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Pratapchand Lakhamaji JaIn Vs. Smt. Lilabai Krishanath Surve

LegalCrystal Citation : legalcrystal.com/327637

Court : Mumbai

Decided On : Jul-24-1998

Reported in : 1999(1)BomCR27; 1998(3)MhLj252

Judge : R.M.S. Khandeparkar, J.

Acts : Code of Civil Procedure (CPC), 1908 - Sections 11 and 115 - Order 9, Rules 3,
4, 8 and 9; Limitation Act, 1963 - Sections 5

Appeal No. : Civil Revision Application No. 386 of 1998

Appellant : Pratapchand Lakhamaji Jain

Respondent : Smt. Lilabai Krishanath Surve

Advocate for Def. : Mrs. V.D. Deshmukh, Adv.

Advocate for Pet/Ap. : S.M. Oak, Adv.

Judgement :

ORDER

R.M.S. Khandeparkar, J.

1. By the present petition, the petitioner has challenged the order dated 7-11-1997
passed by Civil Judge, Junior Division, at Shriwardhan in Misc. Application No. 2 of
1997. By the impugned order, the lower Court has allowed the application for
condonation of delay and for restoration of RCS No. 21 of 1982 filed by the
respondent/ plaintiff on 4-3-1997 and thereby has set aside the order of dismissal of
the said suit which was passed on 14-6-1984.

2. The facts in brief, relevant for the decision herein, are that the petitioner is the
tenant of the respondent in respect of the suit premises on monthly rent of Rs. 70/-.
By notice dated 30-6-1982, the respondent sought to terminate the tenancy on the
ground of default in payment of rent and called upon the petitioner to deliver vacant
possession of the suit premises to the respondent. By reply dated 19-12-1982, the
petitioner denied the claim of respondent. The respondent, thereupon, filed RCS No.
21 of 1982 in the Court of Civil Judge, Junior Division at Shriwardhan for eviction of
the petitionerfrom the suit premises and for arrears of rent. After framing the issues
in the said civil suit, when the same came up for hearing on 14-6-1984, since neither
the plaintiff nor his Advocate appeared though the Advocate for the defendant was
present, the suit was dismissed for default. On the understanding that the said suit
was dismissed in terms of Order IX, Rule 3 of C.P.C., the respondent herein filed fresh
suit being RCS No. 43 of 1988 on the basis of the same notice dated 30-1-1982, and
the same cause of action and for the same relief.

3. Consequent to the defence raised by the petitioner regarding non maintainability

of the fresh suit on the same cause of action in terms of Order IX, Rule 9 of C.P.C., the
trial Court, after hearing the parties, held that the fresh suit was maintainable in
terms of provisions contained in Order IX, Rule 9 of C.P.C. since the order dated 14-6-
1984 was passed in terms of Order IX, Rule 3 of C.P.C. The respondent preferred
appeal against the said order being Civil Misc. Appeal No. 57 of 1990 which was
heard and rejected by the Additional District Judge at Raigad by his judgment and
order dated 26-8-1996. The petitioner being aggrieved by the said order preferred
Civil Revision Application No. 137 of 1997 in this Court which was heard and
disposed of by this Court on Friday the 18th July, 1998 thereby setting aside the order
of both the courts below holding that the order passed by the trial Court on 14-6-1984
in R.C.S. No. 21 of 1984 was in terms of Order IX, Rule 8 C.P.C. and not in terms of
Order 9, Rule 3 C.P.C. and therefore fresh Suit No. 43 of 1988 based on same cause of
action was not maintainable but the respondent could have sought restoration of Suit
No. 21 of 1982. Moreover, the Civil Revision Application No. 137 of 1997 was
admitted on 14-2-1997 and after it was admitted, the respondent, herein, filed an
application dated 4-3-1997 for restoration of R.C.S. No. 21 of 1982 along with the
application for condonation of delay for filing the said application for restoration of
suit. The application was registered and numbered 2 of 1997. Though the said
application was objected to by the petitioner on the ground that the delay was of 13
and a 1/2 years and no sufficient cause was shown, the trial Court by the impugned
order allowed the application and while condoning the delay, ordered the R.C.S. No.
21 of 1982 to have been restored.

