1. A. R. SHEIKH, J.---This judgment will dispose of Regular First Appeals Nos. 2 and 3 of 1963 filed in forma pauperis arising out of two suits filed by Ahmad Din and Mst. Ghulam Fatima, appellants in the two appeals respectively, which suits were consolidated and heard together in the trial Court.
2. Briefly stated the facts are these. Ahmad Din was employed as a semi-skilled workman, holding ticket No. 5924 (in the Reclamation Shop No. 44) of the Carriage and Wagon Shops of the Pakistan Western Railway at Mughalpura. While he was cutting down the body of a condemned carriage in the open yard of the Reclamation Shop on the 26th of January 1954, a heavy plate fell on him and he sustained various injuries, details of which appear at page 124 of the paper-book. He brought a suit on the 21st of March 1955 in forma pauperis against the respondent claiming damages to the tune of Rs. 45,000.00 for injuries sustained, disabilities suffered and expenses incurred on private treatment. Only four days thereafter his wife, Mst. Ghulam Fatima, also instituted a separate suit in forma pauperis for recovery of Rs. 50,000.00 as damages for loss of happiness and enjoyment of life on account of impotency, resultant of the aforesaid accident, of her husband Ahmad Din. Both the suits were dismissed by the trial Judge on the 31st of July 1962. Two appeals in forma pauperis were filed in this Court on the 19th of October 1962.
2. The short ground on which these two appeals are likely to fail is the question of limitation. The objection taken on behalf of the respondent is that as the period of limitation provided for filing an appeal in forma pauperis is thirty days under Article- 170 of the Limitation Act of 1908 (hereinafter called the Act), the appeals having been filed late by nineteen days are liable. To be dismissed. The explanation given for this belated filing of the appeals in forma pauperis by learned counsel for the appellants is that the day the suits were dismissed by the trial Court, the appellants contacted him in the High Court Bar Association, where he was sitting at the moment and informed him of the dismissal of the suits. On enquiry as to the period of limitation for filing an appeal, learned counsel states that he asked the Bar Librarian to give him a copy of the Limitation Act and the book given to him was "Tagore Law Lecture on Limitation by U. N. Mitra, and he after looking up the Schedule of the Limitation Act found the period prescribed as ninety days given in Article 162 appearing at page 611 of the said book and informed the appellants that the period was ninety days. It has been further stated at the Bar that as a matter of fact learned counsel was not conscious of the fact at the relevant time that he had looked up the Limitation Act of 1871 instead of 1908 and the book given to him was of the year 1892, an obsolete book. In the application under section 5 of the Limitation Act, the reason given is that "the petitioner was advised that the limitation for filing an appeal in the High Court is 90 days, while under Order XLIV, rule 1, C. P. C. He ought to have made an application within 30 days". Learned counsel for the appellants on these facts has argued that mistaken advice by counsel has always been considered to be sufficient for condoning delay in filing appeals or choosing a wrong forum for appeal and on that hypothesis delay in the instant case be also condoned as it was a bona fide mistake on the part of the counsel and a resultant bona fide mistake by the party in coming to this Court, beyond time. In support of his contention learned counsel has referred to Maqsood A.I v. A.I Haibat Khan and 2 others (PLD 1958 Lah. 340), Punjab Province v. Nisar Ahmad (PLD 1960 Lah. 801), Food Stuff' Supply Company v. Irfan Cotton Oil Mills and 2 others (PLD 1958 Lah. 325) and Kunwar Rajendra Bahadur Singh v. R.I Rajeshwar Bali and others (AIR 1937 P C 276). On the other hand, learned counsel for the respondent has argued that a mere mistake or ignorance of law is not per se sufficient reason for asking the Court to exercise its discretion under section 5 of the Act. The mistake of law or the mistaken advice by counsel should be proved to be bona fide and where due care and attention is not established, no relief can be claimed by the party concerned. He has referred to the following observations of their Lordships of the Privy Council in Brij Indar Singh v. Lala Kanshi Ram and others (AIR 1917 P C 156), where the delay was due to a wrong proceeding being taken under a bona fide mistake of law:- "Now if the matter were entirely open, inasmuch as a mere mistake in law is not per se sufficient reason for asking the Court to exercise its discretion under section 5 (instances of which are given in some of the cases cited by the learned Judge, there would be a good deal to be said in argument in favour of making the rule universal, and upholding in its entirety the ruling given in the case of Ramjiwan Mal v. Chand Mal (1888) A W N 258 above cited. But the matter is not open. To interfere with a rule, which after all is only a rule of procedure, which has been laid down as a general rule by Full Benches in all the Courts of India, and acted on for many years, would cause great inconvenience, and their Lordships do not propose so to interfere."
