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TMI Blog2016 (6) TMI 1414X X X X Extracts X X X X X X X X Extracts X X X X ..... rom trespassing, encroaching upon or putting up any construction in the plaint schedule property and also direction to the defendant to remove the earth dumped on the plaint schedule property and to remove the concrete pillars under construction in the plaint schedule property, etc. 3. The present appellant-defendant, filed vakalath on 29.05.2006, but the written statement was not filed. In the meanwhile, defendant's counsel, who was representing before the trial Court, had retired on 02.11.2006 without issuing notice to the present appellant about his retirement from the case and the trial Court without issuing Court notice to the party-defendant proceeded to decree the suit in part directing defendant and its Trustees headed by its President by way of mandatory injunction to remove the concrete pillars under construction over the plaint 'A' schedule property and also granted permanent injunction restraining the defendant, its Trustees or any one claiming under the said Trust from trespassing or interfering over the plaint schedule property or putting up any construction. The claim of the respondent-plaintiff for the relief of declaration has been dismissed. 4. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read with Section 151 of Code of Civil Procedure on the ground that the Miscellaneous petition filed after lapse of 431 days and no valid reasons are assigned to condone the delay. 5. Aggrieved by the said judgment and decree, the present appellant filed the R.A. No. 78/2010 before the II Addl. Sr. Civil Judge, Mangalore, D.K., who after hearing both the parties, by her judgment and decree dated 18.03.2013 dismissed the appeal and confirmed the order dated 7.06.2010 passed in Misc. case No. 5/2008 holding that the appellant has not made out any ground to interfere into the impugned order passed by the trial Court. The concurrent findings of fact recorded by the Courts below did not deter the appellant from preferring this regular second appeal as a last ditch attempt. 6. Respondent served unrepresented. 7. I have heard the learned counsel for the appellant. 8. Smt. Jayalakshmi K.B., learned counsel for the appellant, has contended that both the Courts below have proceeded to pass an erroneous judgment and decree mainly on the ground that there is delay in filing the miscellaneous petition ignoring the fact that the delay is on account of the fault committed by the counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the defendant was absent and ultimately, the trial Court without issuing Court notice to the party-defendant was proceeded with the suit and passed the judgment and decree dated 04.01.2007. 14. Against the said judgment and decree dated 04.01.2007, the defendant filed Misc. Case No. 5/2008 to set-aside the ex-parte judgment and decree, as there was a delay of 431 days in filing the said miscellaneous petition, the defendant filed an application under Section 5 of the Limitation Act to condone the delay. The fact remains that the counsel, who appeared for the appellant before the trial Court has retired from the case without intimating the defendant and therefore, the defendant was not aware of the further proceedings. The trial Court has dismissed the Misc. Case No. 5/2008 mainly on the ground of delay and laches without entering into the merits of the case. The said order dated 07.06.2010 was the subject matter of the appeal before the lower appellate Court in R.A. No. 78/2010. While considering the appeal, the lower appellate Court has reiterated the findings recorded by the trial Court and dismissed the appeal confirming the order passed by the trial Court without entering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the judgment of the trial Court that the defendant was absent. The Courts below ought to have given an opportunity to the appellant-plaintiff to put forth his case by condoning the delay and decide the rights of the parties on merits. Mere dismissing the Misc. Petition on the ground of delay of 431 days would result in throwing out the appellant at the very threshold without considering the case on merits resulting in cause of justice being defeated. If the delay is condoned the highest that can happen is that the case would be decided on merits after hearing the parties and delay can be condoned by compensating the other side. Admittedly in the present case, the mistake committed by the counsel for the defendant, the defendant should not suffer because of the default of his advocate. 18. The Hon'ble Supreme Court in the case of RAFIQ AND ANOTHER V. MUNSHILAL AND ANOTHER reported in AIR 1981 SC 1400 while considering the delay in filing the application on account of the fault committed by the advocate on record has held that parties should not suffer and the relevant paragraph reads as follows: "3. The disturbing feature of the case is that under our present adversary legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts original number in the High Court and be disposed of according to law. If there is a stay of dispossession it will continue till the disposal of the matter by the High Court. There remains the question as to who shall pay the costs of the respondent here. As we feel that the party is not responsible because he has done whatever was possible and was in his power to do, the costs amounting to Rs. 200/- should be recovered from the advocate who absented himself. The right to execute that order is reserved with the party represented by Mr. A.K. Sanghi." 19. The Hon'ble Supreme Court in the case of N. BALAKRISHNAN V. M. KRISHNAMURTHY reported in AIR 1998 SC 3222 while considering the delay of 883 days due to the failure on the part of the advocate to inform the appellant as well as the failure to take action in the case has held that the parties should not suffer, which reads as under: "13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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