North Eastern Carrying ... vs New India Assurance Company ...
2007 Latest Caselaw 1406 Del

JUDGMENT

J.M. Malik, J.

1. The trial court vide its order dated 15th December, 2001, dismissed the application moved by the appellant under Order 9 Rule 13 read with Section 151 CPC. Aggrieved by that order, the present appeal has been preferred. The appellant has also filed before this Court, for the first time, an application under Section 5 of the Limitation Act for condoning the delay of 42 days in filing the application under Order 9 Rule 13 read with Section 151 CPC before the trial court.

2. The appellant in this case was proceeded against ex parte on 5th July, 1999. His counsel, Shri T.P. Singh, appeared before the court on 17th May, 1999, when the matter was adjourned for 5th July, 1999. Due to the inadvertent mistake on his part, he could not carry forward the case in his case diary from 17th May, 1999 to 5th July, 1999 and as such, nobody appeared before the court on the date fixed. It is only on 8th September, 1999, when the appellant made enquiries from his counsel, his counsel checked the record and came to know about the above-said ex parte proceedings. It also transpired that an ex parte award was passed on 24th July, 1999. The application for setting aside the ex parte judgment was moved on 14th September, 1999. The said application was supported by the affidavit of appellant's advocate, Shri T.P. Singh. During the pendency of this case, the appellant also filed another affidavit dated 23rd October, 2001, wherein it was stated that Shri T.P. Singh, counsel for the appellant, had migrated to Australia in August, 2000 after handing over the files to the appellant. Thereafter, the appellant engaged the present counsel. He also submitted that his previous counsel did not file a photocopy of his case diary. The appellant tried to locate the case diary, but despite frantic efforts made by him, the diary could not be traced. It was urged that the appellant should not suffer due to the mistake of his counsel.

3. The respondent hotly contested the above-said application.

4. The trial court came to the conclusion that the application moved by the appellant is barred by limitation. Again, the appellant had failed to file an application under Section 5 of the Limitation Act for condensation of delay.

5. I have heard the counsel for the parties. Learned Counsel for the respondent argued with vehemence that the order passed by the trial court does not suffer from any infirmity or illegality. He stressed that it was the duty of the appellant to move an application under Section 5 of the Limitation Act before the trial court. He submitted that the application moved before this Court under Section 5 of the Limitation Act is meaningless. He argued that a valuable right has already accrued in favor of the respondent and it should not be denied at this late stage.

6. I find force in the argument advanced by counsel for the appellant in a measure. From a perusal of the above-said facts and circumstances, it is clear that the appellant has to suffer due to the mistake made by his counsel. Even if no case diary is produced but in view of the exceptional circumstances explained above and the unrebutted affidavit sworn by Shri T.P. Singh, Advocate, which carries infinite value, the sufficient cause stands established. It is a well known fact that the personal appearance of the party is not required in each and every occasion. After engaging an advocate the party may remain supremely confident that the lawyer will look after his interest. It would not be proper that the party should suffer for the inaction, deliberate omission or misdemeanour of his agent. It is well settled that a litigant should not suffer for the lapses on the part of his counsel. It is well said that justice can be best done when both the parties are properly heard. The court must, of course, see whether in such cases there is any taint of mala fides or element of recklessness or ruse. If neither is present, legal advice honestly sought and actually given, must be treated as sufficient cause when an application under Section 5 of the Limitation Act is being considered. Even if purpose is to delay the proceedings that can be taken care of.

7. These views are emboldened by the Apex Court authorities reported in Rafiq and Anr. v. Munshilal and Anr. , Concord of India Insurance Co. Ltd. v. Smt. Nirmalal Devi and Ors. , Devendra Swamy v. Karnataka State Road Transport Corporation AIR 2002 SC 2545 and State of Nagaland v. Lipok A.O. and Ors. .

In N. Balakrishnan v. M. Krishnamurthy , it was observed,

13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put-forth as part of a dilatory strategy the Court must show utmost consideration to the suitor. But where there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the Court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite a large litigation expenses. It would be a salutary guideline that when Courts condone the delay due to laches on the part of the applicant the Court shall compensate the opposite party for his loss.

8. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred. There is no reason to believe that delay is occasioned deliberately, or on account of culpable negligence or on account of mala fide. Therefore, in view of these facts and circumstances I accept the appeal and condone the delay in filing the application under Order 9 Rule 13 read with Section 151 CPC and set aside the ex parte order and restore the case to the position which existed on 5th July, 1999, subject to the following conditions. The appellant shall deposit the entire decretal amount up to date with the trial court after deducting the amount already deposited vide orders of the courts, within four weeks from today. The trial court shall keep this money in FDR on yearly basis.

9. FAO 207/2002 and CM No. 448/2002 are allowed and disposed of. CM No. 447/2002 also stands disposed of. Trial court record along with a copy of this order be sent back forthwith. Parties are directed to appear before the trial court on 6th September, 2007.