Counsel’s Mistake as “Sufficient Cause” under Section 5 of the Limitation Act –A Critical Analysis

By: Vishal Hablani


INTRODUCTION

Section 5 of the Limitation Act, 1963 deals with the discretionary power of the Court to admit an appeal or an application, after the expiration of the limitation period with the restriction that it can be exercised by the court only if there exists a “sufficient cause” for the delay in filing such an appeal or application. The ambit of power that can be exercised by the court w.r.t. exercise of discretion cannot be restricted. This is because the application depends on the basis of facts each case has to offer.

The article deals with the analysis of difference of judicial opinion w.r.t. admission of counsel’s mistake as a sufficient cause under Section 5 of the Act.

MISTAKE OF LAW DOES NOT AMOUNT TO SUFFICIENT CAUSE: MARIAMBAI v. HANIFABAI

In Mariambai and Anr. v. Hanifabai and Anr., (hereinafter ‘Mariambai case’) the issue before the court was that whether a mistake committed by a legal practitioner would amount to sufficient cause for the condonation of delay. Here, the appeal instead of being filed in the High Court was filed in the District Court after the expiration of the limitation period. The appellants asked for the condonation of delay, caused in withdrawing the appeal, on account of the wrong legal advice given by the counsel. It must be taken into consideration that the mistake committed in the present case was a mistake of law.

It was argued that the mistake committed was a bona fide in nature. However, the application was rejected, on account of failure in the exercise of reasonable care. A three-fold test was laid down for the determination of ‘sufficient cause’ in case the wrong advice is given by the legal practitioner. It must be shown that:

1. the advice was given by a competent practitioner;

2.the practitioner, in giving the advice, exercised reasonable care; and

3. the advice given by him is founded on a view which could, in the circumstances of the case, be taken by any competent legal practitioner exercising reasonable care.

Further, it was observed that the defence of mistake of law is only available if the provision is capable of being interpreted in two different manners in the exercise of reasonable care.

It has been observed in a series of judgments that the word ‘sufficient cause’ must be construed liberally for the advancement of substantial justice. The view extends to an extent, where the delay is even condoned in case of an absolute mistake of law. The rationale behind this view is that the innocent litigant must not suffer due to the mistake committed by the lawyer, because a lawyer is an officer of the Court.[1]

 A BONA FIDE MISTAKE OF LAW AMOUNTS TO SUFFICIENT CAUSE FOR THE CONDONATION OF DELAY: A CRITICAL ANALYSIS

In Ator Ali and Ors. v. Abdul Majid, (hereinafter Ator Ali case’) the counsel instead of filing a revision application against the suit, filed a  writ petition under Art. 226 of the Constitution. On the dismissal of the petition, the counsel realised his mistake and without wasting much time filed the revision application, after the expiration of the limitation period,  along with the application for condonation of delay. The court observing that the mistake committed was bona fide in nature, condoned the delay as the party was not negligent and it would be improper to take a stringent view of the delay.

The judgement passed by the court in Ator Ali case is not in consonance with the test laid down in Mariambai case for the determination of ‘sufficient cause’ in case the wrong legal advice is given by the counsel.

 EXERCISE OF REASONABLE CARE

Had the test laid down in Mariambai case been applied, the delay would not have been condoned. This is because the lawyer failed to exercise reasonable care while giving the advice and acted without looking into the legal provision governing the matter. Further, the advice given would not have been entertained by any other careful and competent lawyer. Being a professional, a lawyer is expected to know the law governing the matter.

 MISTAKE OF LAW AND APPLICABILITY OF SECTION 14

The Court, while deciding the case, did not even look into the apparent question of mistake of law. According to the Mariambai case, the defence of mistake of law is only available, when the interpretation of the provision in question is ambiguous. In the present case, the provision in question was plain and simple.

The concept was further elaborated in Rajendra Bahadur Singh v. Raj Rajeshwar Bali,[2] the Court held that a ‘mistaken legal advice’ is an advice which is given by a lawyer, on account of the scope of the difference of opinion, w.r.t. the interpretation of a provision in question while if the provision is plain and simple, though the choice of the forum is wrong, the advice would be termed as a ‘wrong legal advice’. It must be noted here that, both ‘wrong’ and ‘mistaken’ legal advice amount to a mistake of law. It was observed that, in case of mistaken legal advice, given in honest belief, in exercise of due diligence, Section 5 would be read with Section 14 of the Limitation Act, so as to establish sufficient cause, by excluding the time spent in prosecution at the wrong court, for the condonation of delay. On the other hand, in case of wrong legal advice, even if the advice is given in honest belief, Section 5 would not be read with Section 14, for establishing sufficient cause.

