1951 (4) TMI 29 - HC - Indian Laws

Summary

Issues Involved:
1. Amendment of the cause-title or appeal memorandum.
2. Condonation of delay in impleading two party-respondents.
3. Bona fide mistake by the petitioner's advocate.
4. Discretion under Section 5 of the Limitation Act and Section 153 of the Civil Procedure Code (CPC).
5. Negligence and due diligence by the petitioner and his legal representatives.

Detailed Analysis:

1. Amendment of the Cause-Title or Appeal Memorandum:
The interlocutory application in Misc. Appeal No. 72/49 sought to amend the cause-title or the appeal memorandum by impleading Rajendra Prasad Bhagat and Kamala Devi as party-respondents. The appeal was initially filed on 11-10-1949, and the application for amendment was made on 25-9-1950. The necessity for this amendment arose because the two individuals were already on the record of the Executing Court as joint-decree-holders at the time the order appealed against was passed.

2. Condonation of Delay in Impleading Two Party-Respondents:
The delay in filing the application for amendment was attributed to a bona fide mistake by the petitioner's advocate. The certified copies of the judgment and the decretal order did not contain the names of all respondents, leading to an incomplete appeal memorandum. The delay was further justified by the affidavit of the petitioner's advocate and his private secretary, who asserted that the mistake was unintentional and was discovered only during the service of notice.

3. Bona Fide Mistake by the Petitioner's Advocate:
The court acknowledged that the mistake in not including the two respondents arose due to the incomplete certified copy of the order and an incorrect private copy of the execution petition. The court examined whether this mistake was due to gross negligence or a lack of reasonable diligence on the part of the judgment-debtor or his agent. It concluded that the mistake was not caused by gross negligence but rather by a lack of adequate personal scrutiny by the lawyer.

4. Discretion under Section 5 of the Limitation Act and Section 153 of the CPC:
The court noted that the discretion to condone delay under Section 5 of the Limitation Act should be exercised with the same strictness as in other applications under the Act. However, it also considered that the mistake was partly due to the prevalent practice in court, where certified copies did not show the full names of all parties. The court emphasized that the principle guiding such discretion is to avoid penalizing the litigant for the lawyer's mistake unless it amounts to unreasonable negligence.

5. Negligence and Due Diligence by the Petitioner and His Legal Representatives:
The court scrutinized the affidavits and the circumstances to determine if there was gross negligence on the part of the judgment-debtor or his agents. The court found that the judgment-debtor's private secretary was competent to testify that the judgment-debtor was unaware of the death of Laxmi Prasad Bhagat. It was also noted that the mistake could have been avoided with better scrutiny by the lawyer, but the court was not prepared to attribute unreasonable negligence to the lawyer, Mr. Chatterjee.

Conclusion:
The court allowed the application for amendment of the cause-title to include Rajendra Prasad Bhagat and Kamala Devi as party-respondents, subject to the condition that the petitioner pays fifty rupees towards costs to each of the persons sought to be brought on record. The court emphasized that the discretion to condone delay should be exercised to avoid undue penalization of the litigant for the lawyer's mistake, provided the mistake does not amount to gross negligence. The petition was allowed on the terms specified, failing which the application would stand dismissed.