- (1.) List is being revised. Case is called out. None appears for the respondents whereas Mr. S.K. Mehrotra, learned Counsel for the petitioner is very much present to argue the case. Heard Mr. S.K. Mehrotra, learned Counsel for the petitioner.
(2.) Through the instant writ petition the petitioner has challenged the order dated 25.8.2007 passed by the Additional District Judge, Unnao in Misc. Case No. 193 of 2006. The facts of the case in short reveals that in a Small Causes Case No. 7 of 2003 one application for amendment being Application No. 115-C was filed alongwith the application for condonation of delay. The Court below allowed the same with the fine of Rs. 100/. Aggrieved respondent challenged the same by filing revision before the District Judge. He also filed an application for condonation of delay in filing revision, which was registered as case No. 193 of 2006.
(3.) The learned Counsel for the petitioner submits that the respondent had taken a plea to condone the delay in filing the revision that he acted upon on the advice of the Counsel which is liable to be excused, whereas it is not in the ordinary course of law to provide any such excuse as has been held by this Court in the case of Devi Prasad v. State of U.P. and others,1983 1 LCD 385. In this case this Court has expressed the following opinion: It is true that bona fide advice given by a Counsel after due care and attention may constitute sufficient cause for condonation of delay if acted upon by a party in good faith but it is not the law that the delay should invariably be condoned simply because it is asserted that it was caused on account of some wrong legal advice given by a Counsel. In Municipal Board, Lucknow v. Kali Krishna Narain and others,1944 AIR(Oudh) 135an applicant sought condonation of delay on the basis of the advice given by a Counsel. It was held by a Division Bench that it is not sufficient for the applicant to show that he acted on the advice of a Counsel but the Court must be further satisfied that the advice was given with due care and attention. In that case the delay in filing an application for leave to appeal to His Majesty in Council was sought to be condoned on the ground of a misapprehension in the mind of the Council that a period of six months was provided, which misapprehension was due to the Counsel's failure to notice that the editions of Mulla's Civil Procedure Code and Limitation Act which he consulted were old ones. It was held that the fact that the Counsel consulted the old editions of the Code of Civil Procedure and the Limitation Act published presumably prior to 1920, established beyond doubt utter negligence and carelessness on the part of the Counsel who had been appearing in the Chief Court for many years and the negligence of Counsel in the circumstances of the case did not entitle the applicant to urge that he was prevented by any sufficient cause from filing the application for leave within time. In Sarmuk Singh v. Chanan Singh, 1960 AIR(P&H) 512delay was sought to be condoned on the ground of wrong advice of the Counsel in relation to the provisions of section 39 of the Punjab Courts Act. A Division Bench of that Court held (at p.513): Had the learned Counsel cared to look up this section there could have been no reasonable doubt that the appeal could, on no conceivable ground, be competent in the Court of learned District Judge. This was not an error liable to be committed by a reasonably prudent lawyer exercising due diligence and caution. Indeed a mistake due to negligence or misconduct or want of reasonable skill can by no stretch be considered to fall within the definition of "good faith" as contained in section 2(7) of the Limitation Act. It was also held that the view taken by the legal adviser, if reasonable, though mistaken, may well justify protection by section 5, but where the view taken is wholly un-supportable on the express language of a well-known provision of law, it is difficult to apply section 5 to such a case.;