Bombay High CourtPratapchand Lakhamaji Jain vs Smt. Lilabai Krishanath Surve on 24 July, 1998Equivalent citations: 1999(1)BOMCR27, 1998(3)MHLJ252Author:R.M.S. KhandeparkarBench:R.M.S. KhandeparkarORDER

 

R.M.S. Khandeparkar, J.1. By the present petition, the petitioner has challenged the order dated 7-11-1997 passed by Civil Judge, Junior Division, at Shriwardhan in Misc. Application No. 2 of 1997. By the impugned order, the lower Court has allowed the application for condonation of delay and for restoration of RCS No. 21 of 1982 filed by the respondent/ plaintiff on 4-3-1997 and thereby has set aside the order of dismissal of the said suit which was passed on 14-6-1984.2. The facts in brief, relevant for the decision herein, are that the petitioner is the tenant of the respondent in respect of the suit premises on monthly rent of Rs. 70/-. By notice dated 30-6-1982, the respondent sought to terminate the tenancy on the ground of default in payment of rent and called upon the petitioner to deliver vacant possession of the suit premises to the respondent. By reply dated 19-12-1982, the petitioner denied the claim of respondent. The respondent, thereupon, filed RCS No. 21 of 1982 in the Court of Civil Judge, Junior Division at Shriwardhan for eviction of the petitioner

from the suit premises and for arrears of rent. After framing the issues in the said civil suit, when the same came up for hearing on 14-6-1984, since neither the plaintiff nor his Advocate appeared though the Advocate for the defendant was present, the suit was dismissed for default. On the understanding that the said suit was dismissed in terms ofOrder IX, Rule 3 of C.P.C., the respondent herein filed fresh suit being RCS No. 43 of 1988 on the basis of the same notice dated 30-1-1982, and the same cause of action and for the same relief.3. Consequent to the defence raised by the petitioner regarding non maintainability of the fresh suit on the same cause of action in terms ofOrder IX, Rule 9 of C.P.C., the trial Court, after hearing the parties, held that the fresh suit was maintainable in terms of provisions contained inOrder IX, Rule 9 of C.P.C. since the order dated 14-6-1984 was passed in terms ofOrder IX, Rule 3 of C.P.C. The respondent preferred appeal against the said order being Civil Misc. Appeal No. 57 of 1990 which was heard and rejected by the Additional District Judge at Raigad by his judgment and order dated 26-8-1996. The petitioner being aggrieved by the said order preferred Civil Revision Application No. 137 of 1997 in this Court which was heard and disposed of by this Court on Friday the 18th July, 1998 thereby setting aside the order of both the courts below holding that the order passed by the trial Court on 14-6-1984 in R.C.S. No. 21 of 1984 was in terms ofOrder IX, Rule 8 C.P.C. and not in terms ofOrder 9, Rule 3 C.P.C. and therefore fresh Suit No. 43 of 1988 based on same cause of action was not maintainable but the respondent could have sought restoration of Suit No. 21 of 1982. Moreover, the Civil Revision Application No. 137 of 1997 was admitted on 14-2-1997 and after it was admitted, the respondent, herein, filed an application dated 4-3-1997 for restoration of R.C.S. No. 21 of 1982 along with the application for condonation of delay for filing the said application for restoration of suit. The application was registered and numbered 2 of 1997. Though the said application was objected to by the petitioner on the ground that the delay was of 13 and a 1/2 years and no sufficient cause was shown, the trial Court by the impugned order allowed the application and while condoning the delay, ordered the R.C.S. No. 21 of 1982 to have been restored.4. Mr. S.M. Oak, learned Counsel appearing for the petitioner, while assailing the impugned order submitted that respondent has not disclosed any cause for condonation of delay of 13 and 1/2 years. He further submitted that the respondent had full knowledge about the dismissal of the suit within one year from the date of dismissal and that fact is apparent from the fact that he filed fresh suit on the basis of the same cause of action within the said period. Being so, there was no justification available on record for condonation of delay of 13 and 1/2 year. It is a pure case of negligence and therefore the trial Court has clearly acted with material irregularity in allowing the application for condonation of delay and restoration of R.C.S. No. 21 of 1982. In any case, the order itself shows that the new suit has already been filed on the same cause of action and therefore there was no occasion for the trial Court to show any sort of indulgence to the respondent for restoration of the earlier suit.5. Mrs. Deshmukh, learned Counsel appearing on behalf of the respondent, on the other hand submitted that the trial Court in its discretion has

