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Virubhai H. Patel Vs. Shaikh Mohammed Sayed - Court Judgment

LegalCrystal Citation
SubjectLimitation;Intellectual Property Rights
CourtGujarat High Court
Decided On
Judge
Reported in(1975)16GLR735
AppellantVirubhai H. Patel
RespondentShaikh Mohammed Sayed
Cases ReferredKrishna v. Chhatapan I.L.R.
Excerpt:
.....the attorney or the agent of each of the appellants at calcutta did not reply or communicate the decision till february 19, 1974 i. if it was so, the agent would not have failed to file an affidavit showing that the decision was communicated earlier. i am, therefore, satisfied that the appellant in each case was diligent enough and that there was no inaction or negligence on his part. 366 at page 373: the legal position when a question arises under section 5 of the limitation act is fairly well-settled. it is not possible to lay down precisely as to what facts or matters would constitute 'sufficient cause' under section 5 of the limitation act. section 5 gives the court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion..........stated that the delay in filing an appeal should not have been for reasons which indicate the party's negligence in not taking necessary steps which he could have or should have taken. here again, what would be such necessary steps will again depend upon the circumstances of a particular case and each case will have to be decided by the courts on the facts and circumstances of the case. any observation of an illustrative circumstance or fact, will only tend to be a curb on the free exercise of the judicial mind by the court in determining whether facts and circumstances of a particular case amount to 'sufficient cause' or not. it is needless to emphasise that courts have to use their judicial discretion in the matter soundly in the interest of justice.8. their lordships then quoted.....
Judgment:

D.P. Desai, J.

1. These two Civil Applications have been preferred by the appellant in each of the aforesaid two First Appeals for condonation of delay in filing the respective appeals. The facts and the dates relevant for this purpose may be stated. The opposite party had applied for a patent before the Scientific Officer of the Patent Office at Calcutta. The opposition was entered by the appellant of each of the two appeals in respect of the grant of the said patent. The appellant in each case opposed the grant through his Patent Agent and Attorney Messrs Remfry & Sons, Calcutta. The Scientific Officer, by his order dated October 27,1973 overruled the objections of the appellant in each case and ordered the patent to be sealed. This decision was communicated to the aforesaid Agent of the appellants on November 1, 1973. The appellants were not aware of this decision; and, therefore, they enquired from their Agent on December 19, 1973 as regards the Judgment in the matter. Thereafter on February 15,1974, the Agent wrote to each of the appellants that the objections were overruled and enclosed with that letter a copy of the decision of the Scientific Officer. This letter was received by the appellant on February 23, 1974 in each case; and the appeal in each case was filed on February 25,1974, the intervening day i.e. February 24, 1974 being a Sunday. By the application for condoning delay, the appellant in each of the two appeals has pleaded in terms negligence on the part of their Attorney and Agent at Calcutta, consisting of not communicating the decision to each of the appellants till February 23, 1974, inspite of an enquiry having been made on December 19, 1973 from the said agent.

2. I am satisfied, on a perusal of the affidavits filed by the respective parties as well as the correspondence produced in this case that the appellant in each of the two appeals was diligent enough to make an enquiry from his Agent on December 19, 1973 as to the result of the objections filed by him. I am also satisfied that inspite of this enquiry, the Attorney or the Agent of each of the appellants at Calcutta did not reply or communicate the decision till February 19, 1974 i.e. for nearly four months after the decision was communicated to the Agent. This was nothing but gross negligence on the part of the Agent of each of the appellants. The decision was given by an officer at Calcutta in respect of a representation made by a person from Ahmedabad. We cannot expect the appellants to run down to Calcutta oft and on, merely in order to enquire what had happened to the case particularly when the Patent proceedings had dragged on for ten years from September 1963 to September 1973. The decision of the Scientific Officer annexed to the memorandum of First Appeal shows that the notice of opposition was filed on July 31, 1965 and the hearing had taken place on 12th February, 13th February, 6th March and 7th March, 1973. Besides, letter from the appellant's Agent written on July 7, 1973 shows that the decision was not issued till then. The Agent also wrote that as soon as they received the decision they will communicate the same to the appellant. They had, therefore, to depend upon their Agent at Calcutta for the purpose of communication of the decision in the matter. If we turn to the affidavit filed by each of the appellant on September 5/11, 1974, it appears that they tried to get an affidavit of the agent explaining the delay by going down to Calcutta but their attempts proved fruitless. It is beyond the control of the appellant in each of the two appeals to get an affidavit of the agent filed in the present case. It is, therefore, clear that the appellant's agent at Calcutta was negligent, inasmuch as he did not communicate the decision to the appellant for nearly four months inspite of an enquiry having been made by a letter dated December 19, 1973. The period from the date of the decision till the filing of the appeal which would be the period between November 1, 1973 and February 25, 1974 was a period during which the appellant was kept in dark as regards the result of this proceeding by the sheer negligence of his agent. Mr. Kazi for the other side, no doubt, argued that there is no averment made by the appellant showing that his letter of December 19, 1973 was not replied to by the agent. Absence of that averment is not sufficient in the circumstances of this case to come to the conclusion that this letter must have been replied to by the agent earlier. If it was so, the Agent would not have failed to file an affidavit showing that the decision was communicated earlier. On the contrary, the letter of February 15, 1974 from the Agent to each of the appellants in itself shows that that was the first date on which the Agent communicated the decision in respect of both the proceedings to each of the appellants. So far as the applicant in each of the two cases is concerned, no negligence, inaction or want of diligence can be attributed to him. He was diligent enough inasmuch as in each case, the appellant made an enquiry on December 19, 1973 as to the result of the patent proceedings. The patent proceedings had gone on for a number of years from September 1963 to September 1973. Naturally therefore, the appellant, after making the enquiry on December 19, 1973 would wait for some time. I am, therefore, satisfied that the appellant in each case was diligent enough and that there was no inaction or negligence on his part. No negligence, inaction or want of bona fides on the part of each of the two appellants was shown on behalf of the other side.

