Madras High Court
Subramania Achary vs Smt. Sathyabama And Another on 22 March, 1994
ORDER
1. A delay of 1,347 days in filing the revision against the judgment rendered in Criminal Appeal No. 38/89 by Principal Sessions Judge, Ramnad at Madurai now at Sivaganga before this Court is sought to be condoned under S. 5 of the Limitation Act by the petitioner by name Subramania Achari, who is the resident of Door No. 53/14, Periya Kadai Veethi, Aranthangi, Pudukottai District.
2. The brief fact which prompted to seek the above relief are stated as follows :- Being a jeweller by profession, on 30-7-1984 the Inspector of Police, Devakottai, manoeuvred him to part with thirty two grams of gold bar pursuant to the confession given by one accused, by name Raheem, as a stolen jewel, despite his resistance. Though he has not committed any offence, however, he was compelled by the Inspector of Police at the behest of arrest and hence he had obliged to give thirty two grams of gold ingot out of 198-100 grams. This is followed by complaint given by him pointing out the illegal seizure on 1-8-1984 to the Judicial First Class Magistrate, Devakottai. The main case of theft ended since the accused pleaded guilty. Therefore, he filed a petition in Crl.M.P. No. 1904 of 1984 before the trial court and after full enquiry and examining witnesses, the learned Judicial First Class Magistrate has held that the said jewels belonged to him and that therefore, no evidence was made available against the petitioner. But however, the complainant preferred an appeal before the Principal Sessions Judge, Ramnad, in C.A. 38/89 and the grievances of the complainant was accepted and during the pendency of the same, the petitioner has claimed that he has engaged a lawyer by name Mr. Sibbakath. As he had engaged a lawyer to contest the abovesaid appeal on his behalf and on his counsel's assurance that he need not be present and informed the petitioner that he would write letters about the hearings of the appeal and so, he kept quiet expecting information from his lawyer. As there was no communication at all, for a considerable long time, he went to Madurai and enquired and he came to know that the appeal had not yet been posted in the list. In the similar fashion he get reply on number of occasions form his lawyer. While so, during September 1991, when he came to Madurai, he was informed that the appeal was disposed of long back and when he questioned his counsel as to why he did not inform him, he did not give any valid reply and when he asked to return the case papers to him, he said that he had applied for the copy and he would return the same as soon as he get it from the court along with the case bundle. Likewise several times, though he made attempts he could not get it, which was followed by him to lodge a complaint to the Bar Council of Tamil Nadu and in the said petition, he narrated about the conduct of his counsel on 10-1-1992. Then he has furnished all the relevant papers as the Bar Council of Tamilnadu required him to produce, for the purpose of taking further action, as per letter dated 31-1-1992 and 5-2-1992. While that process was going on he came to know on 10-5-1993 that his counsel Mr. Sabbakath died unfortunately. When he visited several times Madurai and took strenuous efforts to get the case bundle from the clerk of his erstwhile advocate and in the meanwhile, District Court has been shifted to Sivaganga from Madurai. After having taken strenuous efforts with the help of the clerk of the above counsel, he was able to get the case bundle only on 18-11-1993. Then he followed by filing a revision in this court after getting the necessary certified copies of the order and documents. Thus he was able to get the copy of the judgment on 3-9-1993 along with the case bundle only on 18-11-1993 and on perusal he was advised that he is having good ground to be agitated during revision. But it was pointed out to make such a revision that a delay of 1,347 days had happened. Therefore, he was constrained to file this application under S. 5 of the Limitation Act. The delay in filing this revision is neither wilful nor wanton, but due to the reasons beyond his control and due to the carelessness and recklessness of his counsel, the delay had happened. The value of the gold which was parted by him is about Rs. 15,000/- and more. Therefore, the delay has to be condoned.
3. The complainant/successful appellant before the lower appellate court filed a counter-affidavit wherein she has contended several other grounds pertaining to the disposal of the case before the trial court and the appeal ended in her favour and further she has stated that the delay of more than 1300 days sought to be condoned by the petitioner is wanton and deliberate and it cannot be condoned for the reason that the petitioner has not proved each and every day's delay and that therefore, the delay cannot be condoned.
4. I have heard the learned counsel of the respective parties herein, pertaining to their contentions in support of their respective pleas taken in the petition as well as in the counter-affidavit. A copy the petition filed in the typed set submitted to the Chairman, Bar Council of Tamilnadu, by the petitioner as well as the sworn affidavit by one Navaneethakrishnan, S/o. Ponuswamy, Clerk of the erstwhile Advocate of the petitioner had been filed. A reply affidavit has also been filed on behalf of the petitioner.
5. Mr. K. Karpagavinayagam, learned counsel appearing for the petitioner, would submit only one point i.e., delay of 1,347 days in filing the revision had happened not due to the reasons to the knowledge and best known to the petitioner, but however, because of the erstwhile counsel's attitude, and that inasmuch as the petitioner has got a good ground to be agitated before a court of law and in order to get justice, the said delay has to be condensed.
