Mohd. Sayed @ Babu vs Mst. Shahajahan Begum
2007 Latest Caselaw 2059 Del

JUDGMENT

P.K. Bhasin, J.

1. Along with this Revision Petition under Section 25 of the Provincial Small Cause Courts Act, 1887 read with Section 115 of Civil Procedure Code directed against the judgment and decree dated 12.04.2002 passed by the learned Judge, Small Causes Court, Delhi the petitioner has filed an application under Section 5 of the Limitation Act, 1963 seeking condensation of delay of 246 days in preferring the revision petition and by this order I shall be disposing of that application.

2. The relevant facts which need to be noticed are that the respondent herein had filed a suit for recovery of rent of Rs. 4000/- in respect of first floor of property bearing No. 6859, gali No. 18, Ahata Kidara, Bara Hindu Rao, Delhi against the present petitioner.? The petitioner-defendant contested the case and finally that suit was decreed in favor of the respondent-plaintiff for Rs. 367.50/- along with? interest thereon @ 15% per annum.

3. Aggrieved by the judgment and decree dated 12.04.2002, the petitioner-defendant preferred an appeal within thirty days of the passing of that judgment before the learned District Judge. That appeal was, however, withdrawn by the petitioner on 31-3-2003 and then on 5-5-2003 the present revision petition was filed against the same judgment and decree. Since the revision petition was filed beyond the prescribed period of limitation the petitioner also moved an application for condensation of delay of 246 days. It was stated in the application that only on 31.03.2003 it came to the light during the course of final arguments before the trial Court on an objection being taken by the respondent herein that the appeal was not maintainable and so the appeal was withdrawn on 31-3-2003 itself and then after obtaining certified copies of the impugned judgment and decree this revision petition was filed.? The petitioner has also averred that he preferred the appeal under the bona fide advice from his counsel and so the delay in filing the revision petition was neither deliberate nor intentional. Same submissions were made even during the course of arguments by the learned Counsel for the petitioner. He also cited two judgments of Hon'ble Supreme Court which are reported as AIR 1984 SC 1732 : AIR 1985 SC 1669 and one judgment of this Court reported as AIR 2003 DELHI 252 in support of his submissions.

4. The respondent has contested the condensation application of the petitioner on the grounds that no sufficient cause has been shown by the petitioner for not filing the revision petition within the prescribed limitation period and that in any case the delay of 32 days' even after the withdrawal of the appeal has remained totally unexplained. Learned Counsel for the respondent also cited one judgment of Hon'ble Supreme Court reported as and another judgment of Calcutta High Court reported as .

5. From the fore-going it is evident that the appeal filed by the petitioner against the judgment and decree of the Small Causes Court was withdrawn by the petitioner and the same was not disposed of on merits on the ground that it was not maintainable. In the two judgments cited by the learned Counsel for the petitioner scope of Section 14 of the Limitation Act, 1963 was considered and so they are of no help to the petitioner herein. In the present case Section 14 is not being invoked by the petitioner. This Section provides for exclusion of time for calculating the period of limitation for filing of suits spent by plaintiff' in prosecuting with due diligence and in good faith another civil proceedings in a Court which had no jurisdiction to give the relief sought for in the time barred suit instituted subsequently. In the present case the respondent? plaintiff is not claiming benefit of Section 14 of the Limitation Act and so the question of applicability of this provision of law does not arise for consideration in the present matter.

6. As noticed already, the petitioner is seeking condensation of delay only on the ground that he had filed the appeal against the judgment of the trial Court on the advice of his counsel and that advice was bona fide. However, during the course of arguments in that appeal it was revealed that the only remedy available to the petitioner against the judgment and decree of the trial Court was by way of filing a revision petition in this Court and the appeal was not maintainable. This ground taken by the petitioner, however, cannot be accepted in view of the fact that there is no affidavit of the concerned advocate filed in support of the present application. Section 27 of the Provincial Small Cause Court Act, 1887 clearly provides that a decree passed by a Court of Small Causes shall be final. In view of this provision of law it was necessary for the petitioner to have obtained an affidavit of his counsel who had advised him to file the appeal giving justification as to how he had advised filing of the appeal. It is well settled that the counsel must disclose the circumstances in which incorrect advice was given and it is not sufficient to make a perfunctory and general statement that the wrong advice was given bona fide. The words "sufficient cause" no doubt must receive a liberal construction so as to advance substantial justice but only in cases when no negligence nor inaction nor want of bona fides is imputable to the petitioner. No sufficient cause has been shown for condoning the delay. In the absence of an affidavit? of the advocate who advised filing of an appeal against the judgment and decree of the small causes Court it, therefore, cannot be accepted that the petitioner has been able to show sufficient cause for the condensation of delay in the filing of this revision petition.? In fact, from the copies of the proceedings of the suit placed on record it transpires that the appeal was initially filed by one Mr. S.K. Chaudhary, advocate.? However, subsequently the petitioner engaged one Mr. G.A. Madani, advocate to argue the appeal. He appeared before the trial Court on 16-7-2002 and he advanced some arguments also on 31st March, 2003 on which date, as noticed already, the appeal was withdrawn.? After withdrawing that appeal the present revision petition was filed by the petitioner through the same counsel namely, Mr. G.A. Madani. It, thus, appears that it was the decision of Mr. G.A. Madani, to withdraw the appeal because of it being not maintainable and if this learned Counsel was of the view that the appeal was bound to fail as being not maintainable then the appeal should have been withdrawn on the same date when he filed his vakalatnama before the trial Court. That was, however, not done and instead the appeal was allowed to remain pending till 31st March, 2003 for which also there is no explanation forthcoming. In these circumstances, I am of the view that the present application for condensation of delay in filing of this revision petition is liable to be dismissed.

7. In the result, this application is dismissed and consequently the revision petition also stands dismissed as being time barred.