Taresh s/o. Vishwanath Oabhekar v. Ramesh s/o. Vishwanath Oabhekar
2014-11-12
S.B.SHUKRE
body2014
DigiLaw.ai
JUDGMENT :- Heard finally by consent. 2. Admit. 3. This revision application is directed against the order dated 30.9.2013 passed by the Principal District Judge, Wardha in MARJE No.86/20 12 thereby condoning the delay occurred in filing of appeal against the judgment and decree passed in Special Civil Suit No. 104/2002 on 12th March, 2008. 4. Learned counsel for the applicants submits that no sufficient cause has been shown in this case by the respondents inasmuch as it is an admitted position that the respondents approached the Advocate on 9th July, 2008, well after expiry of period of 90 days prescribed for filing of an appeal against the judgment and decree passed by the Court exercising original jurisdiction. He submits that sufficient cause must have shown to have arisen before the expiry of the limitation period and thereafter also it should have been established by the respondents and this is not a case in the instant matter. He submits that entire blame for the delay has been placed upon the Advocate, as if the litigant has no duty to exercise diligence in prosecuting remedy available to him under the law. Therefore, the entire approach adopted by the Appellate Court in accepting the negligence of the Advocate as sufficient cause is inconsistent with well settled principles of law. In support, he places his reliance upon the cases of Mr. Conception Fernandes and another Vs. Mrs. Tasneem Shaikh and others, reported in 2014(5) ALL MR 751 and Chandrakant s/o. Laxman Kulbhaiyya and another Vs. State of Maharashtra and others, reported in 2014(5) ALL MR 609. 5. On the other hand, learned counsel for the respondent No.1 submits that sufficient cause has been shown by the respondents in the sense that while the respondents performed their duty, their Advocate failed to perform it and, therefore, at least no mala fides were attributable to the respondents. He submits that the concept of negligence takes within its fold the idea of some positive action and, therefore, it is opposed to a mistake occurred inadvertently. He submits that if there is some deliberate inaction or mala fides on the part of the person seeking indulgence of the Court under Section 5 of the Limitation Act, same would not amount to establishing sufficient cause and, therefore not pardonable.
He submits that if there is some deliberate inaction or mala fides on the part of the person seeking indulgence of the Court under Section 5 of the Limitation Act, same would not amount to establishing sufficient cause and, therefore not pardonable. But, he further submits, in this case, no mala fides would be attributed to the respondents and, therefore, the learned Principal District Judge has rightly allowed the application for condonation of delay. 6. Before dealing with the rival argument, it is necessary to remind ourselves that this is a revision application in which the scope and ambit of the power of this Court to revise the order of the lower Court are limited and they are confined only to correction of errors relating to exercise or non-exercise of jurisdiction or some illegality or material irregularity affecting prejudicially rights of parties. In exercise of the revisional powers it is not permissible for the Court to go into the findings of fact recorded by the lower Court. Bearing in mind, these limitations, let us consider the rival arguments in the light of the facts and circumstances of the present case as set out in the paper book of the revision application. 7. As regards first contention that sufficient cause ought to have been shown to have arisen before the expiry of limitation period, I must say that there is averment in the application itself that the respondents had approached the concerned Advocate in June 2008 and this has been appropriately considered by the lower Court. I see no reason to make any interference in the finding recorded by the lower Court in this behalf. Therefore, the first contention so raised deserves rejection. 8. In the case of Chandrakant (supra), learned Single Judge of this Court has found that the party must satisfy the Court that he had sufficient cause for not preferring the appeal or application and that sufficient cause arose within the prescribed period of limitation. I have already found on facts of the case for the reasons stated in foregoing paragraphs that the applicant cannot be said to have not satisfied this condition in this case. Therefore, this case would be of no assistance to the case of the applicant herein. 9.
I have already found on facts of the case for the reasons stated in foregoing paragraphs that the applicant cannot be said to have not satisfied this condition in this case. Therefore, this case would be of no assistance to the case of the applicant herein. 9. As regards the second part of the argument that the negligence of the Advocate should not be considered as showing sufficient cause unless, it is also shown that the party had been pursuing the matter with the Advocate and could not succeed in his efforts for the reasons beyond his control, I must say that although this concept has been propounded in the judgment of Mr. Conception Fernandes and another (supra), it would not have any application when it comes to exercise of discretion of the Court under Section 5 of the Limitation Act. In the case of Mr. Conception, this Court had found that rigor of due diligence test prescribed under the proviso to Rule 17 Order 6 of C.P.C. would require due diligence to be exercised basically by the party himself and if the Advocate is negligent, it would amount to negligence of the party or otherwise, it may provide an effective tool to the lazy and indolent party to conveniently get over the barrier of provision of Rule 17 Order 6 of the C.P.C. While exercising discretion under Section 5 of Limitation Act, the considerations of this Court, as can be seen from several precedents of the Hon'ble Apex Court, are wider and governed by desire of the Court of justice to advance the cause of substantial justice and to reject any resistance of the party on the ground of technicalities. Therefore, the principles settled by the Hon'ble Apex Court would require the Court to look for absence of any deliberate act or mala fides on the part of the litigant and also in convenience of other party, and if the Court is satisfied that the litigant himself was not negligent or was not sitting idle, and aspect of inconvenience can be taken care of: the Court can view negligence of the Advocate as different from negligence of the party and thus being a sufficient cause for exercising its discretion under Section 5 in favour of that party. 10.
10. Having considered the settled legal position thus, I am of the view that the impugned order cannot be said to be inconsistent with the well settled principles of law. The learned Principal District Judge has found that there have been no mala fides nor any deliberate attempt on the part of the respondents to protract the matter and that when they had reposed implicit faith in their Counsel, they simply proceeded on the presumption that their Advocate must have taken appropriate action by filing the appeal, as instructed by them. But, unfortunately that was not to be and there was some negligence, may be gross negligence on the part of the concerned attorney of the Advocate. But, for that lapse of the Advocate's attorney, the respondents could not have been said to have acted with any mala fides on their part and, therefore, it cannot be said that no sufficient cause has been shown by them in this case. Of course, the respondents ought to have contacted their Advocate, but, if they did not do so, that appear to be a mere mistake on their part, as considered by the learned Principal District Judge. The view so taken by the learned Principal District Judge cannot be said to be so impossible a view as would not logically arise from the facts and circumstances of this case and, therefore, it would not be open for this Court to substitute the view of the lower Court by its own view, simply because another view is possible. Consequently, neither any illegality nor any material irregularity could be found in the impugned order. 11. In the circumstances, I find no merit in this revision application and it deserves to be rejected. 12. Revision application stands rejected. Revision dismissed.