Research › Search › Judgment

Andhra High Court · body

2024 DIGILAW 1565 (AP)

Thota Vasudeva Rao v. Pyla Venkata Ramana

2024-11-27

RAVI NATH TILHARI

body2024
JUDGMENT : 1. Heard Sri Tota Tejaswara Rao, learned Counsel for the petitioner. There is no representation for the respondent. 2. The plaintiff-petitioner filed OS No.361 of 2015 in the Court of VII Additional Senior Civil Judge, Visakhapatnam for a decree of mandatory and permanent injunction against the defendant-respondent. The suit was dismissed on 29.09.2022. 3. The petitioner preferred AS No. of 2023 with delay of 281 days. IA No.1625 of 2023 was filed under Order XLI Rule 3-A of the Code of Civil Procedure (CPC) read with Section 5 of the Limitation Act, 1963, for condonation of delay in filing the appeal. 4. The petitioner, inter alia, submitted that after acquiring the knowledge of the dismissal of the suit, he approached the Counsel to obtain the certified copy of the judgment and decree, to prefer the appeal within the stipulated time. But, the Counsel did not apply for considerable period. The petitioner then approached another Counsel but in vain he also did not file the appeal. The petitioner then took back the case file from that Counsel and contacted the third Counsel on 27.05.2023, who after verifying the certified copies and preparing the case, filed the appeal. But, in the meantime, there was delay of 281 days. The cause shown was said to be sufficient cause for condonation of delay in filing the appeal. 5. The defendant-respondent filed counter-affidavit-objection inter alia, denying the cause as also the cause to be a sufficient cause. He submitted that the petitioner was negligent in filing the appeal in time. The petitioner received the certified copy on 13.12.2022, but, the appeal was filed belatedly on 30.06.2023. There was lack of bona fides. The application was devoid of merits and deserved rejection. 6. The learned Principal District Judge, Visakhapatnam dismissed the IA No.1623 of 2023 for condonation of delay by order dated 19.04.2024. 7. The learned Principal District Judge held that there was abnormal delay of six months in filing the appeal. The certified copy of the decree was received by the petitioner on 13.12.2022, but the appeal was filed on 30.06.2023. The cause was found not established. The minimum particulars to substantiate such cause, the name of the Counsel; on what date petitioner approached the Counsel etc., were not stated. The cause was not sufficient to condone the delay. 8. The certified copy of the decree was received by the petitioner on 13.12.2022, but the appeal was filed on 30.06.2023. The cause was found not established. The minimum particulars to substantiate such cause, the name of the Counsel; on what date petitioner approached the Counsel etc., were not stated. The cause was not sufficient to condone the delay. 8. Challenging the order dated 19.04.2024, the present civil revision petition under Section 115 CPC has been filed. 9. Learned Counsel for the petitioner submits that the delay occurred due to the fault of the Counsels in not filing the appeal in time. There was sufficient cause. The learned Court should have taken a lenient view and ought to have condoned the delay. He admits that the delay was of 281 days and not of 193 days. 10. I have considered the submissions advanced and perused the material on record. 11. The cause set up by the petitioner was the negligence of the Counsel in not applying the certified copies and in not filing the appeal. It is his case that one after the other he approached three Counsels but the previous two Counsels did not file the appeal. To establish such a cause, the necessary particulars should have been disclosed, so as to inspire the confidence in the plea taken and to establish his bona fides and no negligence, in making timely efforts to file the appeal. The suit was dismissed on 22.09.2022. The certified copy was received on 13.12.2022. But, the appeal was filed on 30.06.2023 after more than six months of the receipt of the certified copy. The general and vague averments were made trying to put blame on their Counsels. But, for condonation of delay the establishment of such cause as a fact was required to be established, which could not be established. 