Minati Ray vs Bisti Boro And 2 Ors
2025 Latest Caselaw 400 Gua

Gauhati High Court

Minati Ray vs Bisti Boro And 2 Ors on 9 May, 2025

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GAHC010245262023




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                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : I.A.(Civil)/3446/2023

            MINATI RAY
            W/O LATE SASANKA RAY,
            VILL.- PANBARI BAZAR,
            P.O. AND P.S.- BIJNI, DIST.- CHIRANG(BTR), ASSAM, PIN- 783360.



            VERSUS

            BISTI BORO AND 2 ORS.
            S/O SRI BABU RAM BORO,
            VILL.- PORAKUCHI, P.O. AND P.S.- SARTHEBARI,
            DIST.- BARPETA, ASSAM, PIN- 781307.

            2:JYOTSHNA HALOI
             C/O SRI PHANIDHAR HALOI

            VILL.- RAMPUR
            P.O. AND P.S.- SARTHEBARI

            DIST.- BARPETA
            ASSAM
            PIN- 781307.

            3:THE NEW INDIA ASSURANCE COMPANY LTD.
             REP. BY THE DIVISIONAL MANAGER
             BONGAIGAON DIVISION
             CHAPAGURI
             P.O. AND P.S.- BONGAIGAON
             DIST.- BONGAIGAON (ASSAM)
             PIN- 783380

Advocate for the Petitioner   : MR. A HUSSAIN,
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Advocate for the Respondent : MR. A DUTTA (R-1,2), MS P HUJURI(R-3),MR. A SAIKIA (R-
3),MR. A GANGULY(R-1,2)


            Linked Case :

           MINATI RAY


            VERSUS

           BISTI BORO AND 2 ORS (B)


           ------------
           Advocate for : MR. A HUSSAIN
           Advocate for : appearing for BISTI BORO AND 2 ORS (B)



                                  BEFORE
                    HONOURABLE MRS. JUSTICE MARLI VANKUNG

                                        ORDER

Date : 09-05-2025

Heard Mr. A. Hussain, learned counsel for the petitioner. Also heard Mr. A. Dutta, learned counsel for respondent Nos. 1 & 2 and Ms. A. Biyani, learned counsel for the respondent No. 3.

2. Mr. A. Hussain, learned counsel for the applicant/appellant has prayed for the condonation of a delay of 1138 days in filing the appeal against the Order dated 21.06.2018 passed by the learned Member, Motor Accident Claims Tribunal, Bajali at Pathsala in MAC Case No. 05/2017.

3. The learned counsel for the applicant submits that the delay of 1138 days in filing the present appeal is not due to any negligence or laches on the part of the applicant. He submitted that the applicant/appellant had filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming Page No.# 3/7

compensation of Rs. 20,00,000/- on account of road traffic accidental death of her husband in a Motor Vehicle accident which occurred on 22.07.2012 due to the rash and negligence driving of the accident vehicle. The claim was registered as MAC Case No. 05/2017 before the learned Motor Accident Claims Tribunal, Bajali at Pathsala. Thereafter, on 20.01.2017, the learned Tribunal issued notices to the opposite parties and accordingly, steps were taken for issuance of notice. The opposite party No. 3 appeared before the learned Tribunal and submitted written statement. The then engaged counsel of the instant applicant/appellant took steps upon the opposite party Nos. 1 & 2 only on two occasions. Despite several directions made by the learned Tribunal for issuance of notice, the engaged counsel remained absent without steps on 20.09.2017, 25.01.2018, 21.04.2018 & 21.06.2018. Vide the Order dated 19.05.2018, last chance was given to serve notice upon the opposite party Nos. 1 & 2 and the case was fixed on 21.06.2018. However, the then engaged learned counsel of the applicant/appellant, remained absent without steps and the learned Tribunal vide the Order dated 21.06.2018 dismissed the claim petition. The applicant/appellant on 31.07.2018 then filed a petition under Order 9 Rule 9 CPC r/w Section 151 CPC for restoring the case, but after hearing the matter on 07.08.2018, the learned Tribunal dismissed the Petition No. 368/2018 for restoration on finding that there were no sufficient grounds for reviving the dismissal order for default.

