Mukesh Dubey vs Smt. Asha Bhargava
2021 Latest Caselaw 4586 MP

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                                                    M.C.C.No.1851/2018




             HIGH COURT OF MADHYA PRADESH

                          M.C.C.No.1851/2018

JABALPUR : 24/08/2021

      Shri Sharad Gupta, Advocate for the applicant.

      Shri Girish K.Shrivastava, Advocate for the respondents

No.1, 2 and 4.

Heard on I.A.No.9039/2018, which is an application for condonation of delay in filing the M.C.C. as also on the merits of the M.C.C.

There is a delay of 1344 days in filing the M.C.C.

The M.C.C. is for restoration of M.C.C.No.1298/2013 which has been dismissed for want of prosecution by order dated 14.10.2014. The factual background as disclosed in the reply dated 23.7.2021 is that in the suit for specific performance between the applicant and the respondent no.3, the judgment and decree was passed by the trial court on 23.4.2010 and both the parties had filed F.A.No.422/2010 and F.A.No.447/2010 respectively which were clubbed together and during the pendency of the said appeals, the settlement was arrived at by the applicant and respondents no.1 to 3 with the respondent no.4 who had agreed to purchase the suit property and in view of the settlement the appeals were disposed of by order dated 9.5.2013. Alleging that the terms of settlement were not complied with by the respondent no.4, the present applicant had filed M.C.C.No.1298/2013, which has been dismissed for want of prosecution by order dated 14.10.2014.

Learned counsel for the applicant submits that the Advocate engaged in the M.C.C. had not appeared when the matter was called and had also not informed the applicant about the dismissal of the M.C.C., therefore, the applicant could not take appropriate

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steps for filing the restoration application within time. Hence, the delay is on account of bonafide reason and unintentional. He has further submitted that the applicant was diligently prosecuting the suit and is also prosecuting his other matters which are pending before the High Court without any default, therefore, it cannot be said that the applicant is negligent in any manner and that for the fault of the Advocate, the applicant cannot be made to suffer. Learned counsel for the applicant has placed reliance upon the judgment of the Supreme Court in the matter of Rafiq and another Vs. Munshilal and another, reported in AIR 1981 SC 1400 and in the matter of Ram Kumar Gupta and Ors. Vs. Har Prasad and Anr., reported in AIR 2010 SC 1159.

Learned counsel for the respondents has opposed the application for condonation of delay as also the M.C.C. He has submitted that no proper explanation has been furnished and no reason has been disclosed for non-appearance of the Advocate on the given date. He has also submitted that number of cases are pending before the High Court in which the applicant is a party, therefore, the applicant could have very well appeared in the M.C.C. when it was called on 14.10.2014, which shows the negligence on his part. He has also submitted that the delay is inordinate which does not deserves to be condoned and in support of his submission he has placed reliance upon the judgment of the Supreme Court in the matter of N.Balakrishnan Vs. M.Krishnamurthy, reported in (1998) 7 SCC 123, and in the matter of Postmaster General and others Vs. Living Media India Limited and another, reported in (2012) 3 SCC

563.

Having heard the learned counsel for the parties and on perusal of the record it is noticed that M.C.C.No.1298/2013 has been dismissed for want of prosecution by order dated 14.10.2014 because counsel for the applicant had failed to appear on that

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date. In the application for condonation of delay it has been clearly stated that the counsel who was engaged in M.C.C.No.1298/2013 had not informed the applicant about dismissal of the M.C.C.; on the contrary, he had disclosed to the applicant that the M.C.C. was pending. It has further been stated in the application for condonation of delay that subsequently on enquiry, no information was given by the earlier Advocate, therefore, the applicant had contacted another Advocate and had come to know about dismissal of his case on 14.10.2014 and thereafter without any loss of time, this M.C.C. along with condonation of delay application has been filed. This plea has been further clarified by filing the additional affidavit dated 23.11.2020 in support of the application for condonation of delay. The affidavit of Shri Anurag Tiwari, the Advocate, who had committed the default of appearance, has also been filed by the applicant along with the reply to the application for taking document on record. In this affidavit dated 23.7.2021 the earlier Advocate Shri Anurag Tiwari has clearly stated that :-

"2. That on contacting by the applicant regarding status of the case I under bonafide impression had told him that the same is pending. I was also not aware that the said M.C.C. had been dismissed on 14.10.2014. I was under the bonafide impression that case is pending. The information given by me was believed by the applicant, and, therefore he did not take any further course for restoration of case".

Thus, it is a clear case where the Advocate had committed the default of appearance resulting into dismissal of M.C.C. for want of prosecution and further the Advocate had not informed the applicant about the dismissal of the case.

The Supreme Court in the matter of Rafiq and another (supra) has held that a litigant cannot be made to suffer injustice merely because of the default of his chosen Advocate by observing

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that :-

"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 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. May be, 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 everything 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 in the negative. May be 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

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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".