3. The only answer to the aforesaid finding, given by Mr. Kazi for the opposite party was that the negligence of the agent of the appellant at Calcutta is the negligence of the appellant himself in each case; and therefore, on this ground, delay cannot be condoned. He relied upon Buddhu and Ors. v. Diwan and Ors. I.L.R. 37 Allahabad, page 267. Therein the only relevant observations for our purpose are to be found at page 271. They are as under:

Even if the non-filing of the appeal were due to the neglect of Mr. Waston, the Court could hardly lay down a general rule that the neglect of the legal practitioner engaged is always to be deemed a sufficient reason for admitting an appeal or application after the time prescribed by law.

These observations only show that no general rule can be laid down that neglect of a legal practitioner engaged by a party must always be deemed to be a sufficient cause for admitting an appeal or application after the prescribed period.

4. Mr. Kazi relied upon another decision in which negligence of a lawyer's clerk was not accepted as a sufficient cause. In this case reported as Krishna Rao v. Trimbak A.I.R. 1938 Nagpur 156 the appellant solely relied upon the advice of his pleader's clerk about the duration of the vacation of the Court and in consequence thereof filed the appeal beyond limitation period. It was held that pleader's clerk was the agent of the appellant- a proposition, with great respect, difficult to agree with. On the basis that the pleader's clerk was the agent of the appellant, it was held that negligence of the former was negligence of the latter.

5. In Mt. Mehtab v. Mt. Birhmo A.I.R. 1924 Allahabad 176, the following observations of Mr. Rustomji on Limitation Act, 1922 edition were quoted with approval and Mr. Kazi placed great reliance on them:

Negligence of counsel or solicitor stands on the same footing as that of any other person and a negligence by him is not sufficient cause.

In this case there was negligence of a lawyer's clerk to whom work of obtaining copies was left by the defendant's agent without any supervision. The Allahabad High Court before quoting the aforesaid observations of Rustomji, said.

A pleader's clerk in this country is not a person to whom obtaining of copies could be solely left without any supervision. The defendant through her agent appears to have taken no steps to find out whether the copies had been obtained until almost the very day that limitation would in the ordinary course expire. Even if negligence was that of the pleader himself, it would make no difference.

6. These observations show that there was two fold negligence of the party. Firstly in solely leaving the work of obtaining copies to a pleader's clerk instead of the pleader himself; and secondly, in taking no steps to find out whether copies had been obtained. Therefore, this was a ease of negligence of the party himself. And the observations with regard to negligence of a lawyer were mere obiter dictum.

7. It would be no use multiplying decisions which may obscure the basic principle to be adopted in cases where sufficient cause is pleaded. Each case with its own peculiar facts will present a different complexion. As observed by the Supreme Court in the State of West Bengal v. The Administrator Howrah Municipality and Ors. (1972) I S.C.C. 366 at page 373:

The legal position when a question arises under Section 5 of the Limitation Act is fairly well-settled. It is not possible to lay down precisely as to what facts or matters would constitute 'sufficient cause' under Section 5 of the Limitation Act. But it may be safely stated that the delay in filing an appeal should not have been for reasons which indicate the party's negligence in not taking necessary steps which he could have or should have taken. Here again, what would be such necessary steps will again depend upon the circumstances of a particular case and each case will have to be decided by the Courts on the facts and circumstances of the case. Any observation of an illustrative circumstance or fact, will only tend to be a curb on the free exercise of the judicial mind by the court in determining whether facts and circumstances of a particular case amount to 'sufficient cause' or not. It is needless to emphasise that Courts have to use their judicial discretion in the matter soundly in the interest of justice.

8. Their Lordships then quoted with approval the following dictum of Madras' High Court in Krishna v. Chhatapan I.L.R. 13 Madras 369, which lays down the correct approach to these cases:

Section 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words 'sufficient cause' receiving liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant.

9. Thus, no general principle can be laid down that in all cases negligence of a counsel or pleader is negligence of a party and, therefore, would not be a sufficient cause. If we do so, we are only laying down an artificial rule which instead of advancing cause of justice in a given case may tend to curb the free exercise of judicial mind on a question of judicial discretion to be used in the matter soundly and in the interest of justice. The correct approach would be to ask: Do the facts and circumstances brought out show negligence or inaction or want of bona fides imputable to the party? Were the steps necessary to be taken by the party taken? If so, when and with what result? Of course, the burden will be on the party claiming condonation of delay to put forward before the Court in clear and explicit terms the facts and circumstances on which he relies; and what steps, if any, which were necessary to be taken, were taken by him, when they were taken and their result. If all these facts and circumstances are brought before the Court it becomes easy to decide whether in a given case sufficient cause has been made out or not.

Applying the aforesaid test to the facts and circumstances discussed earlier, it is clear that sufficient cause has been made out in the present case.

10. In the result, Rule in each of the Civil Applications Nos. 637 and 638 of 1974 is made absolute, by directing that the delay in filing the appeal in each of the two cases from November 1, 1973 to February 25, 1974 be condoned. There will be no order as to costs.


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