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G. Abdul Shukur Vs. the Union of India (Govt. of India) - Court Judgment

LegalCrystal Citation
SubjectService
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. No. 1277 of 1971
Judge
Reported inAIR1973AP118
ActsLimitation Act, 1963 - Sections 5
AppellantG. Abdul Shukur
RespondentThe Union of India (Govt. of India)
Appellant AdvocateK. Venkataramaiah, Adv.
Respondent AdvocateA. Raghuveer, Adv.
Excerpt:
.....on record to show that this order was served on the petitioner only on 22-12-1968. but this observation is clearly a mistake. for all the foregoing reasons, i am satisfied that the petitioner has sufficiently explained the delay in filing the appeal, that he was bona fide prosecuting the litigation and that the delay was not wilful and therefore, the delay is to be condoned......the application i. a. 109/69 filed under sections 5 & 14 of the limitation act, for condoning the delay in filing the appeal against the judgment and decree of the district munsif, gooty, dismissing the suit o. s. no. 10 of 1966.2. the suit of o. s. 10 of 1966 was filed, in forma pauperis, for recovery of a sum of rs. 1,948 /- being arrears of salary due to the petitioner from the defendant, the union of india, represented by the general manager, southern railway, from 24-11-1956 to 18-2-1961. it appears that the petitioner, employed by the defendant railway, was suspended on 24-11-1956 and was re-instated by order dated 14-2-1961 and he rejoined duty on 18-2-1961. during the period of suspension, he was paid half the salary and half the allowances. as he was not paid the remaining half.....
Judgment:
ORDER

1. This application is to revise the order of the learned District Judge, Anantapur, rejecting the application I. A. 109/69 filed under Sections 5 & 14 of the Limitation Act, for condoning the delay in filing the appeal against the Judgment and Decree of the District Munsif, Gooty, dismissing the suit O. S. No. 10 of 1966.

2. The suit of O. S. 10 of 1966 was filed, in forma pauperis, for recovery of a sum of Rs. 1,948 /- being arrears of salary due to the petitioner from the defendant, the Union of India, represented by the General Manager, Southern Railway, from 24-11-1956 to 18-2-1961. It appears that the petitioner, employed by the defendant Railway, was suspended on 24-11-1956 and was re-instated by order dated 14-2-1961 and he rejoined duty on 18-2-1961. During the period of suspension, he was paid half the salary and half the allowances. As he was not paid the remaining half of the salary and allowances, after reinstatement he filed the suit O. S. 165 of 1957 on the file of the District Munsif, Gooty for recovery of the arrears. The said suit was dismissed and the dismissal was confirmed on appeal and second appeal on the ground that a notice under Section 80 of Civil P. C. Was not given. The petitioner then issued a notice under Section 80, Civil P. C. And filed the suit O. S. 10 of 1966 for recovery of the arrears of salary. In the suit, the defendant Railway, contended, inter alia, that the Civil Court has no jurisdiction to entertain the suit, by virtue of Section 22 of Payment of Wages Act. An issue was framed with regard to the question of jurisdiction. The learned District Munsif discussed the question of jurisdiction in paragraph 13 of his judgment and overruled the objection of the defendant railway and held the Civil Court has jurisdiction to entertain the suit. He however dismissed the suit on the ground of limitation. This dismissal of the suit was on 31st August, 1966.

3. Instead of filing a regular appeal, against the judgment and decree of the District Munsif, Gooty dismissing the suit O. S. 10 OF 1966, the petitioner filed an application, before the Authority under the Payment of Wages Act, Guntur Region, Guntur under Section 15 of the Payment of Wages Act. By an order dated 15-11-1968, the Authority under the Payment of Wages Act rejected the petition on the ground that sufficient cause was not shown for the delay in filing the application. The petitioner thereafter filed the appeal on 23-1-1969 in the Court of the District Judge, Anantapur, against the dismissal of the suit O. S. No. 10 of 1966 by the District Munsif, Gooty. Along with the appeal an application I. A. No. 109 of 1969 under Sections 5 and 14 of the Limitation Act for condoning the delay in filing the appeal, was filed by the petitioner. In support of the petition, for condoning the delay, the petitioner stated that the judgment in O. S. 10 of 1966 was delivered on 31-8-1966, that the application for printed copies of judgment was made on 6-9-1966, the printed copies of the judgment were made ready on 26-9-1967 and delivered to his advocate on 27-9-1967. But by that date the petitioner's application, filed under Section 15 of the Payment of Wages Act, was pending and that the petition was dismissed on 15-11-1968, and the order thereon received on 22-12-1968 and the order was communicated to him only ' recently '. He therefore stated that he was bona fide pursuing the litigation, under the legal advice of his counsel in a wrong Court and that the delay in filing the appeal is neither intentional nor wanton and that, therefore, the delay should be condoned and the appeal taken on file.

4. To this petition, a counter was filed by the Railways stating that the mistaken advice of the advocate concerned is not a sufficient cause within the meaning of Section 5 of the Limitation Act and that the advice given was not bona fide or after due care and caution and therefore the delay should not be condoned.

