Madras High Court
K. Balakrishnan vs The Special Tahsildar (L.A.), North ... on 26 June, 1996
Equivalent citations: (1996)2MLJ236
ORDER S. Jagadeesan, J.
1. This petition is to condone the delay of 2521 days in filing the appeal against the award in earlier L.A.O.P. No. 46 of 1985 on the file of Subordinate Judge, Dindigul, dated 2.2.1988.
2. The petitioner has stated in the affidavit that the court below had passed an award on 2.2.1988. The copy application was filed on 5.2.1988. Certified copy of the award was made ready on 4.3.1988. Delivery was taken on the same day itself. In the middle of May, 1988. The petitioner met one of his relatives G. Sethuraman who is practising as Advocate in this Court. He, in turn, took the petitioner and two others to his Senior K. Venkatasubba Raju at No. 16, Law Chambers, High Court, Madras-104. They handed over the certified copies of the judgment and award of the court below and other particulars and also gave necessary funds for purchase of the stamp papers, for filing expenses and for fees.
3. The petitioner and others were informed that the appeal may be filed immediately on the re-opening date and the fact would be intimated to them. Since nothing was heard for a long time from both the counsel, the petitioner's father Mr. Kaliappa Gounder wrote a letter to his advocate at Madras to find out whether the first appeal had been numbered. Mr. G. Sethuraman, Junior Counsel wrote a letter to him intimating that the appeal was not yet numbered due to holidays and promised to number it within a week.
4. Whenever, the Junior Counsel Mr. G. Sethuraman came to his village, the petitioner met him and enquired not only with regard to his appeal but also in respect of other two appeals which were handed over to him. The said counsel informed the petitioner that the appeals will be numbered soon. Since the same were returned by the High Court Registry for complying with certain defects and the Bench was not formed for filing the appeal.
5. The petitioner states that he again wrote letter to his advocate Mr. K. Venkatasubbu Raju to ascertain about the position of the appeal. During the first week of January, 1992 for which he sent a reply on 17.2.1992 informing that the Land Acquisition Bench was not formed and the appeal would be filed only after the formation of the Bench.
6. When the petitioner came to Madras during first week of January, 1993, he was informed by his counsel that all the appeals were numbered and the matters will be heard for final hearing after few more years and that he will inform the same when the matter was posted for enquiry in the list. While the matter stands so, last week of December. 1994, some of the appeals filed by the neighbouring land-owners against the same award of the Land Acquisition had been allowed by this Court and the petitioner came to know about the same. Immediately, thereafter the petitioner and two others came to Madras during the first week of January, 1995 and met their advocate. They were replied by the advocates that their appeals were not yet taken up by the High Court. The counsel further directed them to file necessary petition to the Collector, Dindigul Anna District under Section 26-A of the Land Acquisition Act, 1894 claiming higher compensation on par with increased compensation as awarded by this Court in the connected appeals.
7. In fact the petitioner's advocates drafted representation to be presented before the District Collector and the petitioner took the same and presented it before the Collector, Dindigul through his lower court Advocates Mr. Thirumoorthy.
8. In the month of March, 1995 at the request of the lower court's counsel for the petitioner, the petitioner came to Madras to meet his two counsel. The petitioner's counsel at Madras failed to furnish the number and failed to give proper reply except informing him that his remedy is only to get appropriate order in the petition filed before the District Collector under Section 28-A of the Land Acquisition Act.
9. The petitioner returned to Dindigul and informed his counsel about this happenings. Thereafter, he came along with his lower court counsel Mr. Thirumoorthy and met the Advocates in April, 1995. The petitioner and his lower court counsel were informed by Mr. K. Venkatasubba Raju at Madras that he has failed to file the first appeal and returned the papers. The petitioner states that his lower court advocate immediately met the present counsel on record and filed the appeal on 26.4.1995 with a delay of 2521 days.
10. Learned Counsel for the petitioner contended that the entire delay has been attributed due to the conduct of both the counsel M/s. G. Sethuraman and K. Venkatasubba Raju. Due to the mistake of the Advocates, the party should not suffer and hence, the delay has to be condoned. Though I am entirely in agreement with the learned Counsel for the petitioner that due to the conduct of the counsel, the parties should not suffer, it cannot be taken for granted in all the cases that the principle should be applied without any reservation. When the advocates had given false excuses or false explanations and made the clients to believe that they have taken some steps and the clients also believed their words and at later point of time found them to be in correct, the client is entitled to claim against concerned counsel for the damages. If, on the principles that the mistake of the counsel cannot be attributed to the party, and the parties are allowed to proceed with the matter, the counsel who committed fraud on his part, are allowed to be escaped scot free. If only the clients are forced to take action against such of those counsel then only action will be taken against the counsel and without taking such action, I do not think the counsel can be let off so freely. If the incident is lightly taken, that would become a repeated occurrence in the course of his profession. When it is open to the petitioner, to take action against both the counsel and recover damages or the loss sustained to him. I am of the opinion that the petitioner need not be ordered. It has been held by the Supreme Court in the recent judgment reported in Union of India v. Rahul Rasgotra as follows:
Before parting with this case, we are constrained to place on record our deep distress at the manner in which the cases on behalf of the Government are generally conducted even in this Court and also when the Government comes to this Court to overcome the consequence of an adverse order made against it. We do so with a feeling almost of despair since our constant lament orally and, at times, even in writing has so far evinced no appropriate response for improvement. On a similar occasion, this Court in Union of India v. A. Radhakrishnan (1991) 3 S.G.R. 895 : A.I.R. 1991 S.C.W. 2370, observed thus:
This matter brings to the fore once again the ineptitude with which litigation is conducted quite often on behalf of the Government of India and State Governments even when important issues having lasting and wide repurcussions are involved. The point in this case relates to the validity of a policy of the railway administration and is likely to affect the staff pattern in several units. Inspite of this fact, to support validity of the impugned policy the required materials were not produced in the High Court and to overcome, the adverse decision several opportunities given by us to produce the entire relevant record were not availed. The learned Additional Solicitor General informed us after several adjournments that better performance is not possible. We, therefore, concluded the hearing and proceed to decide on the available materials. It is indeed fortunate for the appellants that our conclusion is in their favour....
