1996 JTR(SC) 1907
1997 1 AllCJ 274 ; 1997 BBCJ(SC) 149 ; 1997 3 CivCC 497 ; 1997 Supp CivCC 497 ; 1998 1 CTC 500 ; 1996 4 CurCC(SC) 308 ; 1997 DNJ 129 ; 1997 ILR(Kar) 2767 ; 1996 Supp JT 228 ; 1996 Supp JT 454 ; 1997 15 LCD 261 ; 1997 2 PLJR(SC) 14 ; 1997 2 RCR(Civ) 34 ; 1996 8 Scale 697 ; 1997 1 SCC 261 ; 1996 SCR 416 ; 1996 Supp8 SCR 740 ; 1997 WBLR 237 ; 1997 KHC 3562 ; 1996 8 Supreme 796
1996(8) Supreme 796
SUPREME COURT OF INDIA
K. Ramaswamy and G.B. Pattanaik, JJ.
Rama Ravalu Gavade -Appellant
versus
Sataba Gavadu Gavade (dead) through LRs. & Anr. -Respondents
Civil Appeal No. 15085 of 1996
(Arising out of SLP (C) No. 16255 of 1996)
Decided on 18-11-1996
Counsel for the Parties :
For the Appellant : A.S. Bhasme, Advocate.
For the Respondents : V.B. Joshi, Alok Singh, Umesh Bhagwat, Advocates.
Act Referred :CIVIL PROCEDURE CODE : O.22 R.9
(A) The Civil Procedure Code, Order 22, Rule 9, governs the condonation of delay in filing appeals or applications, and its principles are directly engaged where a party has missed a deadline due to inadequate counsel advice. The Order permits the appellate court to condone delay if the appellant demonstrates sufficient cause, particularly when the failure was attributable to counsel or circumstances beyond control, and further allows the court to set aside consequential abatements and restore the suit or appeal to its status before the default. These provisions apply on the facts where the appellant, being an illiterate farmer, relied on counsel who failed to advise necessary steps, leading to the dismissal of the civil suit and subsequent abatement, and the court evaluates whether the delay was properly explained to grant relief under the said order.
(B) The key legal principles are that delay in filing an appeal may be condoned if the appellant was not at fault and the counsel failed to advise proper steps, and that abatement consequent to non-presentation is set aside once delay is condoned; the appellate court has discretion to restore the matter and direct disposal on merits.
Facts of the case:
The uncle of the petitioner died during the pendency of a regular civil suit, which was dismissed as abated on appeal; an application to record legal representatives was also dismissed without an explanation for condoning delay; this appeal by special leave followed.
Findings of Court:
The High Court erred in refusing to condone the delay as the counsel did not properly advise the appellant, and the delay was attributed to such counsel error; consequently, the abatement should be set aside.
Issues:
Whether delay in filing the appeal and the subsequent application could be condoned under Order 22 Rule 9 of the Civil Procedure Code.
Ratio Decidendi:
On the facts, the delay was attributable to the counsels failure to advise the illiterate appellant, sufficient cause existed, and therefore the delay was condoned, setting aside the abatement and allowing the appeal to proceed on merits.
Result:
The appeal is allowed, the appellate court is directed to dispose of the appeal on merits within six months, and no costs are awarded.
(A) The Civil Procedure Code, Order 22, Rule 9, governs the condonation of delay in filing appeals or applications, and its principles are directly engaged where a party has missed a deadline due to inadequate counsel advice. The Order permits the appellate court to condone delay if the appellant demonstrates sufficient cause, particularly when the failure was attributable to counsel or circumstances beyond control, and further allows the court to set aside consequential abatements and restore the suit or appeal to its status before the default. These provisions apply on the facts where the appellant, being an illiterate farmer, relied on counsel who failed to advise necessary steps, leading to the dismissal of the civil suit and subsequent abatement, and the court evaluates whether the delay was properly explained to grant relief under the said order.
(B) The key legal principles are that delay in filing an appeal may be condoned if the appellant was not at fault and the counsel failed to advise proper steps, and that abatement consequent to non-presentation is set aside once delay is condoned; the appellate court has discretion to restore the matter and direct disposal on merits.
Facts of the case:
The uncle of the petitioner died during the pendency of a regular civil suit, which was dismissed as abated on appeal; an application to record legal representatives was also dismissed without an explanation for condoning delay; this appeal by special leave followed.
Findings of Court:
The High Court erred in refusing to condone the delay as the counsel did not properly advise the appellant, and the delay was attributed to such counsel error; consequently, the abatement should be set aside.
Issues:
Whether delay in filing the appeal and the subsequent application could be condoned under Order 22 Rule 9 of the Civil Procedure Code.
Ratio Decidendi:
On the facts, the delay was attributable to the counsels failure to advise the illiterate appellant, sufficient cause existed, and therefore the delay was condoned, setting aside the abatement and allowing the appeal to proceed on merits.
Result:
The appeal is allowed, the appellate court is directed to dispose of the appeal on merits within six months, and no costs are awarded.
ORDER
Delay condoned.
Leave granted.
2. We have heard learned counsel on both sides.
This appeal by special leave arises from the judgment of the High Court of Bombay, made on December 8, 1994 dismissing the Civil Revision No. 632/91.
3. The admitted position is that the uncle of the petitioner died pending Regular Civil Suit No. 51/65 in the Court of the Civil Judge, Senior Division, Chandgad. Since he died pending appeal, it was dismissed on August 4, 1967 as having abated. In Civil Revision No. 632/91 by order dated December 8, 1994, the High Court dismissed the same. The application was filed for bringing the Legal Representatives on record which was also dismissed as no proper explanation for condoning the delay was given. Thus, this appeal by special leave.
4. In view of the fact that the appellant is an illiterate farmer, the appropriate steps should have been taken by the counsel for the appellant on proper advice. In view of the fact that the counsel has not properly advised the appellant to take necessary steps, delay had occasioned. The High Court, therefore, was not right in refusing to condone the delay. It is brought to our notice that no application has been filed for setting aside the abatement and the appeal also stands abated. In view of the fact that the delay now stands condoned the abatement also stands set aside.
5. The appeal is accordingly allowed. The appellate Court is directed to dispose of the appeal on merits within a period of six months from the date of the receipt of the order. No costs.
Appeal allowed.
Appeal to be disposed of on merits.
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