Sonam Lanzes And Others vs Tresing Narboo
2022 Latest Caselaw 256 j&K

                                                      Sr. No. 121

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU

                                        Pronounced on : 23.02.2022
                                           CONC No. 153/2012
                                           in
                                            CSA No. 17/2012
                                           IA No. 23/2012

Sonam Lanzes and others                              ....Petitioner(s)

                      Through: Mr. L.K.Sharma, Sr. Advocate with
                               Assisting counsel.
                 Vs

Tresing Narboo                                         .....Respondent(s)

                      Through: Mr. Rahul Pant, Sr. Advocate with
                               Mr. Anirudh Sharma, Advocate.
Coram: HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
                                ORDER

1. The suit filed by the plaintiff, respondent herein, against the

defendants, predecessors of the appellants, was decreed by the

trial court. The civil first appeal filed against the judgment and

decree of the trial court was dismissed vide dated 29.03.2008. The

defendants preferred review petition against the judgment of the

First Appellate Court on 30.04.2008 and the same came to be

dismissed vide dated 26.03.2012. The defendants-appellants have

filed civil second appeal against the judgment and decree of the

First Appellate Court dated 29.03.2008. The application for

condonation of delay also stands filed by the appellants along with

the appeal.

2. It is averred in the application that the counsel for the appellants

instead of filing the second appeal against the judgment and

decree of the trial court advised the defendant to file the review

petition. On the advice of the counsel the review petition was filed

In CSA No. 17/2012 IA No. 23/2012

against the judgment of the First Appellate Court which came to

be dismissed. The appellants prosecuted the review petition on the

bonafide advice of the counsel that the review petition is the

correct remedy and that is why the second appeal was not filed by

the appellants against the judgment and decree passed by the first

appellate court. As the information of the dismissal of the review

petition was received by the appellants in the last week of April

from the counsel and, therefore, seek condonation of delay in

filing the appeal from 30.04.2008 till filing of the present appeal

before this Court.

3. The objections to the application have been filed by the

respondent-plaintiff herein. It is submitted in the objections that

there is no case in favour of the appellant to file the present

second appeal against the judgment of the first appellate court

after four years of the dismissal of the review petition by the said

court. The appellants opted to file the review petition against the

judgment passed by the first appellate court but did not exercise

the option to file the second appeal against the judgment of the

first appellate court. The review petition has been dismissed on

merits and the appellants are not entitled to the benefit of

provisions of Section 14 of the limitation Act. The order of review

has not been questioned by the appellants is also the submission

made in the objections. Lastly, it is submitted that the second

In CSA No. 17/2012 IA No. 23/2012

appeal is, in any case, barred by limitation as the same has been

filed after lapse of more than 90 days from the dismissal of the

review petition. The prayer is for dismissal of the application.

4. The question involved in the application is whether the appellants

are entitled to the benefit of the provisions of the Limitation Act

in the present application on account of the wrong advice

allegedly given by the then counsel for the appellants herein.

5. The basic facts of the dismissal of the decreeing of the suit, filing

of the first appeal against the said decree and further the filing of

the review petition against the dismissal of the first appeal and the

dates mentioned in the disposal of all the three proceedings are

not in dispute and, therefore, need not detain the court on this

aspect of the matter.

6. Mr. L.K.Sharma, learned Senior counsel appearing for the

appellants has vehemently argued that the wrong advice given by

the counsel for the appellant for filing the review petition instead

of the second appeal against the judgment passed by the first

appellate court should not come in the way of this court to

condone the delay in filing the present appeal and deciding the

same on merits. The period spent in pursuing the review petition

before the appellate court should be excluded while computing the

period for filing the second appeal.

In CSA No. 17/2012 IA No. 23/2012

7. Mr. Rahul Pant, learned Senior counsel appearing on behalf of the

respondent-plaintiff has submitted that the application is without

any substance as no leverage can be given to the appellants in the

application in hand on account of the alleged wrong advice of the

counsel for the appellant in filing the review petition instead of

second appeal against the judgment passed by the first appellate

court. The appellant has availed the remedy of review and the

failing of the appellant in the review petition does not bring any

cause for the appellant to file second appeal and seek condonation

of delay in filing the same.