Reiterating the same position in the case of Ram Kumar Gupta and others (supra) in a case where the application for restoration of petition dismissed for non-prosecution was rejected only on the ground of delay and laches, the Hon'ble Supreme court has held that :-

"4. We have heard the learned counsel for the appellants and also examined the materials on record including the two orders passed by the High Court, one being rejection of the writ petition for non-prosecution and the other being the order of rejection for restoration of the writ petition. The case that was made out by the appellants for restoration of the writ petition was that the learned counsel for the appellants Shri Gupta could not appear before the learned Judge of the High Court as at that point of time, he was designated as the Additional Advocate General of the State and for that reason, it was not possible for him to appear at the time of hearing of the writ petition as well as for restoration of the writ petition. Keeping this fact in mind and the fact that the appellants could not be represented at the time of hearing of the writ petition, we feel it appropriate to restore the writ petition to its original file in order to give an opportunity to the appellants to contest the same on merits. As noted hereinabove, for restoration of the writ petition dismissed for non-prosecution, an application for restoration was filed by the appellants which was rejected only on the ground of delay and laches. But on a perusal and on proper examination of the record of this case, we find that no delay was caused by the appellants in filing the

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application for restoration of the writ petition. In any view of the matter, the appellants cannot be punished for the lapses even if there was any, as the appellants had engaged a learned counsel to appear and contest the writ petition. That apart, considering the fact that the appellants had been prosecuting the litigation since 1982 diligently and there was no lapse on their part till the writ petition was dismissed for non-prosecution and also considering the fact that a lawyer was engaged by them to contest the matter in the High Court who, however, subsequently was designated as an Additional Advocate General of the State and, therefore, could not be present at the time the writ petition was taken up for hearing, we cannot but hold that it would be improper that the appellants should be punished for non-appearance of the learned counsel for the appellants at that time as we are of the view that the appellants were suffering injustice merely because their chosen advocate had defaulted. In Rafiq v. Munshilal [(1981) 2 SCC 788] this Court has also drawn the same conclusion while considering the application for restoration of a writ application when the learned counsel for the appellant could not be present at the time of hearing of the application.

Counsel for the respondents has placed reliance upon the judgment of the Supreme Court in the case of N.Balakrishnan (supra); but, in that case also it has been held that in the absence of anything showing malafide or deliberate delay as a dilatory tactic, the court should normally condone the delay but while doing so the court should keep in mind the consequent litigation expenses to be incurred by the other side. It has further been held in this case that delay of a very long range can be condoned if the explanation is satisfactory and that the primary function of a court is to adjudicate the dispute between the parties and rules of limitation are not meant to destroy the rights of parties. In this regard the Supreme Court in the case of N.Balakrishnan (supra) has held that :-

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"9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court.

10. The reason for such a different stance is thus: The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause.

11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of

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limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari [AIR 1969 SC 575 : (1969) 1 SCR 1006] and State of W.B. v. Administrator, Howrah Municipality [(1972) 1 SCC 366 : AIR 1972 SC 749] .

13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss".

So far as the judgment in the case of Post Master General and others (supra) relied upon by counsel for the respondent is concerned, in that case the appellant was not diligent and had not even filed a better affidavit in spite of the opportunity, therefore, it stands on a different footing.

Having regard to the aforesaid, I am of the opinion that the delay of 1344 days in filing the present M.C.C. has been satisfactorily explained. The said delay took place as the counsel

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for the applicant appearing in the earlier M.C.C.No.1298/2013 had not informed the applicant about the dismissal of the M.C.C. in default and on the contrary had disclosed him that the same was pending and immediately after coming to know about the order dated 14.10.2014 the present M.C.C. has been filed. There is no reason to disbelieve the affidavit which has been given by the earlier counsel who was engaged in MC.C.No.1298/2013. Hence, in the circumstances of the case I am of the opinion that the delay deserves to be condoned by awarding appropriate cost to the other side.

The record further reflects that the non-appearance of the counsel for the applicant on 14.10.2014 was on account of the bonafide reason. Even otherwise it is the settled position in law that for the fault of the Advocate a litigant cannot be made to suffer. Hence, I am of the opinion that a case for restoration of M.C.C.No.1298/2013 is made out.

Accordingly, I.A.No.9039/2018 is allowed and the delay in filing the M.C.C. is condoned and the present M.C.C. is allowed and M.C.C.No.1298/2013 is restored to its original position subject to payment of cost of Rs.50,000/- (Rupees Fifty Thousand only) by the applicant to the respondent no.4 within a period of four weeks from today.

    (Prakash Shrivastava)                         (Virender Singh)
           Judge                                       Judge

    HS


Digitally signed by HEMANT
SARAF
Date: 2021.08.26 16:23:36 +05'30'