P L D 1966 (W. P.) Lahore 319
Before Inamullah Khan, C. J. and Karam Elahi Chauhan, J
Letters Patent Appeal No. 110 of 1961, decided on 17th December 1965.
A. H. Najfi for Appellant.
S. Manzoor Hussain Bokhari for Respondent No. 2 (on 9-12-1965 only).
Dates of hearing: 9th and 10th December 1965.
K. E. CHAUHAN, J.–This is a Letters Patent Appeal against the judgment of a learned Single Judge, dated the 8th -of March 1961, whereby he dismissed the writ petition of the appellant filed under Article 2 (4) of the Laws (Continuance in Force) Order, 1958. The appeal is barred by time by ten days. When the appeal was taken us for hearing, the learned counsel for the respondent took up the question of limitation and submitted that the appeal should be dismissed as barred by time.
2: Learned counsel for the appellant submitted that section 3 of the Limitation Act was not applicable to the Letters Patent Appeals filed against the judgments given in writ jurisdiction of the High Court, and, as such, he said, the Court was not duty bound to give effect to the plea of limitation. -The attention of the learned counsel for the appellant was drawn to Punjab Co-operative Bank Limited, Lahore v. Official Liquidators, Punjab Cotton press Company, Ltd. (in Liquidation) and others (A I R 1941 Lah. 257) wherein it had been held that an appeal from a judgment, passed by the High Court in the exercise of its original civil jurisdiction, whether ordinary or ‘extraordinary, in which the forum as well as the right of appeal is given by the Letters Patent, is governed by Article 151 of the Limitation Act. In that view of the law, we do not accept the contention of the learned counsel for the appellant that Limitation Act is not applicable to the present appeal. The period of appeal against judgments given in writ jurisdiction is twenty days under Article 151 of the Limitation Act, and, according to section 3 of the said Act, an appeal which is barred by time shall have to be dismissed. Conversely, even if case be examined from the point of view of falling under a special law, then section 29 (2) of the Limitation Act lays down that in cases of special laws also section 3 of the Limitation Act, shall apply. There being no force in the contention of the learned counsel for the appellant, we are duty bound to examine the plea of limitation and which we accordingly proceed to do.
3. It was next contended by the learned counsel for the appellant that it is only the admitting Bench which could take note of the plea of limitation and since the admitting Bench in this case decided to admit this appeal, it will be considered that the said Bench impliedly condoned the delay, and that, in any case, the present Bench could not go behind the order of the admitting Bench so as to give effect to the plea of the appeal being barred by time. In this connection, the learned counsel for the appellant relied upon Rameshwar Dass v. Official Receiver Delhi and another (A I R 1938 Lah.325) and Rule 4 of Chapter 1-A of Volume V of the Rules and Orders of this Court. This rule reads as follows:
“(4) Every appeal to the High Court under clause 10 of the Letters Patent from a judgment of a Judge sitting singly on the appellate side of the High Court shall be presented within 30 days from the date of the judgment appealed from unless the admitting Bench, in its discretion for good cause shown grants further time.
The period of limitation for the presentation of an appeal against the judgment of a Single Judge exercising original jurisdiction is 20 days from the date of the judgment (Article 151 of the Schedule to the Indian Limitation Act, 1908).
In an appeal under clause 10 of the Letters Patent, the memorandum of appeal need not be accompanied by a copy of the decree, order or judgment appealed from, but where a certificate is required under clause 10, the memorandum of appeal must contain a declaration to the effect that the Judge who passed the judgment has certified that the case is a fit one for appeal. The time spent in obtaining the certificate (including the date of application and the date of the order granting certificate) shall be excluded in computing the period of limitation.
The periods of limitation prescribed in this Rule, shall be computed in accordance with the provisions of section 12 of the Indian Limitation Act, 1908.”