condoned the delay and restored the suit and it cannot be said in the facts and circumstances of the case that the discretion has not been exercised judiciously. Besides, by order dated 18-7-1998 passed in C.R.A. No. 137 of 1998, this Court has already held that R.C.S. No. 21 of 1982 was dismissed for default on 14-6-1984 in terms ofOrder IX, Rule 8 C.P.C. and not in terms ofOrder IX, Rule 3 C.P.C. and therefore the application had to be under Order IX, Rule 9,C.P.C. has to be held as rightly held by the trial Court. The learned Counsel also made grievance about failure on the part of the Advocate for the petitioner to bring to the notice of this Court on 18-7-1998 in C.R.A. No. 137 of 1997 the order dated 14-2-1997 passed by this Court in this Revision Application to the effect that both the Revision Applications namely the present Civil Revision Application as well as civil Revision Application No. 137 of 1997 were ordered to be heard together.6. Upon hearing the learned Advocates for the parties and on perusal of the record, it is seen that in the application for restoration and condonation of delay filed by the respondent on 4-3-1997 in the trial Court it was clearly stated by the respondent that:(a) That the delay is caused due to the bona fide mistake of the Counsel in filing fresh suit regarding the same matter;(b) The respondent is illiterate and uneducated old lady:(c) On dismissal of suit, the respondent obtain certified copy of the order and immediately approached her Advocate but the latter did not file the application for restoration and instead filed a fresh suit:(d) The fresh suit on the same cause of action was filed on the advice of her Advocate.In reply filed by the petitioner, without disputing the factual aspect of the case, the only defence that was raised was that the grounds were fabricated to suit the purpose of getting delay condoned.7. There was no doubt that a party who is found to be guilty of usual laches does not deserve any indulgence from the Court in the matter of condonation of delay in approaching the Court for appropriate relief. But when the party acts upon the advice of his/her Advocate and as a result happens to cause delay in approaching the Court, can such party be accused of laches and negligence? That will certainly depend upon the facts of each case and no universal proposition can be laid down. Moreover, when a party relies in good faith upon the advice of his/her lawyer and the lawyer with due care and attention gives a particular advice and a party acts accordingly, which ultimately result in causing delay then in such a situation certainly it can be said that there is sufficient cause for condonation of delay. It is well established principles of law that mistake of law committed bona fide and inspite of due care and attention is to be regarded as sufficient cause for condonation of delay. Similarly, a mistake of law committed by the Advocate for the party stands on the same footing as mistake by the party himself, Being so, a party acting in good faith as per the advice of his lawyer which has been given with due care and attention by the lawyer can certainly request for indulgence of the Court undersection 5of the Limitation Act, 1963. This does not mean that every wrong advice given by a lawyer will entitle a party to claim such indulgence from the Court. Acting upon wrong advice can be said to be a sufficient cause when the advice itself given bona fide i. e. to say

it has been given after exercise of due care and attention and the party has acted in good faith in accordance with such advice. When there is neither misconduct nor negligence nor want of reasonable skill but there is bona fide mistake which any skilled person may make in normal course would be sufficient to ensure indulgence of the Court to a party who has been victim of such mistake of his lawyer. Certainly, mistake resulting from culpable negligence on the part of the legal advisor is not an excusable one. Bearing in mind the above legal aspect, if we peruse the material on record in this case, it is clear that RCS No. 21 of 1982 was dismissed for default in terms ofOrder IX, Rule 8 of C.P.C. This is also confirmed by order dated 8-7-1998 in C.R.A. No. 137 of 1997. Moreover, all throughout from the date of dismissal of RCS. No. 21 of 1982 till the date of issuance of rule in C.R.A. No. 137 of 1997, the respondent had been acting in good faith in terms of advice given by her lawyer that dismissal of RCS No. 21 of 1982 was in terms ofOrder IX, Rule 3 C.P.C. and therefore fresh suit on the same cause of action was maintainable. Now it is undisputed fact that immediately after the knowledge of dismissal of the suit, the respondent obtained the certified copy of order dated 14-6-1984 and sought legal advice from her lawyer and acted as per the advice of her lawyer. It is also not in dispute that the order dated 14-6-1984 on the face of it does not disclose the provisions of law under which the same was passed. The order dated 14-6-1984 reads thus:"The plaintiff and her Advocate absent. Defendant's Advocate present. As the suit is fixed for hearing and the plaintiff is absent, the suit is dismissed for default."Therefore, if one reads the said order and the provisions contained inOrder IX C.P.C. it may appear that the suit was dismissed because of non appearance of the plaintiff in the suit and in that view of the matter, it can be said that the dismissal order dated 14-6-1984 was in terms ofOrder IX, Rule 3 C.P.C. It is to be seen that even the trial Court as well as lower Appellate Court did construe the same accordingly and permitted the respondent to file fresh suit on the same cause of action applying the provisions underOrder IX, Rule 4 C.P.C. It was only after issuance of rule in C.R.A. No. 137 of 1997 that it was realised that the view taken by the Court below was not free from doubt and on further application of mind led to take steps of filing application underOrder IX, Rule 9 C.P.C. by the respondent in R.C.S. No. 21 of 1982 for restoration of the said suit for condonation of delay. It is thus clear that the respondent had been acting all throughout promptly and in good faith as per the advice of her lawyer. It is pertinent to note here that undisputedly the respondent is illiterate and uneducated old lady and therefore has necessarily to depend upon the legal advice of her lawyer. Taking into consideration all the facts of the case, the view taken by the Court below and order having been passed when the plaintiff and defendant being personally not present when the matter was fixed for hearing, it cannot be said that the legal advice given by the Advocate for the respondent to file fresh suit in terms ofOrder IX, Rule 4 C.P.C. to be totally unreasonable or without due care and attention or by way of lack of bona fide on the part of Advocate in giving such advice. Besides, the respondent on issuance of rule in C.R.A. 137 of 1997 mainly took step to file necessary application for restoration of the earlier suit. It is thus apparent that the respondent acted in good faith as

per the advice of her lawyer which itself was bona fide given by the lawyer. All these facts clearly disclose sufficient cause for condonation of delay of 13 and 'A years in approaching the Court underOrder IX, Rule 9 C.P.C. and in that view of the matter it cannot be said that there is any arbitrary or illegal exercise of jurisdiction by the trial Court in allowing the application for condonation of delay. The trial Court has exercised its discretion judiciously and therefore does not warrant any interference of this Court in the Revisional Jurisdiction.8 In the result, the Revision Application fails and is hereby dismissed. Rule is discharged. There shall be no order as to costs. Interim relief stands vacated:9. Revision application dismissed.