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2012 DIGILAW 1215 (AP)

Ithagani Lachaiah, Ithagani Venkataiah and Ithagani Sathaiah v. Joint Collector & Additional District Magistrate

2012-12-05

G.CHANDRAIAH

body2012
ORDER G. Chandraiah, J. 1. This petition has been filed seeking to condone the delay of 1929 days in filing the restoration petition for seeking to set aside the default order dated 13.02.2007 passed in W.P. No. 33159 of 1997 and restore the writ petition. In support of the said petition, the petitioners filed affidavit, inter alia, stating that the writ petition has been filed questioning the order passed by the 1st respondent. Joint Collector and Additional District Magistrate, vide Proceedings in Case No. C3/JC/Ta/11/94, dated 20.10.1997 reversing the order made by the 2nd respondent. Mandal Revenue Officer, in Case No. B/2281/93 dated 04.04.1994, resuming the possession of the land from the petitioners to an extent of Acs. 8.00 in Survey No. 202 of Indurthy Village, Marriguda Mandal, Nalgonda District. 2. Along with the writ petition, the petitioners also filed WPMP. No. 38972 of 1997 seeking to suspend the operation of the order passed by the 1st respondent in Case No. C3/JCTA/11/94 dated 20.10.1997, reversing the order of the 2nd respondent made in Case No. B/2281/93, dated 04.04.1994. 3. This Court on 11.12.1997, while ordering rule nisi granted interim suspension. Thereafter, on 13.02.2007 writ petition was dismissed for default, which came to the notice of the petitioners consequent to the notice dated 26.06.2012 issued by the 2nd respondent, Tahsildar, which was received by them on 10.07.2012 asking them to appear before him on 14.07.2012. Immediately, after receipt of the said notice, the petitioners have approached the 2nd respondent on 14.07.2012 and requested time and accordingly adjourned the matter to 28.07.2012. Thereafter, the petitioners have approached their counsel on 22.07.2012 and produced the copy of the notice issued by the 2nd respondent and also application filed by the respondents 4 to 10, who are legal representatives of the 3rd respondent brought on record vide order dated 08.10.1998, before the 1st respondent on 26.05.2012. Immediately, after verification of the Court order, the petitioners' counsel informed that the writ petition was dismissed for default on 13.02.2007 and he advised the petitioners to file a restoration petition seeking to set aside the default order dated 13.02.2007 along with condone delay petition. For the above reasons, for filing the restoration petition, 1929 days of delay was caused. Therefore, the present condone delay petition has been filed. 4. For the above reasons, for filing the restoration petition, 1929 days of delay was caused. Therefore, the present condone delay petition has been filed. 4. The learned counsel for the petitioners would submit that on 13.02.2007, when the matter was listed, due to oversight, he could not represent the matter, therefore the writ petition was dismissed for default and the same has not been noted. The learned counsel came to know about the dismissal of the writ petition when the petitioners approached him with a notice dated 26.06.2012 issued by the 2nd respondent. Immediately, thereafter, he has taken steps to file restoration petition along with the present condone delay petition. In support of this contention, the learned counsel for the petitioners also filed an affidavit. Therefore, he submitted that though the delay is inordinate but there is no willful act neither on the part of the petitioners nor on the part of the counsel appearing on their behalf therefore, he requested to condone the delay. 5. The learned counsel further submitted that though the merits of the case, which are not necessary for considering the present delay petition, but to do substantial justice to the parties having regard to the lis for consideration between the parties he sought to submit that the petitioners are having substantial right over the land in question by virtue of the certificate issued in their favour under Section 50B of the Act whereunder the petition scheduled land in respect of which an unregistered sale deed was validated and validation of certificate was issued by virtue of which they are in possession from 1984 onwards. It is further submitted that after death of the original tenant, sons of the original tenant filed a petition before the Tahsildar seeking restoration of the land in question to them and the same was, after due enquiry, held in their favour and the petitioners occupied the same against which, appeal was preferred before the appellate authority, Joint Collector, who allowed the appeal. Consequently, the petitioners are likely to loose the right over the land in question. 6. He further submitted that this Court having found prima facie case in favour of the petitioners, on 11.12.1997 while ordering rule nisi granted interim suspension of the impugned order and thereafter, on 25.03.1998 interim suspension order was made absolute. Consequently, the petitioners are likely to loose the right over the land in question. 6. He further submitted that this Court having found prima facie case in favour of the petitioners, on 11.12.1997 while ordering rule nisi granted interim suspension of the impugned order and thereafter, on 25.03.1998 interim suspension order was made absolute. Since from the date of purchase of the land in question, till today the petitioners are in possession and enjoyment of the same therefore, unless and until the delay is condoned and hear the matter on merits, substantial justice cannot be done to the parties. Therefore, he requested to condone the delay. 