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Shyam Lal Dhar Vs. Ply Board Industries - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtJammu and Kashmir High Court
Decided On
Case NumberCivil Revn. Petn. No. 55 of 1977
Judge
Reported inAIR1981J& K95
ActsLimitation Act, 1963 - Section 5; ;Code of Civil Procedure (CPC) , 1908 - Order 9, Rule 13
AppellantShyam Lal Dhar
RespondentPly Board Industries
Appellant Advocate S.K. Chakoo, Adv.
Respondent Advocate A.K. Malik, Adv.
DispositionRevision dismissed
Cases ReferredShanker Singh v. Hans Raj
Excerpt:
- mufti baha-ud-din, ag. c, j.1. in order to appreciate and determine the controversy in this case, it will be necessary to give briefly the sequence of events leading up to this reference. plaintiff, shyam lal dhar, sued the defendant, m/s. ply board industries, for possession of land measuring 7 kanals and ii marlas situate at village sampore as also for compensation and damages amounting to rs. 7,200/-. the suit was filed on 6-4-1965 in the court of addl. district judge, srinagar. the defendant put in his appearance and engaged late shri a. n. raina as his counsel. mr. raina appeared and conducted the case on behalf of the defendant on several hearings till 17-10-1978 when he absented himself with the result that the court proceeded ex parte against the defendant. thereafter the case was.....
Judgment:

Mufti Baha-ud-din, Ag. C, J.

1. In order to appreciate and determine the controversy in this case, it will be necessary to give briefly the sequence of events leading up to this reference. Plaintiff, Shyam Lal Dhar, sued the defendant, M/s. Ply Board Industries, for possession of land measuring 7 kanals and II marlas situate at village Sampore as also for compensation and damages amounting to Rs. 7,200/-. The suit was filed on 6-4-1965 in the Court of Addl. District Judge, Srinagar. The defendant put in his appearance and engaged late Shri A. N. Raina as his counsel. Mr. Raina appeared and conducted the case on behalf of the defendant on several hearings till 17-10-1978 when he absented himself with the result that the Court proceeded ex parte against the defendant. Thereafter the case was adjourned several times but no one appeared for the defendant to have the ex parte proceedings set aside. Eventually the trial Court passed a decree against the defendant ex parte on 23-3-1969. The plaintiff took out execution on 7-8-1969 as a result of which one station wagon belong to the defendant was attached. Thereafter, the defendant-Company moved an application on 20-8-1969 for setting aside the ex parte decree. The time allowed for making an application for setting aside the ex parte decree is thirty days commencing from the date of the decree or from the date of knowledge of the decree according as the summons was duly served or not. The company sought to bring the application within time by contending that it was not duly served and as such the time would commence from 7-8-1969, the date on which it got knowledge of the decree and, in the alternative, asked for condonation of delay under Section 5 of the Limitation Act. It was stated that due to the shortages of raw material the Company had to close down its factory and office at Srinagar in January, 1966 with the result that there was a dismemberment of the staff; some members resigned and some others were transferred and as a corollary and records too including the records of this case fell into a mess. The Company had, however, engaged Mr. A. N. Raina to represent it but Mr. Raina withdrew from the case without notice to the Company. It was only on 7-8-1969, when the plaintiff took out execution, that the Company was able to know that an ex parte decree had been passed against it. The Company took steps immediately to collect the information and to obtain the necessary copies which took time up to 20-8-1969 when the application for setting aside the ex parte decree was filed.

2. The learned Additional District Judge repelled the contention that the application was within time. He held that once the defendant has appeared and defended the claim, the question of service loses significance. He, however, upheld the alternative claim for extension of time and, while condoning the delay, set aside the ex parte decree on merits. He held that the Company had engaged Mr. A. N. Raina Advocate to represent it. Mr. Raina never informed the Company about the progress of the case nor even in respect of the ex parte decree. The company could not keep in touch with him because it had closed down its local office and had either discharged the employees or transferred them in consequence of the lock out in the factory caused on account of the paucity of the raw material. The records of the Company including the records of this case had fallen into a mess with no one to look after it and things around. In these premises, the learned Additional District Judge held that there was a sufficient ground for the non-appearance of the defendant and the subsequent delay in the filing of the application for setting aside theex parte decree. He, therefore, allowed the application on payment of Rs. 500/- as costs. The plaintiff filed a revision petition which came to be heard by one of us.

