: 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.853 OF 2009 IN FIRST APPEAL NO.3578 OF 2009 M/s.Gammon India Ltd. ... Applicant V/s. Ramrao Madhavrao Naik & Ors. ... Respondents Mr.G.H. Shukla i/b G.H. Shukla & Co. for Applicant Mr.P.S. Shinde, for Respondents CORAM: SMT.NISHITA MHATRE, J. ORDER RESERVED ON: SEPTEMBER 10, 2009 ORDER DELIVERED ON: OCTOBER 8, 2009 P.C.: 1. The Civil application has been filed for condoning the delay in presenting the appeal. The delay is of 18 years, 10 months and 13 days. 2. The facts giving rise to the present application are as follows: The respondents filed B.C.C. Suit No.7377 of 1970 against the appellant in respect of an open compound in front of Gammon House, Prabhadevi, Mumbai. The respondents took out a Notice of Motion on 6.10.1970 for an injunction against the appellant. The Motion was dismissed on 19.3.1971 by the City Civil Court. 3. In 1975, the appellant filed Suits against the Respondents herein for : 2 : possession of the same property before the City Civil Court. These suits were BCC Suit Nos.7327 of 1975, 7607 of 1975 and 1169 of 1983. By an order of 11.3.1986, the suits were stayed on the application of the respondents till the variation of the Town Planning was sanctioned. 4. According to the appellant, it had affirmed its written statement on 30.9.1980 for being filed in B.C.C. Suit NO.7377 of 1970. The appellant claims that due to the negligence of their attorneys it was not filed before the Court. It appears that the matter was listed on 28.3.1990 before the City Civil Court and the suit was decreed for non-filing of the written statement under Order 8 Rule 10 of the CPC. It appears that the Municipal Corporation of Greater Mumbai prosecuted the appellants before the Metropolitan Magistrate’s Court u/s 354/475A of the Mumbai Municipal Corporation Act. The appellant claims that it had requested the learned Magistrate to either dismiss the prosecution case or to stay the proceedings till the suit filed by the Respondents was finally disposed of. The appellant claims that it approached its attorneys at this stage and was informed in 2007 that the firm had been dissolved and the partners were not aware about the pendency of the suit. The appellant then, on 13.8.2008, engaged another advocate requesting her to obtain the certified copies of the papers and proceedings in the suit. She applied for the same on 28.8.2008. The appellant claims that its advocate did not take any steps to follow up the application and, therefore, one of its officers personally applied for the certified copy on 24.12.2008. On 1.1.2009 the appellant became aware that the suit had been decreed. 5. The learned advocate appearing for the appellant submits that the appellant : 3 : should not be penalised for the negligence of its advocates. The learned advocate further submits that the appellant became aware of the decree having been passed only on 1.1.2009 and within a month thereafter the appellant has presented the appeal. He submits that the appellant was constantly in touch with its advocates and was assured by them that they would take care of the matter. In fact, submits the learned Counsel for the appellant, the written statement in the suit had been prepared on 30.9.1980 and it was only because of the negligence of the attorneys that the written statement was not filed and the suit was decreed against the appellant under Order VIII Rule 10 of the CPC. He further submits that in view of the decree having been passed in Suit No.7377 of 1970, the appellant’s suits against the respondents would become infructuous. He further states that due care and caution had been taken by the appellants to contest the suit filed by the respondent in the City Civil Court by engaging the attorneys but it was due to the inability/incompetence/negligence of the attorneys that the suit was decreed as it was undefended. Reliance is placed by the learned Advocate on several judgements which I will presently advert to in support of his submission that delay should be condoned. 6. The learned advocate for the respondents submits that the civil application must be dismissed with compensatory costs since it has been filed for condoning the delay of 18 years 10 months and 13 days in presenting the appeal. He submits that merely because the appellant had entrusted the matter to an advocate, it could not be absolved of its own responsibility of ensuring that its advocate had filed the written statement which was affirmed by one of its officers. He submits that the appellant has not taken due care and caution to ensure that the suit filed by the respondents was : 4 : properly contested. It is further submitted that the appellants were aware in 2007 itself that the attorneys’ firm which was entrusted with the matter had been dissolved. No steps were taken in 2007 by the appellants either to engage another advocate or to ensure that one of the partners of