AIR 1973 Punjab 269) the appellant had initially filed the appeal in the Court of the District Judge with the result that when it was instituted in the High Court the period of limitation had expired. The question that arose for decision in that case was whether the time spent in the Court of the District Judge could be ignored while computing the period of limitation or not. In order to ascertain whether the institution of an appeal in the wrong Court on the mistaken advice of the Counsel was a sufficient cause within the meaning of S.5, the principle underlying S.14 came into play. The circumstances of the case were examined in the light of the definition of good faith as contained in S.2(7) of the Limitation Act, as the test laid in S.14 had to be satisfied before a finding that sufficient cause had been made out could be arrived at. The observations made and the view taken in the abovementioned case are, therefore not relevant. So far as the present case is concerned the argument of the learned Counsel based on the above decision are clearly without merit.