Bombay High Court: The instant appeal was filed by the respondent (original plaintiff) as the First Appellate Tribunal had rejected his application for condonation of delay in filing the appeal arising out of the judgement passed by the Trial Court. A Single Judge Bench of M.W. Chandwani, J., opined that delay was caused on the ground that the Advocate of the appellant (original defendant) did not inform the appellant, for three years that the case had been withdrawn by the respondent, which constituted sufficient cause for condoning the delay. Additionally, it was stated that the First Appellate Tribunal failed to consider that the appellant being a senior citizen had authorised his brother to represent him in the case, who himself had moved to Mumbai from Nagpur.
The Court held that since there was no gross negligence or deliberate inaction by the appellant, therefore, a broad and liberal view had to be adopted so as to advance substantive justice and the right of the appellant could not be taken away due to the negligence on part of his Advocate. Accordingly, the Court condoned the delay caused in filing of the appeal subject to the payment of Rs. 25,000 as costs.
Background
A suit was filed by respondent for declaration and permanent injunction on the premise that he had become the owner of the suit property by way of adverse possession therefore, the mutation entry in the name of the appellant was null and void. The appellant filed the written statement but did not cross examine any witnesses, therefore, the Trial Court passed the judgement dismissing the said suit.
Thereafter, an appeal was preferred by the respondent, which was dismissed, therefore, he filed a revision application. The respondent had accepted the copy of reply in the said revision application on 20-7-1998 even though, he had already withdrawn the revision petition on 6-7-1998. When the revision petition was pending before the present Court, the Trial Court suit was halted. Meanwhile, the appellant being a senior citizen, authorized his brother to represent him in the said case. But it was only after three years that his brother was informed by his Advocate, that the respondents had withdrawn the said revision application. Till then, the appellant and his brother were under the impression that the civil revision application was still pending. However, in wake of withdrawal of the application behind the back of the appellants, the Trial Court proceeded in the matter and passed the judgment on 31-1-2000.
The appellant found out about disposal of the suit by the Trial Court, in February 2002. Thus, he immediately filed an appeal alongwith the application for condonation of delay before the First Appellate Court. The ground for seeking condonation was that the respondent had filed an appeal against the rejection of application for temporary injunction in the said suit which was dismissed against which a revision application was filed. The said application was rejected by the First Appellate Court. Aggrieved by the same, a second appeal was filed by the present Court.
Analysis, Law and Decision
The Court observed that the First Appellate Court had rejected the said application on the ground that even though the service of the copy had been done to the Advocate for the respondent, the Advocate had to file the reply in the Court, therefore, the withdrawal of the civil revision application could not have remained unknown to the respondent. However, the Court pointed out that the First Appellate Court failed to consider that the brother of the appellant who was authorized to represent the appellant in the suit had shifted to Mumbai and was expected to come before the High Court in due course. The brother came to Nagpur and after meeting the Advocate, came to know about the withdrawal of the revision petition on 6-7-1998. Thus, the Court noted that the Advocate did not intimate the appellant’s brother about withdrawal of the application in the year 1998 itself.
The Court analysed and referred various precedents and opined that sufficient cause means that the advocate had given enough reasons for which a party could not be blamed. Fault of the counsel could not be a blanket protection, and each case must be examined on its peculiar factual matrix. Further, the Court opined that a right which had been created in favour of one party could not be taken away when the delay was a direct result of the negligence and inaction of the other party. If there was no gross negligence or deliberate inaction or lack of bonafides, a broad and liberal view must be adopted to advance substantive justice.
Therefore, the Court opined that there was nothing on record to suggest that the delay caused in preferring the appeal by the appellant was mala fide and intentional. The reason mentioned in the application for condonation of delay was adequate and enough to explain why the appellants could not prefer the appeal within time; in that scenario, sufficient cause was to be liberally construed. Additionally, the Court stated that the procedure was the handmaid of justice and substantial justice could not be denied for technical reasons. Thus, the First Appellate Court should have condoned the delay in preferring the appeal with certain conditions, if required with heavy costs.
Accordingly, the Court opined that the appellant being a senior citizen had authorized his brother for the perusal of the case, who was not informed about the withdrawal of the revision petition by his counsel for three whole years. Therefore, the Court held that delay caused in preferring the appeal was neither mala fide nor intentional, making it a sufficient cause for the condonation of delay. Hence, the Court condoned the delay in filing of the appeal subject to the payment of Rs. 25,000 as costs and held that since there was no gross negligence or deliberate inaction or lack of bonafides, a broad and liberal view must be adopted to advance substantive justice, and the right of the appellant could not be taken away due to the negligence on the part of the Advocate. The Court thus set aside the impugned judgment passed by the First Appellate Court.
[Narayan v. Shashank, Second Apl. No. 26 of 2015, decided on: 19-9-2025]
Advocates who appeared in this case:
Advocate for the Appellants- D.V. Chauhan, Senior Advocate; A.B. Moon, Parth C. Malviya, Advocates
Advocate for the Respondents- K.B. Ambilwade, S.P. Bhandarkar, G.S. Singh, Advocate