RFA.NO.504/2009 Page 1 of 20 19 * IN THE HIGH COURT OF DELHI AT NEW DELHI + RFA 504/2009 % Judgment Delivered on: 28.10.2010 VOYAGES INDIA P.LTD. ..... Appellant Through: Mr.Pradeep R. Tiwari, Mr.Praffula R. Tiwari and Mr.Sukumar, Advocates versus INDIAN HOTELS CO. LTD. ..... Respondent Through: Mr.Jitender Vashisht, Adv. for respondent CORAM: HON'BLE MR. JUSTICE G.S.SISTANI 1. Whether the Reporters of local papers may be allowed to see the judgment? YES 2. To be referred to Reporter or not? YES 3. Whether the judgment should be reported in the Digest? YES G.S.SISTANI, J. (ORAL) CM.No.18785/2009 1. Present application has been filed under Section 5 of the Limitation Act, seeking condonation of delay of six years in re- filing the appeal. Admittedly, the appeal against the order dated 15.01.2003, in the present case was filed within the period of limitation on 21.04.2003. 2. Counsel for the appellant submits that the reasons for delay in re-filing the appeal were on account of inaction on the part of the advocate, who was engaged by the appellant herein. While referring to the application for condonation of delay, counsel for the appellant submits that after filing of the appeal, the earlier advocate had given an assurance to the appellant that the RFA.NO.504/2009 Page 2 of 20 appeal had been admitted and would be listed in due course. It is next submitted that the appellant regularly enquired from the advocate, but was always told that the matter is pending in the court. It is submitted that in the year 2008, in a connected matter filed by the appellant herein against the same respondent in the National Consumer Forum for deficiency of service, the advocate engaged in the National Consumer Forum asked the appellant for a copy of the appeal filed in the present matter. The appellant contacted the earlier counsel to get the file of the Regular First Appeal, which was stated to be pending in the High Court. It is submitted that only when the appellant insisted upon the earlier counsel for records of the case and only after great persuasion he was handed over the record of the appeal and it is at that stage the appellant learnt that the appeal was not re-filed after it was returned by the High Court, even after a long span of 5 years. 3. It is submitted by counsel for the appellant that once the appellant received the paper book from the earlier counsel the matter was re-filed in the Registry on 29.08.2009. It is pointed out that the appellant issued a legal notice to the earlier lawyer for professional misconduct on 29.08.2009. The appellant further contacted various lawyers and the lawyers were of the opinion that merely giving a notice to the earlier counsel for the serious breach committed by him was not sufficient for condonation of delay of a long span of five years. Appellant was further advised to follow the proper procedure and was RFA.NO.504/2009 Page 3 of 20 advised to file a complaint against the earlier counsel under section 35 of the Advocates Act, 1961 for professional misconduct. The appellant filed a complaint with the Bar Council of Delhi on 16.02.2009, copy of the notice issued to the earlier lawyer as also the complaint filed is stated to have been filed along with the paper book. It is submitted that the appellant thereafter handed over all the papers of the present appeal to the present counsel, but unfortunately, the father of the present counsel was suffering from Parkinson‟s disease and he fell down on 25.03.2009 and was admitted in Parmanand Hospital. The health of the father of the counsel further deteriorated and he was admitted to Vimhans Hospital and thereafter he unfortunately expired on 15.07.2009. 4. It is submitted that as the present counsel had to visit his village for various rituals and for discharging the responsibilities of his father, he could not pursue the present appeal and attend to other professional works. Counsel for the appellant has placed on record along with this application the discharge summary of his father from Parmanand Hospital and Vimhans Hospital, in support of his submission. 