Mehant Joginder Singh vs Mrs. S.B. Naronha
2002 Latest Caselaw 660 Del

JUDGMENT

R.C. Jain, J.

1. By means of this application under Order 9 Rule 9 read with Section 151 the applicant seeks for the restoration of the appeal which was dismissed for non-prosecution on 17-2-2000. The application is accompanied by an application under Section 5 of the Limitation Act seeking condensation of 21 months delay in filing the restoration application.

2. The applications have been made with the averments that an appeal filed by the applicant was pending before this court and it was dismissed for non-appearance on 17-2-2000. During the pendency of the appeal the respondent had expired and an application CM No. 3133/93 as filed for bringing on record the legal heirs of the deceased who were brought on record vide an Order dated 6-7-1995. The appeal, thereafter, remained pending in the category of "Regular Matters" and suddenly appeared in the cause list for hearing on 17-2-2000 and the appellant-applicant could not know about the listing of the appeal or its hearing. After some time, the appellant met his counsel Mr. M.L. Dewan and enquired about the fate of the appeal but he was not aware of the same. Hence on further enquiry the appellant came to know that the appeal was dismissed for non-prosecution on 17-2-2000. The appellant engaged a new counsel. It is also stated that the present appeal related to property No. 36, Link Road, Lajpat Nagar-III, New Delhi while another connected appeal related to property No. 35 Link Road, Lajpat Nagar-III, New Delhi was compromised between the parties and, therefore, there was a possibility of the earlier counsel of the appellant entertaining confusion about the present appeal having also been appeal has also compromised and did not pursue. The appellant is stated to be an old man aged about 68 years and had been waiting for the decision of first appeal for the last about 12 years. It is stated that the appellant would suffer irreparable loss and injury if the appeal is not restored and is not heard on merits. The reason for delay in filing of the application is attributed to the confusion entertained by the previous counsel or negligence on his part to check up the true position. The application is supported by an affidavit of the applicant-petitioner.

3. The applications are being opposed on behalf of the respondent and replies supported on behalf of the respondent and replies supported by affidavit have been filed, thereby denying the averments and allegations made in the application about there being any sufficient cause or justification for setting aside the dismissal of the appeal. On the other hand it is stated that the absence of the appellant/counsel at the time of hearing of the appeal on 17-2-2000 was deliberate and there exists no sufficient cause and there could not be any alleged confusion as averred by the appellant.

4. I have heard the learned counsel for the parties and have given my thoughtful consideration to their respective submissions. Opposing the application, the learned counsel for the respondent has strongly urged that the application has been made with vague and unspecific averments without giving the date on which the appellant contracted his previous counsel Mr. M.S. Dewan and on what date Mr. M.S. Dewan or any other counsel inspected the record and found that the appeal stood dismissed. The long delay of about 18 months has not been explained what to talk of explaining day to day delay in filing the application. Learned counsel for the respondent has strongly urged that it was the duty of the counsel appear on the date of hearing and he and the appellant cannot be allowed to take the plea that he did not receive any notice from the court about the actual date of hearing. In this connection he has invited the attention of this court to Rule 8 of Chapter 3 of the Delhi High Court Rules which inter-alia provide for intimation of the actual date of hearing to the parties who are not represented by the counsel. If the party represented by the counsel, the counsel is required to attend the court on the day or days on which their cases are set down and on subsequent days until their cases are disposed of or are postponed.

5. In support his contention, learned counsel for the respondent has placed reliance upon a Supreme Court decision in the case of P.K. Ramchandran v. State of Kerala and Anr. AIR 1998 SCC 2276. In that case the court was considering the question of condensation of delay in filing a Miscellaneous First Appeal by the State of Kerala. The delay in filing the appeal was condoned by the High Court which order was challenged before the Supreme Court. The Supreme Court on a consideration of the matter laid down as under:-

"Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condensation of delay filed in the High Court would stand rejected and the Miscellaneous First Appeal shall stand dismissed as barred by time. No costs."

6. Another decision relied upon is of a Single Bench of this court in the case of Riasat Ali v. Syeda Begum, 2001 Rajdhani Law Reporter 196. On the facts of that case it was held that when ignorance of lawyers is pleaded in seeking condensation of delay its basis must be given that lawyer was guilty of negligence or want of legal skill. The above legal proposition cannot be questioned but the each case has to be judged on its own facts and circumstances. In the case in had it is not disputed that another appeal relating to the adjoining property No. 35 Link Road, Lajpat Nagar-III, New Delhi being SAO filed by the same counsel was pending and it was disposed of pursuant to compromise reached between the parties. In such a situation possibility of a confusion entertained by the previous counsel in regard to the disposal/pendency of the present appeal could not be ruled out. The past conduct of the appellant would show that he was vigilant enough to prosecute the appeal inasmuch as he got the legal representative of the respondent substituted on the death of the deceased respondent. There is nothing to show that the appellant had lost interest in prosecuting the matter. Even if it is assumed for the sake of argument that there was some amount of negligence on the part of the previous counsel in not keeping a track of the further proceedings of the appeal after the substitution of legal representatives and not putting appearance on the date of hearing of the appeal, I am of the considered opinion that the appellant should not be penalised for the same. Having regard to the entirety of facts and circumstances of the appeal, this court is of the opinion that it would be expedient in the interest of justice to condone the delay in filing the application for restoration and to set aside the dismissal of the appeal and to restore the appeal for being heard and disposed of on merits.

7. In the result the applications Under Section 5 of Limitation Act and Order 9 Rule 9 read with Section 151 CPC are hereby allowed and order dated 17-02-2002 dismissing the appeal is hereby set aside and the appeal is restored subject to payment of Rs. 5,000/- as cost.