12. There is no dispute on the proposition of law that in the matters of condonation of delay in filing appeal, "sufficient cause" must receive a liberal and pragmatic approach in favour of condonation of delay, to decide the appeal on merits, to advance the cause of substantial justice. But, at the same time, the delay cannot be condoned on mere asking. On expiry of the period of limitation, a valuable right accrues in favour of the decree holder to treat the decree as final and binding. Such a right cannot be lightly interfered with. But, at the same time, the delay cannot be condoned on mere asking. On expiry of the period of limitation, a valuable right accrues in favour of the decree holder to treat the decree as final and binding. Such a right cannot be lightly interfered with. Proof of sufficient cause is the condition precedent for condonation of delay. In the absence of sufficient cause, the delay cannot be condoned. However, if such a cause is established the delay of any days can be condoned, as what matters is not the length of delay but sufficiency of the cause shown. 13. On the point of mistake on the part of the Counsel, as a plea for condonation of delay in Rafiq and another v. Munshilal and another, (1981) 2 SCC 788 , where there was no fault on the party who had done everything in his power, which was expected of him the Hon'ble Apex Court held that the party would not suffer for the default of his Advocate. There was slackness on the part of the Counsel. 14. In Rafiq's case (supra), the party had engaged the Counsel who was on record and failed to attend the hearing of the appeal which consequently came to be dismissed in default. So, there was no fault on the part of the party. It was the default of the Counsel in putting in appearance. There, it was established that the party had done what was on his part. In the present case, it could not be established as a fact that, the petitioner approached the Counsels one after the other and that the petitioner had done what was on his part and the other Counsels did not take necessary steps in filing the appeal in time. By not disclosing the dates of allegedly approaching three Counsels, the petitioner also failed to set up the case that he timely approached the Counsels for filing appeal in the period of limitation. 15. In Lala Mata Din v. A. Narayanan, (1969) 2 SCC 770 , the Hon'ble Apex Court observed that the mistake of Counsel may, in certain circumstances be taken into account in condoning the delay although there is no general proposition that mistake of Counsel by itself is always a sufficient ground. 15. In Lala Mata Din v. A. Narayanan, (1969) 2 SCC 770 , the Hon'ble Apex Court observed that the mistake of Counsel may, in certain circumstances be taken into account in condoning the delay although there is no general proposition that mistake of Counsel by itself is always a sufficient ground. It is always a question whether the mistake was bona fide or was merely a device to condone laches on the part of the litigant. 16. Para No.6 of Lala Mata Din's case (supra), reads as under : "6. The law is settled that mistake of Counsel may in certain circumstances be taken into account in condoning delay although there is no general proposition that mistake of Counsel by itself is always a sufficient ground. It is always a question whether the mistake was bona fide or was merely device to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an underhand way. The High Court unfortunately never considered the matter from this angle. If it had, it would have seen quite clearly that there was no attempt to avoid the Limitation Act but rather to follow it albeit on a wrong reading of the situation." 17. In the State of Nagaland v. Lipok Ao and others, (2005) 3 SCC 752 , also the Hon'ble Apex Court observed and held in Para 10 as under : "10. In Concord of India Insurance Co. Ltd. v. Nirmala Devi, (1979) 4 SCC 365 , which is a case of negligence of the Counsel which misled a litigant into delayed pursuit of his remedy, the default in delay was condoned. In Lala Mata Din v. A. Narayanan, (1969) 2 SCC 770 , this Court had held that there is no general proposition that mistake of Counsel by itself is always sufficient cause for condonation of delay. It is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose. In that case it was held that the mistake committed by the Counsel was bona fide and it was not tainted by any mala fide motive." 18. Recently, in Rajneesh Kumar and another v. Ved Prakash, 2024 SCC OnLine SC 3380, the suit was dismissed counter claim was allowed. An appeal was filed with delay of 534 days. In that case it was held that the mistake committed by the Counsel was bona fide and it was not tainted by any mala fide motive." 18. Recently, in Rajneesh Kumar and another v. Ved Prakash, 2024 SCC OnLine SC 3380, the suit was dismissed counter claim was allowed. An appeal was filed with delay of 534 days. The same was condoned especially on the ground that the litigant should not suffer on account of negligence on the part of the Advocate. The High Court in civil revision petition set aside the order of condonation of delay. The Hon'ble Apex Court upheld the order of the High Court. It was observed and held that the litigant should not be permitted to throw the blame on the head of the Advocate and thereby disown him at any time and seek relief. 