Research › Search › Judgment

Allahabad High Court · body

2013 DIGILAW 1619 (ALL)

Shanti Devi and Others v. Gomti Devi and Others

2013-05-30

SHRI NARAYAN SHUKLA

body2013
Shri Narayan Shukla, J.— List is being revised. Case is called out. None appears for the respondents whereas Mr. S.K. Mehrotra, learned counsel for the petitioner is very much present to argue the case. Heard Mr. S.K. Mehrotra, learned counsel for the petitioner. Through the instant writ petition the petitioner has challenged the order dated 25.08.2007 passed by the Additional District Judge, Unnao in Misc. Case No. 193 of 2006. The facts of the case in short reveals that in a Small Causes Case No.7 of 2003 one application for amendment being Application No. 115C was filed alongwith the application for condonation of delay. The court below allowed the same with the fine of Rs. 100/. Aggrieved respondent challenged the same by filing revision before the District Judge. He also filed an application for condonation of delay in filing revision, which was registered as case No. 193 of 2006. The learned counsel for the petitioner submits that the respondent had taken a plea to condone the delay in filing the revision that he acted upon on the advice of the counsel which is liable to be excused, whereas it is not in the ordinary course of law to provide any such excuse as has been held by this Court in the case of Devi Prasad Vs. The State of U.P. and others reported in 1983 (1) L.C.D. 385. In this case this Court has expressed the following opinion:- "It is true that bonafide advice given by a counsel after due care and attention may constitute sufficient cause for condonation of delay if acted upon by a party in good faith but it is not the law that the delay should invariably be condoned simply because it is asserted that it was caused on account of some wrong legal advice given by a counsel. In Municipal Board, Lucknow V. Kali Krishna Narain and others (AIR 1944 Oudh. 135) (D.B.) an applicant sought condonation of delay on the basis of the advice given by a counsel. It was held by a Division Bench that it is not sufficient for the applicant to show that he acted on the advice of a counsel but the court must be further satisfied that the advice was given with due care and attention. It was held by a Division Bench that it is not sufficient for the applicant to show that he acted on the advice of a counsel but the court must be further satisfied that the advice was given with due care and attention. In that case the delay in filing an application for leave to appeal to His Majesty in Council was sought to be condoned on the ground of a misapprehension in the mind of the council that a period of six months was provided, which misapprehension was due to the counsel's failure to notice that the editions of Mulla's Civil Procedure Code and Limitation Act which he consulted were old ones. It was held that the fact that the counsel consulted the old editions of the Code of Civil Procedure and the Limitation Act published presumably prior to 1920, established beyond doubt utter negligence and carelessness on the part of the counsel who had been appearing in the Chief Court for many years and the negligence of counsel in the circumstances of the case did not entitle the applicant to urge that he was prevented by any sufficient cause from filing the application for leave within time. In Sarmuk Singh V. Chanan Singh, (AIR 1960 Punjab 512) delay was sought to be condoned on the ground of wrong advice of the counsel in relation to the provisions of S.39 of the Punjab Courts Act. A Division Bench of that court held ( at p.513):- "Had the learned counsel cared to look up this section there could have been no reasonable doubt that the appeal could, on no conceivable ground, be competent in the Court of learned District Judge. This was not an error liable to be committed by a reasonably prudent lawyer exercising due diligence and caution. This was not an error liable to be committed by a reasonably prudent lawyer exercising due diligence and caution. Indeed a mistake due to negligence or misconduct or want of reasonable skill can by no stretch be considered to fall within the definition of "good faith" as contained in Sec.2(7) of the Limitation Act." It was also held that the view taken by the legal adviser, if reasonable, though mistaken, may well justify protection by S.5, but where the view taken is wholly unsupportable on the express language of a well-known provision of law, it is difficult to apply S.5 to such a case." He further stated that the scope of revision provided under Section-115 Cr.P.C. has been discussed by the Hon'ble Supreme Court in the case of Prem Bakshi and others Vs. Dharam Dev and others reported in 2002(20) L.C.D. 529 and the opinion expressed by Hon'ble Supreme Court is extracted below:- "Now the question is whether the order in question has caused failure of justice or irreparable injury to Respondent 1. It is almost inconceivable how mere amendments of pleadings could possibly cause failure of justice or irreparable injury to any party. Perhaps the converse is possible i.e. refusal to permit the amendment sought for could in certain situations result in miscarriage of justice. After all, amendments of the pleadings would not amount to decisions on the issue involved. They only would serve advance notice to the other side as to the plea, which a party might take up. Hence we cannot envisage a situation where amendment of pleadings, whatever be the nature of such amendment, would even remotely case failure of justice or irreparable injury to any party." In the light of the aforesaid decision the learned counsel for the respondents raised question over the maintainability of the revision itself. Upon perusal of the record I find that the explanation given by the respondents in filing the revision does not meet out the requirement as is discussed in the judgment of Devi Prasad Vs. The State of U.P. and others(Supra). Apart from the above since in the light of the decision in the Prem Bakshi and others Vs. Dharam Dev and others(Supra) the revision itself was not maintainable against the order passed on the application for amendment. The order impugned appears to be without jurisdiction, therefore, the same is hereby quashed and the writ petition stands allowed. Apart from the above since in the light of the decision in the Prem Bakshi and others Vs. Dharam Dev and others(Supra) the revision itself was not maintainable against the order passed on the application for amendment. The order impugned appears to be without jurisdiction, therefore, the same is hereby quashed and the writ petition stands allowed. _____________