•'M IN THE HIGH COURT OF DELHI AT NEW DELHI CM NO. 1157/2000 in RFA NO. 476/2000 HOSHIAR SINGH Appellant Tlirough Mi.R,K. Gupta with Mr, V.KAnand. Versus SMT. SAROJ DEVI & ORS. ....Respondent Through Mr. I.P. Singh and Mr. Sanjay Rathi. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE A.K. SIKRI ORDER 22.4.2003 Appellants have preferred diis application, inter alia, requesting die Court to condone die delay of 294 days in preferring die appeal. On notice being issued on behalf of the respondent, reply is filed pointing out that die appellants have hopelessly failed to explain die delay in die matter. It is contended by die appellant diat after 17.3.1999, die appellant never appeared in die Trial Court as his counsel instructed him diat his appearance is no more required. It is also stated diat die advocate informed that as and when die judgirent will be pronounced, the appellant will be informed. The appellant has fiirdier averred diat on 31.7.1999, die son of die appellant and original Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared the digital data is as per the physical file Signature Not Verified 1 :2: RFA NO. 476/2000 defendant no.2 appeared before tlie Trial Court at the time when judgment waj pronouncedafter calling out the case. The appellanthas come out witli thecase tha his son was told that the case of the plaintiffhad been dismissedby stating thai "CASETUMHAREHAQ MEIN DISMISSHO GAYA HAL " It is fiirtiier alleged that only on 25.7.2000, when grand daughter-in-la^ft informedabout die papershavingbeen pasted, die appellantcameto know about the ordermade bythe Court. For diispurpose,he approachedan educatedpersonof tlie village.Thereafter, on 26.7.2000,the appellantcontactedhis advocate. He has come out with die case that the advocate picked up a quarrel and created a scene in his chamber. It is furtlier stated diat in a loud voice, appellantwas told that he should havecomeearher as thecase of the plaintiffwas dismissedagainsthim in 1999. On request being made, after one week, file was returnedon 4.8.2000. He got die file scrutinised dirough his relative who is an educated person and he was told that die certified copy of die judgment and decree dated 31.7.1999 was also lying in die file besides odier papers. HicrOiifla:,,die appellant contacted anodier advocate on telephone and requested him to appear on his behalf on 28.7.2000. On 28.7.2000, appellant came to know dirough die second advocate about die order madeon 'i :_J 1 : 3 : RFA NO. 476/2000 31.7.1999and die executionproceedingsand attachmentproceedings. He also came to know on that day that agriculturalland admeasuring21 bighashad been attached on 19.2.2000. It is admittedby the appellanttliatjudgmentwas pronouncedon 31.7.1999and certifiedcopy was deliveredon 8.9.1999. The appealcouldnot be preferredwidiin 90 days for the reasons stated here-in-aboveand requestis made to the Court to condone die delay. Fatlierand son bodi were die defendantsbefore die Trial Court. So far as the son is concerned, suit has been dismissedand so far as the father is concerned, (namelythe appellant),againsthim, decreehas been passedby the TrialCourt. It is made clearbefore us that fadier and son are residing under the same roof and were defended by die same counsel before die Trial Court. The appellant in his applicationhas come out widi die case that die appellant adviSto not to cometo dieCourton accountofhis ageandhadaquarrelwidihim at a^^^pointof time. It isalso requiredto be noteddiat son was present in die Court when diejudgment was pronounced. It is interesting to note that die appellant has nowhere stated as to who conveyed die son about the dismissal of die suitin his favour. Appellant has not filed die affidavit of his i f\ :4: RFA NO. 476/2000 son. Appellant has not bothered to file tlie affidavit of the advocate either. Even after die affidavit and reply has been filed by tlie respondentherein, affidavit of die son is not filed. It is required to be noted that the respondentin tiie affidavithas pointed out diat order of attachmentwas made on 21.1.2000and compliancereport was to be filed by 25.2.2000. Tehsildarwas directedto identifydie land. The respondenthas pointed out in his affidavit that as per the bailiffs report dated 19.2.2000, the appellantsland was duly identified on 19.2.2000on die spot