7. In support of his contention he placed reliance in the cases of Ram Nath and Others v. Dy. Director of Consolidation and Others 1987 (Supp) SCC 683, S. Shankaramma and Another v. S. Ramakrishna Reddy and Others 2003 (2) An. W.R. 353 (D.B.) (A.P.) and Lal Devi and Another v. Vaneeta Jain and Others (2007) 7 SCC 200 and submitted that the delay may be condoned. 8. On behalf of the unofficial respondents, counter affidavit has been filed based on which, the learned counsel appearing on their behalf would submit that no substantial cause is shown for condoning the delay, which is inordinate, It is also submitted that this litigation is going on between the petitioners and the unofficial respondents for the last twenty years and the petitioners are protracting the litigation all these years for one reason or the other to deprive the rights of the unofficial respondents to enjoy the land in question. He further submitted that though the petitioners are regularly use to come to Hyderabad they very well know about the dismissal of the writ petition. Even in spite of that they could not take any steps to file any application within time and on the other hand, they started propagating in the village that even though the writ petition was dismissed they are not going to loose the land because no one would dare to vacate them from the land in question. Neither the counsel for the petitioners nor the petitioners are careful or diligent in pursuing the matter for the last few years i.e. about 5 1/2 years. Therefore, it is nothing but negligence and lethargy on the part of the petitioners and their counsel. Therefore, lenient view cannot be taken for condoning the inordinate delay. Neither the counsel for the petitioners nor the petitioners are careful or diligent in pursuing the matter for the last few years i.e. about 5 1/2 years. Therefore, it is nothing but negligence and lethargy on the part of the petitioners and their counsel. Therefore, lenient view cannot be taken for condoning the inordinate delay. In view of the above, the delay petition is liable to be dismissed and sought to dismiss the same. 9. In support of his contention, he placed reliance in the cases of Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation and Another (2010) 5 SCC 459 and Manhargiri Rajgiri Goswami and Another v. District and Sessions Judge, Valsad and Others AIR 2012 Guj. 137 and submitted that stricter approach in cases of inordinate delay to be applied. 10. Heard the learned counsel for the petitioners and the learned counsel for the unofficial respondents and perused the material on record. 11. The point that arises for consideration is whether the petitioners are entitled to the relief sought for i.e. to condone the delay. 12. This petition is filed seeking to condone 1929 days delay in filing the restoration petition, undoubtedly, it is inordinate delay and it cannot be said that it is short delay. Now it is to be seen that under what circumstances the said inordinate delay was caused and whether such delay is willful, wanton or negligent and whether substantial cause is shown to condone the same and if dismissing the writ petition for default, without restoring the same, whether the petitioners will be put to any irreparable loss or injustice, are the points before this Court for consideration. 13. Admittedly, for the purpose of condoning the delay it is needless to go into the merits of the main case, but, at the same time, it needs to go through the facts of the case to arrive at a conclusion to do the substantial justice to the parties. Any observations to be made for considering the condone delay petition, for taking note of the factual position, cannot be influenced for any other purpose other than the purpose to condone the delay, Hence, it is necessary to make note of few facts. 14. Any observations to be made for considering the condone delay petition, for taking note of the factual position, cannot be influenced for any other purpose other than the purpose to condone the delay, Hence, it is necessary to make note of few facts. 14. The case of the petitioners is that they purchased the land in question from one M. Somaiah to whom a certificate under Section 50B of the A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (for short 'the Act') was issued by the then Tahsildar, Deverkonda Nalgonda District and the same was registered in the name of the petitioners in the year 1984 and since then the petitioners have been in possession and enjoyment of the above land with absolute rights. In the year 1993, the 3rd respondent made an application to the 2nd respondent for restoration of possession of the land to an extent of Acs. 19.13 guntas and the 2nd respondent, after conducting the detailed enquiry and after verifying the records passed order dated 04.04.1994 directing the Revenue Inspector to restore Acs. 10.00 to the 3rd respondent and also decided that the remaining land of Acs. 8.00 in Survey No. 202 belonging to the petitioners. Against the same, the 3rd respondent filed an appeal before the 1st respondent and the same was disposed of holding that the 3rd respondent required to be put back in possession of the land in an extent of Acs. 8.00 in Survey No. 202 by its order dated 20.10.1997. As against the said order, the petitioners filed the present writ petition. 