Rajni vs Joginder Singh And Others
2021 Latest Caselaw 355 j&K

        HIGH COURT OF JAMMU AND KASHMIR
                                AT JAMMU

                                               Pronounced On: 23/03/2021.

                                                         CONC No. 111/2012
                                                                        in
                                                           MA No. 174/2012
Rajni
                                                              .....Petitioner(s)
                                  Through: -
                           Mr. Sachin Sharma, Advocate.
                                      V/s
Joginder Singh and Others
                                                            .....Respondent(s)
                                 Through: -
                           Mr. Ravinder Sharma, Advocate
CORAM:
          Hon'ble Mr. Justice Javed Iqbal Wani, Judge.
                                JUDGEMENT

1. This order shall dispose of the application seeking condonation of

delay in filing of an appeal against the Award passed by the Motor

Accidents Claim Tribunal, Udhampur, (for brevity the Tribunal) in

claim petition bearing File No. 128/claim.

2. Condonation of delay is sought on the premise that claimant/applicant

herein filed a claim petition before the Tribunal on 11.10.2005

claiming compensation thereof from the respondents/non-applicants

herein on account of injuries sustained in an accident stated to have

occurred due to rash and negligent driving of vehicle Matador

bearing No. JK14-0271 by respondent No. 1. The respondent No. 2 is

stated to be the owner of the vehicle and respondent No. 3, the insurer

of the same.

3. The claim petition is stated to have been dismissed by the Tribunal

vide order 11.04.2008 (for brevity the impugned Award).

CONC No. 111/2012

4. It is being stated in the application that the applicant herein

approached the counsel in the month of April 2008, in order to have

assistance for filing of an appeal against the impugned Award and the

counsel was found not to be available in his office.

5. The applicant claims to have approached the counsel again in the

month of August 2008, with great difficulty on account of disability

suffered in the accident and states to have paid the fee to the counsel

for filing of the appeal who is stated to have assured the applicant that

he would file the appeal against the impugned Award before the High

court by or before September 2008. The applicant herein is stated to

have put signatures in condonation of delay application as also memo

of appeal.

6. The applicant is stated to have done all the needful for ensuring the

presentation of appeal.

7. It is being further stated that in the month of January 2009 when the

applicant enquired from the counsel about the status of the appeal, the

counsel assured the applicant that the appeal has been preferred and is

pending consideration and informed further the applicant that the

High court is closed for vacation and the case of the applicant has

already been directed to be listed in the month of April 2009.

8. It is being next stated in the application that the applicant approached

the learned counsel in the month of April 2009, who instructed the

applicant to obtain a certified copy of the Award passed by the

Tribunal on her own where after the applicant states to have applied

for a certified copy and provided to her on the very same day.

CONC No. 111/2012

9. It is being further stated that applicant furnished certified copy to the

counsel who is stated to have told the applicant to come in his office

as and when called by him only.

10. It is being next stated that the applicant provided complete particulars

to the counsel who instructed her that she will be called as and when

required.

11. It is being further stated that about one and a half year from thereafter

the applicant regularly contacted the counsel on phone who informed

the applicant that appeal stands filed and is pending before the court.

12. It is being next stated that thereafter about one and a half year, counsel

again asked the applicant to get one more certified copy of the Award

from the Tribunal as the earlier copy was stated to have got

misplaced.

13. It is being further stated that again a copy was provided in the month

of September 2011 to the counsel where after the applicant states to

have approached the counsel many times who avoided the applicant

on one pretext or the other whereupon the applicant states to have got

suspicious and thereafter engaged a counsel at Jammu to verify the

pendency of the appeal and shockingly came to know that till date no

appeal is filed by her counsel against the said Award.

14. It is being stated that new counsel at Jammu, thereafter drafted the

appeal at her instructions and obtained her signatures and again got

certified copy of the Award on 30.03.2012 for filing of the appeal.

The applicant states that delay for filing the appeal has been due to the

negligence of the counsel inasmuch as on account of permanent

disability having been suffered by her in the accident. The delay in

CONC No. 111/2012

filing appeal is stated to be for the aforesaid reasons and is, as such,

sought to be condoned.

15. Respondents have appeared in the matter however, have not chosen to

file objections.

16. Heard learned counsel for the parties.

17. Learned counsel for the applicant made his submissions in line with

the contentions raised in the application. Learned counsel for the

respondent No. 3 Mr. Ravinder Sharma resisted and opposed the

application and sought its dismissal fundamentally on the ground that

the application is misconceived inasmuch as afterthought exercise

undertaken by the applicant whereby an attempt has been made to

shift the burden of her negligence upon some counsel whose

particulars have not been reflected in the application.

18. Indisputably an Award has been passed by the Tribunal in presence of

the counsel for the petitioner/applicant on 11.04.2008 holding that the

petitioner/applicant to have failed to prove having suffered injuries on

account of vehicular accident by alleged Metador bearing No.

JK14-0271 on 06.09.2004.

19. Perusal of the explanation on the basis of which delay is sought to be

condoned essentially relates to the alleged negligence of the counsel

purported to have been engaged by the applicant for preparation and

filing of appeal against the Award. The explanation offered by no

sense of imagination could said to be credible, cogent inasmuch as

sufficient warranting condonation of delay. In legal profession an

advocate acts as an agent of the party and there is no absolute rule that

a party can put entire blame upon the advocate while trying to make

CONC No. 111/2012

out as if, the party was totally unaware of the nature or significance of

the proceedings. Law being settled as laid down by the Apex court in

the judgment passed in case titled as "P. K. Ramachadran vs. State

of Kerala reported in AIR 1998 SC 2276," being appropriate and

advantageous, wherein at para 6 following is noticed.

"6. 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 condonation of delay filed in the High Court would stand rejected and the Miscellaneous First Appeal shall stand dismissed as barred by time. No costs."

20. Viewed in the context what has been observed and considered

hereinabove, application in hand entails dismissal and is, accordingly,

dismissed, as a consequence whereof the accompanying appeal being

MA no. 174/2012, shall also stands dismissed.

Javed Iqbal Wani Judge Jammu 23/03/2021 "Ishaq"

                Whether the Order is speaking?                 Yes
                Whether the Order is reportable?               No.