5. It is submitted by counsel for the appellant that the delay in re- filing has occurred not on account of any negligence or inaction on the part of the appellant, but only on account of the lapse on the part of the earlier lawyer. He also submits that the appellant should not be made to suffer on account of inaction of the counsel. In support of this contention, counsel for the RFA.NO.504/2009 Page 4 of 20 appellant has relied upon Bank of India Vs. M/s.Mehta Brothers & Ors. AIR 1991 DELHI 194, and more particularly paragraphs 25, 26 & 27, wherein a Single Judge of this Court had condoned the delay based on the judgments of the Supreme Court reported at AIR 1981 SC 1400 and also AIR 1987 SC 1353. Paragraph 25, 26 & 27 of the judgment reads as under: “25. There can be no doubt that the conduct of the case by counsel for defendant No. 6 has been grossly negligent. If the decree passed stands as of today, it would be over Rs. 1.5 crores. The Code does not recognise any firm of lawyers to represent a party. Appearance in court has to be made or done by the party in person or by his recognised agent or by pleader appearing, applying or acting, as the case may be, on his behalf. A lawyer who is authorised to appear on behalf of the party has to file his vakalatnama in his favor in the court. No lawyer as a partner of J. B. Dadachanji and Company or this firm itself ever filed any power of attorney in its favour by the party. It would not, therefore, expect its name to appear in the daily cause list and no grievance can be made of that. As per practice on the Original Side of this Court dates are given in each case every day unless such case is in the category of 'Others' or 'Finals'. The present case was not in either of these two categories. No responsible person in the firm was looking after this case and it was left to be followed up by Court Clerk. No one in the firm appears to have ever checked the progress of the case when various dates were fixed either before the Deputy Registrar or in the Court. No proper diary of case file is shown to have been maintained. The affidavits filed in support of the plea are said to have been filed on the basis of the record, but what is that record, has not been explained. These affidavits, to my mind, are just value less. I do not find any sufficient cause at all explained by defendant No. 6 for its lawyers not to have appeared in court on the dates fixed. But then that is not the end of the matter. The law, as it stands today, is that the negligence of the lawyer appears to be irrelevant and if it is shown that the party has done everything possible for the conduct of the case by engaging a lawyer and giving him instructions, it cannot be denied justice on account of the negligence of its lawyer. Perhaps the law compounds the negligence of RFA.NO.504/2009 Page 5 of 20 the lawyer at the cost of the other party as well. In Rafiq v. Munshilal, AIR 1981 SC 1400 : (1981 All LJ 704), the Supreme Court was considering the question of restoration of appeal which had been dismissed in default on account of nonappearance of the lawyer of the party who applied for restoration of the same. The Supreme Court observed as under (at page 704 & 705; All LJ 1981 :- "The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the Court procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watch-dog of the advocate that the latter appears in the matter when it is listed. It is no part of his job." The court further observed as under: - If we reject this appeal, then the only one who would suffer would not be the lawyer who did not appear but the party whose interest be represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. May be that the learned Advocate absented deliberately or intentionally. We have no material for ascertaining that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted." 26. In the present case, however, defendant No. 6 does not come from any rural area but certainly can be ignorant of court procedure though the suit was being tried on the original side, but then perhaps it was misled by its constituted attorney Crawford Bayley and Co. as RFA.NO.504/2009 Page 6 of 20 the constituted attorney took upon itself the conduct of the case. 27. In Collector, Land Acquisition, Anantnag v. Mst. Katiji, AIR 1987 SC 1353, the Supreme Court observed that it had been making a justifiably liberal approach with reference to the expressions sufficient cause and held that this expression was adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice and that being the life- purpose for the existence of the institution of the Courts. The court laid down six principles of which I find the following principles to be relevant in this case (At page SC 1354; air 1987:- 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a case would be decided on merits after hearing the parties. 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. 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.” 6. Counsel for the appellant in support of his plea that the length of delay is not relevant and has relied on N.Balakrishnan Vs. M. Krishnamurthy (1998) 7 SCC 123, and more particularly para 9 thereof, which reads as under: “9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation RFA.NO.504/2009 Page 7 of 20 whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court.” 