 BONA FIDE MISTAKE

Bona fide nature of mistake was taken into consideration for the condonation of delay. It must be noted here that establishment of ‘sufficient cause’ must be decided in light of the definition of ‘good faith’ given in the Limitation Act. The definition of ‘good faith’ given under the General Clauses Act suggests that the absence of bad faith amounts to good faith, even if the act is done negligently. However, under the Limitation Act, an act is said to be done in good faith if due care and attention are exercised. Thus, under the Limitation Act, an honest negligent act would not qualify as an act done in ‘good faith’.

In Ator Ali case, the act though done without any mala fide was a negligent act, and thus cannot qualify as a bona fide mistake, on account of which the delay had been condoned. The court erred in deciding the case, as the act was not judged in light of the definition of ‘good faith’ given under the Limitation Act.

WHAT REMEDY DOES THE LITIGANT HAVE IF THE DELAY IS NOT CONDONED? IS THE REMEDY ILLUSIONARY?

In Surendramohan Ray v. Mahendranath Banerji[3], it was observed that where an innocent litigant suffers from “the negligence or ignorance or gross want of legal skill of his legal adviser he has his remedy against that legal adviser”.[4] This can be done by filing a complaint at the Bar Council of India for ‘professional misconduct’. However, the relief available is not absolute in nature, i.e. in case the delay is not condoned, that doesn’t mean sufferer would directly recover from the legal adviser. In T.A. Kathiru Kunju v. Jacob Mathai & Anr. the apex court observed that mere negligence of an advocate would not amount to professional misconduct. Thus, the recourse would be only available if the litigant succeeds in proving that the negligence was gross in nature.

In Lata Mata case, the view similar to Ator Ali case has been adopted, i.e. the delay has been condoned, even in case of mistake of law, if the lawyer did not act in mala fide manner, though the act was negligent in nature. The view, as observed above, is erroneous in nature, as good faith is not looked into in light of the Limitation Act. Further, in many cases, it has been held that the delay would not be condoned in case the advocate, who committed the mistake, was grossly negligent.

The current position gives way to a loophole, on account of which the innocent litigant would have to suffer. For instance, there can be a situation where the court might disallow to condone the delay, in case of a mistake of law, based on ‘wrong legal advice’. This can be done in consideration of the rights of the other party, which are not to be taken lightly and circumstances peculiar to a certain case. In this scenario, in case the innocent litigant files a complaint of professional misconduct against the lawyer, he might fail to succeed. This is because a ‘mistake of law’, even on account of ‘wrong legal advice’, has been adjudged as just mere negligence in many other cases apart from Ator Ali case. Thus, in light of the judgement passed in T.A. Kathiru Kunju v. Jacob Mathai & Anr., a negligent lawyer could simply get away with his liability, jeopardising the rights of his client. This can be done by simply pleading that the mistake of law committed by him does not amount to gross negligence, as the mistake committed was bonafide in nature.

 CONCLUSION

The difference in judicial opinion, w.r.t. condonation of delay, in case of mistake of law committed by a legal practitioner, is a serious cause of concern. The issue has not been dealt with by the Supreme Court, and hence, there is no binding approach. The three-fold test laid down in Mariambai and Anr. v. Hanifabai and Anr. must be strictly applied for the determination of ‘sufficient cause’ in case the faulty advice is given by the legal practitioner. If the test would be applied strictly, possibility to take the bona fide mistake of law, as a defence for condonation of delay would be ruled out. A mistake of law should be considered as gross negligence, only except in case of ‘mistaken legal advice’.

In case of non-condonation of delay, the litigant would have to suffer eventually, as a mistake of law, even in case of ‘wrong legal advice’, has not been considered as ‘gross negligence’ in many cases. Thus, the complaint filed for professional misconduct would be also rejected, leaving the litigant without any remedy.

Reliance can be placed on the view adopted by the Pakistan Supreme Court. The law governing condonation of delay in Pakistan is in pari materia with the law in India.[5] In Khushi Muhammad and Ors. v. Fazal Bibi, the apex court of Pakistan held that a mistake of law committed by a legal practitioner (in context of wrong legal advice, according to which the appeal was filed in the wrong forum) which amounts to gross negligence,  would not qualify as a sufficient cause for the condonation of delay.

If a similar view would be uniformly adopted by the Indian courts, the innocent litigant would not be rendered remedy less on account of the lawyer’s negligence in any manner whatsoever.

[1] Nrisingha Charan v Triguinand Jha AIR (25) 1938 Pat 413.

[2] In this case the appeal was filed in the District Court, instead of the High Court, even though the provision in question was plain and simple. Application for condonation of delay was rejected.

[3] Surendramohan Ray v Mahendranath Banerji 1978 AIR 537.

[4] ibid.

[5] The law of limitation in Pakistan is governed by the Limitation Act 1908. In India, the Limitation Act 1908 was replaced by the Limitation Act 1963. However, the provision governing condonation of delay, i.e. Section 5, is similar in both the statutes.


(Vishal is currently a student at West Bengal National University of Juridical Sciences, Kolkata.)

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