Allahabad High Court

Smt. Shashi Prabha Sharma And ... vs Smt. Kamla Devi on 1 October, 2013

Bench: Satya Poot Mehrotra, Vipin Sinha




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 21
 
Case :- SPECIAL APPEAL No. - 2074 of 2011
 
Appellant :- Smt. Shashi Prabha Sharma And Others
 
Respondent :- Smt. Kamla Devi
 
Counsel for Appellant :- U.K. Saxena
 
Counsel for Respondent :- Shyamal Narain
 

 
Hon'ble Satya Poot Mehrotra,J.

Hon'ble Vipin Sinha,J.

1.Civil Misc. Delay Condonation Application No. 350883 of 2012

2.Civil Misc. Restoration Application No. 350885 of 2012

Heard Sri U.K. Saxena, learned counsel for the appellants and Sri Shyamal Narain, learned counsel for the respondent.

From the perusal of the record, the picture which emerges is as follows:

A Testamentary Suit No. 2 of 2000 was filed by the appellants before this Court. The said Testamentary Suit was dismissed for want of prosecution on 22.11.2005 "on the ground that Sri V. M . Sharma, learned counsel for the appellants had got the matter adjourned for more than ten occasions and on his request, made on 21.11.2005, the matter was directed to be listed on the next date. On the next date i.e. on 22.11.2005, he did not appear and thus the matter was dismissed for want of prosecution."

Aggrieved against the order dated 22.11.2005, by means of which the Testamentary Suit No. 2 of 2000 was dismissed for want of prosecution, the counsel for the appellants had filed application for Substitution as well as for recall of the order dated 22.11.2005 along with the Delay Condonation Application.

The said applications came up before the Court on 16.09.2011. On 16.09.2011, the Court was pleased to allow the Substitution Application. However, the Delay Condonation Application and the Restoration Application seeking recall of the order dated 22.11.2005 were rejected by the Court on 16.09.2011.

Aggrieved against the order dated 16.09.2011, the present Special Appeal has been filed in which the recall of the order dated 22.11.2005 has also been sought.

It may also be appreciated that the present Special Appeal was also filed beyond the period of limitation and was accompanied by a Delay Condonation Application.

A perusal of the order-sheet, right from the date of its inception would demonstrate that the case had been adjourned on a number of occasions and in this regard reference may be made to the following orders:-

1.Order Dated 2.11.2011.

"Case called out. No one is present.

List this case in the next cause list."

2.Order Dated 11.11.2011

"List again alongwith the file of Testamentary Suit No. 2 of 2000 dismissed for want of prosecution on 22.11.2005 and thereafter restoration application was also dismissed on 6.9.2011. In the meantime, the parties may exchange their affidavits."

3.Order Dated 14.12.2011

"Passed over on the request of counsel for the respondent."

4.Order Dated 21.12.2011

"Passed over on the request of counsel for the appellant."

5.Order Dated 18.01.2012

"Passed over on the illness slip of counsel for the appellant."

6.Order Dated 30.01.2012

"Passed over on the request of counsel for the appellant."

7.Order Dated 06.02.2012

"Supplementary affidavit filed today may be taken on record.

On the request of counsel for the appellant, list this case after two weeks."

However, ultimately the proceedings culminated with the passing of the order dated 27.04.2012, by means of which the Special Appeal itself was dismissed for want of prosecution. The order dated 27.04.2012 is quoted herein below:-

"The case is called out in the revised list. The Court has waited for sometime. However, none has appeared for the appellants.

In the circumstances, the Court has no option but to dismiss the Special Appeal for want of prosecution.

The Special Appeal is, accordingly, dismissed for want of prosecution.

Interim order, if any, stands vacated."

Aggrieved against the order dated 27.04.2012 by means of which, the Special Appeal itself was dismissed for want of prosecution, the present applications being Civil Misc. Delay Condonation Application No. 350883 of 2012 and Civil Misc. Restoration Application No. 350885 of 2012 have been filed.

The matter has been heard at length.

Needless to say that the application for delay condonation and restoration have been vehemently opposed by Sri Shyamal Narain, learned counsel appearing for the defendant-opposite party, who had also filed his objections to both the applications to which a Rejoinder Affidavit has also been filed by the learned counsel for the appellants which has been supported by an affidavit of the Registered Clerk of Sri U.K. Saxena, learned counsel for the appellants.

In Paragraph No. 3 of the said affidavit filed in support of the said applications, it has been mentioned as under:

"That the aforesaid case was listed in the cause list on 27.04.2012, but could not be marked. This was the reason that the counsel for the appellants could not appear in the Court when the case was called out in the Court."

It has further been mentioned in Paragraph No. 4 of the said affidavit, which is quoted herein:

"That on an inquiry from the office made on 21.11.2012, it has been revealed that the above mentioned special appeal has been dismissed in default."

The delay has been sought to be explained as a mistake on the part of the Office of the learned counsel for the appellants.

In the objections filed on behalf of the sole respondent, in Paragraph No. 4, the conduct of the appellants has been sought to be explained with the submission that in this background the Delay Condonation Application as well as the Restoration Application are liable to be rejected.