3. At the hearing of the revision petition, the question arose: Whether the defendant could be held responsible for the negligence of his counsel. For the plaintiff it was contended that the defendant was liable to be penalised for the negligence of his counsel and reliance was placed on Shanker Dass v. Hans Raj, 1973 J & K LR 780 (SB). For the defendant it was contended that he could not be held responsible and reliance was placed on State of Jammu and Kashmir v. Firm Baldev Singh Sardool Singh, 1974 J & K LR 558 (DB). As the question involved was of general importance and seemingly there was divergence of opinion on this point in the decisions mentioned above, the matter was referred for decision to a Full Bench. That is how this case is before us.

4. Our brother, Mr. Mir, J., has not touched the main question whether the defendant could be held responsible for the negligence of his counsel. He has, however, opined that there is no divergence of opinion in the decisions mentioned above. He will deal with both these questions on the lines that follow.

4-A. The principal question before us is whether a litigant is responsible for the negligence of his counsel. A number of decisions were cited before us during the course of argument but that directly in point is the one reported in Firm of J. E. Billimoria and Sons v. Gopinath Sunderlal Bhargao, (AIR 1938 Nag 370). In that case the defendant and his counsel were both absent when the case was called on 1-11-1935 at 1.30 P. M. though they had been present at every hearing till then. The trial Court proceeded ex parte and after examining the plaintiff and his two witnesses passed an ex parte decree. The defendant's counsel appeared a few minutes later but he was told that the judgment had been already delivered ex parte. The defendant applied to have this order set aside but the trial Court rejected the application on the ground that no sufficient cause was shown. The defendant applied in revision. The question arose whether the defendant could be held responsible for the negligence of his counsel assuming that the counsel was negligent. Dealing with this question the learned Judge observed:

'I do not deny that cases may arise when he is, but I do not think it is neither possible or desirable to lay down any hard and fast rule. Speaking generally, I do not think a party ought to be penalized in this drastic fashion unless there has been remissness on his part. Apart from the general undesirability of having litigation terminate in this unsatisfactory manner, it must be remembered that the provisions of the Code speak throughout of the absence of the party himself and not of that of his counsel and that therefore attention must in the first instance be concentrated on the conduct of the party and not merely on that of the counsel : See Order 9, Rules 6, 8 and 13 and Order 41, Rule 17. What then is the duty of a litigant in this respect? If he cannot be present himself when his case is called on for hearing, he must of course make adequate provision for his proper representation by some agency. If he employs counsel for this purpose he must ensure that the person he employs undertakes to be present when the case is called for that there is somebody else there ro represent him. This means that he must pay counsel adequately or employ others who will be there to assist him. If he does that then he has done all that the law can reasonably expect of him. If in spite of that counsel does not appear, I hardly think the litigant can be held responsible. After all, he is not allowed to employ anybody he chooses. He is forced to confine himself to a special class of persons whom the Courts and the State hold out to the general public as specially honest, competent, reliable and responsible, and who for that reason have been given an exclusive monopoly to practice in Courts of justice. If the person selected behaves in an irresponsible manner the remedy is for those responsible for placing him in this privileged position to punish him and to ensure as far as may be that the public at large are not left to the mercy of his irresponsibility or incompetency a second time. It is manifestly unjust in these circumstances to blame the litigant.

I do not mean by this that every thing is to be assumed in favour of a litigant who is prima facie in default. If he wants to have the ex parte proceedings set aside he must show sufficient cause and that means that he must show that counsel undertook to represent him at all necessary hearings for the fees agreed upon or paid, and also that there was no qualifying clause in the agreement. Again, I do not mean that he must show an express undertaking by counsel to be present either personally or through some other authorised person at all hearings; that is necessarily implied in the contract, but he must bring the responsibility definitely home to counsel if he wants to succeed and on that ground. The Court cannot be left to guess whether the litigant was to blame or his counsel and as to where the litigant wants the responsibility to be placed. The cause shown, that is to say, the allegations made, must be definite and precise, blaming a particular person and such allegations must be fully proved. The Court must be apprised in the most certain terms exactly where the responsibility is supposed to lie.'

