Riasat Ali vs Smt. Sayeeda Begum And Another
2001 Latest Caselaw 104 Del

ORDER

Vikramajit Sen, J.

1. The Tenant, Riasat Ali had filed an Appeal against the Order dated 5.6.1999 of the Additional Rent Controller whereby his Objections had been dismissed. The Appeal was filed before the Additional Rent Control Tribunal (ARCT) on 22.7.1999. It was rejected on the grounds of it being barred by limitation, and this has been assailed before me. Mr. V.K. Shali, Learned Counsel for the Petitioner has reiterated the contentions articulated in the Petition. Firstly, it is his submission that the Tribunal erred in holding that the period of limitation started on 5th June, 1999. To this extent he is correct. The day on which the impugned order is passed is undoubtedly to be excluded. Hence the first day to be counted for computing the period within which the appeal ought to have been filed was 6th June, 1999. Mr. Shali has contended that since 6th June, 1999 was a Sunday and the Courts were closed from 7th June to 30th June (both days included) for the summer vacation, the period of limitation could not be held to have commenced to run till the first day of the Post-summer vacation session. This argument is predicated on Mr. Shali's understanding of Section 9 of the Limitation Act. Although it has erroneously been mentioned that the Courts resumed work on 2nd July, 1999, I shall take the argument as having been modified to refer to 1st July, 1999, instead of 2nd July, 1999 Unfortunately, the ARCT has also failed to notice this fact and has erroneously stated that the Courts re-opened on 3.7.1999. Finally, it is contended by Mr. V.K. Shali, Learned Counsel for the Petitioner that the delay, if any, is of a few days and ought to have been condoned by the ARCT, in the circumstances of the case.

2. Mr. S.K. Bhalla, Learned Counsel appearing for the Respondents has emphasised that the application under Section 5 of the Limitation Act did not accompany the appeal, as was required by law. He has also highlighted that the application has not been supported by the affidavit of the Counsel who purportedly gave the wrong advice to the Appellant, and even more significantly, even the name of the Counsel has not been disclosed. He has further relied on the decision of the Supreme Court in Mohd. Yunus Vs. Mohd. Mustaqim and Others, where it was observed that "a mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Article 227. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited `to seeing that an inferior Court or Tribunal function within the limits of its authority', and not to correct an error apparent on the face of the record much less an error of law. In exercising the supervisory power under Article 227 the High Court does not act as an Appellate Court or Tribunal. It will not review or re-weigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision."

3. In Bansi Dhar and another Vs. Firm Bajrang Lal Mahabir Pershad and Others, , which indubitably appears to apply on all fours to the case at hand. The Learned Judge had held that the "party is as of right entitled to the exclusion of the time under Section 12 ......Thus, where the impugned order was passed on the last working day before vacation and the application for a certified copy was filed on the day the court reopened, the period of vacation cannot be excluded as time requisite for obtaining the certified copy." It will also be relevant to mention that the Learned Judge refused to condone the delay because of Counsel's insistence that the Appellant was entitled to exclude the vacation period. I am in respectful agreement with this judgment in its entirety.

4. The decision of this Court in Kanwal Nath Mehra vs. Ramlal Sindhwani, 1993 Rajdhani Law Reporter 83 has been pressed in support of the Respondents' contention that the delay can only be condoned if the application under Section 5 of the Limitation Act accompanies the appeal. In that case the certified copy had not been filed along with the appeal nor was condensation of delay applied for at the earliest. This reason is sought to be extrapolated into the present case. The decision in R.C. Chaudhary Vs. Prestige F. Chit Co., 1996 Rajdhani Law Reporter 332 is more on the point. A single Judge of this Court held that it was mandatory for an application under Section 5 of the Limitation Act to accompany an appeal filed beyond the prescribed period of limitation. I am in complete agreement with my learned Brother S.N. Kapoor, J.

5. Before the Additional Rent Control Tribunal, is before me also, Learned Counsel appearing for the Appellant appears also to have argued that the period of limitation commenced to run in the circumstances of the case only on the reopening day, i.e. 1st July, 1999. He has also argued that this contention has been misunderstood by the ARCT inasmuch as the argument was not that the period spent in obtaining the certified copy should be excluded. In my view it makes not the slightest difference. As held by Justice B.C. Misra in Bansi Dhar's case(supra), the period of limitation would start to run irrespective of the fact that the Courts were in recess because of the summer vacation. It is uncontrovertable that the effect of vacation or a closed day is that the Appellant is permitted to file the appeal on the reopening day even though the period of limitation may have expired during the vacation. There is no provision which excludes the vacation for computing this period. Secondly, the time spent in obtaining the certified copy is excluded but this has no corelation with the holidays. Nor is there any provision which allows a litigant to apply for a certified copy on the reopening day and get a remission from the commencement of the remaining of time for the vacation period. There is no other remission of extension of time permitted by law.