In Paragraph No. 5 of the said affidavit, it has further been mentioned as under:

"It may be noted that the para under reply does not disclose as to what was the occasion for the clerk of the learned counsel for the appellant for suddenly making the alleged inquiry from the office seven months after the dismissal of the Special Appeal."

It has been submitted by learned counsel for the respondent that on these grounds the Delay Condonation Application and the Restoration Application may both be rejected with cost.

In the opinion of the Court and even as per the consistent view of the Hon'ble the Apex Court, no litigant can be made to suffer or be penalized for the mistake of the counsel for the litigant or for any mistake of the Office of the counsel for the litigant.

Time and again, the Hon'ble Apex Court had held that; "no doubt the consideration of the existence of sufficient ground is the discretionary power with the Court, but such discretion has to be exercised on sound principles and not on mere technicalities. The approach of the Courts in such matter should be to advance the cause of justice and not the cause of technicalities. A case as far as possible should be decided on merit, and the party should not be deprived to get the case examined on merit."

In the present case, it has been categorically mentioned in the affidavit of the deponent filed in support of the Restoration Application and the Delay Condonation Application that the deponent who is registered Clerk of the learned counsel for the appellants, could not mark the case in the Cause List and thus, learned counsel for the appellants could not appear on 27.04.2012 before the Court resulting in the dismissal of the Special Appeal itself for want of prosecution.

The cause shown in the Delay Condonation Application and the Restoration Application, in the opinion of the Court, is sufficient.

However, in view of the position which crystallizes after the perusal of the facts and circumstances of the case, it appears from the order impugned in the Special Appeal itself that the plaintiffs-appellants are trying to prolong the proceedings in order to harass their cousin sister to give-up the property.

The learned Single Judge while rejecting the Delay Condonation Application as well as the Restoration Application has observed as under:

"The application for restoration has been filed by Sri Shashi Kant Sharma Son of Ramesh Chandra Sharma and Smt. Shashi Prabha Sharma and Manjari Sharma - wife and daughter of the original plaintiff Sri Ramesh Chandra Sharma, who has died in the meantime on 18.11.2010.

In para 3 to 9 of the affidavit, it is stated that Sri Vedmani Sharma, Advocate, who was conducting the case was arguing in some other Court, had asked his junior colleague Sri M.A. Abasi, Advocate to request the Court to pass over the matter. He was under the impression that the Court accepted the request and that the matter will come up in the next cause list. Unfortunately, he could not hear/understand, that the matter was directed to be taken on the next day i.e. 22.11.2005.

It is stated that the deponent met his counsel on 28.11.2010, to inform him about the death of his father-plaintiff. He was informed by the counsel that within 90 days a substitution application has to be filed. The deponent again met his counsel on 16.2.2011 with the death certificate of plaintiff for filing substitution application and on 17.2.2011, when an enquiry was made by the Clerk of the counsel, to find out the status of the case, it was revealed that the case has already been disposed of on 22.11.2005.

It is submitted by Sri Shymal Narain, counsel for respondent, that the delay of five years, has not been sufficiently explained in the affidavit. There is no reason forthcoming as to why the father of the applicant did not choose to pursue the matter, and did not make any enquiry about the case for five long years. His counsel was trying to avoid the hearing. It was found that the counsel was only interested in delaying the matter and thus the testamentary suit was dismissed.

In the present case, nephew of Late Indra Nath Bhatt is claiming entire agricultural property whereas daughter of the deceased is still alive. It is stated that nephew is still in possession of some of the land in village. He is delaying the matter unreasonable for undue gain.

There is substance in the contention of Sri Shyamal Narain that the plaintiff-nephew is prolonging the proceeding to harass her cousin sister to give up the property to him.

The restoration application is wholly misconceived. The delay condonation application and restoration application are rejected. "

A perusal of the order-sheet of the Special Appeal shows that the Special Appeal was filed as far as back in the year 2011 that too with a Delay Condonation Application and till date no substantial order has been passed in this special appeal.

It may also be appreciated that the defendant-opposite party is at present aged about 85 years and is ailing, as mentioned in Paragraph No. 7 of the Objections/Counter Affidavit filed in response to the present Applications in Special Appeal and thus she being a Senior Citizen is entitled to the protection of this Court.

In view of the aforesaid facts and circumstances of the case, the delay in filing the Restoration Application is condoned.

The Restoration Application itself is allowed subject to payment of cost of Rs. 1,000/- to the Defendant-Respondent which shall be paid within a period of three weeks from today.

The order dated 27.04.2012 is recalled.

The Special Appeal is restored to its original number subject to payment of cost of Rs. 1,000/-.

Let the Special Appeal be listed for admission/stay after expiry of the period of three weeks.

Order Date :- 01.10.2013

Sandeep

Case :- SPECIAL APPEAL No. - 2074 of 2011

Appellant :- Smt. Shashi Prabha Sharma And Others

Respondent :- Smt. Kamla Devi

Counsel for Appellant :- U.K. Saxena

Counsel for Respondent :- Shyamal Narain

Hon'ble Satya Poot Mehrotra,J.

Hon'ble Vipin Sinha,J.