Appeal Nos 2410 and 2411 of 1966
91 Appeal from the judgment and order dated March 20 1963 of the Punjab High Court Circuit Bench at Delhi in RFA No 122 D of 1962
Bishan Narain K K Raizada and AG Ratnaparkhi for the appellant in both the appeals
AS Nambiar KR Nambiar and Lily Thomas for the respondent in both the appeals
The Judgment of the Court was delivered by Hidayatullah CJ
This is an appeal against the judgment dated March 20 1963 of a Division Bench of the Punjab High Court dismissing an appeal and a revision filed by the present appellant
The appeal arises under the following circumstances A suit was filed by the appellant in the Court of the Senior Sub Judge Delhi for three reliefs in respect of a business in which the respondent was stated to be the manager and also for ejectment of the respondent from the premises in which the business was being carried on The same valuation was adopted for purposes of court fee and jurisdiction
The valuation was divided into three parts Rs 4000 were taken as the valuation for rendition of accounts or arrears of rent Rs 130 for injunction and Rs 710 for ejectment Total Rs 4840 
During the hearing of the suit and on objection by the defendant the valuation for ejectment was raised to Rs 1800 
It appears that the appellant paid the additional court fee but did not amend the plant
The suit was decreed in part on May 11 1961
The appellant obtained a decree for Rs 600 as arrears of rent for 34 portion off the shop and Rs 46333 P as damages for 14 portion of the shop ejectment from which portion was also decreed in his favour
But the suit was dismissed as to the remaining arrears of rent or for accounts and ejectments from 34 of the premises
The plaintiff appellant thereupon filed an appeal in the District Court of Delhi
In stating the valuation for appeal he correctly described the three fold valuation in the suit as Rs 4000  Rs 130 and Rs 1800 total Rs 5930 
He however valued the appeal as follows Rs 3400 as the valuation for arrears of rent or for rendition of accounts Rs 130 for injunction and Rs 1350 for ejectment Total Rs 4880 
Now it is obvious that if the valuation was Rs 4880 appeal would have lain in the District Court but if the appeal had to be valued at Rs 5930 it had to go before the High Court
When the notice of the appeal was served on the defendent respondent he flied a cross objection in the same court 92 but did not take any exception to the valuation of the appeal in the District Court on its presentation in that Court
On July 25 1962 the District Judge made an order upholding a preliminary objection taken before him at the hearing that the memorandum of appeal was liable to be returned for presentation to the proper court and he ordered the memorandum of appeal to be so returned
It appears that it was filed in the High Court the same day and therefore there was no loss of time after the return of the memorandum
The appeal was delayed by nearly one year
It may however be mentioned that the plaintiff appellant did not submit to the decision of the District Court but took the matter in revision before the High Court
The appeal as represented and the application for revision were disposed of by the common judgment under appeal before us
The High Court held that there was no ground for extending time under section 5 of the Limitation Act for which purpose an application had been sub joined to the appeal filed in the High Court
The question in this case is whether the High Court was fight in dealing with this problem as it did
The High Court seemed to be of the opinion that an Advocate Mr KK Raizada of 34 years  standing could not possibly make the mistake in view of the clear provisions on the subject of appeals existing in section 391 of the Punjab Courts Act
That sub section at that time clearly showed that appeals of the value of Rs 5000 must be filed before the District Court but appeals above Rs 5 000must be filed before the High Court
The High Court also felt that the learned counsel persisted in pursuing his own theory by willing a revision
It is on this account that time was denied to the present appellant in the appeal
The only question is whether the decision of the High Court can be accepted
The law is settled that mistake of counsel may in certain circumstances be taken into account in condoning delay although there is no general proposition that mistake of counsel by itself is always a sufficient ground
It is always a question whether the mistake was bona fide or was merely device to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an underhand way
The High Court unfortunately never considered the matter from this angle
If it had it would have seen quite clearly that there was no attempt to avoid the Limitation Act but rather to follow it albeit on a wrong reading of the situation
It is quite clear that the limitation for the appeal to the High Court was three times as much as it was for the District Court
When the appeal was filed litigant had as much as two months 93 in hand to file the same in the High Court
Further he did not attempt to save court fee on the appeal but paid the same courtfee which would have been payable in the High Court
It does not appear that he had an underhand motive for filing the appeal in the District Court
Therefore the filing of the appeal must be attributed entirely to the advice of the counsel
Here again the counsel did not suppress anything
As has been stated earlier he put down both the valuations in the forefront of his memorandum of appeal that is to say the valuation of the suit in the original court and the valuation of the appeal