4. The learned counsel for the applicant/appellant submits that the applicant is from a very remote village in the District of Chirang and therefore, she received the information about the Order dated 07.08.2018 passed in Petition

No. 368/2018 only in the month of 1 st week of August, 2023. Accordingly, she made an application for certified copies on 07.09.2023 and received certified Page No.# 4/7

copies on 29.09.2023. The applicant/appellant came to Guwahati in the 1 st week of October, 2023 to discuss about filing the appeal. However, immediate steps could not be taken since the applicant/appellant did not belonged to a sound financial background and needed time to afford money to pay the legal fees to her engaged Lawyer.

5. The learned counsel submitted that the delay in filing the appeal against the Order dated 21.06.2018 passed by the learned Member, Motor Accident Claims Tribunal, Bajali at Pathsala is therefore not due to any negligence on the part of the applicant but due to the negligence on the part of her engaged Lawyer, who failed to look after her interest wherein the applicant/appellant had fully entrusted the matter to her Lawyer who failed to appear on the dates fixed by the learned Tribunal. He further submitted that in the additional affidavit filed a letter dated 06.02.2025 addressed to the Chairman, Bar Council of Assam, Nagaland, Arunachal Pradesh, Mizoram and Sikkim to the Bar Council is enclosed, wherein complaint against her previous counsel is made, for not taking the necessary steps to represent her case before the learned Tribunal. That she should not be made to suffer due to the inaction of her then engaged counsel.

6. The learned counsel has relied on the judgment of the Apex Court in Rafiq & Anr. Vs. Munshilal & Anr., reported in (1981) 2 SCC 788, wherein the Apex Court had held that an innocent party cannot suffer injustice merely because his chosen advocate defaulted.

7. Ms. A. Biyani, learned counsel for the respondent No. 3 submitted that the letter dated 06.02.2025 complaining about the then engaged counsel by the applicant/appellant was made after the instant application for condonation of Page No.# 5/7

delay is filed. She submits that this is an afterthought and no proper explanation is given for the delay in filing the appeal. It is not proper explanation how the appellant got to know of the order dated 07.08.2018 in Petition No. 368/2018,

after a lapse of almost five years only in the 1 st week of August, 2023. She submitted that the reason given by the applicant/appellant for the delay of 1138 days is not supported by proper documents.

8. Having heard the submissions made by the learned counsels for both the parties, this Court finds that on perusal of the reasons for the delay of 1138 days in filing the appeal against the Order dated 21.06.2018 passed by the learned Member, Motor Accident Claims Tribunal, Bajali at Pathsala in MAC Case No. 05/2017, which has been explained in detail at para Nos. 2, 3, 4, 5 & 6 of the application, this Court finds that the main reason for the delay is found to be due to the inaction and incompetence of the then engaged learned counsel for the applicant/appellant. It is also seen that the applicant is a lady coming from a remote/rural village being the resident of Chirang District. It is also seen that on the advised given to her, she had also accordingly filed the complaint against her then engaged counsel to the Chairman, Bar Council, Guwahati.

9. In view of the above given facts, the judgment of the Apex Court in Rafiq & Anr. Vs. Munshilal & Anr . (Supra) is referred to, wherein the learned Apex Court had observed as follows:-

"3. The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned Advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may Page No.# 6/7

remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. Mr. A. K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. Maybe, we do not know, he is better informed in this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done every- thing in his power expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr. A. K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is the negative. Maybe that the learned Advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law. If there is a stay of dispossession it will continue till the disposal of the matter by the High Court. There remains the question as to who shall pay the costs of the respondent here. As we feel that the party is not responsible because he has done whatever was possible and was in his power to do, the costs amounting to Rs. 200 should be recovered from the advocate who absented himself. The right to execute that order is reserved with the party represented by Mr. A. K. Sanghi."

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10. Thus, in view of the above decision of the Apex Court and considering the explanation given by the learned counsel for the applicant/appellant, this Court is satisfied with the explanation given, that the delay was mainly due to the inaction and incompetence of her then learned counsel, and wherein the applicant belongs to a remote rural village, this Court find it fit to condone the delay of 1138 days in filing the connected appeal against the Order dated 21.06.2018 passed by the learned Member, Motor Accident Claims Tribunal, Bajali at Pathsala in MAC Case No. 05/2017. Accordingly, I.A.(Civil) No. 3446/2023 stands allowed and disposed of.

11. On the disposal of the I.A, the main appeal is to be given registration number and list for admission hearing after 3 (three) weeks.

JUDGE

Comparing Assistant