5. On these observations, with which we generally agree, it necessarily follows that where the defendant employs a counsel for the purpose of his appearance in the Court and the counsel neglects or fails to appear in the case, his neglect or failure would constitute a sufficient cause for the non-appearance of the defendant within the meaning of Order 9, Rule 13 provided that the defendant had done all that was required of him to ensure that the counsel would represent him on all the necessary hearings. It also follows that where the delay in filing the application for setting aside the ex parte decree is due to the negligence or failure of the counsel to inform the defendant that an ex parte decree had been passed against him, such neglect or failure would be a sufficient cause for condonation of delay under Section 5 of the Limitation Act provided the defendant had done all that was required of him in order to keep himself posted with the progress of the case. The Supreme Court of India has stated the same thing broadly in relation to Section 5 of the Limitation Act in the case of State of West Bengal v. Administrator, Howrah Municipality, (AIR 1972 SC 749) in these words (at p. 755);

'In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge. and this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Courtin order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chattappan, (1890) ILR 13 Mad 269, 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 a liberal construction so as to advance substantial justice when no negligence nor inaction for want of bona fide is imputable to the appellant.

From the above observations it is clear that the words 'sufficient cause' should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party.'

6. In this background our reply to the question whether a litigant can be held responsible for the negligence of the counsel would be that it is difficult to lay down any inflexible rule and that each case must be decided on its own facts but generally speaking a litigant would not be responsible for the negligence of his counsel unless there has been any remissness on the part of the litigant himself.

7. Let us now advert to the decided cases of this Court having bearing on the controversy before us.

8. We first take up the case of Shanker Dass v. Hans Raj, 1973 J & K LR 780 (SB). In that case the plaintiff brought a suit for ejectment and arrears of rent against the defendant in the Court of Munsiff R. S. Pora. The defendant was summoned and appeared in the Court on 14-11-1971 accompanied by his counsel who took time to file the written statement. The written statement was not however filed on several subsequent hearings up to 20-1-1972 when the counsel for the defendant reported 'no instructions'. As such the Court took ex parte proceedings against the defendant and eventually passed an ex parte decree against the defendant. The defendant filed an application under Order 9, Rule 15 for setting aside the ex parte decree. The lower Court rejected the application. In revision, it was contended that the petitioner had engaged a counsel and he had reason to believe that the counsel would look after his case in his absence which prevented him from attending the Court and that this was a valid ground on which an ex parte decree may be set aside. The Court repelled the contention observing as under :--

'By engaging counsel a party to a suit, is not relieved of his duties and obligations in the matter. In any case the negligence of a party's counsel cannot be a ground of claim or application against the other party, because, on the principle that the principal is responsible for the acts of his agent as much as for his own, the negligence of the counsel is the negligence of the party himself.'

9. If these observations are construed to imply that, irrespective of anything else, a party would be responsible for the negligence of his counsel, then we must say that the law has been stated a little too widely. But that is not exactly what these observations were really intended to convey. The implication obviously was that on the facts of that case which showed that the party had not fully briefed the counsel nor even kept any contact with him, he himself was really responsible for the negligence of the counsel and should bear the consequences. So viewed, the decision does not run contrary to the principles set out above.

10. We will next take up the decision in the case of State of J. & R. v. Firm Baldev Singh Sardool Singh, 1974 J & K LR 558 (DB). The facts of this case are like this: Firm Baldev Singh Sardool Singh sued the Union of India and the State of J. & K. for the recovery of money. The suit was heard and disposed of by a learned single Judge of this Court on August 3, 1971. The limitation for filing the appeal expired on Nov. 3, 1971. The appeal was, however, actually filed on March 1, 1972. The appellant asked for condonation of delay under Section 5 of the Limitation Act. The case of the appellant-State was that the appellant was represented in the case by Shri A. N, Raina, Advocate. Shri Raina informed the Secretary to Govt. General Department of the result on August 11, 1971. The matter was processed in the Law Department in order to consider the advisability of filing an appeal and it was finally decided that an appeal should be filed. The Advocate General was given necessary instructions on August 26, 1971 accordingly. He demanded a sum of Rs. 2,400/- to meet the expenses. The amount was placed at his disposal on Oct. 1, 1971. Shri Raina gave the State to understand that the appeal had been filed in the High Court within the prescribed time. The State bona fide believed that the appeal had been actually preferred. To its surprise, the firm approached the State on Feb. 9, 1972 and enquired what arrangement had been made by the Government for payment of the decretal amount at the same time informed them that no appeal had actually been filed. On verification it was found that no such appeal was pending in the Registry. The State immediately filed the appeal and asked for condonation of delay on the ground that the State had done all that it was required to do in the matter and was even told that the appeal had been filed and that it was due to the default of the counsel that the appeal had not been filed within time. The plea commended itself to the Court which condoned the delay. Obviously this decision does not militate against the principles set out above. On the facts of this case it was found that the State had done all that it was required to do in the matter and that the delay in filing the appeal was solely due to the negligence of the counsel.