4. Mr. S.M. Oak, learned Counsel appearing for the petitioner, while assailing the
impugned order submitted that respondent has not disclosed any cause for
condonation of delay of 13 and 1/2 years. He further submitted that the respondent
had full knowledge about the dismissal of the suit within one year from the date of
dismissal and that fact is apparent from the fact that he filed fresh suit on the basis of
the same cause of action within the said period. Being so, there was no justification
available on record for condonation of delay of 13 and 1/2 year. It is a pure case of
negligence and therefore the trial Court has clearly acted with material irregularity in
allowing the application for condonation of delay and restoration of R.C.S. No. 21 of
1982. In any case, the order itself shows that the new suit has already been filed on
the same cause of action and therefore there was no occasion for the trial Court to
show any sort of indulgence to the respondent for restoration of the earlier suit.

5. Mrs. Deshmukh, learned Counsel appearing on behalf of the respondent, on the

other hand submitted that the trial Court in its discretion hascondoned the delay and
restored the suit and it cannot be said in the facts and circumstances of the case that
the discretion has not been exercised judiciously. Besides, by order dated 18-7-1998
passed in C.R.A. No. 137 of 1998, this Court has already held that R.C.S. No. 21 of
1982 was dismissed for default on 14-6-1984 in terms of Order IX, Rule 8 C.P.C. and
not in terms of Order IX, Rule 3 C.P.C. and therefore the application had to be under
Order IX, Rule 9, C.P.C. has to be held as rightly held by the trial Court. The learned
Counsel also made grievance about failure on the part of the Advocate for the
petitioner to bring to the notice of this Court on 18-7-1998 in C.R.A. No. 137 of 1997
the order dated 14-2-1997 passed by this Court in this Revision Application to the
effect that both the Revision Applications namely the present Civil Revision
Application as well as civil Revision Application No. 137 of 1997 were ordered to be
heard together.

6. Upon hearing the learned Advocates for the parties and on perusal of the record, it
is seen that in the application for restoration and condonation of delay filed by the
respondent on 4-3-1997 in the trial Court it was clearly stated by the respondent that:

(a) That the delay is caused due to the bona fide mistake of the Counsel in filing fresh
suit regarding the same matter;

(b) The respondent is illiterate and uneducated old lady:

(c) On dismissal of suit, the respondent obtain certified copy of the order and
immediately approached her Advocate but the latter did not file the application for
restoration and instead filed a fresh suit:

(d) The fresh suit on the same cause of action was filed on the advice of her Advocate.

In reply filed by the petitioner, without disputing the factual aspect of the case, the
only defence that was raised was that the grounds were fabricated to suit the purpose
of getting delay condoned.