the dissolved firm applied for a certified copy of the papers and proceedings in SC Suit NO.7377 of 1970. It is submitted that the appellants approached another advocate only on 13.8.2008 to apply for certified copies of the papers and proceedings although they were expected to file those papers in 2007 itself before the Metropolitan Magistrate. Even after the appellants had engaged another advocate to apply for the certified copy in August 2008 they took no follow-up action with that advocate and claimed that they became aware of the suit having been dismissed only on 1.1.2009. The learned advocate submits that this is not believable since the appellant is not an individual but a corporate house having the wherewithal and the backup for following their litigation by engaging attorneys and Counsel. He submits, by relying on several judgments that the delay of 18 years, 10 months and 13 days should not be condoned, especially in view of the fact that the respondents are senior citizens and have been staying in the suit premises since 1946. 7. Undisputedly, the appellant was the defendant in Suit No.7377 of 1970. This suit was decreed for want of written statement under Order 8 Rule 10 of the CPC on 28.3.1990. The appellant claims that the written statement had been affirmed by its officer authorised to do so in 1980 itself. The appellant had also filed suits against the respondents in the City Civil Court in 1975. However, the appellant took no care to inquire with the attorneys whether the written statement was filed after 1980. the attorneys’ firm continued to exist throughout the 1980s and for the better part of the : 5 : next decade. Therefore the appellant had every opportunity to approach the attorneys and enquire about the litigation. There is no material at all to indicate that the appellant had done so. The submission of the learned advocate for the appellant that the negligence of the advocate should not cause prejudice to the litigant is buttressed by some of the judgments cited by him at the bar. 8. Reliance is placed on the judgment in Rafiq & Anr. v/s. Munshilal & anr., (1981) 2 SCC 788 where the Supreme Court held that the contesting parties should not suffer for lapses on the part of the Counsel. It was held that an application for recalling an ex-parte order passed for the non-appearance of a party’s advocate on the date of hearing ought to have been allowed, as the party should not suffer for the omission or misdemeanor of his lawyer. 9. In the case Collector, Land Acquisition, Anantnag & anr. v/s. Mst.Katiji & Ors., AIR 1987 SC 1353, the Supreme Court held thus: 3. The legislature has conferred the power to condone delay by enacting The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:- 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice : 6 : being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.” 10. Similarly in the case of Salil Dutta vs. T.M. And M.C. Private Ltd., (1993) 2 SCC 185, the Supreme Court held that an advocate acts as the agent of a party who engages him. Reiterating and explaining its observations made in Rafiq’s case, the Supreme Court held that where the defendant is a private limited company having a registered office in the same city and is managed by an educated businessman if it was found that the defendant’s conduct was of non-cooperation with the Court, then it is not in every case of non-appearance of an advocate for the defendant that the ex- parte decree should be set aside. 11. In the case of M.K Prasad vs. Arumugam, AIR 2001 SC 2497, the Supreme Court observed in that case that the appellant appeared not to be vigilant as he ought to have been; yet his conduct was not such as would warrant him to be castigated as an irresponsible litigant. The Court observed that though he ought to have been more vigilant, his failure to adopt such extra vigilance should not be a ground for ousting him from litigation with respect to a property which was considerably : 7 : valuable. 12. Mr.Shukla, the learned advocate for the appellant, relies on the judgment in the case of Lal Devi & anr. v. Vaneeta Jain & Ors., AIR 2007 SC 1889. In this judgment, the Supreme Court held that the High Court ought to have set aside an ex- parte decree in an appeal preferred against it when the Counsel had been engaged by the defendant but did not appear before the Court on the date fixed for hearing. The trial Court proceeded in the matter and examined the witnesses present in Court, heard arguments and reserved its judgment to be pronounced later in the day. It was observed that since the Counsel for the defendant had moved an application before the Court for recalling the order even before the Court could pronounce its judgment and in the facts and circumstances of that case, the High Court ought to have set aside the decree. 