Tarlok Singh vs Gurmit Singh and others

Jai Singh Sekhon, J.—The suit filed by Tarlok Singh, Plaintiff, was dismissed in default on 23-4-1979 by the learned Sub Judge Ist Class, Gurdaspur. The suit was fixed for the evidence of the Plaintiff and he sent a telegram expressing his inability to attend the Court due to the death anniversary of some person. The learned Counsel for the Plaintiff failed to attend the Court when the case was called being busy in some other Court up to 3.00 PM. The Plaintiff moved the application for restoration on the same date but the trial Court dismissed his application vide its order dated 23rd April, 1979, by holding that in view of the amended provisions of order XVII Rule 1 of the CPC (hereinafter referred to as ''the Code'') by Act No. 104 of 1976, no sufficient cause has been shown for adjourning the case. The Plaintiff then applied for obtaining certified copy of the order on that very day and he was supplied its copy on May 3, 1979. Instead of filing the appeal, he preferred a revision petition in the High Court on 23-7-1979 on the wrong advice of his counsel. The Registry raised an objection calling upon the Appellant to satisfy if such a revision was maintainable. Ultimately, the revision was returned by the High Court to the counsel for the Petitioner and the Petitioner filed the appeal before the District Judge, Gurdaspur, on 9-10-1979 alongwith an application for condonation of delay on the ground of pursuing a wrong remedy in the wrong Court due to the wrong advise of Shri Shiv Kumar, Advocate. The learned Additional District Judge dismissed the application u/s 5 of the Limitation Act as well as the appeal being barred by time. Feeling aggrieved against the said order, the Plaintiff has come up in appeal.

I have beared the learned Counsel for the parties besides perusing the record,

The apex Court of Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, , had revolutionised the entire case law regarding the principles to be considered for condonation of delay u/s 5 of the Limitation Act, 1963, by holding that the court should adopt a liberal approach in disposing of such applications. The following six principles were enunciated in holding that the Court should adopt a justice oriented approach while assessing sufficient cause for condoning the delay in such like matters:

Ordinarily a litigant does not stand to benefit by lodging an appeal late.

Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

"Every day''s delay must be explained" does not mean that a pedantic approach should be made. Why not every hour''s delay, every second''s delay ? The doctrine must be applied in a rational common sense pragmatic manner.

When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non deliberate delay.

There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6 It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

In view of the above referred guidelines laid down by the Supreme Court, it transpires that though Shri Shiv Kumar, Advocate, has given wrong advice against the patent provisions of order XLIII Rule 1 Clause (c) of the Code regarding revision being maintainable against the order rejecting an application for restoration of his suit dismissed under the provisions of order IX Rule 9 of the Code but all the same the party cannot be penalised for the wrong advise of the Advocate especially when he stands to gain nothing by resorting to the filing of revision petition rather than an appeal. Moreover, the lapse of the counsel not appearing before the trial Court in the parent suit before 3:00 P.M. on that day is not sufficient to debar him from getting settled his legal rights through the Court. The observations of the Supreme Court in Rafiq and Anr. v. Munshilal and another A. I. R. 1981 S. C. 1490, can be safely referred to in this regard. In that case, the appeal was dismissed for default of non-appearance of the Appellant''s counsel and the Supreme Court ordered it to be restored though the Appellant''s counsel was burdened with costs.

For the foregoing reasons, the impugned order of the first appellate Court being not sustainable is hereby set aside by accepting this revision petition and the appeal is ordered to be restored against its original number for disposal according to law. However, in view of the peculiar circumstances of the case, the parties are left to bear their own costs.

The parties are directed to appear before the Appellate Court on 16th January, 1989.