There is no force in this contention. Firstly because the ruling, cited by learned counsel pertained to Rule 4 of Chapter 1-A of Volume V of the Rules and Orders of this Court, which deals with those Letters Patent Appeals which were filed against the appellate judgments of a Single Judge of the Court, and, for which, the period of limitation, as provided in the said Rule, thirty days. The present is an appeal from the judgment of a Single Judge in original jurisdiction and not the appellate jurisdic tion and here the period of limitation prescribed is not contained in Rule 4, but Article 151 of the Limitation Act. Secondly, tic rule applies to those cases where the admitting Bench, in its discretion, for good cause shown, granted further time for the presentation of the appeal. This contemplates that there should be an express order by the admitting Bench, based on good cause shown for extension of the time. In the present case, there is no such order whereby it could be said that it had condoned the delay. The authority cited by the learned counsel for the appellant, therefore, does not apply to the facts and the circum stances of the present case and rather it goes against him. Thirdly in the rulings hereinafter quoted it was held that there cannot be considered an implied extension of time from the mere fact that the Court admitted the appeal to a regular hearing. It is well-settled that there could not have been ex parte condonation or extension of time and even in cases where ex parte condonations l3 are made, the affected parties can always, on coming to know of such orders, take exception thereto and claim that the matter is barred by time, the extention of time, if any, is illegal and that effect to plea of limitation should be given. Ex parte condona tions of delay would be illegal as being opposed to violation of the principles of natural justice, as well as against law. In the case of Krishnasarni Panikondur v. Ramasanii Chettiar and others (AIR 1917 P C 179), their Lordships of the Privy Council observed as follows with regard to a practice of admitting appeals or condoning delays ex parte.
“But while this procedure may have the sanction of usage it is manifestly open to grave objection. It may, as in this case lead to a needless expenditure of money and an unprofitable waste of time, and thus create elements of considerable embarrassment when the Court comes to decide on the question of delay. Their Lordships, therefore, desire to impress on the Courts in India the urgent expediency of adopting in place of this practice a procedure which will secure at the stage of admission, the final determination (after due notice to all parties) of any question of limitation affecting the com petence of the appeal.”
Then at another place, in the same case their Lordships observed:
“It has been argued that the admission of the appeal by Sankaran Nair, J., was final and that the Division Bench had no jurisdiction at the hearing of the appeal to reconsider the question whether the delay was excusable. But this order of admission was made not only in the absence of Ramasami Chettiar, the contesting respondent, but without notice to him.
And yet in terns it purported to deprive him of a valuable right, for it put in peril the finality of the decision in his favour, so that to preclude him from questioning its propriety would amount to a denial of justice. It must, therefore, in common fairness be regarded as a tacit terns of an order like t the present that though unqualified in expression it should be open to re-consideration at the instance of the party prejudicially, affected and this view is sanctioned by, the practice of the Courts in India.
There are various authorities to the effect that even after admission of the cases ex parte, the Court subsequently hearing the matter could dismiss the same as barred by time. Reference may be made to Manick Dukandar v. Naibullah Sircar (2 C W N 461) and Mulna Amad v. Krishnaji Ganesh Godbole (ILR 14 Bom.594) where it was held that here a District Judge admits ex parse appeal filed beyond time, and the appeal is referred for disposal to a Subordinate Judge with Appellate Powers, the Subordinate Judge has the power to consider whether the delay in presenting the appeal is sufficiently accounted for. The power to hear an appeal conferred by section 27 of the Bombay Civil Courts Act XIV of 1869 includes also the power to hear any question as to limitation relating thereto. The order for admission of an appeal under section 5 of the Limitation Act, made before issue of notice to the respon dent is an ex parte order and cannot bind him. Similarly, in Balchand Prohit v. Sir Bejoychand Mahtab Maharajadhiraj of Burdawan (A I R 1942 Cal. 606) it was held that an order granting application under section 5 of the Limitation Act for extending the period of limitation for filing a Letters Patent Appeal under clause (15) without giving the respondent an opportunity to present his case with regard to the prayer of the appellant for extension of the period of limitation is irregular. Applying the above-noted principles, we hold that this Bench can go into the question of limitation, and mere admission of appeal is no bar in that respect. Before going into the question of limitation, however, we may here mention that even if the rule enunciated by the learned counsel for the appellant is to be accepted that it is only the admitting Bench which could deal with the matter, even then, since the admitting Bench in this particular case, did not extend the period of limitation, on the principle enunciated by the learned 1 counsel himself, the appeal will have to be dismissed as time -barred. Reference may be made to Hari Ranr v. Hazari Lal and others (A I R 1951 Pepsu 132) where this recourse was adopted when it was argued that it was only the admitting Bench which could extend the time. The same was the position taken up in Harbans Singh v. Karam Chand and another (A I R 1949 East Pb. 299) where it was held that the admitting Bench after having become functus officio, the hearing Bench could not extend the period of limitation and the appeal had to be dismissed.