13. In the case of Miss Devi Ramchand Waswani v. S.V. Bastikar, AIR 1968 BOM 57, a learned Single Judge of this Court observed that a litigant cannot be faulted if he was unaware of the date of hearing, had he taken all the precautions necessary for becoming aware of the date of hearing. It was held that the expression “sufficient cause” should be liberally construed. Another learned Single Judge of this Court in the case of Ashok Ravji Vadodriya & etc. v/s. MCGB, AIR 2004 BOM 8 held that it is the duty of a lawyer to attend the proceedings and note the dates in any proceedings before the Court. It was observed that, that was not the job of the clients. Therefore, the learned Judge concluded by relying on the judgment of the Supreme Court in the case of Lechi Tewari v. Directors of Land Records, AIR 1984 SC 41: “The litigant cannot be said to have any responsibility, legal or otherwise, : 8 : after having engaged the services of an advocate and Vakalatnama is filed on his behalf, to attend Court to take dates of the proceedings and convey them to his advocate, whether Vakalatnama sets out all the terms of the agreement between the advocate and his client or it may be that it may not set out all such terms”. 14. In the aforesaid cases, it must be noticed that the suits were restored or the ex-parte orders were recalled when a written statement had already been filed and on a given date, the advocate for the litigant did not appear in Court. However, in the present case, the written statement itself had not been filed at all and was drafted and affirmed only 10 years after the suit had been filed. The aforesaid judgements lay down the well settled principle that a litigant should not suffer for the negligence, misdemeanor or incompetence of his advocate but the facts and circumstances in the present case would not in my opinion, therefore lead to an inference that the delay of 18 years should be condoned. 15. Mr.Shinde appearing for the respondents submits that it is not in every case that the delay should be condoned mechanically by the Court. Unless there are sufficient reasons and good cause shown by the party seeking condonation of delay, the delay ought not to be condoned, urges the learned advocate. He submits by relying on the judgment of the Supreme Court in Ramlal and Ors v. Rewa Coalfields Ltd., AIR 1962 SC 361 that section 5 of the Limitation Act must be construed bearing in mind two important considerations which are: (i) the expiration of the period of limitation prescribed for preferring an appeal gives rise to a right in favour of a decreeholder to treat the decree as binding between the parties; and (ii) sufficient reasons for causing the delay must be shown before it can be condoned. The : 9 : Supreme Court then observed in Ramlal’s case (supra) as follows: It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by s. 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bonafides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it. In this connection we may point out that considerations of bonafides or due diligence are always material and relevant when the Court is dealing with applications made under s. 14 of the Limitation Act. In dealing with such applications the Court is called upon to consider the effect of the combined provisions of ss. 5 and 14. Therefore, in our opinion, considerations which have been expressly made material and relevant by the provisions of s. 14 cannot to the same extent and in the same manner be invoked in dealing with applications which fall to be decided only under s.5 without reference to s. 14. In the present case (3) A.I.R. 1916 Nag. 39. 772 there is no difficulty in holding that the discretion should be exercised in favour of the appellant be cause apart from the general criticism made against the appellant's lack or diligence during the period of limitation no. other fact had been adduced against it. Indeed, as we have already pointed out, the learned Judicial Commissioner rejected the appellant's application for condonation of delay only on the ground that it was appellant's duty to file the appeal as soon as possible within the period prescribed, and, that in our opinion, is not a valid ground. 16. In the case of M/s.K.M. Patel v. M.Selvaraj and anr., (2002) 1 M.L.J. 60, the Madras High Court took the view that even while construing the provisions of section 5 of the Limitation Act liberally while exercising discretion, the Court is “burdened with the obligation to test the bonafide of the reason placed by the litigant, which should not unnecessarily cause relative hardship of the respondent also”. 17. In the case of V. Pankajakshi Vasudevan & Ors. v. Jayant J. Patwardhan, : 10 : 2006(1) Mh.L.J. 784. The Division Bench of this Court held that where a suit was dismissed for want of prosecution the negligence on the part of the plaintiffs was clearly demonstrated and that the long delay of four years had not been sufficiently explained. 