7. Counsel for the appellant has also relied upon State of Bihar & Ors. Vs. Kameshwar Prasad Singh & Ors. (2000) 9 SCC 94 and more particularly para 12 thereof: “12. After referring to the various judgments reported in New India Assurance Co. Ltd. v. Shanti Misra, Brij Indar Singh v. Kanshi Ram3, Shakuntala Devi Jain v. Kuntal Kumari, Concord of India Insurance Co. Ltd. v. Nirmala Devi, Lala Mata Din v. A. Narayanan, State of Kerala v. E.K. Kuriyipe, Milavi Devi v. Dina Nath, O.P. Kathpalia v. Lakhmir Singh9, Collector, Land Acquisition v. Katiji, Prabha v. Ram Parkash Kalra, G. Ramegowda, Major v. Special Land Acquisition Officer, Scheduled Caste Coop. Land Owning Society Ltd. v. Union of India, Binod Bihari Singh v. Union of India, Shakambari & Co. v. Union of India, Ram Kishan v. U.P. SRTC and Warlu v. Gangotribai this Court in State of Haryana v. Chandra Mani held: (SCC p. 138, para 11) “11. It is notorious and common knowledge that delay in more than 60 per cent of the cases filed in this Court — be it by private party or the State — are barred by limitation and this Court generally adopts liberal approach in condonation of delay finding somewhat sufficient cause to decide the appeal on merits. It is equally common knowledge that litigants including the State are accorded the same treatment and the law is administered in an even-handed manner. When the State is an applicant, praying for condonation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file- pushing, and passing-on-the-buck ethos, delay on RFA.NO.504/2009 Page 8 of 20 the part of the State is less difficult to understand though more difficult to approve, but the State represents collective cause of the community. It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay — intentional or otherwise — is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression „sufficient cause‟ should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detention of sufficient cause for explaining every day‟s delay. The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice- oriented process. The court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-à-vis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the courts or whether cases require adjustment and should authorise the officers to take a decision or give appropriate permission for settlement. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants.” 8. Counsel for the appellant submits that the appellant has done everything possible for the conduct of the case inasmuch that the entire court fee in the sum of `6,834/- was handed over to the earlier counsel; and that the appellant has also signed the paper book and the same was filed within the period of RFA.NO.504/2009 Page 9 of 20 limitation. It is vehemently urged before this court that the appellant cannot be denied justice on account of the negligence on the part of his lawyer. It is contended that in the judgments sought to be relied upon it is held that while deciding an application under section 5 of the Limitation Act, the court must adopt a liberal approach in the matter. 9. Present application is vehemently opposed by counsel for the respondent. It is submitted that the appellant has very conveniently shifted the entire burden on the earlier counsel, whereas the appellant has been extremely negligent and callous in contesting and pursuing his matter. It is submitted that the appellant is not an illiterate villager, who is not aware of the court proceedings. On the contrary, the appellant is a private limited company and it is not expected from a private limited company, to be misled so easily by their own counsel that the appeal had been filed and would be listed only in due course. He further submits that not a single document has been placed on record to show that the appellant had ever written to the counsel to inform them about the progress of their case or the status of the matter. He further submits that even after 2008 when the appellant learnt about the inaction on the part of the earlier counsel, there is no satisfactory explanation for not removing the objections and having the appeal not listed between the period of 28.08.2008 to 21.12.2009 when finally all the defects were removed by the appellant. Counsel for the respondent also submits that the RFA.NO.504/2009 Page 10 of 20 medical record sought to be relied upon by counsel for the appellant would show that father of the counsel was unwell during the period March, 2009 to April, 2009 and thereafter unfortunately he expired in the month of July, 2009. 