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2019 DIGILAW 180 (MP)

Jagraj Singh v. Hariom

2019-02-27

G.S.AHLUWALIA

body2019
ORDER 1. This revision under section 115 of CPC has been filed against the order dated 8.12.2017 passed by Second Additional District Judge, Guna in MJC No. 61/2017 by which the application filed by the respondents under section 5 of the Indian Limitation Act was allowed and the delay in filing the appeal was condoned. 2. The controversy in question revolves in a very narrow compass. The respondents No. 1 to 3 had suffered a judgment and decree dated 24.1.2017. The appeal was filed belatedly along with an application under section 5 of the Indian Limitation Act on the ground that their Advocate had not informed them about the judgment and decree passed by the Court below and, accordingly it was submitted that there is a sufficient cause for not filing the appeal within the period of limitation. The application filed by respondents No. 1 to 3 under section 5 of the Indian Limitation Act was opposed by the petitioners. The application has been allowed by the First Appellate Court by impugned order dated 8.12.2017. 3. By referring to the observations made by the Court below, it is submitted by the counsel for the petitioners that the Court below itself has come to a conclusion that respondents No. 1 to 3 had knowledge of the judgment and decree and in spite of that they themselves were negligent and responsible for not filing the appeal within the period of limitation. It is further observed by the Court below that no sufficient reason has been shown, however, in order to avoid any hardship to the respondents No. 1 to 3, it is submitted that the Court below has condoned the delay. It is submitted by the counsel for the petitioners that once the proceedings had become barred by limitation, then it can be said that a right has accrued in favour of the opposite party which cannot be taken away in a lighter manner. It is submitted by the counsel for the petitioners that once the proceedings had become barred by limitation, then it can be said that a right has accrued in favour of the opposite party which cannot be taken away in a lighter manner. Once the Court below had already come to a conclusion that the grounds raised by the respondents No. 1 to 3 in their application seeking condonation of delay were factually incorrect and they were aware of passing of the judgment and decree and still they deliberately did not file an appeal within the period of limitation and the reasons assigned by the respondents No. 1 to 3 for condonation of delay are not bonafide and are not sufficient to condone the delay, then the Court below should not have adopted a lenient view for condoning the delay. It is further submitted that for condonation of delay, the appellant is required to explain the delay on day to day basis and when he himself was negligent in prosecuting his cause, then he cannot be allowed to take advantage of his own wrong by mentioning that otherwise he would suffer hardship. 4. Per contra, it is submitted by the counsel for the respondents that the period of delay is not important and where the delay in not filing an appeal within the period of limitation has been sufficiently explained, then the Court below did not commit any mistake in allowing the application filed under section 5 of the Indian Limitation Act. 5. To buttress his submissions, the counsel for the respondents relied upon the judgments passed by the Supreme Court in the case of Bhagmal v. M.P. Co-OP Marketing and Consumer Fed. Limited, reported in (2003) 11 SCC 727 and in the case of N. Balakrishnan v. M. Krishnamurthy, reported in (1998) 7 SCC 123 . 6. Heard the learned counsel for the parties. 7. In the cases of Bhagmal and N. Balakrishnan (supra), the application filed by the petitioners for condonation of delay was allowed by holding that the delay has been sufficiently explained. 6. Heard the learned counsel for the parties. 7. In the cases of Bhagmal and N. Balakrishnan (supra), the application filed by the petitioners for condonation of delay was allowed by holding that the delay has been sufficiently explained. However, in the present case, the Appellate Court itself has come to a conclusion that the delay has not been sufficiently explained and in fact the respondents No. 1 to 3 were negligent in not filing the appeal within the period of limitation although they had full knowledge of the judgment and decree passed against them. 8. Under these circumstances, this Court is of the considered opinion that the proposition of law laid down by the Supreme Court in the cases of Bhagmal and N. Balakrishnan (supra), is distinguishable. It is well established principle of law that a person cannot be allowed to take advantage of his own wrong. Once the respondents No. 1 to 3 were aware of the fact that the decree has been passed against them but instead of challenging the same, if they were sitting over the said judgment and decree for no reason and instead of accepting their mistake, if they decided to make allegation against their own counsel, then this Court is of the considered opinion that the reasons assigned by the respondents No. 1 to 3 in their application for condonation of delay cannot be said to be sufficient reason. 9. So far as the allegation that they were not informed by their counsel is concerned, the counsel for the respondents could not point out any professional duty of an Advocate to substantiate his submissions that as his Advocate has failed to discharge his duty, therefore, the appeal could not be filed within the period of limitation. It is expected that every litigant should be vigilant and in case if he feels that he has been defrauded by his Advocate, then before making any allegation against the counsel for taking a ground for condonation of delay the litigant must approach the Bar Council making a complaint against the counsel. Once the litigant has not approached the Bar Council against his counsel, then it cannot be said that the counsel for the litigant was guilty of misconduct. Once the litigant has not approached the Bar Council against his counsel, then it cannot be said that the counsel for the litigant was guilty of misconduct. As the counsel for the respondents could not point out any professional duty of an Advocate to inform his party about the proceedings, then this Court cannot take cognizance of the mutual understanding between the Advocate and his party. Nowadays everybody has modern modes of communication. Every person is having a mobile. It is not necessary for any litigant to personally go to the office of the Advocate and to enquire about the status of the case but he can also seek information from his counsel on mobile also. If the litigants are not using the mode of communication and in absence of any averments that the respondents No. 1 to 3 had no mobile, this Court is of the considered opinion that it was for the respondents No. 1 to 3 to approach the counsel to verify about the status of their case. If the respondents had decided not to take care of their case, then in absence of any professional duty it cannot be said that the lawyer was at fault in not informing the litigant about the status of the case. 10. Under these circumstances, where the Appellate Court itself has come to a conclusion that the grounds raised by the respondents No. 1 to 3 are not bonafide and the respondents No. 1 to 3 were already aware of the pendency of the appeal, then this Court is of the view that the appellate Court should not have shown any leniency by holding that otherwise the respondents No. 1 to 3 would suffer irreparable loss for the simple reason that a person cannot be allowed to take advantage of his own wrong. 11. Accordingly, this Court is of the considered opinion that the appellate Court has committed material illegality by condoning the delay in filing the appeal. Consequently, the application filed by the respondents No. 1 to 3 under section 5 of the Indian Limitation Act is hereby rejected. The dated 8.12.2017 passed by Second Additional District Judge, Guna in MJC No. 61/2017 is hereby set aside. 12. The revision succeeds and is hereby allowed.