Dev Nandan Tati vs Babu Lal & Anr.
2010 Latest Caselaw 3025 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    RSA 145/2003

                                           Date of Decision: 1st July, 2010


DEV NANDAN TATI                                        ..... Appellant

                     Through:      Mr. Manoj K. Srivastava, Advocate

                            VERSUS

BABU LAL & ANR.                                   ..... Respondents
              Through:             Mr. Vivek Sharma, Advocate with
                                   Mr. Pankaj Kumar, Advocate

%      CORAM:
       HON'BLE MS. JUSTICE ARUNA SURESH

(1)    Whether reporters of local paper may be allowed to see the
       judgment?

(2)    To be referred to the reporter or not?                        Yes

(3)    Whether the judgment should be reported in the Digest?        Yes

                            JUDGMENT

ARUNA SURESH, J.

CM APPL. NO.427/2003 (delay) in RSA 145/2003

1. Appellant has filed this application under Section 5 of the Limitation

Act (hereinafter referred to as 'Act') seeking condonation of delay of

three days in filing the appeal on the ground that delay in filing the

appeal was due to miscalculation of days by the counsel and the

same was not intentional. No reply to the application has been filed

by the Respondents.

2. Mr. Vivek Shama, counsel for the Respondents has submitted that

application is not supported by an affidavit of the counsel who mis-

calculated the days in filing the appeal beyond the period of

limitation and therefore, the application deserves dismissal.

3. True that there is three days delay in filing the appeal. The

impugned judgment and decree is dated 1st April, 2003 and the

appeal was filed by the appellant on 15.07.2003. There were certain

objections by the Registry and after removal of the objections, appeal

was refiled on 5.08.2003. Appeal was listed first time before this

court on 8.08.2003. Therefore, there is a delay of 15 days in filing

the appeal. However, appellant got the certified copy of the

impugned judgment only after 12 days of his applying for the same.

Given benefit of Section 12 of the Act, there is only three days delay

in filing the appeal.

4. There is every possibility that while calculating the period of

limitation, counsel for the appellant committed mistake. To err is

human. Hence delay of three days in filing the appeal occurred. The

delay is nominal and is not prejudicial to the interest of the

Respondents. Under such circumstances, it was not necessary for the

Advocate to file his affidavit stating the reason for delay in filing the

appeal, though the same was desired.

5. Mistaken advice given by a legal practioner may in the

circumstances of the case give rise to sufficient cause within the

section as there is no general doctrine which saves parties from the

results of wrong advise. The court has to adopt a liberal approach

while considering the application filed under Section 5 of the Act

and/or under Order 41 Rule 3 (a) CPC while considering the

circumstances responsible for the delay in filing the appeal. Rigidity

in handling these applications sometime may cause injustice to the

appellant.

6. Appellant had filed a suit for possession and mesne profits against

the Respondent. After obtaining the decree from the first court,

appellant in appeal filed by the Respondent lost his decree for

possession. Hence, he filed this appeal.

7. Considering that delay in filing the appeal was due to bonafide on

the part of the Advocate who committed mistake in calculating the

days for filing the appeal within the period of limitation. Mistake of

the lawyer, therefore cannot be held against the interest of the

appellant.

8. Hence, I conclude that appellant is entitled to condonation of delay

in filing the appeal. In doing so, I have also kept in mind the interest

of the parties and nature of relief claimed by the appellant in this

appeal.

9. Hence, application is allowed, delay of three days in filing the appeal

is hereby condoned.

RSA 145/2003

For hearing on substantial question of law as well as on CM APPL

No.426/2003 for stay, list on 26th July, 2010.

ARUNA SURESH (JUDGE)

JULY 01, 2010 vk