Gram Panchayat, village Salem Shah vs Amru Ram

J.V. Gupta, J.

This order will also dispose of Civil Revisions Nos. 1676, 1677, 1678 and 1679 of 1989 as the question involved is common in these cases.

The plaintiffrespondents filed separate suits against Gram Panchayat, Salem Shah for declaration to the effect that they being the lessee/tenants and being in authorised possession of the suit land and the defendant has no right, title on interest therein and as such could not dispossess them in any manner or interfere in their possession. The suit was contested by Gram Panchayat. One of the issues was as to whether civil courts has jurisdiction to try the suit or not. However, the trial Court decreed the plaintiff''s suit vide judgment dated 4.4.1985. Aggrieved with the same, the Gram Panchayat filed separate appeals, which were barred by time by six days. An application under Section 5 of the Limitation Act for condoning the delay was also filed along with the appeal. The learned Additional District Judge did not find any merit in the application for condonation of delay and consequently dismissed the appeal as barred by time vide order dated 9.9.1985.

Aggrieved with the same, the Gram Panchayat originally filed Regular Second Appeal in this Court on 6.1.1986, which was within time. However, the same was returned on 11.1.1986 as to show how regular second appeal was competent. The same was refiled on 31.5.1986. It was again returned on 2.6.1986 and refiled on 19.12.1987. It was again returned on 4.1.1988 and refiled on 9.8.1988. In the application filed under Sec. 5 of the Limitation Act for condonation of the delay in refiling the appeal which was later on entertained as Civil Revision the plea was that the brief got misplaced. All these petitions were admitted on 17.2.1989.

Learned counsel for the plaintiffrespondent submitted that there is no cogent explanation for refiling the revision petitions after such a long delay and, therefore, the revision petitions are liable to be dismissed as barred by time. He further submitted that the negligence is writ large as the petitioner was negligent in filing the appeal before the Additional District Judge as barred by time and again in this Court. The revision petition/appeal was originally filed on 6.1.1286 but was ultimately refiled on 9.8.1988, that is, more than two years, and therefore, the petition should be dismissed on this ground alone.

On the other hand, learned counsel for the petitioner submitted that the delay in filing the revision in this Court was because the brief in the office of the counsel was misplaced and moreover the petitions were already admitted and therefore, the delay, if any, stands condoned.

As regards the appeal the learned counsel submitted that the appeal filed was barred by time by six days. The reason was that the delay has occurred because of the wrong advice by the counsel and, therefore, the Gram Panchayat should not suffer on that account. In support of this contention, he referred to : (i) 1981 Unreported Judgments 505 : (iii) 1987(2) Current Law Journal 697.

On the other hand, learned counsel for the respondent submitted that there was no affidavit of the counsel before the lower appellate Court to this effect and, therefore, there being no material that any wrong advice was given, the discretion exercised by the lower appellate Court for not condoning, the delay should not be interfered with in revisional jurisdiction. In support of this contention, he referred to : (i) AIR 1964 SC 1336; (ii) AIR 1975 SC 1089.

After hearing the learned counsel for the parties, I am of the view that as regards the delay in refiling the petitions, it any already stands condoned when the same were admitted by this Court. Admittedly, the revision petitions filed originally were within time. At that time, the controversy was as to whether regular second appeal was competent or civil revision was maintainable. Thus, no doubt the refiling was after a great delay but the same stands condoned when the petitions were admitted.

As regards the delay of six days in filing the appeals before the lower Appellate Court, that the reason given was that the Courts below reopened after summer vacations on 15.7.1987 whereas the appeals were preferred on 21.7.1985. The judgment of the trial Court was delivered on 4.4.1985 whereas application for obtaining copy of the judgment was made on 11.4.1985 and the same was ready and delivered to the petitionerGram Panchayat on 18.6.1985. The advice given by the local counsel was that all these days in obtaining the certified copy of the judgment and the decree sheet are to be deducted in filing the appeal and, therefore, the appeal was filed on 21.7.1985. Ordinarily, an affidavit of the counsel who so advised should have been filed but in the present case, one of the main issues was as to whether the civil Court has jurisdiction to try the suit against Gram Panchayat or not. Since it involved the jurisdiction of the civil Court and there was already an order of ejectment passed against the plaintiff the case requires to be considered in appeal after condoning the delay of six days which was on account of wrong advice given by the local counsel. In 1979 PLR 546, the Supreme Court held that "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 the 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 cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an under underhand way." Thus, taking into consideration the facts and circumstances of the case, particularly the issue relating to the jurisdiction of civil Court and the advice given by the local counsel, delay of six days should have been condoned by the lower appellate Court. In not condoning the delay and hearing the appeals on merits, the learned Additional District Judge, Ferozepur acted illegally and with material irregularity in the exercise of his jurisdiction. Consequently, all the petitions succeed. The impugned orders are set aside and the cases are sent back to the District Judge, Ferozepur, for deciding the appeals on merits in accordance with law. The parties have been directed to appear before District Judge, Ferozepur, on July 17, 1989.