Sunday, 15 March 2015

Whether application for condonation of delay can be rejected on ground of negligence of Advocate?



As   regards   the   second   part   of   the   argument   that   the 

negligence of the Advocate should not be considered as showing 
sufficient cause unless, it is also shown that the party had been 
pursuing the matter with the Advocate and could not succeed in 
his   efforts   for   the   reasons   beyond   his   control,   I   must   say   that 
although   this   concept   has   been   propounded   in   the   judgment   of 
Mr.Conception Fernandes and another  (supra), it would not have 
any application when it comes to exercise of discretion of the Court 

under   Section   5   of   the   Limitation   Act.     In   the   case   of 
Mr.Conception, this Court had found that rigor of due diligence test 
prescribed under the proviso to Rule 17 Order 6 of C.P.C. would 
require due diligence to be exercised basically by the party himself 
and if the Advocate is negligent, it would amount to negligence of 
the party or otherwise, it may provide an effective tool to the lazy 
and indolent party to conveniently get over the barrier of provision 
of Rule 17 Order 6 of the C.P.C.  While exercising discretion under 
Section 5 of  Limitation Act, the considerations of this Court, as can 
be  seen  from  several  precedents  of the  Hon’ble Apex Court, are 
wider and governed by desire of the Court of justice to advance the 
cause of substantial justice and to reject any resistance of the party 
on the ground of technicalities.  Therefore, the principles settled by 
the   Hon’ble   Apex   Court   would   require   the   Court   to   look   for 

absence   of   any   deliberate   act   or   mala   fides   on   the   part   of   the 
litigant and also in convenience of other party, and if the Court is 
satisfied   that   the   litigant   himself   was   not   negligent   or   was   not 
sitting idle, and aspect of inconvenience can be taken care of, the 
Court   can   view   negligence   of   the   Advocate   as   different   from 
negligence   of   the   party   and   thus   being   a   sufficient   cause   for 
Having considered the settled legal position thus, I am 

exercising its discretion under Section 5 in favour of that party.  
of   the   view   that   the   impugned   order   cannot   be   said   to   be 
inconsistent with the well settled principles of law.   The learned 
Principal   District   Judge   has   found   that   there   have   been   no 
mala   fides   nor   any   deliberate   attempt   on   the   part   of   the 
respondents to protract the matter and that when they had reposed 
implicit   faith   in   their   Counsel,   they   simply   proceeded   on   the 
presumption   that   their   Advocate   must   have   taken   appropriate 
action   by   filing   the   appeal,   as   instructed   by   them.     But, 
unfortunately that was not to be and there was some negligence, 
may be gross negligence on the part of the concerned attorney of 
the Advocate.   But, for that lapse of the Advocate’s attorney, the 
respondents   could   not   have   been   said   to   have   acted   with   any 
mala fides on their part and, therefore, it cannot be said that no 

sufficient cause has been shown by them in this case.   Of course, 
the   respondents   ought   to   have   contacted   their   Advocate,   but,   if 
they did not do so, that appear to be a mere mistake on their part, 
as considered by the learned Principal District Judge.  The view so 
taken by the learned Principal District Judge cannot be said to be 
so impossible a view as would not logically arise from the facts and 
circumstances of this case and, therefore, it would not be open for 

this   Court to  substitute  the   view of  the   lower   Court  by its  own 
view,   simply   because   another   view   is   possible. 

NAGPUR BENCH, NAGPUR
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL REVISION APPLICATION No.5 OF 2014

Taresh s/o. Vishwanath Dabhekar, Vs Ramesh s/o. Vishwanath Dabhekar,
    
        CORAM  :   S.B. SHUKRE, J.

        DATE      :   12   NOVEMBER, 2014.
   Citation;2015(2)MHLJ 164


3. This   revision   application   is   directed   against   the   order 
dated 30.9.2013 passed by the Principal District Judge, Wardha in 
MARJE No.86/2012 thereby condoning the delay occurred in filing 
of appeal against the judgment and decree passed in Special Civil 
Suit No.104/2002 on 12th March, 2008.
4.
Learned   counsel   for   the   applicants   submits   that   no 
sufficient cause has been shown in this case by the respondents 

inasmuch   as   it   is   an   admitted   position   that   the   respondents 
approached the   Advocate   on   9th  July, 2008,  well  after  expiry  of 
period   of   90   days   prescribed  for   filing   of   an   appeal   against   the 
judgment   and   decree   passed   by   the   Court   exercising   original 
jurisdiction.  He submits that sufficient cause must have shown to 
have   arisen   before   the   expiry   of   the   limitation   period   and 
thereafter also it should have been established by the respondents 

and this is not a case in the instant matter.  He submits that entire 
blame for the delay has been placed upon the Advocate, as if the 
litigant  has   no  duty   to  exercise   diligence  in  prosecuting  remedy 
available to him  under  the  law.   Therefore, the  entire  approach 
adopted by the Appellate Court in accepting the negligence of the 
Advocate   as   sufficient   cause   is   inconsistent   with   well   settled 
principles of law.  In support, he places his reliance upon the cases 
of  Mr.   Conception   Fernandes   and   another   Vs.   Mrs.   Tasneem 
Shaikh   and   others,   reported   in  2014(5)   ALL   MR   751  and 
Chandrakant s/o. Laxman Kulbhaiyya and another Vs. State of 
Maharashtra and others, reported in 2014(5) ALL MR 609.  
5.
On the other hand, learned counsel for the respondent 
No.1   submits   that   sufficient   cause   has   been   shown   by   the 
respondents   in   the   sense   that   while   the   respondents   performed 

