9911796707
TMI Blog1990 (2) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... llr/88 dated 29-9-1988) was received by the applicants on 2-2-1989 and he handed over the said order along with the connected papers to his advocate Shri Ram Naresh Choudhary, practicing in the District Court, Deoghar on 26-2-1989 in order to file an appeal before this Tribunal. It was further stated that on 28-4-1989 Shri Sunil Dalmia, the constituted attorney of the applicants went to Vellore Hospital for the treatment of his father-in-law. It is also stated that he is the only son-in-law and his father-in-law has no other person to take care of him. After the treatment he came back on 21-6-1989 and when the said advocate was contacted by him on 22-6-1989, it transpired that he did not file the appeal and he was under the impression that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by the respondents. He, therefore, pleaded that there is sufficient cause for condoning the delay in filing of the appeal. In support of his contentions, he relied on the following decisions :- (i) AIR 1972 SC Page-749 - State of W.B. v. Howrah Municipality (ii) 1987 (28) E.L.T. Page-185-Collector, Land Acquisition v. Khatiji Ors. (iii) 1987 (31) E.L.T. Page-1000 - JiajiRao Cotton Mills v. Collector of C.E. (iv) 1989 (43) E.L.T. Page-444 - Haryana Insulated Wires Pvt. Ltd. v. Collector of C.E. (v) 1987 (32) E.L.T. Page-711 - U. Foam v. Collector of C. E. 4. The learned SDR Shri M.N. Biswas contended that no sufficient cause is made out by the applicant to condone the delay. In this connection, he pointed out that since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corroborated by the affidavit filed by the advocate Shri Ram Naresh Choudhary, which is dated 23-8-1989. In para 4 of this affidavit, he has stated as follows :- "That now, Shri Sunil Dalmia, who had to be out of station for treatment of his father-in-law and is the only person in the firm conversant with these matters, on his return came to me a few days back and enquired as to whether the Appeal has since been prepared and filed. 6. In the case of Jiaji Rao Cotton Mills v. Collector of Central Excise, reported in 1987 (31) E.L.T. Page 1000, relied on by the learned Advocate, the delay was partly due to misplacement of the impugned order and partly due to illness of the official concerned and the delay was condoned. In this case also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat is not controverted in an affidavit has to be accepted. The affidavit of the applicant being corroborated by his learned Advocate has to be accepted in the circumstances of this case. It is no doubt true that he has not filed the medical certificates but that by itself is not sufficient ground to throw away these two affidavits filed by them which stand uncontroverted by the respondents. 7. The decision in the case of Haryana Insulated Wires Pvt. Ltd. v. Collector of Central Excise, reported in 1989 (43) E.L.T. Page-444, relied on by the learned Advocate, shows that the onus lies on the applicant to satisfy the court that he has sufficient cause for not preferring the appeal in time. In that case, the affidavit of the appellant that h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. In the above-mentioned decision of the Supreme Court, their Lordships placed reliance on the decision of the Judicial Committee reported in AIR 1937 P.C. 276 (Rajender Singh v. Rajeswar Bell) wherein it is held as follows :- "Mistaken advice given by a legal practitioner may in the circumstance of a particular case give rise to sufficient cause within the section though there is certainly no general rule which saves parties from the result of wrong advice. Relying on that decision the Supreme Court held at Para-37(a) in the above decision that The advice given by the lawyer to file applications under Article 226 in our opinion is also a circumstance to be taken into account in considering whether the appellant has shown sufficient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to sufficient cause or not. It is needless to emphasise that courts have to use their judicial discretion in the matter soundly in the interest of justice." 9. Therefore, we are convinced that in the facts and circumstances of this case, the applicants have made out a case that due to sufficient cause they were prevented from filing the appeal. Immediately on getting the papers on 23-8-1989 they made necessary arrangements and filed the appeal and the Stay Petition in the Tribunal at Calcutta on 28-8-1989. Further, as we have already discussed above, a client cannot be made to suffer due to the negligence of his advocate. This stand is fortified by a decision of the Gujarat High Court in the case of Brij Kishore v. Jayantilal, reported ..... X X X X Extracts X X X X X X X X Extracts X X X X
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