6. Per contra, Mr. Ramanathan, learned counsel appearing for the respondent, would submit, that though the delay in getting justice is to be condoned, to get that remedy it must be the duty of the petitioner to seek the condonation of the delay and explain each end every day's delay in proper appreciation as contemplated by law and that if the said established legal view is followed, it is manifest that the petitioner has not done so, and that therefore, the petition for condoning the delay has to be rejected.
7. In the context of the above rival position, the only point that arises for consideration is whether the delay of 1,347 days in filing the revision petition is to be condoned or not ?
8. Before proceeding further in deciding this point, I deem it necessary to point out the legal ratio decided by the courts of law in this regard, which are the following :- In Collector, Land Acquisition, Anantnag v. Eatji , the Apex Court has observed as follows :-
"The doctrine of equality before law demands that all litigants including the State as litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a stepmotherly treatment when the State is the applicant praying for condonation of delay. In fact 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 part of the State is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant non grata status. So also the approach of the courts must be to do even-handed justice on merits in preference to the approach which scuttles a decision on merits."
While observing so, the Supreme Court has laid down the following principles to be kept in mind for condoning the delay in preferring appeal or revision.
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 very threshold and cause of justice 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 house'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 mala fides. 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 legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
Following the principles 2 to 6 laid down by Supreme Court in the above case law, the First Bench of this Court in L.F.A. 124 of 1993 between Cusbar v. K. Subbarayan reported in 1993 TLNJ 375, has observed that the Court has to find that substantial justice is to be done to a party and that such process should not suffer due to the reasons of technicalities and that the Court has to see that substantial justice is to be done and it must not suffer.
9. In Ramakrishnan P. K. v. T.N. Electricity Board reported in 1992-2 Mad LW 252 the First Bench of this Court has observed as follows :-
"Where a litigant engages and properly instructs a counsel to prosecute his case and does all that he expected of him to do in that behalf, he bona fide expects the counsel to act in his best interests and function in a responsible manner, expected from a member belonging to the noble profession of law, If the counsel acts negligently, then generally speaking, the litigant ought not to be penalised for the established negligence of the counsel unless there has been remissness on his own part as well. The counsel may, in such a case, be guilty of not discharging his professional duties properly but his proved negligence may afford, in a given case, sufficient cause for seeking condonation of delay in prosecuting further remedies. It is however not possible or even desirable to lay down any hard and fast rule in that behalf. It is for the applicant to establish the facts and circumstances of the case and the Court cannot be left to guess whether the litigant was to blame or his counsel. The allegations made, therefore, in that behalf must be definite and precise and they must be fully proved. However, by engaging a counsel only, a party to the case is not relieved of his duties and obligations in the matter. Where a party either does not fully brief the counsel or keeps no contact with him, it is the party who is really in default and negligent and shall have to bear the consequences. Where the litigant himself is prima facie in default, the mere negligence of the counsel also cannot come to his aid in a claim or application to establish sufficient cause for condonation of delay."
10. Considering the facts of the case in which the above ratio has been propounded by the First Bench of this Court, Iam of the firm view that it is not possible to held that each and every day's delay can be expected to be explained by a person who seeks condonation of delay. As was pronounced by the Apex Court in the previous case law, principles Nos. 3 to 6 clearly enunciated the facts that what the court is concerned very much in granting condonation of delay, in the plausible explanation for much delay and if not, I feel, that there would be no harm for the courts have a liberal view in condoning the delay in order to get redressal and real justice. Viewed the point from this angle, in the case on hand, though not the petitioner is able to prove each and every day's delay consequently one has to see that while a litigant is engaging a counsel, he is solely depending upon him in so far as the communication gap is concerned. If the tendency of the litigant being followed to make allegations against his counsel for each and every aspect, then no lawyer now-a-days can exist in his profession. Therefore, one has to follow the advise or request made by his counsel necessarily. The complaint lodged by the petitioner to the Bar Council about the conduct of the erstwhile counsel cannot be deemed to have been-contemplated for the purpose of this petition for condonation. However, the ground sought for is being supported by the sworn affidavit filed by the clerk of the said erstwhile counsel. In the light of this Court's view held by the First Bench of this Court reported in 1993 TNLJ 375, I am inclined to condone the delay of 1,347 days in preferring the revision and to get his remedy vindicated before the court of law for what it is worth or bad, but however, to get justice as aggrieved one. While doing no, I can also see some laches on the part of the petitioner but the same can be rectified by way of imposing costs. Thus considering every aspects and gamut of the entire case on hand, I am fully satisfied to hold that there are valuable and ample grounds for condoning the delay of 1,347 days and the ends of justice would be properly met if the delay is condoned on payment of costs of Rs. 500/- to the other side.
Accordingly, the delay is condoned on condition that the petitioner pays a sum of Rs. 500/- to the respondent or her counsel within two weeks from to-day. Petition is ordered accordingly.
11. Order accordingly.