There is no improvement in the situation. An argument was advanced on behalf of the respondents that the cadre allocation to respondent No. 1 was made prior to allotment of the service to him on account of which it was invalid. Material documents to negative the same must be in possession of the Government of India but they were not produced before the Tribunal or even before us, inspite of opportunity given by us. The learned Additional Solicitor General expressed his utter helplessness in the matter and informed us that his efforts to obtain and produce those documents from the concerned authorities had failed. This shows the apathy of the persons responsible for the conduct of the case on behalf of the Government of India. We are not sure whether such lapses of the persons responsible for conduct of the case on behalf of the Government are deliberate or inadvertent but they are certainly culpable which heed to be investigated by the concerned authorities to identify the delinquents and punish them in public interest. It is time that the derelicts are also held accountable and liable for the loss of public money due to their lapses. The stage is now reached for taking drastic steps to arrest further decadence and to implement the avowed promises held out for improvement of the working of the system. Governments being the largest litigants, radical improvement is needed in the functioning of their machinery by reducing frivolous litigation and ensuring proper conduct of necessary litigation. Unless the desirable steps in this behalf are taken in right earnest, any number of seminars and conferences to devise means for reducing the backlog in courts is an exercise in futility and the resolutions made therein, are empty slogans. We reiterate this with the found hope that the concerned authorities would wake up to the true malaise and work to make the programme of improving its machinery, a reality.
11. The Supreme Court has heavily come down on the persons who commit mistakes in the course of their duties. Considering the present trend among the members of the Bar especially, Junior members, the idea of making speedy money without discharging their duties and without realising their responsibilities, I am of the opinion that the abovesaid judgment, equally applicable to the Advocates also who engaged themselves in receiving the money alone without discharging their corresponding duties. Unless the courts heavily come down on those persons when the courts come across incidents relating to that I am of the opinion, that there is no possibility to cut down their activities or their conduct.
12. Here, it is not known as to why both the counsel have failed to file the appeal and gave false excuses to the petitioner. In fact in the letter dated 3.7.1990 Mr. Sethuraman had stated as follows:
13. When he has written a letter that he would inform the client within one week from the date of letter that is 3.7.1990, it is his bounden duty to verify as to what happened and inform the client. But the unfortunate event is that even without filing the appeal, the counsel has sent a letter stating that the appeal could not be numbered due to summer vacation. In yet another letter dated 17.12.1992, written by -Mr. K. Venkatasubba Raju, it is stated as follows:
In this letter the counsel has mentioned that for filing of the appeal itself, the Bench dealing with the Land Acquisition has to be formed. This will be a patent lie. The formation of the Bench has nothing to do, for filing of the appeal.
14. Even if the principle that because of the counsel's mistake the parties should not suffer, the mistake of the counsel should be a bona fide one. The mistake cannot be a wanton or wilful. In such cases, the court cannot come for the rescue of both the counsel as well as the litigant. Hence, I am of the opinion that the delay has not been properly explained and the explanation given by the petitioner will not amount to a sufficient cause as per Section 5 of the Limitation Act. I am fortified with the judgment of the Supreme Court reported in G. Ramegowda v. Special Land Acquisition Officer, Bangalore , in which it has been held as follows:
The contours of the area of discretion of the courts in the matter of condonation of delays in filing appeals are set out in a number of pronouncements of this Court. See Ramlal v. Reva Coalfield Limited , Shakuntala Devi v. Kuntal Kumari , Concord of India Insurance Co. Limited v. Nirmala Devi , Mata Din v. A. Narayanan , Collector, Land Acquisition, v. Katiji . There is, it is true, no general principle saving the party from all mistakes of its counsel. If there is negligence, deliberate or gross inaction or lack of bona fides on the part of the party or its counsel there is no reason why the opposite side should be exposed to a time-barred appeal. Each case will have to be considered on the particularities of its own special facts, However, the expression 'sufficient cause' in Section 5 must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay. In Katiji's case, this Court said:
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.
It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
[Italics supplied] Hence, the petition is dismissed. The petitioner is entitled for refund of half court-fee paid by him.
15. As already stated it is open to the petitioner to take action against both the counsel to recover the loss they have sustained which can easily be assessed with the difference of compensation awarded by the court, in other cases arising out of the same award.