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NaraIn Das Vs. Kundan Sugar Mills - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Miscellaneous Appeal Nos. 3 of 1973 and 497 of 1992 and Regular First Appeal No. 9 of 1972
Judge
Reported in1974RLR139
ActsLimitation Act - Sections 5
AppellantNaraIn Das
RespondentKundan Sugar Mills
Advocates: Yogeshwar Prasad,; N.B. Sinha and; S.P. Aggarwal, Advs
Excerpt:
.....nor was it a device in any way to delay the riling of appeal. we, thereforee, are satisfied that the appellant has made out a sufficient case for condoning the delay in filing the appeal;.....his request for adjournment was declined. his counsel applied for copies of both the orders and filed appeal. he had not applied for copy of the decree and hence did not file same. neither the office of high court, the registry brought this fact to his notice, later he was informed that doing this was necessary and he asked one sh. ram pershad. a senior clerk of a leading lawyer to apply for the said copy on his behalf and give the same to him. ram pershad obtained the same and wrote a letter to the appellant to this effect but the letter did not reach him as he had changed his address. meanwhile ram pershad misplaced the said copy and not finding the same applied for another copy which was filed in the court as soon as it was obtained. an application for condensation of delay was.....
Judgment:

T.V.R. Tatachar and R. Sachar, JJ.

(1) Single Judge of the High Court dismised appellant's suit for not summoning any witness and for not producing any on the date fixed. His request for adjournment was declined. His counsel applied for copies of both the orders and filed appeal. He had not applied for copy of the decree and hence did not file same. Neither the office of High Court, the Registry brought this fact to his notice, Later he was informed that doing this was necessary and he asked one Sh. Ram Pershad. a senior clerk of a leading lawyer to apply for the said copy on his behalf and give the same to him. Ram Pershad obtained the same and wrote a letter to the appellant to this effect but the letter did not reach him as he had changed his address. Meanwhile Ram Pershad misplaced the said copy and not finding the same applied for another copy which was filed in the Court as soon as it was obtained. An application for condensation of delay was also filed. Printing charges were also deposited late.

(2) High Court held on consideration of Jagdish Chander Vs . Union of India that printing charges were deposited late due to mistake of counsel and the rule relating to same is directory and same was condoned Further held on considering Mata Din Vs . A. Narayan : [1970]2SCR90 ; Rajender Bahadur Singh Vs . Rajeshwar Ball ; State of W. B. Vs . Administrator : [1972]2SCR874a ; Punjabi Univ. Vs . Acharya Swami Ganesh : AIR1972SC1973 , Municipal Corp. Vs . Bharat Oxygen Co. that there is no fixed or hard rule for condensation of delay and if there is no ulterior or oblique motive and late filing is not a device then delay should be condoned. The court distinguished the case of Banwarilal & Sons Vs . Union of India : AIR1973Delhi24 , where the facts were that an appeal against the award given under the Requisitioning and Acquisitioning of Immovable Property Act was disposed of by the single judge. An appeal under Clause 10 of Letters Patent lies within 30 days and appeal to Supreme Court under Article 136 of the Constitution lies within 90 days. The period of 30 days expired on 7th February whereas the appeal was filed on 19th February. The Explanationn given by the party for filing the appeal late was that he was advised by the counsel that an appeal from the single judge in such a case lay to Supreme Court and not to Letters Patent Bench. The bench, however, did not accept this Explanationn and observed that no affidavit had been filed by the Advocate concerned that he had given any such advice nor did the court accept the contention that any counsel could have advised the appellant that the appeal lay to the Supreme Court and not to the Letters Patent as according to the court the view was long settled that such an appeal lay to the Letters Patent. The other reason for not condoning the delay was because the bench held that if there was any doubt whether the appeal lay to the Letters Patent or to the Supreme Court it would have been a matter of common sense for the appellant that the best course for him was to file appeal in the High Court where the period of limitation was shorter. The bench, thereforee, on particular facts of the case held that there was no Explanationn for the delay and, thereforee, no sufficient cause was made out. This case was decided on its own facts and is clearly distinguishable.

(3) It is true that no copy of the decree was filed along with the memorandum of appeal. But the Explanationn given by Mr. Sinha counsel for the appellant is that he did not know that a copy of the decree was to be filed along with it and hence it was bona fide mistake. In this connection it is important to notice that even a copy of the order of the I.A. 389/72 was applied for and was filed along with the memorandum of appeal though it was not necessary to have filed the same. Presumably it must have been filed because as the suit was dismissed for want of evidence and was really in consequence of the order on I A. it must have been thought that a copy of that order should also be filed. Bona fide of the counsel for the appellant is thus shown by the fact of counsel filing all the documents which he thought were necessary for the decision of the case. There does not seem to be any oblique motive in not having filed the copy of the decree. The only reason seems to be that Mr, Sinha was genuinely though mistakenly under the impression that it was not necessary to file the same. In this connection the action of the office in not raising any objection about non-filing of copy of the decree both at the time when the appeal was filed on 10.4.1972 and also suqsequently when it was refiled on 18.4.1972 is a relevant circumstance and has to be taken into account. Had the office raised the objection on 11-4-72 that the appeal was cot competent without the copy of the decree the appellant would have immediately applied for the same and as the limitation had not yet run out he could have been able to file the appeal with copy of the decree sheet and the appeal would have been within time. It has been held that it is an elementary rule of justice that no party should suffer from the mistakes of the court or office vide Shastri Yagnapurushdasi v. Muldas Bhundardas Air 1956 S.C. 1119. In that case the appeal was filed by the Assistant Government Pleader whereas the Vakalatnama was in favor of the Government Pleader. Even the Registry of the High Court recorded the presentation of the appeal to be proper and raised no objection. Their lordships of the Supreme Court in that case observed that the failure of the registry to invite the attention of the Assistant Government Pleader to the irregularity committed in the presentation of the said appeal cannot be said to be irrelevant in dealing with the validity of the contention raised by the appellant. So also in the present case the fact that no objection was raided by the registry of this court to the non-filing of the decree must be taken into account for the consideration of this application. It may also be noted that application for a copy of decree was applied for in the first instance on 20,4.1972. At that time no objection had been raised by any one and, thereforee, we must accept the Explanationn offered by the appellant that the moment Mr. Yogeshwar Parsad the counsel for the appellant came to know that the appeal bad been filed without a copy of the decree, immediate steps were taken to obtain the copy. This shows that omission to file a copy of decree was due to bona fide mistake.

(4) Thus we find that the failure of the appellant to file a copy of the decree was due to the bona fide mistake of the counsel and that there was no ulterior motive nor was it a device in any way to delay the riling of appeal. We, thereforee, are satisfied that the appellant has made out a sufficient case for condoning the delay in filing the appeal; We would. thereforee, allow both the applications and condone the delay and extend the time under Section 5 of the Limitation Act. Appeal accepted.


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