Delay of 3330 Days occurred due to Inaction of Advocate condoned by HC

Facts and Issue of the case

This petition under Article 227 of the Constitution of India is filed by the petitioners – original defendant Nos. 3 and 4 with a prayer to set aside the order dated 6.2.2020, passed below Exh. 44 in Special Civil Suit No. 447 of 2010 by the learned 3rd Additional Senior Civil Judge, Surat. By the said application Exh. 44, the petitioners – original defendant Nos. 3 and 4 had prayed for to open their right to file written statement, which was closed on 1.5.2012.
Despite due service, the respondents have chosen not to appear before this Court, leaving no option but to proceed with the matter Ex-parte.

Observation of the court

Regard being had to the submissions advanced and considering the material placed on record as well as the impugned order passed below Exh. 44 in Special Civil Suit No. 447 of 2010, it appears that the respondent No. 1 has filed the aforesaid suit for declaration for permanent injunction in which the petitioners are arrayed defendant Nos. 3 and 4. Undisputedly summons issued by the learned trial Court was served upon the petitioners on 14.12.2010 pursuant to which, the petitioners engaged an advocate to represent their case before the learned trial Court. However, no written statement was filed on behalf of the petitioners resulting into closure of the right of the petitioners to file the written statement by virtue of an order dated 1.5.2012. It is the case of the petitioners that the learned advocate representing their case before the learned trial Court had not informed the petitioners nor he took any pains to file the written statement on behalf of the petitioners. It is further the case of the petitioners that the petitioners came to know about the status of the suit only when they received the affidavit of examination in chief of the respondent No. 1 – plaintiff by way of R.P.A.D and thereupon the petitioners immediately move on and consulted another advocate and accordingly such delay has occurred in filing the written statement. In this regard, it would be worthwhile to refer a decision of the Hon’ble Apex Court in Indian Oil Corporation Ltd. and Ors. vs. Subrata Borah Chowlek and Ors. (12.11.2010-SC):MANU/SC/1252/2010.

In Ramlal, Motilal and Chhotelal v. Rewa Coalfields Ltd. MANU/ SC/0042/1961 : (1962) 2 SCR 762. Thus, the consideration which cannot be ignored is that if sufficient cause for excusing delay is shown, discretion is given to the Court to condone delay. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice.
Further, it is trite law that a party should not suffer due to the in action on the part of the advocate and that the matter should be decided on merits rather than on technical ground.
At this juncture a beneficial reference can be made to a decision of the Hon’ble Apex Court in Ram Nath Sao Alias Ram Nath Sahu and Ors. v. Gobardhan Sao and Ors. MANU/SC/0135/2002: (2002) 3 SCC 195.

In the aforesaid backdrop, the Court is of the considered view that valuable right of the defendant Nos. 3 and 4, and petitioners herein should not be defeated by declining to condone the delay which has occurred for the in action on the part of their advocate. More so when, despite service the respondents herein have chosen not to appear before this Court and to controvert the petition. Accordingly, the Court is inclined to exercise discretion in favour of the petitioners, however with some exemplary costs.

Conclusion

This petition succeeds and is allowed accordingly. The impugned order dated 6.2.2020 passed by below Exh. 44 in Special Civil Suit No. 447 of 2010 by the learned 3rd Additional Senior Civil Judge, Surat is set aside, subject to petitioners paying a costs of Rs.20,000/- (Rs. Twenty Thousand only), which shall be deposited before the learned Trial Court concerned within 15 days, which the original-plaintiff shall be at liberty to withdraw the same.

Nimesh-Dilipbhai-Brahmbhatt-Vs-Hitesh-Jayantilal-Patel-Gujrat-High-Court

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