5. The petitioner examined himself as P. W. 1. He stated that the order of the dismissal of his petition, filed before the Authority under the Payment of Wages Act, was served on him on 22nd December, 1968, that Ex. A-1 is that order, and after 22-12-1968 there was some delay in getting the record for filing the appeal, that he filed the appeal immediately after the records were received, and that he could not prefer the appeal as the petition M. P. 1 OF 1967 was pending in the Labour Court. In cross-examination he stated that he was informed by his advocate that the printed copies of the judgment and decree were received, that he filed the petition M. P. 1/67 on the advice of his advocate and that his advocate was one Kallu Rao, and that he did not propose to examine him as his witness.

6. The lower Court held that in the suit O. S. 10 of 1966, the issue raising the plea of want of jurisdiction was negatived and there was no adverse observations made by the Trial Court in considering the question of maintainability of the suit by virtue of Section 22 of the Payment of Wages Act and that his filing the petition, under the said Act after the suit was dismissed, would only indicate that he instituted the said proceedings in a speculative way with the intention of filing the appeal only, if he was unsuccessful in getting the relief in the said petition, that it cannot be said that he acted bona fide or with due diligence, that the requirements of Sec. 14 of the Limitation Act were not satisfied, that even after the dismissal of the petition M. P. 1 of 1967 on 15-11-1968 there was more than two months' delay in filing the appeal, that there was nothing on record to show that the copy of the order of the dismissal of M. P. 1/67 was served on the petitioner only on 22-12-1968, and that the delay between 15-11-1968 and 23-1-1969 remained unexplained. In this view the lower Court dismissed the application for condonation of delay with costs.

7. In this revision it is contended by Sri K. Venkataramaiah, learned counsel for the petitioner that the facts disclose that the petitioner was prosecuting the litigation with due diligence and that the delay in filing the appeal was occasioned only on account of the mistaken advice given by the counsel and that the delay in filing the appeal has been sufficiently explained.

8. Sri Raghuvir, learned counsel for the railways contended that there is 15 months' delay in filing the appeal that the appeal was not filed immediately after dismissal of the petition filed under Section 15 of the Payment of Wages Act, that there is still a delay of 60 days to be explained and that the wrong advice given by his legal adviser cannot be a ground for condoning the delay.

9. On considering the entire facts and circumstances I think the petitioner has sufficiently explained the delay in filing the appeal. Several facts, that have emerged, amply establish that the petitioner has been bona fide prosecuting the litigation. He filed O. S. 165 of 1957 on the file of the District Munsif, Gooty for the same relief. But unfortunately it went against the petitioner, on the technical grounds that a notice under Section 80, Civil P. C. Was not given. The institution of the said suit, without giving a notice under Section 80. Civil P. C. must have been due to the negligence of the lawyer concerned. Even after dismissal of the suit O. S. 10 of 1966, the counsel appearing for the petitioner, instead if advising the petitioner to file a regular appeal, wrongly advised him to take proceedings under Section 15 of the Payment of Wages Act, and that application ended in rejection on the ground of delay.

10. This order of dismissal was made on 15-11-1968 by the Authority under the Payment of Wages Act. The lower Court observed that there is nothing on record to show that this order was served on the petitioner only on 22-12-1968. But this observation is clearly a mistake. Ex. A-1, copy of the order in M. P. 1 of 1967, on the file of the Authority under the Payment of Wages Act, contains the initials of the petitioner who went into the Box and stated that this order was served on him on 22nd December, 1968. He has not been cross-examined by the other side. Therefore, the statement of the petitioner coupled with the dated endorsement of the petitioner on the order Ex. A-1 establishes that the copy of the order in M. P. 1 of 1967 must have been received by him only on 22nd December, 1968.

11. The suit O. S. 10 of 1966 was dismissed on 31st August, 1966 and the petitioner has taken all necessary steps for obtaining copies of the judgment within the prescribed time and the copies were received by the advocate for the petitioner on 27th September, 1967. By that date the petitioner had already filed the application under Section 15 of the Payment of Wages Act. This was done on the legal advice given by his advocate and this petition was dismissed on 15-11-1968 and the copy of the order was served on the petitioner on 22-12-1968. Therefore, the petitioner has sufficiently explained the delay in not filing the appeal till 22-12-1968.

12. It is submitted by Sri Raghuvir, that the wrong advice given by his advocate cannot be a sufficient ground for condoning the delay. But I am unable to agree with this submission. But for the advice given by the lawyer, the petitioner would not have resorted to the wrong remedy and he would have filed the appeal in time and the delay would not have occurred. With regard to the delay in filing the appeal between 22-12-1968 and 23-1-1969, the petitioner stated as P. W. 1 that after 22-12-1968 there was some delay in getting the records and that he filed the appeal immediately after the records were received. There is no reason to disbelieve the version of the petitioner. There is also no cross-examination on this aspect. For all the foregoing reasons, I am satisfied that the petitioner has sufficiently explained the delay in filing the appeal, that he was bona fide prosecuting the litigation and that the delay was not wilful and therefore, the delay is to be condoned.

13. No doubt the provisions of Section 14 of the Limitation Act are not attracted, but the provisions of Section 5 of the Limitation Act will apply to the present case.

14. For the foregoing reasons this revision petition is allowed and the application I. A. 109 of 1969 is allowed and the delay in filing the appeal is condoned. The petitioner will have his costs here and in the Court below.

15. Petition allowed.


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