2019 (2) TMI 2123 - HC - Indian Laws

Condonation of delay in filing an appeal when the delay is attributed to the negligence of the applicant s advocate - HELD THAT - In N BALAKRISHNAN VERSUS M. KRISHNAMURTHY 1998 (9) TMI 602 - SUPREME COURT a two Judge Bench of the Hon ble Apex Court held that the order of the High Court in revision setting aside the order of the Trial Court condoning the delay of 883 days in filing the application for the condonation of delay due to the failure of the Advocate to inform the appellant as well as his failure to take action was not proper and that the Court should compensate the opposite party in such cases more so where the appellant had secured the compensation from the delinquent Advocate. In the brief facts the suit filed by the respondent for the declaration of title and ancillary reliefs was decreed ex-parte on 28/10/1991. The Appellant on coming to know of the decree moved an application to set it aside which came to be dismissed for default on 17/02/1993. Coming to the facts of the case it has been tried to be contended on behalf of the applicants that on account of the lapse of the Advocate then appearing on their behalf the applicants should not suffer and as a large tracts of Government land was involved which would cause much loss to the exchequer in case the application for the condonation of delay was not allowed. However having considering the judgment in N. Balakrishnan and Salil Dutta merely shifting the burden on the Advocate then appearing for the applicants by itself would not be a ground to condone the delay which is substantial. The applicant ought to have been more diligent in pursuing the matter and merely canvassing that there was a neglect on the part of the then Government Advocate even after the Court had granted umpteen opportunities to take steps cannot be countenanced. It is apparent from the tenor of the application moved on behalf of the applicants that there was neglect on the part of the then Government Advocate in pursuing the matter which resulted in its dismissal and that too after the Court had granted umpteen opportunities to the applicants to take steps to serve the unserved respondents. The applicants had tried to canvass a ground that the order dismissing the proceeding came to their notice only on making enquiries somewhere in December 2015 i.e. more than 15 months after the order came to be passed dismissing the case for non-prosecution. No genuine or justifiable grounds have been set out - Although it has been brought to my notice that process fees were paid nonetheless there was negligence on the part of the applicants not the pursue the matter further and when a learned Single Judge of this Court was constrained to grant a last opportunity and thereafter to identify the matter for dismissal and ultimately dismissed the same for non-prosecution and default on 3rd September 2014. No grounds have been made out for the condonation of delay and in view thereof the application is accordingly dismissed.

Summary

1. ISSUES PRESENTED and CONSIDERED

The judgment primarily revolves around the following legal issues:

• Whether the delay in filing an appeal should be condoned when the delay is attributed to the negligence of the applicant's advocate.
• Whether the applicant's reliance on the precedents set by the cases of Collector, Land Acquisition, Anantnag v. Mst. Katiji and N. Balakrishnan v. M. Krishnamurthy justifies the condonation of delay.
• Whether the involvement of large tracts of government land and potential loss to the exchequer constitute sufficient grounds for condoning the delay.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Condonation of Delay Due to Advocate's Negligence

• Relevant Legal Framework and Precedents: The court considered the precedents set by N. Balakrishnan v. M. Krishnamurthy, where the Supreme Court held that the failure of an advocate to inform the appellant about the dismissal of an application could be a ground for condoning the delay if the appellant compensates the opposite party. However, in Salil Dutta v. T.M. and M.C. Pvt. Ltd., the court held that improper advice from an advocate cannot always be accepted as a sufficient cause for condonation.
• Court's Interpretation and Reasoning: The court emphasized that merely shifting the blame to the advocate does not automatically justify condoning the delay. The applicant must demonstrate diligence in pursuing the matter.
• Key Evidence and Findings: The court noted that the applicants were given multiple opportunities to take necessary steps, but they failed to act diligently. The delay was attributed to the negligence of the government advocate, but the applicants did not provide justifiable grounds for their inaction.
• Application of Law to Facts: The court applied the principles from the cited cases and determined that the applicants did not meet the criteria for condoning the delay, as they failed to demonstrate due diligence and merely blamed their advocate.
• Treatment of Competing Arguments: The court considered the argument that the negligence of the advocate should not penalize the applicants, especially given the involvement of public land. However, it found that this argument was insufficient without evidence of the applicants' diligence.
• Conclusions: The court concluded that the applicants failed to establish sufficient grounds for condoning the delay, and the application was dismissed.

Issue 2: Justification of Condonation Based on Precedents and Public Interest

• Relevant Legal Framework and Precedents: The applicants relied on the precedents of Collector, Land Acquisition, Anantnag and N. Balakrishnan to argue for condonation based on public interest and the involvement of government land.
• Court's Interpretation and Reasoning: The court acknowledged the precedents but highlighted that each case must be assessed on its specific facts and circumstances. Public interest alone does not suffice without demonstrating due diligence.
• Key Evidence and Findings: The court found that the applicants failed to provide evidence of due diligence or justifiable reasons for the delay, despite the involvement of government land.
• Application of Law to Facts: The court applied the principles from the cited cases and determined that the applicants did not demonstrate the necessary diligence or provide justifiable reasons for the delay.
• Treatment of Competing Arguments: While the applicants argued the importance of government land and potential loss to the exchequer, the court found these arguments insufficient without evidence of due diligence.
• Conclusions: The court concluded that the applicants did not establish sufficient grounds for condoning the delay, and the application was dismissed.

3. SIGNIFICANT HOLDINGS

• Preserve Verbatim Quotes of Crucial Legal Reasoning: "Merely shifting the burden on the Advocate then appearing for the applicants by itself would not be a ground to condone the delay which is substantial."
• Core Principles Established: The court reaffirmed that negligence by an advocate does not automatically justify condoning a delay; applicants must demonstrate due diligence and provide justifiable reasons. Public interest considerations alone are insufficient without evidence of diligence.
• Final Determinations on Each Issue: The court dismissed the application for condonation of delay, concluding that the applicants failed to provide sufficient grounds for their request.