No doubt the counsel was one with some experience and ought to have known that an appeal above Rs 5000 must be filed in the High Court and not the District Court and therefore we have to see whether he was genuinely under a mistake or not
Here there is proof that he adhered to this view because not only he filed the appeal but also took a revision from the order of the District Court to the High Court still labouring under the same mistaken view
Further he seems to have been misled by a rule ier 4 in Ch
3B of Vol 1 of the rules and orders of the High Court which read as follows In a suit for the amount found to be due after taking into accounts it is not the tentative valuation of the plaintiff but the amount found to be due and decreed by the court that determines the forum of appeal
 This rule is applicable in a case in which the amount decreed is larger than the amount for which the original suit was brought
Now it is well known that in a suit for accounts the plaintiff is not obliged to state the exact amount which would result after the taking of accounts
He may do so if he is able to but if he is not he can put a tentative valuation upon his suit for accounts taking care that the valuation is adequate and reasonable in all the circumstances of the case
But the rule also obtains that if the amount which is found is larger than the amount at which he stated his tentative valuation he must file the appeal against the larger amount and in the forum before which an appeal of that valuation can go
This rule does not apply where the amount decreed is below the valuation in the original court
Here the original valuation holds good both to find the forum and to put a valuation
After the amendment of the valuation on account of ejectment the total claim was Rs 5930 and that determined the court of lowest denomination before which the appeal from the suit had to go
That according to the other rule which we have cited was the High Court
The second rule which we have later cited does not cut across the first rule
This appears to be the error which was committed by Mr Raizada and we do not 94 find anything in the case to show that this error was tainted by any mala fide motive on the part of the counsel for the litigant
In the circumstances we think that the High Court would have been justified in extending time under section 5 of the Limitation Act and the reasoning of the High Court unfortunately started from a wrong angle
We accordingly set aside the order of the High Court and remit the appeal for hearing and disposal according to law
The appellant will however pay all the costs of the respondent which have been incurred till today irrespective of the result
We may mention that there are two appeals pending before us
The other appeal is from the revisional order of the High Court and we think that there is no need to pronounce any decision in that appeal because it becomes infructuous by reason of our decision in this appeal
As the appeal before
the High Court is an old one we hope that the High Court will be able to give it priority
Appeal remitted


Summary:
The appellant s suit against the respondent for rendition of account and other reliefs was valued at Rs 5930 for purposes of court fee and jurisdiction
The suit was decreed in part and the amount decreed was less
than the amount at which he stated his tentative valuation
He filed an appeal to the District Court stating the valuation for purposes of appeal at Rs 4880  
The memorandum of appeal showed the valuation in the original suit and the court fee paid was the same amount as in the trial court
The District Court returned the memorandum of appeal for presentation to the proper court because under section 39 1 of the Punjab Courts Act appeals above the value of Rs 5000 had to filed before the High Court
The appeal was filed in the High Court the same day but it was out of time
The appellant also filed a revision against the order of the District Court
His counsel placed reliance on r 4 in Ch
3 B of Vol
1 of the Rules of the High Court which states that in a suit for the amount found due after taking accounts it is not the tentative valuation of the plaintiff but the amount found to be due and decreed by the court that determines the forum of appeal
 The High Court held that there was no ground for extending time under section 5 of the Limitation Act and dismissed the appeal and also the revision
In appeal to this Court HELD The High Court should have extended time under section 5 of the Limitation Act
9 4 A B i The appellant did not have any underhand motive in filing the appeal before the District Court the filing had to be attributed entirely to the advice of his counsel
93 A B There is no general proposition that mistake of counsel by itself is always a sufficient ground for condoning delay
It is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose
92 F G In the present case the original valuation determined the court of lowest denomination before which the appeal from the suit had to go and that forum was the High Court
The counsel seems to have been misled by r 4 in Ch
3 B of Vol 1 of the Rules and Orders of the High Court
This rule is applicable in a case where the amount decreed is larger than the amount for which the original suit was brought
It does not apply where the amount decreed is below the valuation in the original court
There is nothing in the case to show that the error committed by the counsel was tainted by any mala fide motive
93 C F 94 A