4. After having held that in the circumstances of the present case this Bench has the jurisdiction to deal with the question of limitation and extend the period of limitation, we proceed to examine whether there is sufficient cause for the same or not. The appellant has filed an application under section 5 of the Limitation Act. The following grounds have been urged for extension of time.
“(1) That the petitioner is an illiterate and hardly can sign his name,
(2) That the petitioner not being conversant with the rules of this Hon’ble Court was under the bona fide impression that the period of 30 days is prescribed for filing the appeal against the order of the learned Single Judge.
(3) That the petitioner is a very poor person and went to his village to collect only the amount to meet the expenses of appeal and has not paid fee to his counsel.
That the wife of the petitioner was seriously ill for the last about one-and-a-half months and so he was very much upset and worried.”
It is to be borne in mind that period of limitation for the present appeal was twenty days and it is barred by time by ten days. In ground No. 2, the appellant has taken up the position that he was under an impression that the period of limitation for such an appeal is thirty days. This plea of mistake of law has been taken to cover the delay of ten days. It is to be pointed out that mere mistake of law, by a party, as such is not a sufficient ground to exercise discretion under section 5 of the Limitation Act., See Hadu and others v. Lala and others (41 P R 1915) and Sita Ram Parajt v. Nimba Valad Harishat (I L R 12 Bom. 320). A mistake or ignorance of law is not a sufficient cause. The maxim ignorantia legis niminem excusat (ignorance of law is no excuse) has been so firmly settled both in England and Pakistan, that it would be the shaking of established authority to maintain that ignorance of law or mistake of law are E reasons for the excuse and, as such, furnish elements for extending the period of limitation which the statute law provided. To hold that ignorance of law is sufficient cause would amount to place a premium on ignorance. Ignorance of law unaccompanied by negligence in action or want of bona fide, may in proper cases be a sufficient cause, but section 5 of the Limitation Act was not provided to encourage negligence, procrastination and laxity.
5. It was held in Dial Singh v. Budh Singh (1 L R 2 Lah. 127) that the fact that the appellant was under the impression that the limitation was 90 days was no reason for extending the period. Applying these principles, we are not prepared to condone the delay on the mere plea of ignorance of law. The appellant has alleged in Paragraph 1 of his application that he is an illiterate person and can hardly sign his name. He has not disclosed as to wherefrom he got this impression of the period of limitation being thirty days, who gave him this advice, and when. In the absence of any material on the record, about these matters, it cannot be verified as to whether the impression of the appellant was bona fide or not. In cases where mistake of law is pleaded, the Court is to be satisfied that the appellant was not guilty of negligence; that be took proper steps to get correct guidance and that he was quite diligent in the matter of pursuing the remedy. If for example, any person pleads a mistaken advice of a counsel as a cause for extension of a period of limitation, then the Court is to be satisfied that the advice was given in good faith, with due care and caution and not recklessly. The plea taken up by the appellant, therefore, being vague and not supported by any further material on the record, cannot be accepted. Moreover a perusal of the various grounds pleaded in the application will show that they run counter to one another. If the appellant was under a mistake about the period of limitation, then the plea that he was a poor person and went to his village only to collect the amount to meet the expenses of appeal has no relevancy. The plea of poverty, which has never been held as a sufficient ground for extension of time, rather goes to negative the contention that the appellant was under any mistake about the period of limitation. Similarly, if the appellant had not been able to file the appeal due to the illness of his wife, as alleged in Paragraph 4 of his application, then the question of being under a mistake about the period of limitation does not arise at all. He has not disclosed the nature of the illness of his wife and as to how that illness could constitute a hurdle in the prosecution of the appeal. The extension of time being in the discretion of the Court, the appellant should have made out a proper case for the exercise of this discretion and should have taken the Court into confidence in disclosing all the necessary details. If the appellant could not have filed the appeal in time because, as he alleges, he was poor, or because his wife remained ill and be remained upset and worried in that respect, then the plea of remaining under a mistake about the exact period of limitation, cannot be advanced. A good number of authorities were cited by the learned counsel for the appellant on the point that a mistake of law can also constitute a sufficient cause under section 5 of the Limitation Act in a proper case. We need not to go into all those authorities because in principle we agree that if there is a proper case and if the appellant has shown due diligence and had been acting in good faith, then he may be in a position to make out a case for sufficient cause. Here, it has not been disclosed as to how the mistake of law took place. The assertion of the appellant is very vague and reckless.
6. For the aforesaid reasons, the present Letters Patent Appeal is dismissed as barred by time.
K. B. A.