19. Paras 10 and 11 of Rajneesh's case (supra), read as under : "10. It appears that the entire blame has been thrown on the head of the Advocate who was appearing for the petitioners in the Trial Court. We have noticed over a period of time a tendency on the part of the litigants to blame their lawyers of negligence and carelessness in attending the proceedings before the Court. Even if we assume for a moment that the concerned lawyer was careless or negligent, this, by itself, cannot be a ground to condone long and inordinate delay as the litigant owes a duty to be vigilant of his own rights and is expected to be equally vigilant about the judicial proceedings pending in the Court initiated at his instance. The litigant, therefore, should not be permitted to throw the entire blame on the head of the Advocate and thereby disown him at any time and seek relief. 11. In the aforesaid context, we may refer to a decision of this Court in the case of Salil Dutta v. T.M. & M.C. Private Ltd., reported in (1993) 2 SCC 185 , wherein this Court observed as under : "8. The Advocate is the agent of the party. His acts and statements, made within the limits of authority given to him, are the acts and statements of the principal i.e., the party who engage him. The Advocate is the agent of the party. His acts and statements, made within the limits of authority given to him, are the acts and statements of the principal i.e., the party who engage him. It is true that in certain situations, the Court may, in the interest of justice, set aside a dismissal order or an ex parte decree notwithstanding the negligence and/or misdemeanour of the Advocate where it finds that the client was an innocent litigant but there is no such absolute rule that a party can disown its Advocate at any time and seek relief. No such absolute immunity can be recognized. Such an absolute rule would make the working of the system extremely difficult. The observations made in Rafiq and another v. Munshilal and another, AIR 1981 SC 1400 , must not be understood as an absolute proposition. As we have mentioned hereinabove, this was an on-going suit posted for final hearing after a lapse of seven years of its institution. It was not a second appeal filed by a villager residing away from the city, where the Court is located. The defendant is also not a rustic ignorant villager but a private limited company with its head office at Calcutta itself and managed by educated businessmen who know where their interest lies. It is evident that when their applications were not deposed of before taking up the suit for final hearing they felt piqued and refused to appear before the Court. May be, it was part of their delaying tactics as alleged by the plaintiff). May be not. But one thing is clear they chose to non-cooperate with the Court. Having adopted such a stand towards the Court, the defendant has no right to ask its indulgence. Putting the entire blame upon the Advocate and trying to make it out as if they SLP (Civil) Nos.935-936 of 2021 were totally unaware of the nature or significance of the proceedings is a theory which cannot be accepted and ought not to have been accepted." (Emphasis supplied) 20. I am of the view that it is to be established first that there was mistake of the Counsel, and then that, such mistake furnished sufficient cause to condone delay as there is no general proposition that mistake of Counsel by itself is always a sufficient cause to condone the delay. 21. I am of the view that it is to be established first that there was mistake of the Counsel, and then that, such mistake furnished sufficient cause to condone delay as there is no general proposition that mistake of Counsel by itself is always a sufficient cause to condone the delay. 21. I am of the considered view that in the present case, the cause could neither be established nor could be a sufficient cause to condone the delay. 22. The learned Principal District Judge, Visakhapatnam did not act without jurisdiction nor exceeded the jurisdiction and also did not act illegally or with material irregularity in the exercise of his jurisdiction in passing the impugned order. No case for interference is made out in the exercise of revision jurisdiction under Section 115 CPC. 23. The civil revision petition is dismissed. No order as to costs. 24. As a sequel thereto, miscellaneous petitions, if any pending, shall also stand closed.