3. The next authority dealing with the question whether mistake of a lawyer can be condoned under the section and the party who has acted on such mistaken advice is not prevented from relying upon it for claiming the indulgence under this section, referred to by learned counsel for the respondent, is Sunderbal and another v. Collector of Belgaun and others (AIR 1918 P C 435). The passage relied on in the judgment appears at page 137 of the report:- "The fact that the defendants had acted on mistaken advice as to the law in appealing to the High Court in 1910 did not preclude them from showing that it was owing to their reliance on that advice that they had not presented the appeal to the Court of the District Judge within the prescribed period of limitation."
4. He has also invited our attention to Food Stuff Supply Company v. Irfan Cotton Oil Mills and 2 others, cited by learned counsel for the appellants, wherein it has been observed that "time can be extended if counsel, without being negligent, adopted a mistaken view of law on the basis of which he filed the appeal in the wrong Court" and argued that since learned counsel for the appellants has been negligent there is no excuse for extending the time.
4. The bona fide mistake of fact on the part of the party may be a sufficient cause in a particular case. The test of bona fides is whether it was one committed in spite of due care and attention. A mistake arising from negligence or committed without any real excuse or which could have been averted by proper enquiry has always been held to be not a sufficient cause. Similarly a mistake of law of party or its agent, which is committed bona fide, i.e. In spite of due care and attention has been regarded as a sufficient cause by the superior Courts. The earliest case is that of Highton v.
5. Treherne ((1878) 48 L J Ex. 167) in which Brett, L. J. While considering when an advice by the legal practitioner may be relied upon as an excuse for extending the time, observed:- "In cases where a suitor has suffered from the negligence or ignorance or gross want of legal skill of his legal adviser he has his remedy against the legal adviser, and meantime the suitor must suffer.
6. But where there has been a bona fide mistake, not through misconduct nor through negligence nor through want of reasonable skill, but such as a skilled person might make, I very much dislike the idea that the rights of the client should be thereby forfeited."
7. This view is in line with the judgments of the Judicial Com--mittee in Brij Indar Singh v. Gal Kanshi Ram and others and Sunderbai and another v. Collector of Belgaun and others and has been generally followed by the British Indian High Courts and if the mistake has been found to have proceeded from the culpable negligence of the legal adviser it has not been considered a sufficient cause. This statement of law has been re-affirmed in Kunwar Rajendra Bahadur Singh v.
8. R.I Rajeshwar Ball and others in the following words:- "Mistaken advice given by a legal practitioner may in the circumstances of a particular case give rise to sufficient cause within the section though there is certainly no general doctrine which saves parties from the results of wrong advice."
9. Keeping in view the above enunciation of law, it has to be ascertained in each and every case whether or not the mistaken advice was the result of absence of due care and attention. If the Court comes to the conclusion that it is due to want of reasonable skill on the part of the counsel, it will stand on the same footing as negligence. A normal standard of efficiency is expected of a legal adviser and where an advice is given which no legal adviser of reasonable skill would be expected to give, it must be considered that the adviser acted negligently ands in such a case there is no sufficient cause. On the other hand, if the advice proceeds on a mistake which even if a practitioner possessing reasonable skill is likely to commit, then the mistaken advice would be a sufficient cause. Bearing these principles in mind, let us examine the facts. Learned counsel for the appellants states that he asked for a book from the Librarian of the High Court Bar Association Library and advised the appellants that the period prescribed for appeal was ninety days. He has also produced the book which he had consulted. We find that it is a `1892 Edition' of Tagore Law Lecture on Limi--tation and it contains the Statute (Limitation Act of 1871) stated to have been consulted by learned counsel, which misled him in advising his clients. We further find that this very volume contains the Statute of 1877, which gives the period for pauper appeals in the High Court as thirty days. He did not care to consult the current Statute, not even the 1877 Statute appearing in the same volume. A little care on his part would have avoided his consulting an obsolete law and tendering wrong advice to the party. In the circumstances applying the rule, which is sound working formula, expressed by Brett, L. J. In Highton v. Treherne, we hold that no case has been made out for extension of time under section 5 of the Act. The appeals fail and are dismissed.
10. However, there will be no order as to costs.