6. It is contended in the alternative by Mr. V.K. Shali, Learned Counsel for the Petitioner that the delay ought to have been condoned by the ARCT because a party ought not to suffer as a consequence of incorrect legal advice tendered to him. In the first place the Latin Maxim Ignorantia Jurisdiction Non Excusat continues to be recognised as having general application in all legal systems similar to that prevailing in our country. For otherwise, as Lord Ellenborough observed, "there is no saying to what extent the excuse of ignorance might not be carried: it would be urged in almost every case" ( Bilbie v. Lumley, 2 East, 469. Similar observations have also been made by Lord Cottenhan in Stuart Vs. Stuart, 6 Cll.&F.911. There is no doubt that Courts have given relief and succour to litigants who have apparently suffered because of wrong legal advice given to them. There is, however, such an explosion and proliferation in resting cases of delay on this excuse, as to require a rethinking on the subject. The interests of the adversary in the litigation, which has been given statutory recognition in the Limitation Act, has been completely obliterated. I am unable to close my eyes to the plight of one set of litigants by giving untrammelled and unrestricted relief to the other. In my opinion, it is essential for the party claiming relief from limitation because of it following wrong legal advice, unless such a case has been made out beyond all doubt. In Babu Ram v. Devinder Mohan Kaura and Others, AIR 1981 Delhi 14, it was observed as follows:

"Where an affidavit is filed by the counsel, the Court naturally expects that the counsel concerned while choosing to file an affidavit for giving mistaken advice would also state what led him to give such an advice, merely because the mistake is committed by a senior counsel does not necessarily mean that the mistaken advice was given bona fide or that it should constitute sufficient. There is no formula that a person is merely to plead mistaken legal advice. The basis of mistaken advice should also be disclosed to enable the court to see whether the advice tendered was bona fide or reckless."

7. In Pandurang B.P. Malkarnekar Vs. Government of Goa, Daman and Diu, AIR 1978 Goa, Daman and Diu 22 it was observed that:

"The present cases are definitely cases of inadvertence by the learned counsel for the relevant provisions of law as has been clearly stated by learned counsel himself, both in the application for condensation of delay and in the supporting affidavit. I am quite in agreement with the decision of the Punjab High Court cited above and therefore hold that there is no sufficient cause for condoning the delay and according the appeals have to be rejected as barred by limitation. The appeals are therefore rejected."

8. In Brij Bhushan and Others Vs. Madan Mohn Lal, , relief was denied because of the failure of the Appellant to convince the Court on the good faith of the Advocate who had allegedly tendered the wrong advice. Similarly, in Gajjan Singh Vs. Ram Lok, AIR 1978 Punjab and Haryana 307, the Court was not convinced that the mistake committed by the Counsel was not bonafide and the delay was not condoned. In Banwari Lal and Sons Pvt. Ltd. Vs. U.O.I., , a Division Bench of this Court declined to condone the delay assuming because of the Counsel concerned being of long standing that he would be fully aware of the law. I am certain that no Advocate would be willing to suffer the ignominy of his ignorance on such an important point, by filing an affidavit owning up that he had given his client wrong advice. In Kuldip Kaur Vs. Jaswinder Singh, 1980 Rajdhani Law Reporter 639, Rajindar Sachar J. (as he then was) was of the view that the plea of wrong advice by Counsel about the period of limitation must be supported by an affidavit of the Counsel who gave the advice since otherwise the bonafides of the plea would be doubtful; delay was not condoned by him. In Badrinarain Vs. Chandanmal, , it was held that if the delay was due to the negligence or gross want of legal skill on the part of the counsel, the mistake could not be held to have been a bona fide. In State Bank of India, Branch Satna Vs. M/s. Plastichem, Satna, AIR 1992 Madhya Pradesh 142, where no evidence was led to prove the allegations, the delay was not condoned. In M/s. Gobind Parshad Jagdish Parshad Vs. Shri Hari Shankar and Others, C.Ms.722-24/2000 in SAO 365/1987, I had by Judgment dated 11.1.2001 declined to grant a rehearing of the Appeal on the ground that the previous Advocate had not noticed that the appeal had been listed for final hearing in the category of Regulars. The previous Advocate had not filed any affidavit. This decision had been taken without the advantage, as in the present case, of the plethora of precedents painstakingly presented by Mr. Bhalla, the Learned Counsel for the Respondent. I cannot appreciate Mr. Shali's reliance on the decision in N. Balakrishnan Vs. M. Krishnamurthy, VII (1998) SLT 334 as its ratio is that the Appellate Court should not interfere with the exercise of discretion by the Lower Court, and that if there is absence of mala fides the opposite side can be compensated with costs. In the present case the Appellant had not even attempted to prove his bona fides; even the application for the certified copy of the impugned Judgment had been applied for beyond the period of limitation and many days after the Courts had resumed work after the Summer Vacation.

9. The Appeal is dismissed with costs of Rs.5000/-.