11. There is yet another decision of this Court which, though not cited at the bar, has a bearing on the question before us. The decision is reported in the case of Vasdev v. Omprakash, 1971 Kash LJ 136. The facts of that case are that the plaintiff brought a suit against the defendant for the recovery of a sum of Rs. 3,990/- in the Court of Sub Judge, Kathua. The defendant was summoned. He appeared through his counsel Mr. Jawala Prakash Gupta. The counsel asked for time to file the written statement, which was granted. The case was fixed for hearing on 21-8-1967. On that date the counsel again sought an adjournment which was granted subject to the payment of Rs. 10/- as costs. The case was adjourned to 5-10-1967. On that date the written statement was filed but the costs were not paid. The case went on like this till 21-12-1967. On that date no one appeared for the defendant. The case was set ex parte against him. The case was again fixed on 23-12-1967 when after recording the evidence the plaintiffs suit was decreed ex parte. The defendant filed an application for setting aside the ex parte decree on 21-5-1968. He asked for extension of time under Section 5 of the Limitation Act. His case was that his counsel never informed him that an ex parte decree had been passed in the case although he met him a number of times from 23-7-1967 onwards. The trial Court held that the counsel had acted negligently in staying away from the Court on 21-12-1967 without making any alternative arrangement for his appearance in the Court, and as such there was no good ground for setting aside the ex parte decree. The Court dismissed the application accordingly. On,appeal the learned District Judge held that undoubtedly the counsel was negligent but his client viz., the defendant could not be punished for such negligence. In this view, he allowed the application. In revision this Court set aside the order of the District Judge and rejected the application observing:

'Here in this case on the finding of the learned District Judge himself there is not only want of due care and attention but here in the words of the learned District Judge the conduct of this Advocate has revealed a gross type of negligence and carelessness. The defendant-respondent also has clearly given proof of want of care and attention. He no doubt entrusted his case to Mr. Jawala Prakash on 8-6-67 and from that date till 21st May, 1968 he never cared to enquire as to what had happened to his case. On his own showing, according to his application, he met his counsel many times from 23-12-1967 the date of ex parte decree up to one week before the presentation of the application for setting aside the ex parte decree, which was done on 21-5-1968. Yet he never cared to enquire or ask his counsel what had happened to his case. Therefore, firstly the defendant is bound by the actions of his counsel and secondly he himself also has been grossly negligent and careless. In short no ground what to say of sufficient cause had been made out to get the ex parte decree set aside and the limitation condoned.'

12. Clearly the rule followed in this case, though the Court has not said so in so many words, is that a party would be responsible for the negligence of his counsel if he has failed to do what was required of him in the matter. Thus the principle followed in this case falls in line with the one set out by us above.

13. Coming now to the present case the question arises whether it is the defendant or his counsel who should be blamed for what has come to pass in the present case. The learned Additional District Judge has found, and that it exactly what is amply borne out by the record of the minutes of the proceedings on the file, that the defendant's counsel, Mr. Raina, remained absent on and from 17-10-1978, but till then he appeared regularly in the case. There is nothing on the record to show that his appearance in the case beyond that date was contingent upon the payment of any fee which had remained unpaid of that such appearance was dependent upon his getting instructions which had not been alreadygiven to him. Applying the principle stated above, it necessarily follows that the defendant cannot be held responsible for non-appearance and that the responsibility for this rests squarely on his counsel who failed to appear despite the fact that the defendant had done all that he was required to do to ensure such appearance. For what happened subsequently, the defendant cannot again be held responsible. The counsel was obliged in law to inform the defendant that an ex parte decree had been passed against him. I say so because of the obligation on the agent to pass on all the necessary information to his principal under the ordinary law of principal and agent. But there is nothing on the record to indicate that any such information was passed on by him to the defendant. It is true that would not absolve the defendant of his responsibility if he had not acted diligently and kept in touch with his counsel but considering the fact that the defendant company was in a mess with no one around to look after its affairs, as found by the learned Additional District Judge, it cannot be said that the company has been guilty of negligence in this respect. In the circumstances we agree with the learned Additional District Judge that the defendant-company has made out a, 'sufficient cause' for late filing of the application for setting aside of the ex parte decree and that it was entitled to the condonation of delay under Section 5 of the Limitation Act.

