Court’s Decision
The Bombay High Court, Nagpur Bench allowed the second appeal and set aside the order of the First Appellate Court which had refused to condone a delay of one year and seven months in filing the first appeal.
The Court held that the defendants had shown sufficient cause, as their earlier advocate had stopped appearing in the suit after filing the written statement and had not informed them that she had discontinued practice. The Court observed that, in such circumstances, “no fault can be attributed to the present appellants” and the delay appeared to be “bona fide and justifiable.”
Facts
The dispute arose from a civil suit for specific performance of contract concerning a property in Nagpur. The plaintiffs had filed the suit on the basis of an agreement to sell. The defendants appeared through an advocate and filed their written statement.
However, after filing the written statement, their advocate did not appear further in the matter. The plaintiffs examined four witnesses, but the defendants’ side did not cross-examine them and did not lead evidence. The Trial Court eventually passed an ex parte judgment and decree directing deposit of the balance consideration and execution of the sale deed.
The defendants later came to know about the decree after execution proceedings were initiated. They filed an appeal along with an application under Section 5 of the Limitation Act seeking condonation of delay. The First Appellate Court rejected the application, leading to the present second appeal under Section 100 CPC.
Issues
The main issue before the High Court was:
Whether the First Appellate Court was justified in refusing to condone the delay in filing the first appeal, especially when the delay was attributed to the advocate’s failure to appear and failure to inform the client.
Appellants’ Arguments
The appellants argued that they had properly engaged an advocate and had filed their written statement. However, the advocate later discontinued practice and never informed them that they had to engage another lawyer.
They submitted that because of this, they remained unrepresented during the trial, the plaintiffs’ witnesses were not cross-examined, no defence evidence was led, and the suit was decreed ex parte.
They relied on the Civil Manual provisions to argue that an advocate remains bound to appear unless properly discharged, and cannot simply stop appearing without informing the client or obtaining leave of the Court.
Respondents’ Arguments
The respondents opposed the condonation of delay. They argued that the defendants had knowledge of the decree at least after notice in the execution proceedings and still failed to act within time.
They submitted that the explanation for delay was not bona fide and that the defendants were not diligent in pursuing the matter.
Analysis Of The Law
The Court examined the duties of an advocate under the Civil Manual. It noted that once an advocate files a vakalatnama, the appointment continues unless the advocate properly withdraws with leave of the Court and after giving notice to the client.
The Court held that in the present case, there was no written communication from the earlier advocate informing the defendants that she had stopped practice or that they should appoint another advocate.
The Court therefore found that the defendants were deprived of an opportunity to defend the case and cross-examine the plaintiffs’ witnesses due to the lapse and negligence of their counsel.
Precedent Analysis
The Court relied on several judgments dealing with advocate negligence and condonation of delay, including:
- Rafiq v. Munshilal
- Lachi Tewari v. Director of Land Records
- Mangilal v. State of M.P.
- Secretary, Department of Horticulture v. Raghu Raj
- Govinda Bhagoji Kamable v. Sadu Bapu Kamable
The Court also considered judgments cited by the respondents, including University of Delhi v. Union of India, Majji Sannemma, Salil Dutta, and others, but distinguished them on facts.
The Court clarified that while a litigant cannot always escape responsibility by blaming the advocate, the facts here showed that the defendants had engaged counsel, filed their written statement, and were not informed about discontinuation of practice.
Court’s Reasoning
The Court found that the First Appellate Court had wrongly concluded that the defendants were not diligent. The High Court held that the defendants had made out substantial grounds for condonation of delay.
At the same time, the Court also noted that the plaintiffs would suffer due to the inaction of the defendants’ advocate. Therefore, while allowing the appeal, the Court imposed costs of ₹50,000 on the defendants.
Conclusion
The Bombay High Court allowed the second appeal, quashed the First Appellate Court’s order refusing delay condonation, and condoned the delay of one year and seven months.
The delay was condoned subject to payment of ₹50,000 costs to the plaintiffs within 15 days. After payment of costs, the First Appellate Court was directed to register the appeal and decide it on merits as expeditiously as possible.