Decided on May 14,2012



- (1.) HEARD learned counsel for the parties.
(2.) THIS second appeal is directed against the judgment and decree dated 4-4-2011 passed by the District Judge, Pauri Garhwal, in Misc. Application No. 33 of 2010 filed with second appeal, whereby the application for condonation of delay in filing the appeal of the appellant has been rejected as well as the judgment and decree dated 31-3-2008, passed by Civil Judge (Junior Division) Srinagar in Civil Suit No. 15 of 2007, Asha Bahuguna Vs. Bharat Petroleum Corporation Ltd. whereby the suit of the plaintiff-respondent was decreed ex parte against the appellant-defendant. It emerges out from a perusal of the record that that the suit filed by the plaintiff-respondent bearing Civil Suit No. 15 of 2007 was decreed ex parte against the defendant-appellant herein by the Civil Judge (Junior Division) Srinagar (Pauri Garhwal) by judgment and decree dated 31-3-2008. Aggrieved by the said judgment and decree, the defendant filed a regular appeal after the limitation had expired, therefore, the appellant moved an application under Section 5 of the Limitation Act for condonation of delay bearing Misc. Application No. 33 of 2010 on the ground that summons was received by the defendant on 7-12-2007. Thereafter, an advocate was also engaged to defend the suit and all relevant papers were handed over to the said advocate for Pairvi. Thereafter on 28-1-2008, it was decided between the appellant and the respondent that the respondent will send a proposal to the appellant for partnership in the firm. According to the appellant, no such proposal was sent by the respondent and the suit had been decreed ex parte. It came to the notice of the appellant only on 29-8-2010 that the suit was decreed ex parte on 31-3-2008. Thereafter, on 31-8-2010 the representative of the appellant company applied for copy of the judgment and obtained the copy on 30-9-2010 and since the representative of the company was out of station, therefore, the appeal could not be filed within time and there is no deliberate delay in filing the appeal. As per averment made in the application by the appellant that the representative of the company-appellant applied for certified copy of the judgment and decree on 29-8-2010, which was received on 30-9-2010. Thereafter, the appellant was preferred before the first appellate Court on 29-11-2010.
(3.) AGAINST the application under Section 5 of the Limitation Act for condonation of delay in filing the appeal, objection were filed before the appellate Court. The appellate Court after considering the objection of the respondent, has held that the copy of the judgment was obtained on 20-11-2009 by the counsel for the appellant-defendant and again application for obtaining certified copy of the judgment was made on 29-8-2010. The learned appellate Court has held that the appellant is a corporation and it is not an individual and that no plausible explanation has been put forward to condone the delay of 2,1/2 years. The learned appellate Court ultimately did not find favour with the appellant- applicant and dismissed the application for condonation of delay by order dated 4-4-2011, which gave rise to this second appeal. Learned counsel for the appellant has contended that the party should not suffer for the inaction, deliberate omission or misdemeanour of his lawyer. In support of his contention, the learned counsel for the appellant has placed reliance in paragraph 3 of the case of Rafiq and another Vs. Munshilal and another [(1981) 2 Supreme Court Cases, 788]. In that case, the second appeal of the appellant before the Apex Court had been disposed of in the absence of his advocate and thereafter an application was moved before the High Court of Allahabad for recall of the order dismissing the appeal and to permit him to participate in the hearing of the appeal. The application was rejected by the High Court on the ground that though the application was prepared and drafted and an affidavit was sworn on October 29, 1980, the same was not presented to the Court till November 12, 1980 and that there is no satisfactory explanation for this slackness on the part of the learned Advocate, who was requested to file the application. On these facts, the Apex Court has held that "However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order.";

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