in the presence of the appellant'ssonnamelyShriJagdish. Respondenthas also pointedout diatcopy of die Court'sorder was also producedon die spot on 19.2.2000 before proceeding with die attachment. However, said Jagdishdeclinedto accept die Court'sorder. Tlie respondenthas also pointed out diatin die Memorandumof Appeal,it is also clearly mentioned diat Jagdish, die son of die appellant was very much present when attachment proceedings were carried out on 19.2.2000. It is in view of diese facts, die learnedcounselfor the respondentrightly submittedthatit is absolutelyfalse tostate diat appellanthad no knowledge whatsoeverabout die judgment and decree prior to 26.7.2000. If die advocate had applied for a certified copy of diejudgment soon after : 5 : RFA NO. 476/2000 tlie decree and was kept in the file of the case concerned, it is difficult to believe thai the advocate was not taking interest in the case. It was for die appellant to make inquiry. It was for the son who Was residing in tlie same house to inform his father. It was for the son to convey to his fadier about the attachncent of the property as he was present at the time of attachment. Learned counsel for the respondent pointed out that with a view to get the benefit of Section 5 of the Limitation Act, the appellant is required to explain the delay. He must explain by rendering sufficient cause and die cause must be such that is acceptable to the Court. In the instant case, the appellani was negligent throughout. Not only that, he was aware about the execution proceedings and from his conduct, it is required to be noted diat he was aware about the judgment and decree also because his son, who was defendant no. 2 was present in the Court. When respondent has filed affidavit in detail pointing out the vj knowledge and the circumstances placed on record to draw die inferences that the appellant had knowledge about it, there is no reason why the application should be accepted. Learned counsel for the respondent submitted diat Apex Court has depricatec die mediodof puttingentire blameon die advocateand trying to making out as i1 die litigant was totally unaware about die nature and significanceof dieproceedings. In case of Sali} Dutta V^.5. T.M. & M.C. Private Ltd. reported in JT 1993 (4) SC 528, die Apex Courthad an occasion to deal widi diese aspects. It is pointedout dia/dieadvocateis die agent of die party. His acts 3 r yT^ and statements, made within the limits of authority given to him, are the acts and statementsof the principali.e. the partywho engagedhim. It is true that in certain situations,the Court may, in the interestofjustice,set asidea dismissalorder or an ex-partedecree notwithstandingthe negligenceand/ormisdemeanourofthe advocate where it finds that the client was an innocent litigant but there is no such absolute rulethat apartycan disownitsadvocateatany time andseekrelief. No such absolute immunitycan be recognised. Such an absoluterule wouldmake the workingof tlie systemextremelydifficult. ApexCourtinthe saidcase pointedout that no advocate worthhis saltwould give such advice to his clientasin the instantcase, it is stated that he was advised not to meet the advocate. The Apex Court in para 8 of the judgmentultimatelypointedout that:- 'Tutting the entire blame upon theadvocate and trj/ing to inake it out as if they were totallyunawareofthe natureor significanceofthe proceedingsisa theory which cannotbe accepted and ought not to have beenaccepted." In dieinstantcase, whowas die educatedperson who explainednotonce but twice is not made known. Hie affidavit of such an educated person has not been filed. The affidavit of the ^son is not filed. But in the reply, it is pointed out that his son was present at the time of attachment. There is also nothing - to indicate as to why even after 25.7.2000 when the appellant allegedlycame to know of the judgment / whatwas the reasonfor the appellantnot to approachthe Courtimmediately. In our opinion,the theorycannotbe acceptedand thereis a gross negligenceon tlie part of the appellant at every stage and diereforethe applicationfor condonationof delay is rejected. Consequently, appeal and other applications being CM Nos. 1156/2000& 1158/2000 also stand dismissed. APRIL 22, 2003 PC. ^ .A. CHIEF JUSTICE C.- tKrSlKRI, J. s . !'•' '•"A/ ' Ye^'J-x r >•:! f - '/••