15. The fact remains that it is not the case of the respondents that without there being any right, the petitioners put up a claim against the unofficial respondents in respect of the land in question. As could be seen from the order passed by the 2nd respondent, Mandal Revenue Officer, it is held in favour of the petitioners and in appeal the same has been reversed. Therefore, both the parties have put a substantial claim over the land in question and therefore, substantial right of both the parties are involved, which needs to be adjudicated in the writ petition by adjudicating the validity of the order passed by the appellate authority. Therefore, with a view to do the substantial justice to both the parties, the matter needs to be considered in detail. Therefore, with a view to do the substantial justice to both the parties, the matter needs to be considered in detail. The unofficial respondents (as far as the unofficial respondents are concerned they are the legal heirs of the alleged tenant) were brought on record by virtue of the order dated 08.10.1998 in WPMP. No. 32301 of 1998. It could be seen that though the writ petition was dismissed for default about 5 1/2 years back, neither the petitioners nor the respondents including the unofficial respondents had taken any action in the matter. 16. The 2nd respondent issued notice dated 26.06.2012 to the petitioners, based on the representation made by the unofficial respondents in the month of June, 2012, directing the petitioners to appear before him along with necessary documentary evidence in support, as may be necessary, either in person or through counsel, which made the petitioners to approach their counsel. That means neither the petitioners nor the unofficial and official respondents have the knowledge about the dismissal of the writ petition. As far as the knowledge of the dismissal of the writ petition is concerned all the parties i.e. petitioners and official and unofficial respondents are common. The petitioners happen to be the affected party of the dismissal order, they have filed the restoration petition along with the condone delay petition. 17. It appears that the petitioners approached their counsel on record in between from the date of filing the writ petition and obtaining the interim direction and thereafter, till dismissal of the writ petition for default, there is no occasion for the petitioners to know about the effect of the pendency of the writ petition. Therefore, it cannot be said that the petitioners and their counsel had any negligence in approaching this Court belatedly because the petitioners do not have knowledge of dismissal of the writ petition for default and immediately after coming to know through the notice dated 26.06.2012, issued by the 2nd respondent, they have taken steps by way of approaching their counsel and immediately the counsel, under the instructions of his clients, filed the restoration petition along with the present condone delay petition. The learned counsel for the petitioners also had no knowledge of dismissal of writ petition for default and to that effect he also filed an affidavit stating that because of the oversight he could not appear before the Court on the day of dismissal of the writ petition for default. It is categorically averred in para 5 of the affidavit, filed in support of the condone delay petition that the petitioners are residing at remote village Indurthi in Marriguda Mandal in Nalgonda District and they are doing agriculture works and eking out their lively hood. The petitioners are not well versed with any legal proceedings and they did not approach him after interim orders granted by this Court on 11.12.1997 and they did not enquire about the stage of matter at any point of time. Initially, the petitioners only came to know about the dismissal of the writ petition for default only through the notice dated 26.06.2012, issued by the 2nd respondent. 18. The learned counsel for the petitioners placed reliance in the case of S. Shankaramma, two supra, wherein the Division Bench of this Court dealt with similar petition to condone delay of 1205 days in filing petition to restore the LPA dismissed for default, wherein the Division Bench of this Court held at paras 5 to 9 as under: In the fact situation of this case it is true that the petitioners cannot be found fault with. Once they have handed over the brief to the counsel, it is the solemn duty of the counsel to take care of the matter and intimate the client at frequent intervals. But in the instant case the counsel exhibited a totally callous attitude in dealing with the mater. The cause-list is being printed by the High Court on day-to-day basis only to enable the Advocates to know the position of their case and getting ready with the matters. It is also not disputed that the matter was listed on two or three occasions when the counsel was absent and there was no representation on his behalf. Under these circumstances even though we do not find fault with the petitioners-appellants, but we find that there was any amount of latches on the part of the counsel. It is also not disputed that the matter was listed on two or three occasions when the counsel was absent