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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