Tata Motors Finance Ltd vs Un Speedways Pvt Ltd
2022 Latest Caselaw 14821 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN JODHPUR

D.B. Civil Misc. Appeal No. 1573/2020

Tata Motors Finance Ltd.

----Appellant Versus Un Speedways Pvt Ltd

----Respondent

For Appellant(s) : Mr.Aidan Choudhary on behalf of Mr.Muktesh Maheshwari.

For Respondent(s)        :     None present.



           HON'BLE MR. JUSTICE SANDEEP MEHTA
            HON'BLE MS. JUSTICE REKHA BORANA

                                    Order

16/12/2022

The matter comes upon an application under Section 5 of the

Limitation Act for condonation of delay in filing the appeal against

the judgment dated 19.12.2019 whereby the suit of the plaintiff/

appellant has been dismissed by the Commercial Court, Udaipur.

None present for the respondents despite service.

As per the office report, the appeal is barred by 188 days.

It has been submitted in the application that due to

inadvertence of the associate of the lawyer appearing for the

appellant company, the information about the judgment dated

19.12.2019 could not be communicated to the appellant company.

It was only in the month of February, 2020 that the said

information was given and thereafter, on instructions, the certified

copy of the judgment was applied for and was ultimately received

on 4.3.2020. Thereafter, the lockdown was imposed nationwide

because of the pandemic and, therefore, the appeal could not be

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filed within time. An affidavit of counsel Shri Hemant K. Joshi, who

deposed himself to be the associate to the counsel representing

the appellant company, has also been annexed along with the

application.

The averments as made in the application make it clear that

the delay caused in filing the present appeal was firstly because of

non-communication by the counsel and secondly because of

nationwide lockdown on account of pandemic situation.

In the case of Rafiq & Ors. vs. Munshilal & Ors. reported

in AIR 1981 SC 1400, the Hon'ble Apex Court held as under :-

"What is the fault of the party who having done everything in his power and 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. 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."

It is the settled proposition of law that a litigant cannot be

penalised because of some action/inaction on the part of the

counsel. Admittedly, as submitted by way of affidavit, the delay

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caused in filing the present appeal was because of inaction on the

part of the counsel and further, because of the circumstances

which were not within the control of the parties.

In view of the above observations, the reason as explained

for the delay caused in filing the present appeal is found to be just

and sufficient. The delay is, therefore, condoned and the

application under Section 5 of the Limitation Act is allowed

accordingly.

Let the appeal be listed for admission.

                                   (REKHA BORANA),J                                        (SANDEEP MEHTA),J




                                    10-Sphophaliya/-









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