7. There was no doubt that a party who is found to be guilty of usual laches does not
deserve any indulgence from the Court in the matter of condonation of delay in
approaching the Court for appropriate relief. But when the party acts upon the advice
of his/her Advocate and as a result happens to cause delay in approaching the Court,
can such party be accused of laches and negligence? That will certainly depend upon
the facts of each case and no universal proposition can be laid down. Moreover, when
a party relies in good faith upon the advice of his/her lawyer and the lawyer with due
care and attention gives a particular advice and a party acts accordingly, which
ultimately result in causing delay then in such a situation certainly it can be said that
there is sufficient cause for condonation of delay. It is well established principles of
law that mistake of law committed bona fide and inspite of due care and attention is
to be regarded as sufficient cause for condonation of delay. Similarly, a mistake of law
committed by the Advocate for the party stands on the same footing as mistake by the
party himself, Being so, a party acting in good faith as per the advice of his lawyer
which has been given with due care and attention by the lawyer can certainly request
for indulgence of the Court under section 5 of the Limitation Act, 1963. This does not
mean that every wrong advice given by a lawyer will entitle a party to claim such
indulgence from the Court. Acting upon wrong advice can be said to be a sufficient
cause when the advice itself given bona fide i. e. to sayit has been given after exercise
of due care and attention and the party has acted in good faith in accordance with
such advice. When there is neither misconduct nor negligence nor want of reasonable
skill but there is bona fide mistake which any skilled person may make in normal
course would be sufficient to ensure indulgence of the Court to a party who has been
victim of such mistake of his lawyer. Certainly, mistake resulting from culpable
negligence on the part of the legal advisor is not an excusable one. Bearing in mind
the above legal aspect, if we peruse the material on record in this case, it is clear that
RCS No. 21 of 1982 was dismissed for default in terms of Order IX, Rule 8 of C.P.C.
This is also confirmed by order dated 8-7-1998 in C.R.A. No. 137 of 1997. Moreover,
all throughout from the date of dismissal of RCS. No. 21 of 1982 till the date of
issuance of rule in C.R.A. No. 137 of 1997, the respondent had been acting in good
faith in terms of advice given by her lawyer that dismissal of RCS No. 21 of 1982 was
in terms of Order IX, Rule 3 C.P.C. and therefore fresh suit on the same cause of
action was maintainable. Now it is undisputed fact that immediately after the
knowledge of dismissal of the suit, the respondent obtained the certified copy of
order dated 14-6-1984 and sought legal advice from her lawyer and acted as per the
advice of her lawyer. It is also not in dispute that the order dated 14-6-1984 on the
face of it does not disclose the provisions of law under which the same was passed.
The order dated 14-6-1984 reads thus:

'The plaintiff and her Advocate absent. Defendant's Advocate present. As the suit is
fixed for hearing and the plaintiff is absent, the suit is dismissed for default.'

Therefore, if one reads the said order and the provisions contained in Order IX C.P.C.
it may appear that the suit was dismissed because of non appearance of the plaintiff
in the suit and in that view of the matter, it can be said that the dismissal order dated
14-6-1984 was in terms of Order IX, Rule 3 C.P.C. It is to be seen that even the trial
Court as well as lower Appellate Court did construe the same accordingly and
permitted the respondent to file fresh suit on the same cause of action applying the
provisions under Order IX, Rule 4 C.P.C. It was only after issuance of rule in C.R.A.
No. 137 of 1997 that it was realised that the view taken by the Court below was not
free from doubt and on further application of mind led to take steps of filing
application under Order IX, Rule 9 C.P.C. by the respondent in R.C.S. No. 21 of 1982
for restoration of the said suit for condonation of delay. It is thus clear that the
respondent had been acting all throughout promptly and in good faith as per the
advice of her lawyer. It is pertinent to note here that undisputedly the respondent is
illiterate and uneducated old lady and therefore has necessarily to depend upon the
legal advice of her lawyer. Taking into consideration all the facts of the case, the view
taken by the Court below and order having been passed when the plaintiff and
defendant being personally not present when the matter was fixed for hearing, it
cannot be said that the legal advice given by the Advocate for the respondent to file
fresh suit in terms of Order IX, Rule 4 C.P.C. to be totally unreasonable or without due
care and attention or by way of lack of bona fide on the part of Advocate in giving
such advice. Besides, the respondent on issuance of rule in C.R.A. 137 of 1997 mainly
took step to file necessary application for restoration of the earlier suit. It is thus
apparent that the respondent acted in good faith asper the advice of her lawyer which
itself was bona fide given by the lawyer. All these facts clearly disclose sufficient
cause for condonation of delay of 13 and 'A years in approaching the Court under
Order IX, Rule 9 C.P.C. and in that view of the matter it cannot be said that there is
any arbitrary or illegal exercise of jurisdiction by the trial Court in allowing the
application for condonation of delay. The trial Court has exercised its discretion
judiciously and therefore does not warrant any interference of this Court in the
Revisional Jurisdiction.

8 In the result, the Revision Application fails and is hereby dismissed. Rule is
discharged. There shall be no order as to costs. Interim relief stands vacated:

9. Revision application dismissed.

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