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2013 DIGILAW 3969 (MAD)

R. Sampath v. Lakshmi

2013-11-21

B.RAJENDRAN

body2013
JUDGMENT 1. With the consent of both sides, the revision petition itself is taken up for disposal. 2. The revision petition has been filed challenging the order of dismissal of the petition to condone the delay of 536 days in preferring the appeal against the final decree in the partition suit. 3. The main ground of attack of the learned counsel for the revision petitioner is that the earlier Advocate engaged by the petitioner before the lower court did not contest the case properly. The petitioner filed an affidavit stating that the said Advocate colluded with the other party and he never allowed him to file neither written statement nor to let-in evidence, but made him to believe that the case was pending. It is also submitted that on the instructions of the said Advocate only he accompanied with the Commissioner in the final decree application and signed therein. He was all along appearing before the Court as per the dates given by the Advocate and at one such hearing on 27.07.2009, when he was waiting in the Court hall, he was enquired by the Judge as to why he was waiting and informed him that his case is not pending. Thereafter, only he came to know that order has been passed. It is submitted that he has given a complaint against the said Advocate by way of Registered Post with Acknowledgment Due and he has not pursued the matter. In this connection, he would only contend that the the delay is neither wilful nor wanton, but only because of the non-communication of the entire things to him by his Advocate and hence, the lower court ought to have taken sympathetic view on the plea of an illiterate person, who has been cheated by the Advocate, because of whom he did not contest the case in respect of final decree and even in the final decree he made endorsement as per the instructions given by the counsel accepting to pay the amount which agreed sum, has not been done. 4. On the contrary, the learned counsel for the respondents would mainly contend that if this revision is entertained, no Advocate is safe and the allegation of the petitioner against the previous Advocate is not correct. 4. On the contrary, the learned counsel for the respondents would mainly contend that if this revision is entertained, no Advocate is safe and the allegation of the petitioner against the previous Advocate is not correct. In fact, he would also point out that unless he gives a complaint to the Bar Council or to the police, he cannot directly come to the Court and say the Court to take action against him. Therefore, admittedly, the lower court dismissed the application observing that even the petitioner accompanied Commissioner in the final decree application and therefore, it cannot be construed that he had no knowledge and mere allegation against an Advocate cannot be taken to be true. 5. Heard both sides. 6. As rightly contended by the learned counsel for the respondent, no Court would ordinarily take action on the basis of the indiscriminate allegation made against the lawyer. Without approaching the Bar Council or any other competent forum, making mere allegation against the Lawyer is not enough. If such allegation is taken into consideration by the lower court, then no Advocate will be safe and also at the same time, it will give a wrong signal to the parties to take such a stand. 7. But when we analysis this case, even though the petitioner has engaged an Advocate, the written statement was not originally filed in the partition suit. Thereafter, the suit has been decreed and preliminary decree was passed. In the final decree application also no counter was filed. Thereafter, the Commissioner was appointed. The petitioner went along with the Commissioner for inspection and he also made an endorsement in the Commissioner's report. Therefore, rightly the lower court pointed out that because of his knowledge and his presence along with the Commissioner, he cannot complain about the Advocate. But one vital fact has been missed by the lower court is the petitioner alleged that the Advocate has never informed about the passing of the final decree at all. In fact he also alleged that he was given various dates, on which dates, he was present in the Court believing that the matter was still pending. But one vital fact has been missed by the lower court is the petitioner alleged that the Advocate has never informed about the passing of the final decree at all. In fact he also alleged that he was given various dates, on which dates, he was present in the Court believing that the matter was still pending. He has specifically stated that he was present in the Court on 27.07.2009 when the case was not posted, and on that date, since he was in the Court till 5.00 p.m., the Judge had asked him why he was present in the Court and when he told about the case, it was clarified to him that the final decree was passed. This assertive statement made by the petitioner cannot thrown out. It is better to incorporate the following averments of the revision petitioner in the affidavit dated 14.09.2009 : "TAMIL" 8. In this case he also clearly pointed out that he has engaged an Advocate by name ...... (name omitted). From the records, it is found that the said Advocate has not appeared and some other Advocate appeared for him. He never seen or known them. Therefore, it is his version that the Advocate, to whom the case has been entrusted by him did not appear before the Court and probably he has engaged somebody else, whom he does not know. But he was continuously contacting his Advocate, who he had engaged and he was made to believe by him that the application was pending. 9. The revision petitioner also made further allegation against the Advocate that on his instructions he made an endorsement in the final degree application, but the Advocate made it as if he had made such an endorsement accepting to pay a sum of Rs.1,00,000/-, which has been stoutly denied by the petitioner. 10. The revision petitioner also made the averments in the affidavit that he has already taken steps against the said Advocate and a complaint has been sent by registered post with acknowledgment due to the Chief Judicial Magistrate and this complaint should have been taken note of by the lower court. In normal circumstances, mere allegation against an Advocate could not have been taken note of, but in view of the peculiar circumstances of this case, it should have been taken note of. In normal circumstances, mere allegation against an Advocate could not have been taken note of, but in view of the peculiar circumstances of this case, it should have been taken note of. Therefore, the order rejecting the condonation of delay application of the lower court is liable to be set aside taking into consideration all these facts and the delay has to be condoned, but the delay cannot be condoned without any costs as unnecessarily, the respondent has put to severe hardship in view of the delay in questioning the final decree, as the petitioner submitted that he is not questioning the preliminary decree and the same has attained finality. 11. Accordingly, the petitioner is directed to pay a cost of Rs.10,000/- to the respondents within a period of four weeks from the date of receipt of a copy of this order, failing which, the revision petition will be dismissed automatically, without any further reference to this Court. 12. In the result, the revision petition is allowed on payment of Rs.10,000/- cost to be paid directly to the respondents by way of Demand Draft within a period of four weeks from the date of receipt of a copy of this order. The order dated 16.04.2012 passed in I.A.No.966 of 2009 in Unnumbered A.S.No. of 2012 on the file of the Principal Sub Court, Erode, rejecting to condone the delay of 536 days in preferring the appeal is set aside and the delay is condoned. No costs. Consequently, connected miscellaneous petition is closed.