18. Reliance is also placed by Mr.Shinde on the judgment of another Division Bench of this Court in the case of Life Insurance Corporation, Mumbai v/s. S. Parekh & Co. & Ors., 2008(4) Mh.L.J. 816. In that case, the appellant sought to have the delay of 10 years for setting aside the ex-parte decree, condoned. The sole ground for the same was that after the withdrawl of the brief from the earlier advocate the appellants had engaged another advocate whose Vakalatnama was not filed. The suit was decreed ex-parte against the appellant and it became aware of the same only after a copy of the decree was sent to it. The Court held that the appellant could not be extended any special treatment for condoning the delay in the absence of sufficient cause, merely because it was a public body. 19. In the case of Katari Surnarayana & Ors. v/s. Kopisetti Subba Rao & Ors., 2009 AIR SCW 4640, the Supreme Court refused to condone the delay in bringing the legal heirs of the deceased respondent on record in the second appeal in the facts and circumstances of that case. The Court observed that no sufficient cause had been shown for condoning the delay of 2601 days in bringing the legal heirs on record. The Court observed that it was difficult to believe that the applicants were not in touch with their advocates from 1999 to 2006. The Court has noted that if not every week, a litigant is expected to contact his lawyer at least once in a year. Ignorance of the legal consequences without something more would not be sufficient : 11 : to condone such a huge delay, opined the Supreme Court and therefore dismissed the appeal. While doing so, the Supreme Court reiterated its view taken in Perumon Bhagwathy Devaswom, Perinadu Village v. Bhargavi Amma (dead) by Lrs and Ors., (2008) 8 SCC 321. The learned Advocate appearing for the respondents submits that although the observations in Katari Suryanarayana & Ors. (supra) are made in the context of the delay caused in bringing on record the legal heirs of the litigant, they would apply equally to the delay caused in preferring an appeal. 20. Taking into consideration the totality of the circumstances, in my opinion, the delay in the present case of 18 years and more cannot be condoned. The appellant is not an individual but is a big corporate house with all its paraphernalia of a legal department and the wherewithal to engage advocates. The appellant is supposedly run by professionals and educated persons, who may or may not be well versed with litigation. However, they are certainly educated and informed enough to know that when a litigation is filed in Court, either by the company or against the company, it is the individual officers of the company who are expected to contact the Company’s advocate and to ensure that the case is not neglected. Assuming what the learned advocate for the appellant says is true, that attorneys had informed the appellant that they would file the written statement after it was affirmed, it was certainly the duty of the officers of a big corporate house such as the appellant to enquire with the attorneys as to whether the written statement had in fact been filed. Merely because the job is entrusted to the advocate, in my opinion, it would not absolve the litigant of all responsibility if he does not enquire with the advocate as to the status of the proceedings in the Court. The conduct on the part of a corporate house of not enquiring with its advocate for almost 30 years regarding the status of a case filed : 12 : against it is unacceptable and unpardonable. 21. The submission of the learned advocate for the appellant that the suit filed by the appellant would become infructuous if the delay caused in presenting the First Appeal is not condoned is unsustainable. Rights have accrued in favour of the Respondents over the last 18 years which cannot be ignored. In such a situation in my opinion, the submission of the learned Counsel for the appellant that, the delay should be condoned on payment of costs to the respondents, also cannot be accepted. As observed by the Supreme Court in the case of Ramlal and Ors v. Rewa Coalfields Ltd. (supra), before condoning the delay the Court must consider the benefit which has accrued under the law of limitation to the decreeholder in view of the lapse of time. The Supreme Court has observed that such benefit which has accrued to the decree holder should not be light heartedly disturbed. The only exception is when there is sufficient cause for excusing the delay. However, in the present case, in my view, there is no sufficient cause shown by the appellant for condoning the delay. There are no bonafide reasons nor is there any indication that there was due diligence on the part of the appellant in defending the suit. The appellant’s lack of diligence in defending the suit cannot be erased by the submission that its attorneys were negligent. Therefore, in my opinion, the civil application must be dismissed. 22. Civil application is thus dismissed with costs.