Chenniappan and Parvathy vs Valliammal and R. Saraswathi

K. Ravichandrabaabu, J.—This civil revision petition is filed against the order made in I.A. No. 598 of 2012 in A.S. No. 117 of 2009 in

condoning the delay of 613 days in representing the application to set aside the order of dismissal of the appeal for default on 12.08.2010 and to

restore the same. The respondents herein have filed the above appeal aggrieved against the judgment and decree in O.S. No. 175 of 2004 which

came to be dismissed on 08.12.2008. The said suit was filed by the respondents herein for partition against the petitioners herein. As the said suit

for partition came to be dismissed by the trial court, they preferred an appeal in time and however, when the matter was taken up for argument on

12.08.2010 by the Appellate Court, the respondents did not appear and consequently, the appeal came to be dismissed for default on

12.08.2010. They filed the set aside petition on 13.09.2010. When the set aside petition was returned by the office of the court below for effecting

certain compliance, the same was not represented within the time and however, it came to be represented after a delay of 613 days by filing an

application in I.A. No. 598 of 2012, seeking to condone the said delay.

In the affidavit filed in support of the said application, it is stated that the Advocate''s Clerk of the respondents misplaced the returned papers

with other bundles and inspite of the best efforts taken by their counsel, the said petition was not traced out. Only in the last week, during the

Ayutha pooja celebrations, while rearranging the case bundles in the counsel''s office, their counsel traced out the returned papers and immediately,

the same is represented before the court below with a delay of 613 days.

The court below considered the said application and however, found that the reasons given by the petitioners in the affidavit shows that the

above reasons are not true and was given mechanically by the counsel on record. It is also observed by the court below that though the reasons

appear to be unbelievable, the fact remains that the counsel on record has not attended the petitions from the very beginning to get the interlocutory

application numbered and it indicates that the mistake is only on the part of the Advocate''s Clerk and the above mistake cannot be attributed

against the petitioners. It is also found by the court below that it is the dispute between the brother and sisters in respect of claiming share in their

father''s property and there is contentious issues available in the appeal and substantive right of the parties to canvass their case in the appeal

cannot be defeated due to the mistake committed by the Advocate''s Clerk in not getting the interlocutory application numbered in time.

Consequently, the court below has allowed the application with cost of Rs. 5,000/- payable to the petitioners herein.

4.I find that the court below has exercised its discretion in condoning the delay of 613 days in representing the application to restore the appeal

which came to be dismissed for default. No doubt, the court below has found that the reasons stated in the affidavit appears to be unbelievable.

But, at the same time, the court below has also found that due to the fault of the Advocate''s Clerk, the respondents herein cannot be made to

suffer. As it is categorically found by the court below that due to the mistake of the counsel or Advocate''s clerk, the same cannot defeat the rights

of the parties to substantiate their right in the appeal and that too, when the application is the one for seeking for condoning the delay in

representing the petition to restore the appeal.

Needless to say that applications filed to condone the delay in filing and representation are certainly not arising out of one and the same

circumstances. It is to be noted that the same yardstick cannot be applied in ''stricto sensu'' for considering both the cases of petition to condone

the delay in filing the proceedings and the petition to condone the delay in representing the same. Certainly, the party who seeks the condonation of

delay in filing the proceedings is necessarily to convince the court with justifiable cause or reason in not filing the said proceedings within the time

stipulated. Undoubtedly, such onerous is on the party who files the case with delay. On the other hand, if the proceedings are filed in time without

there being any delay and the papers were returned by the office of the court for effecting certain compliance, then the primary duty is cast upon

the counsel of the said party to effect the compliance and represent the same before the Court within the time stipulated therein. Of course, in some

cases he may require some details from the party for effecting the compliance. In certain cases, the compliance can be effected by the counsel

without seeking any assistance from the party. Therefore, the delay in representing the proceedings is not always attributable to the client.

Sometimes due to oversight or mistake committed by the counsel by not representing the papers in time, there could have occurred some

considerable delay in representation. But, the fact remains that the party has filed the proceedings well within time. Therefore, consideration of the

representation application cannot be done in the same manner as in the case of application seeking to condone the delay in filing the proceedings.

At this juncture, it is useful to refer to the decision of this Court reported in The General Manager Heavy Vehicles Factory and Another Vs. T.

Shedrak, , wherein it has been observed that there is a specific statute viz., the Limitation Act which imposes an obligation on the Court to reject

the proceedings if it is barred by limitation and that strictness is not available or applicable to a case of delay in representation of the proceedings. It

is also observed therein that provisions and considerations that are applicable to excusing the delay u/s 5 of the Limitation Act, will not apply to the

question of excusing the delay in representing the papers. The said decision of this Court is also recently noted by the Hon''ble First Bench in an

unreported judgment dated 17.02.2011 in M.P. Nos. 1/2009 in W.A. SR Nos. 25899 of 2007, etc., Thus, it is crystal clear that yardstick for

consideration is not one and the same for both the applications u/s 5 of the Limitation Act and the one filed u/s 151 C.P.C. to represent the papers.

Therefore, the court below has rightly exercised its discretion and allowed the application seeking to condone the delay in representation, however

by awarding cost to the other side. Considering all the facts and circumstances, I find no irregularity or illegality in the order passed by the court

below especially, when it has been specifically found that the mistake committed by the Advocate''s Clerk cannot be attributed to the respondents

herein to reject the application. Thus, the court below while condoning the delay has also awarded cost of Rs. 5,000/- to be payable to the

petitioners herein. When the petitioners are suitably compensated by awarding cost of Rs. 5,000/-, I find there is no ground to interfere with the

order passed by the court below. Accordingly, the civil revision petition is dismissed. No costs. The connected miscellaneous petition is dismissed.