14. For these reasons we find that there is no good ground for interference. The judgment and order of the learned Additional District Judge must be allowed to stand. We hold so and dismiss the revision petition accordingly but without making any order as to costs.

Mir, J.

15. In a revision petition No. 55/77 entitled Shyam Lal Dhar v. Ply Board Industries, a point arose as to whether negligence of party's counsel would bind a party or not in a civil litigation pending in a Court of Law.

16. The reference order made by the learned Referring Judge, is as follows:--

'This revision is directed against an order passed on 21-4-77 by the Addl. District Judge, Srinagar, allowing an application for setting aside the ex parte decree. The defendant was a company under the Companies Act. The learned Addl. District Judge has found that at the relevant time the company had fallen into disarray and had been closed down. He has further held that the company had engaged a counseland bona fide believed that he would pursue the mailer. He has also hold that the counsel suddenly gave up the case without notice to the Company.

One of the questions which has assumed importance in deciding the present application in revision is whether a party can take the benefit of the negligence of his counsel. Apparently there seems to be divergence of opinion in this Court on the point. In Shanker Dass v. Hans Raj, 1973 J & K LR 780, which was decided by me sitting singly, I have held that the negligence of a party's counsel cannot be a ground of claim or application against the other party. On the other hand, there is a Division Bench decision in State of J. & K. v. Firm Sardool Singh Baldev Singh (Civil 1st Appeal No. 42 of 1972), decided on 31-10-1973 : reported in 1974 J & K LR 558, in which it has been held that the default of a counsel can be a ground of claim or application against other party. Seemingly the two decisions are irreconcilable. It is, therefore, necessary that a Full Bench should be constituted to resolve the difference. I, therefore, suggest that this case shall be heard by a Full Bench, The papers shall be laid before me in Chambers for constituting the Bench.'

17. At the very out-set for reasons to follow, let me say that on going through both the judgments referred to in the order of the learned Referring Judge, I do not find any divergence of views expressed in these two judgments on the point as to whether the negligence of a party's counsel would or would not be a ground of claim, or application against the other party.

18. From the facts of the case appearing in Shankar Dass v. Hans Raj, Civil Revision No, 125 of 1973 (reported in 1973 J & K LR 780) (decided earlier by the Referring Judge) it appears that the counsel for the defendant therein reported to the Court that he had no instructions to proceed in the case; the Court therefore, proceeded ex parte against the defendant. The question in appeal arose as to whether the negligence of the counsel to appear in the case amounted to a sufficient cause under Order 9, Rule 13, C. P. C. and it was held by the Court that it did not, holding that 'by engaging a counsel a party to a suit, is not relieved of his duties and obligations in the manner and in any case the negligence of a party's counsel cannot be a ground of claim or application against other party, because, on the principle that the Principal is responsible for the acts of his agent as of his own, thenegligence of the counsel is the negligence of the party itself.'

