Application for condonation of delay and restoration of an appeal deemed dismissed for non-filing of process fee. The court found the applicant negligent, unsupported by counsel's affidavit, and dismissed the application.
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Mansa Ram vs. Paras Ram and ors.
CMP(M) No. 390 of 2023 in RSA No. 463 of 2012 Order Reserved on: 23.05.2024
13.06.2024 Present : Mr. Neeraj Gupta, Senior Advocate, with Ms. Rinki Kashmiri, Advocate, for the applicant/appellant.
Mr Romesh Verma, Senior Advocate, with Mr Digvijay Singh Bisht, Advocate, for respondents No.1 and 2.
The applicant/appellant has filed the present application for condonation of delay of 10 years 5 months and 20 days and restoring the appeal to its original number. It has been asserted that the applicant instituted an appeal before this Court on 09.07.2012, which was registered as RSA No. 463 of 2012. The non-applicant/respondents herein had filed a suit seeking declaration and injunction. They had challenged the entry of exclusive ownership in favour of the applicant/appellant. Learned Trial Court held that it had no jurisdiction to entertain the suit. The judgment and decree were set aside by the learned First Appellate Court and it decreed the suit. The applicant/appellant engaged a learned counsel, who prepared the appeal and filed the same on 09.07.2012. The appeal was listed before this Court on
03.09.2012 and the Court ordered that in case of non-filing of the process fee, the appeal will be deemed to be dismissed for non-prosecution without reference to the Court. The applicant/appellant was informed by the learned counsel about the listing of the appeal and the passing of the order. He was further advised that he would be informed as and when the appeal would be listed. The applicant/appellant was calling his counsel to know about the further progress in the matter and learned counsel continued to inform the applicant/appellant that the matter was pending before the Court and he (the applicant) would be informed on its listing. The applicant/appellant remained under the bona fide belief that his appeal was pending and would be listed for hearing in due course. The applicant/appellant enquired from his counsel as to why his appeal was not listed, whereas the other appeals of the years 2010 to 2012 were appearing in the hearing board. Learned counsel inspected the record and found that the appeal was consigned to the record room without being put up before the Court. Learned counsel informed the applicant/appellant about this fact and the applicant/appellant came to Shimla. The applicant/appellant and his counsel remained under the belief that the appeal
was pending. He engaged a new counsel and filed the present application for restoration of the appeal.
conveyed by the learned counsel. There is gross negligence on the applicant’s part. Hence, it was prayed that the application be dismissed.
Hence, in such a situation, the plea that the learned counsel remained under the belief that the appeal was pending and would come up for hearing is not plausible.
8. The advocate is the agent of the party. His acts and statements, made within the limits of authority given to him, are the acts and statements of the principal i.e. the party who engaged him. It is true that in certain situations, the court may, in the interest of justice, set aside a dismissal order or an ex parte decree notwithstanding the negligence and/or misdemeanour of the advocate where it finds that the client was an innocent litigant but there is no such absolute rule that a party can disown its advocate at any time and seek relief. No such absolute immunity can be recognised. Such an absolute rule would make the working of the system extremely difficult. The observations made in Rafiq [(1981) 2 SCC 788: AIR 1981 SC 1400] must be understood in the facts and circumstances of that case and cannot be understood as an absolute proposition. 13. In the present case, there is nothing to show that
the applicant had exercised any due diligence to find out the status of his case. Hence, the applicant cannot escape from
his negligence by saying that he was being assured about the pendency of the appeal without any supporting material.
(Rakesh Kainthla) Judge
13.06.2024 (Saurav pathania)
2 issues framed by the court
Whether delay of over 10 years in seeking restoration of an RSA deemed dismissed for non-prosecution should be condoned.
Whether a party can blame counsel's assurances to excuse failure to file process fee.
Colour shows how this judgement treated each authority
Badri Bhagat Jhandewalan Temple Society v. DDARelied on¶11
2003 SCC OnLine Del 426 · Who else cites this
Salil Dutta v. T.M. and M.C. (P) Ltd.Relied on¶12
(1993) 2 SCC 185 · Who else cites this
(1981) 2 SCC 788: AIR 1981 SC 1400 · Who else cites this
Mansa Ram
Paras Ram
Rakesh Kainthla
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
