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TMI Blog1984 (12) TMI 319X X X X Extracts X X X X X X X X Extracts X X X X ..... but after great pains thought fit to set aside the order dated 2-8-1984 and restored the application for condonation and also the appeal which was dismissed as barred by time. This order was passed on 28th September, 1984. Thereafter, Shri Madhu M. Patel, applicant s learned Advocate, made a further application on 18-10-1984 and also filed an affidavit in support of this further application. 2. When the restored Misc. Application No. 65/84 was taken up for consideration, Shri M.Y. Gupte, Advocate for the Respondent submitted that the Respondent Collector had filed a Reference Application against the order dated 28-9-1984 and the same is pending consideration. He, therefore, prayed that the hearing of the restored application should be stayed pending consideration of the Reference Application. As the Reference Application was made in respect of an order passed on a Misc. application, the Bench expressed doubt regarding its maintainability and in the circumstances, the request for stay of the hearing of the present application was not granted. 3. The application was heard on merit. Shri K.M. Desai learned Advocate for the applicant submitted that the Bench rejected this Misc. a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intain and uphold high ethics of the profession. Shri Desai also referred to the decisions of the Madhya Pradesh High Court, Madras High Court and the Supreme Court, the extracts of which were produced along with further application for condonation of delay filed by the Advocate Shri Madhu M. Patel. Relying on the said decisions, Shri Desai submitted that mistake of Counsel has been always considered as sufficient ground if the mistake was bona fide. Relying upon the judgment of the Supreme Court, Shri Desai urged that the expression sufficient cause should receive a liberal construction so as to advance substantial justice. By condoning the delay no prejudice would be caused to the State but the applicant s honour would be vindicated. 5. Shri Krishan Kumar, the learned Departmental Representative, however, vehemently opposed the application for condonation of delay. He repeated the contentions urged by Shri Gupte that the order dated 2-8-1984 was not an order for default of the party or the Counsel. It was an order on merit and therefore such an order cannot be set aside by another Member of the Tribunal under Rule 20 of the CEGAT (Procedure) Rules, 1982. 6. As regards the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epted. With all that the applicant either alleged or established the reason for delay in filing the appeal during the period 9-1-1984 and 26-3-1984 and therefore the Bench rightly rejected the application for condonation of delay. Finally, Shri Krishan Kumar submitted that the present application and the ground urged therein shall not be taken into consideration and the application may be rejected. 7. In reply, Shri Desai contended that inconsistency arise if there are two versions. But then there are no two versions. He contended that in the application which was signed by the party the applicant had only stated the reasons as to why he could not file the application but he had not mentioned that he was advised by the Advocate that he had six months time from the date of cessation of legal disability. That fact was being brought to the notice of the Bench for the first time in the additional or supplementary application filed by Advocate Shri Madhu Patel. It was also urged by Shri Desai that it would not be sufficient if a sentence is added in the appeal that the appeal was not barred by time and how it was not barred by time shall have to be established by a separate applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observed: That the law is settled that mistake of counsel may in certain circumstances be taken into account in condoning the delay although there is no general proposition that mistake of counsel by itself is always a sufficient ground. It is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an underhand way. The court must see whether, in such cases, there is any taint of male fides or element of recklessness or ruse. If neither is present, legal advice,honestly sought and actually given, must be treated as sufficient cause when an application under Section 5 of the Act is being considered. In Shakuntala Devi Jain v. Kuntal Kumari and others Supreme Court observed : Section 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles, the words sufficient cause receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant. If the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said legal disability has ceased on or after 9th January, 1984, the Applicant is entitled to the period of limitation of 6 months from that date. After my filing an appeal on or about 26th March, 1984 I filed an application for condonation of delay in filing the appeal by my application dated 26th April, 1984 under the bona fide impression that the Applicant is entitled to 6 months time period after his recovery from his legal disability which I came to know when the Applicant returned to India on 9th January, 1984. I got busy in the Applicant s trial which was virtually going on in Court day-to-day at CMM, Esplanade Court, viz. Case No. 102/CW of 1982 which was finally disposed of by a judgment of acquittal in his favour dated 4th May, 1984. I, therefore, respectfully submit that as counsel for the Applicant, I made an honest and bona fide mistake in calculation of the period of limitation with the result that his Appeal came to be filed on or about 26th March, 1984 by me. I further respectfully submit that it was a bona fide honest mistake of counsel which has resulted in the delay in filing his appeal which I reasonably believed ought to be filed within 6 month after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be true, as apparent from the statement contained in the earlier application. I may repeat the first two sentences of paragraph (2) of that application: The appeal against the said order was to be filed within 6 months from the date of receipt of the said order. The Applicant ought to have filed this Revision Application within 6 months of the date of the receipt of the said order i.e. 30th April, 1983. Thus in an unambiguous and clear terms, the applicant had stated that he was required to file his appeal within 6 months from the date of receipt of the order and he should have filed within 6 months from the date of receipt of the order. 14. As has been stated earlier, admittedly, this application was prepared by Shri Madhu M. Patel and it was signed by him also. One cannot accept Shri Patel who prepared the application to forget the ground now urged in his application while preparing the earlier application. If the ground now urged was the reason for filing the appeal on 26-3-1984 then Shri Patel would not have drafted the earlier application in the manner in which it was drafted and he would not have stated that the appeal against the said order was to be filed within ..... X X X X Extracts X X X X X X X X Extracts X X X X
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