T.M. Veerachari vs P.C. Kannan (deceased) and 5 others

Srinivasan, J.—The first respondent in the appeal died on 20.9.1986. The petitioner has filed the application for bringing the legal

representatives on record only on 23.8.1989. He has also filed applications for condonation of delay of 918 days in seeking to set aside the

abatement and also for setting aside the abatement caused by the death of the first respondent. The reason given in the affidavit filed by the

petitioner is that in the proceedings, he was being assisted by one Venu Chettiar who used to come to Madras in connection with his matters

pending in the High Court. According to the affidavit, he informed the said Venu Cliclliar to inform his counsel in turn about the death of the first

respondent and to take such steps as may be necessary to bring the legal representatives on I record. It is further stated that he was under the

impression that the said Venu Chettiar would have informed his counsel and that proper steps would have been taken to bring the legal

representatives on record. Venu Chettiar died on 29.12.1988, and the petitioner claims to have met his counsel at a casual visit to Madras on

8.8.1989 when according to him he became aware of the fact that no application had been filed to bring the legal representatives on record.

Even assuming that one Venn Chwttiar was assisting the petitioner in Court Mullensand that he had sent word to inform his counsel, it will hot be

a ground for condoning the inordinate delay of 918 days. Significantly, there is no averment in the affidavit that Venu Chettiar told the petitioner

that he and informed the counsel about the death of the first respondent; nor is there any averment that the petitioner gave particulars of all the legal

representatives to Venu Chettiar and requested him to convey the same to the counsel. In those circumstances, it is unbelievable how the petitioner

could have expected the counsel to have taken steps to bring the legal representatives on record, on his own. Normally, the petitioner should have

made enquiries to Venu Chettiar as to whether he had informed his counsel to ascertain as to what should be done to bring the legal

representatives on record. That has not been done in this case. The petitioner did not even write any letter to counsel for three years, i.e., after

20.9.1986 and before 8.8.1989; nor the petitioner had chosen to contact his counsel soon alter the death of Venu Chettiar on 29.12.1988. He

came only on a casual visit in August, 1989 to meet his counsel.

This clearly proves the gross negligence on the part of the petitioner and he cannot be allowed to take advantage of his own negligence.

In Raghubir Mahto and Others Vs. Ganeshdutt Ojha and Others, it is held that the fact that the party sent word through a friend of his along with

the papers with some money to his counsel would not be a sufficient reason for condoning his absence at the time of the hearing of the appeal and

restoring the appeal for re-hearing. We agree with that reasoning.

In Ramakrishnan P.K. v. T.M. Electricity Board and others (1992-2-L.W.252), a Division Bench of this Court has considered the question of

negligence of parties in detail and observed as follows:-

Where a litigant engages and properly instructs a counsel to prosecute his case and does all that he expected of him to do in that behalf,'' he bona

fide expects the counsel to act in his best interests and function in a responsible manner, expected from a member belonging to the noble profession

of law. If the counsel acts negligently, then generally speaking, the litigant ought not to be penalised for the established negligence of the counsel

unless there has been remissness on his own part as well. The counsel may, in such a case, be guilty of not discharging his professional duties

property, but his proved negligence may afford, in a given case, sufficient cause for seeking condonation of delay in prosecuting further remedies, it

is, however, not possible or even desirable to lay down any hard and fast rule in that behalf. It is for the applicant to establish the facts and

circumstances of the case and the Court cannot be left to guess whether the litigant was to blame or his counsel. The allegations made, therefore, in

that behalf must be definite and precise and they must be fully proved. However, by engaging a counsel only a party to the case is not relieved of

his duties and obligations in the matter. Where a party either does not fully brief the counsel or keeps no contact with him, it is the party who is

really in default and negligent and shall have to bear the consequences. Where the litigant himself is prima facie in default, the mere negligence of the

counsel also cannot come to his aid in a claim or application to establish sufficient cause for condonation of delay. On these broad principles, we

shall examine the facts of the case

On the facts of this case, we are convinced that the petitioner has not been diligent in initiating steps to bring; the legal representatives on record

and there is no sufficient cause for condoning the inordinate delay of 918 days. Hence, these petitions are dismissed,