10. Admittedly, the objections could have been removed and the appeal could have been filed between the period 28.08.2008 and March, 2009 before the father became unwell. He further submits that even thereafter the father was discharged from the hospital in April, 2009, the appeal was not filed uptill July, 2009 when the father of the counsel had expired. Even after July 2009 an extremely long period had been taken to remove objections and to file the appeal. Counsel for the respondent has relied upon Badri Bhagat Jhandewalan Temple Society Vs. Delhi Development Authority reported at 2003 (106) DLT 503 in support of his plea that where negligence and conduct of party is of highest magnitude and writ large on the face of the record, party cannot take shelter behind negligence of advocate. Counsel for the respondent has relied upon paragraphs 20 and 21 of the judgment which read as under: “20. In Gobind Parshad Jagdish Parshad v. Hari Shankar and Ors., 89 (2001) DLT 675, the Advocate stating that he failed to appear in the matter although it has been shown in the Regular list because his name was not mentioned, it was observed in “Advocate” name may not have been mentioned because he had not appeared in any of the hearings and had done little more than merely filing his Vakalatnama.” While commenting upon such defences, the court observed that "it has become epidemic for parties to caste blame on their lawyer". In another case reported in 1999 All India High Court Cases 495 (Delhi), this court took the view that "non-appearance of the counsel in the case resulting in ex-parte decree cannot be made as excuse by the defendant. In case the defendant RFA.NO.504/2009 Page 11 of 20 was not pursuing the case bona fide or diligenty, ex-parte decree cannot be set side. The following observations made by this court are quote worthy:- “By engaging a Counsel, a party to the case is not relieved of his duties and obligations in the matter. Where a party either does not brief the Counsel or keeps no contract with him, it is the party who is in default and negligent and shall have to bear consequences. The negligence of the Counsel cannot come to aid in an application under Order 9 Rule 13, CPC to establish sufficient cause for setting aside the ex-parte decree”. 21.Instant case is wholly on sticky wicket. Negligence of a lawyer in not appearing on one or two dates of hearing is understandable and aggrieved party can take advantage of such a negligence. But where the negligence and conduct of the party is of highest magnitude and is writ large, the party cannot take shelter behind its Advocate. If a party does not care to know about the status of its case or proceedings in the suit for years together when in the past hearings were fixed after a month, two month or so, such a party has to be shown the door and denied the discretion to set aside the ex parte proceedings or judgment passed against it. In this case the defendant did not try to know for five long years as to the status of the case. Defendant is having its office in the High Court Building itself. It has a staff and officers who maintain the record of each case and pursue on day to day basis. Senior Law Officers are there to monitor and regulate the status of cases. They maintain the record as to assignment of cases to their lawyers from time to time. Still there was non-participation in the proceedings for more than five years and the defendant wants this court to set aside the judgment. It militates against the judicial conscience.” 11. Counsel for the respondent has also relied upon M.Subramania Mudaliar Vs. K. Janardhanam AIR 1994 MADRAS 102 wherein the Court did not condone the delay of six years. Para 9 of the judgment reads as under: “9. In the circumstances, there is no valid explanation for the inordinate delay in representation. Even if the facts stated in the affidavit are true, they prove gross negligence and callous indifference on the part of the RFA.NO.504/2009 Page 12 of 20 appellant and his counsel. Even assuming that there is negligence only on the part of the counsel, it is not a valid ground for condoning such a long delay of six years in representation of the appeal. Hence, this petition for condonation of delay is dismissed.” 12. I have heard counsel for the parties and given my thoughtful consideration to the matter. As per volume 5 Rule 5 Chapter „1‟ of Part A of the High Court Rules and Orders in case the objections are not removed by the appellant within 30 days it would amount to fresh filling of the appeal. In the case of Asha Sharma & Ors. Vs. Sanimiya Vanijiya P. Ltd. & Ors. 162 (2009) DLT 542 the Division Bench of this Court has held as under: “8. The Rules of Delhi High Court in the matter of filing and scrutiny of appeals are contained in Volume V of High Court Rules and Orders. Rule 5 Chapter „1‟, Part A prescribes as under: 5. Amendment -- The Deputy