8. The wrong or mistaken advice by the counsel will entitle the party

to wriggle out in every situation cannot be countenanced. It

depends upon the facts and circumstances of the case if the advice

given by the counsel can come to the rescue of that party if the

same has caused prejudice to the party in any proceedings. If

every mistake or advice given by the counsel for the party is to be

ignored or overlooked or condoned by the court then in every

proceeding or any order that may go against the party it will be

convenient for the party against whom the order is passed to come

up with a plea that he has suffered such an order due to the

mistake committed by the counsel. If such a proposition is to be

taken into account then there would be no end or finality to the

proceedings and the case can linger on for indefinite times.

In CSA No. 17/2012 IA No. 23/2012

9. Taking into consideration the facts of the present case, it is but

evident that the appellant after he suffered adverse decision in the

first appellate court against the judgment and decree passed by the

trial court the appellant chose the remedy which he considered to

be the best possible option to pursue and the remedy he chose to

pursue was the remedy of filing the review petition before the first

appellate court. It is not that the said remedy of review was not

available with the appellant and yet he pursued the same which

resulted into passing of the adverse order against him. Order 47

Rule 1 CPC does not debar the party from filing the review

petition in case the first appeal is decided against that party and

the party can choose to file the review petition and this is what the

appellants in the present case opted for. It cannot be said as

argued by the learned counsel for the appellant and also pleaded

in the application that the review petition was the result of wrong

advice given by the counsel for the appellant. In the opinion of the

court it cannot be said that the counsel for the appellant while

choosing the remedy of review had given any bonafide wrong

advice in the matter. There is no question of holding so in the

present case. Only for the reason that the review petition came to

be dismissed does not mean that the filing of the review petition

can be termed as a result of wrong advice given by the counsel for

the appellant.

In CSA No. 17/2012 IA No. 23/2012

10. The learned counsel for the appellant has relied upon (2004) 1 JKJ

(HC) 187 titled Bodh Raj & ors. Versus Rano Devi, 2007 (2) JKJ

468, 1970 AIR (SC) 1953 and (2001) AIR (SC) 2497 in support

of his argument that the time spent in pursuing the wrong remedy

on account of the wrong advice of the counsel should be excluded

while computing the period of limitation.

11. The Court is of the view that the authorities cited above by the

learned counsel do not come to the rescue of the appellants in any

manner. The authorities have been decided keeping in view the

facts and circumstances of the each case and the appellant cannot

seek any benefit out of the said authorities in view of the facts that

are peculiar to those cases.

12. In AIR 1988 RAJ 164 the court took note of the judgments passed

by the courts including the Apex Court to hold on facts that the

plaintiff could not be said to be negligent in the matter and

therefore, the appeal was allowed and the case was remanded to

the trial court for disposal in accordance with law.

13. The other argument which is raised by the learned counsel for the

appellant that the application should be allowed on the ground that

it is in the interest of justice that appeal should be heard on merits

is again the ground which does not find favour with this court.

Once the judgment/order stands passed in favour of the party and

In CSA No. 17/2012 IA No. 23/2012

it assumes finality and if the remedy is availed by the opposite

party belatedly and is not within the period of limitation the

valuable right accrues in favour of opposite party which cannot be

nullified on the plea that the remedy now sought for by the party

should be decided on merits without deciding the issue of

limitation.

14. In view of the fact that the counsel for the appellant consciously

chose to file the review petition against the judgment passed in the

first appellate court and did not pursue the remedy of civil second

appeal if available to the appellant and on the dismissal of the

review petition on merits, the appellant flocks to the superior

court in filing second appeal with the application for condonation

of delay on the plea of the wrong advice of the counsel, the plea

of condonation can be allowed.

15. The application filed for condonation of delay is without merit

and is, accordingly, dismissed. Consequently, the appeal filed

along with the application also stands dismissed.

(Puneet Gupta) Judge Jammu

23..02.2022 Pawan Chopra

Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No

PAWAN CHOPRA 2022.02.24 10:34 I attest to the accuracy and integrity of this document