19, The facts in the Division Bench case, which was Civil 1st Appeal No. 42 of 1972 : (reported in 1974 J & K LR 558) entitled State of J. & K. v. Firm Baldev Singh Sardool Singh, are different from the facts appearing in the revision petition decided in 1973 J & K LR 780 referred to above. The main question that fell for consideration before the Division Bench was whether, on the facts of the case, sufficient cause had been disclosed for the exercise of the powers under Section 5, Limitation Act by the High Court. On a perusal of the facts in that case, it appears that the then Advocate General, late Shri A. N. Raina, is alleged to have performed certain functions with regard to a suit which had been decided against the State inasmuch as he had informed the State about the decision and had also given an opinion that the case was fit one for going in appeal. It is alleged that in fact he demanded Rs, 2,400/- as court-fee and some further correspondence allegedly took place in this regard between him and the Secretary to Govt., General Deptt. and the Law Secretary on the other hand. Some how or other the appeal could not be filed within the provided period of limitation. On filing the appeal an application under Section 5, Limitation Act was also filed with the prayer that under Order 9, Rule 13, C. P. C, the appellant had a sufficient cause to file the appeal after the period of limitation and therefore, the delay may be condoned. On hearing both the parties and on facts appearing in the case, the learned D. B. was of the view that sufficient cause had been shown in filing the appeal beyond the period of limitation and therefore, application under Section 5, Limitation Act was allowed and the delayed period was condoned. On a minute perusal of the judgment of the D. B. it is apparent that the delay had not been sought to be condoned on the ground that the counsel for the appellant-applicant had been negligent : This point does not appear to have been raised before the D. B. No doubt the facts of that case reveal that the petitioner therein was under a wrong impression that the then Advocate General must have already filed an appeal in time but the point never came to be argued before the D. B. as to whether the impression so caused was justified or not. No doubt the then Advocate General appears to have written letters in this regard to the Govt. but the Govt. admittedly had given him no power of attorney to file an appeal, I be-lieve in civil matters, between the State and any other litigant it was incumbent upon the Advocate General to act within the provisions of the Code of Civil Procedure and also Legal Practitioners Act and produce a proper power of attorney on behalf of the appropriate authority in the Govt. Order 3, Rules 2 and 4 of the C. P. C. are guidelines for the purpose. Any appearance or application or act required by law to be made may be made either by the party in person or by his recognised agent or by a pleader duly appointed to act on his behalf. It was an admitted fact in the D. B. case that the then Advocate General had not been given nor had he obtained a power of attorney, or at least if the same had been done, it had not been placed on the records of the case. All the actions which had been taken in this regard by the then Advocate General in informing the Govt. about the necessity of filing an appeal or other things, may be, were done by him solely as the principal officer and adviser to Govt. in matters of law. The conditions of Service (Duties and Remuneration) of Advocate General contained in Law Department's Notification, SRO 80 dated 23rd Feb., 1968 show that an Advocate General could appear in civil matters for or against the Govt. or any department of the State only if he was so appointed specifically. When the question of tiling an appeal in a civil matter arises it is incumbent for the Advocate General or any other counsel appearing on behalf of the State to produce and file a proper power of attorney in his favour executed by a competent authority in the, Govt. It therefore, appears that in the D. B. case the Advocate General having no power of attorney did not represent the Govt. and as such even if he had committed some mistake or had been guilty of negligence, the Government could not be held responsible in law for such negligence. In the appeal decided by the D. B. the Division Bench did not take the point into consideration as to whether the negligence of the counsel would bind the party itself or not, as Advocate General was not legally authorised counsel on behalf of the State in that case. The decision in the D. B. case is confined only to the application of S, 5 of the Limitation Act as the facts of that case reveal. In my view the judgment of the D. B. could not therefore, be considered to have held that failure or the negligence of a counsel of a party would not necessarily bind or bind the party itself.

20. The judgment in the D. B. case could not therefore, be taken as an authority onthe proposition referred to the Full Bench as the point raised in the revision petition before one of us 'on the basis of which this Reference has been made' is neither referred to nor any arguments appear to have been advanced before the D. B. in this regard nor the D. B. has referred to this aspect of the matter directly. As such it appears to me that the D. B. has apparently given no finding on the point referred to this Bench for consideration. It was simply for reasons and on facts, other than the fact of negligence of the counsel concerned, that the D. B. was of the view that sufficient cause had been shown under Order 9, Rule 13, C. P. C. for condonation of the delay in filing the appeal.

21. It is interesting to note that neither the judgment delivered in Shanker Singh v. Hans Raj (1973 J & K LR 780) by the learned Referring Judge delivered in 1973 has been referred to or discussed or dissented from in the D. B. case referred to above; nor even an earlier judgment on the same point delivered by a Bench of this Court in Vasu Dev v. Om Prakash, in Civil Revision Petition No. 14-A/70 : (reported in 1971 Kash LJ 136), wherein it had been held 'that the negligence of the counsel is considered negligence of the client', has been referred. In both these cases the point had been raised wherein it was directly involved and arguments advanced and the matter considered and the judgments delivered. While in the D. B. case, the point was never raised nor considered and therefore, the D. B. authority could not be considered to be an authority on the point as to whether the client was responsible for the negligence of his counsel or not.

22. In view of what has been stated above, I do not find any divergence of opinion expressed in the D. B. judgment as against the judgment entitled 'Shanker Singh v. Hans Raj, 1973 J & K LR 780, and therefore, do not feel that the two judgments were in any way irreconcilable.

23. The reference is replied accordingly and the learned Referring Judge may dispose of the revision in accordance with law.


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