and there was no representation on his behalf. Under these circumstances even though we do not find fault with the petitioners-appellants, but we find that there was any amount of latches on the part of the counsel. It is the duty of the counsel when once the brief is entrusted by the client to him, to bestow his attention and discharge his professional obligation to the best of his ability. But keeping away from the case and the Court enures to nobody's benefit and on the other hand it exhibits professional delinquency thereby subjecting the noble profession to public criticism. A litigant always keeps the counsel in high esteem and great confidence. Therefore the counsel all the more ought to feel more responsible and responsive to keep such a fiduciary relationship alive thus ensuring greater confidence by the client towards the counsel. If this minimum requirement is not achieved the public tend to lose confidence in the lawyers. It need not be emphasized that if the brief entrusted to the Advocate by the client is dealt with in such a manner, the clients would tend to lose confidence in the Advocates and bring disrepute to the Institution itself. It is also not uncommon that third party rights would accrue consequent on the order of dismissal passed by this Court on account of enormous delay of more than three years in this case. 6. Merely stating that he could (not) notice the case is not a sufficient ground to extricate him from the responsibility which he owes to the client. Even though the client has got remedy by filing an appropriate application before the Court, but yet we cannot ignore the laxity which is exhibited by the Advocate in this case more especially when he is having more than 25 years of standing at the Bar. This type of attitude on the part of the Advocates has to be deprecated. The counsel Mr. Uday Kumar Joshi did not even appear before this Court though his name was printed in the cause list. This type of attitude on the part of the Advocates has to be deprecated. The counsel Mr. Uday Kumar Joshi did not even appear before this Court though his name was printed in the cause list. Though it is a fit case for reporting the matter to the Bar Council for taking action against the counsel for his deliberate and unexplained latches, we feel that mulcting the costs on the Advocate to be paid personal (sic) him would meet the ends of justice. 7. Accordingly we direct Mr. Uday Kumar Joshi, Advocate to pay a sum of Rs. 10,000/- (Rupees ten thousand only) towards costs personally to the counsel for the respondents. However, the learned counsel Mr. B. Adinarayana Rao, appearing for respondents fairly submits that the amount of costs may be credited to Chief Justice Relief Fund. Accordingly Mr. Uday Kumar Joshi shall pay the said costs to the Chief Justice Relief Fund within a period of three (03) weeks from to-day. 8. The delay is accordingly condoned subject to the above terms. 9. Post after three (03) weeks for further orders. 19. In the said referred case, the Division Bench of this Court had referred the reported case of Rafiq v. Munshilal AIR 1981 SC 1400 wherein the Apex Court held as under: This 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 tat 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 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. May be that the learned advocate absented himself deliberately or intentionally, We have no material for ascertaining that aspect of the matter. However, we cannot be a parry 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 reversed with the party represented by Mr. A.K. Sanghi. 20. Essence of above cases is that at the fault of counsel the party shall not suffer. 200/- should be recovered from the advocate who absented himself. The right to execute that order is reversed with the party represented by Mr. A.K. Sanghi. 20. Essence of above cases is that at the fault of counsel the party shall not suffer. In the instant case also, there is no fault of party and the Counsel appearing on behalf of the petitioner himself filed an affidavit stating that by oversight he could not notice the case listed on which day the matter was dismissed for default. If the delay is not condoned the counsel is not the sufferer but the party will suffer. 21. The learned counsel for the respondents placed reliance in the case of Oriental Aroma Chemical Industries Limited, four supra, wherein at 14 held as under: We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of imitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. 22. From the above, admittedly, it is clear that the legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. It is also to be noted here that the Apex Court categorically held that the Courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. 23. In the instant case, admittedly, dismissal of the writ petition for default is not within the knowledge of the petitioners and the same could be noticed only pursuant to the notice issued by the 2nd respondent. 24. In the case referred four supra, it could be seen that false statement was made to explain the delay and the number of days of delay was also wrongly calculated. 