their duty, their Advocate failed to perform it and, therefore, at 
least   no   mala   fides   were   attributable   to   the   respondents.     He 
submits that the concept of negligence takes within its fold the idea 
of some positive action and, therefore, it is opposed to a mistake 
occurred inadvertently.  He submits that if there is some deliberate 
inaction or mala fides on the part of the person seeking indulgence 
of the Court under Section 5 of the Limitation Act, same would not 
ig
amount   to   establishing   sufficient   cause   and,   therefore   not 
pardonable.   But, he further submits, in this case, no mala fides 
would be attributed to the respondents and, therefore, the learned 
Principal   District   Judge   has   rightly   allowed   the   application   for 
condonation of delay.
6.
Before dealing with the rival argument, it is necessary to 
remind ourselves that this is a revision application in which the 
scope and ambit of the power of this Court to revise the order of 
the   lower   Court   are   limited   and   they   are   confined   only   to 
correction   of   errors   relating   to   exercise   or   non­exercise   of 
jurisdiction   or   some   illegality   or   material   irregularity   affecting 
prejudicially rights of parties.  In exercise of the revisional powers 
it is not permissible for the Court to go into the findings of fact 
recorded by the lower Court.   Bearing in mind, these limitations, 

let us consider  the  rival arguments in the light of  the  facts and 
circumstances of the present case as set out in the paper book of 
the revision application.
7.
As regards first contention that sufficient cause ought to 
have   been   shown   to   have   arisen   before   the   expiry   of   limitation 
period, I must say that there is averment in the application itself 
that the respondents had approached the concerned Advocate in 

June 2008 and this has been appropriately considered by the lower 
Court.   I see  no reason to make  any interference in the finding 
recorded by the lower Court in  this  behalf.   Therefore, the first 
contention so raised deserves rejection.  
8.
In   the   case   of  Chandrakant  (supra),   learned   Single 
Judge of this Court has found that the party must satisfy the Court 
that   he   had   sufficient   cause   for   not   preferring   the   appeal   or 
application  and that sufficient cause  arose  within  the  prescribed 
period of limitation.  I have already found on facts of the case for 
the   reasons   stated   in   foregoing   paragraphs   that   the   applicant 
cannot   be   said   to   have   not   satisfied   this   condition   in   this   case. 
Therefore, this case would be of no assistance to the case of the 
applicant herein.  
9.
As   regards   the   second   part   of   the   argument   that   the 

negligence of the Advocate should not be considered as showing 
sufficient cause unless, it is also shown that the party had been 
pursuing the matter with the Advocate and could not succeed in 
his   efforts   for   the   reasons   beyond   his   control,   I   must   say   that 
although   this   concept   has   been   propounded   in   the   judgment   of 
Mr.Conception Fernandes and another  (supra), it would not have 
any application when it comes to exercise of discretion of the Court 

under   Section   5   of   the   Limitation   Act.     In   the   case   of 
Mr.Conception, this Court had found that rigor of due diligence test 
prescribed under the proviso to Rule 17 Order 6 of C.P.C. would 
require due diligence to be exercised basically by the party himself 
and if the Advocate is negligent, it would amount to negligence of 
the party or otherwise, it may provide an effective tool to the lazy 
and indolent party to conveniently get over the barrier of provision 
of Rule 17 Order 6 of the C.P.C.  While exercising discretion under 
Section 5 of  Limitation Act, the considerations of this Court, as can 
be  seen  from  several  precedents  of the  Hon’ble Apex Court, are 
wider and governed by desire of the Court of justice to advance the 
cause of substantial justice and to reject any resistance of the party 
on the ground of technicalities.  Therefore, the principles settled by 
the   Hon’ble   Apex   Court   would   require   the   Court   to   look   for 

absence   of   any   deliberate   act   or   mala   fides   on   the   part   of   the 
litigant and also in convenience of other party, and if the Court is 
satisfied   that   the   litigant   himself   was   not   negligent   or   was   not 
sitting idle, and aspect of inconvenience can be taken care of, the 
Court   can   view   negligence   of   the   Advocate   as   different   from 
negligence   of   the   party   and   thus   being   a   sufficient   cause   for 
Having considered the settled legal position thus, I am 

10.
exercising its discretion under Section 5 in favour of that party.  
of   the   view   that   the   impugned   order   cannot   be   said   to   be 
inconsistent with the well settled principles of law.   The learned 
Principal   District   Judge   has   found   that   there   have   been   no 
mala   fides   nor   any   deliberate   attempt   on   the   part   of   the 
respondents to protract the matter and that when they had reposed 
implicit   faith   in   their   Counsel,   they   simply   proceeded   on   the 
presumption   that   their   Advocate   must   have   taken   appropriate 
action   by   filing   the   appeal,   as   instructed   by   them.     But, 
unfortunately that was not to be and there was some negligence, 
may be gross negligence on the part of the concerned attorney of 
the Advocate.   But, for that lapse of the Advocate’s attorney, the 
respondents   could   not   have   been   said   to   have   acted   with   any 
mala fides on their part and, therefore, it cannot be said that no 

sufficient cause has been shown by them in this case.   Of course, 
the   respondents   ought   to   have   contacted   their   Advocate,   but,   if 
they did not do so, that appear to be a mere mistake on their part, 
as considered by the learned Principal District Judge.  The view so 
taken by the learned Principal District Judge cannot be said to be 
so impossible a view as would not logically arise from the facts and 
circumstances of this case and, therefore, it would not be open for 

this   Court to  substitute  the   view of  the   lower   Court  by its  own 
view,   simply   because   another   view   is   possible.     Consequently, 
neither any illegality nor any material irregularity could be found 
in the impugned order.
11.
In   the   circumstances,   I   find   no   merit   in   this   revision 
application and it deserves to be rejected.
Revision application stands rejected.
                         
       JUDGE

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