24. In the case referred four supra, it could be seen that false statement was made to explain the delay and the number of days of delay was also wrongly calculated. Therefore, the Apex Court declined to condone the delay. Therefore, the facts and circumstances explained in the said case are not applicable to the facts and circumstances of the case on hand. 25. He further placed reliance in the case of Manhargiri Rajgiri Goswami, five supra, wherein application has been filed by the applicants under Section 5 of the Limitation Act for condonation of delay of about 1552 days in filing the first appeal on the grounds that the applicants were financially weak and could not make the financial arrangement to immediately challenge the order impugned therein and another ground was that the applicants' advocate, who was handling the case and guiding them, did not properly guide the applicants and did not inform about the availability of the remedy of appeal. 26. While considering the said application, the Gujarat High Court, at para 13 held as under: 13. As it transpires, the delay is about 1552 days caused in filing above First Appeal and the explanation offered is (i) the economic condition; and (ii) the lawyer had not guided property. In order to appreciate this explanation, when the applicant is contesting several litigations, it cannot be readily accepted that for want of sufficient means, Appeal could not be filed for all these long period when there arc other litigations. Further, alternate explanation that the lawyer had not guided them properly is contradicted by the affidavit of same lawyer, who has stated that he had given proper guidance. Therefore, without any further discussion, it is evident that it is an explanation sought to be made out, which is contradicted. Even considering the well accepted guidelines laid down in a series of judgments by the Hon'ble Apex Court, which have been cited by both sides with regard to the approach, it is required to be stated that the broad guideline laid down by the Hon'ble Apex Court from all these judgments is that 'sufficient cause' has to be made out while considering delay. It has also been observed that it is not the length of period but the justification or the explanation which is offered is relevant, which is required to be considered, In other words, if the 'sufficient cause' is made out, the delay could be condoned. 27. It is clear from the above judgment that it is not the length of period but the justification or the explanation which is offered is relevant for considering the condonation of delay. In the referred case, condonation application was filed on the grounds of weaker economic condition and the lawyer had not guided property. While considering the said application, the Gujarath High Court categorically found that when the applicant is contesting several litigations, it cannot be readily accepted that for want of sufficient means, appeal could not be filed for all these long period when there are other litigations. Further, alternate explanation that the lawyer had not guided them properly is contradicted by the affidavit of same lawyer, who has stated that he had given proper guidance. Therefore, the Court found that the explanation sought to be made is contradicted and dismissed the application. 28. It is to be noted here that in the case on hand, the advocate filed an affidavit supporting the version of the petitioners that the petitioners and himself came to know about the dismissal of the writ petition for default pursuant to the notice dated 26.06.2012, issued by the 2nd respondent, only. Therefore, I am of the view that the facts and circumstances of the case five supra are not applicable to the present case and further I am of the view that the petitioners herein made out sufficient cause to condone the delay. 29. It is well settled principle that for the laches on the part of the counsel, the parties to the lis cannot be deprived of their legitimate right of adjudication. Further, it is also well settled principle that the delay petition, in normal circumstances, will have to be considered by applying the principle of liberality and there is no straight-jacket within which parameters, the delay petition has to be adjudicated. Having regard to facts and circumstances, in each case, the condone delay petition is to be considered by applying the principle of justice, so as to do the substantial justice to both the parties. Having regard to facts and circumstances, in each case, the condone delay petition is to be considered by applying the principle of justice, so as to do the substantial justice to both the parties. Though the learned counsel for the unofficial respondents strictly contended that in normal circumstances short delay can be considered but in the matter of inordinate delay Courts must have apply hard yardstick of law for condoning the delay. In this case, though it is inordinate delay, sufficient cause is made out. Therefore, in my opinion, having regard to the facts and circumstances of the case, it cannot be attributed that there is negligence on the part of the petitioners or the counsel appearing on their behalf. Under those circumstances, with a view to do the substantial justice to the parties, the matter needs to be considered on merits of the case. Therefore, the delay is condoned but on terms. 30. For the foregoing reasons, the delay is condoned on payment of Rs. 2,500/- (Rupees two thousand and five hundred only), towards the A.P. Legal Services Authority, within a period of two weeks, from the date of receipt of a copy of this order. Accordingly, delay petition is ordered.