M/S Mohanlal Shukla vs S.P. Singh & Ors.

Appellant has filed this miscellaneous appeal under Order XLIII Rule 1(c) of the Code of Civil Procedure, 1908, against the order dated 12.02.2020 passed by the learned District Judge, Singrauli in M.J.C. No.111/2019, whereby the learned District Judge dismissed the appellant's application under Section 5 of the Limitation Act seeking condonation of delay and consequently dismissed the application for restoration of Miscellaneous Civil Appeal No.6/2001.

The factual matrix of the case is that the appellant was appointed as a wholesale coal trader by National Coalfields Limited (NCL) under the Liberalized Sale Scheme and entered into an agreement dated 07.10.1995 for supply of coal. Alleging breach of the agreement by NCL, the appellant instituted Civil Suit No.6-A/1996 before the Civil Judge, Class-I, Vaidhan seeking specific performance of contract. During the pendency of the suit, an interim injunction directing supply of coal was granted. The said order was modified in appeal directing NCL to supply 3000 MT of E-Grade coal per month. Thereafter, the High Court in Civil Revision No.2370/1996 directed supply of 7500 MT of coal. Since the interim orders were allegedly not complied with, the appellant initiated proceedings under Order XXXIX Rule 2-A CPC. The said proceedings came to be dismissed on 06.02.2001 after an undertaking was furnished on behalf of NCL. Aggrieved thereby, the appellant preferred Miscellaneous Civil Appeal No.6/2001 before the First Additional District Judge, Sidhi. The said appeal came to be dismissed for want of prosecution on 26.10.2004. After about fifteen years, the appellant filed an application under Order IX Rule 9 CPC for restoration of the appeal along with an application under Section 5 of the Limitation Act for condonation of delay. The learned District Judge dismissed the application for condonation of delay holding that no sufficient cause had been shown. Consequently, the restoration application was also dismissed.

Learned counsel for the appellant submitted that the delay occurred solely because the appellant had entrusted the conduct of the case to his advocate Shri R.S. Verma, who had informed him that his personal presence before the Court was not required and that he would be informed whenever necessary. It is further submitted that the appellant remained under the bona fide impression that the appeal was pending and had been contacting his counsel telephonically from time to time. It is contended that the appellant came to know about the dismissal of the appeal only in November, 2019 after learning about the death of his counsel. Immediately thereafter he obtained certified copies and filed restoration proceedings without any further delay. Learned senior counsel further argued that a litigant should not be made to suffer due to the negligence or lapse of his advocate and that the delay deserved to be condoned in the interest of substantial justice. It is also contended that the appellant suffered severe financial hardship on account of non-supply of coal and loss of business, resulting in his loan account becoming a Non-Performing Asset (NPA), which prevented him from effectively pursuing the litigation.

Learned counsel appearing for the respondents supported the impugned order. It is submitted that the appeal remained dismissed for more than fifteen years and that the appellant failed to produce any documentary evidence to establish that he was continuously in touch with his advocate or had exercised due diligence in prosecuting the appeal. It is further submitted that the plea regarding the death of the counsel and telephonic communication is vague, unsupported by any material and does not constitute sufficient cause within the meaning of Section 5 of the Limitation Act.

Learned counsel appearing for respondents also submitted that the present appeal is wholly misconceived and is liable to be dismissed because respondent No.1 is not a contesting party in the present proceedings inasmuch as the proceedings originally arose out of an application under Order XXXIX Rule 2-A of the Code of Civil Procedure alleging disobedience of the interim injunction against the then incumbent officers of National Coalfields Limited in their official capacity. It is further submitted that the officer against whom the allegations of contempt/disobedience were originally made has long since retired from service and has ceased to hold the office. The present respondent has merely been impleaded by virtue of his official designation as the successor-in-office and has neither committed any act of alleged disobedience nor was he holding the relevant office at the time when the alleged cause of action arose. Therefore, no personal liability or cause of action survives against respondent No.1, who is only a formal party to the proceedings. Accordingly, submitted that the appeal deserves to be dismissed as against Respondent No.1, who has no independent or substantive role in the controversy.

Heard the counsel appearing for the parties.

In the present case, the appeal was dismissed on 26.10.2004. The restoration application was filed only in November, 2019 after a delay of nearly fifteen years. Except the bald assertion that the appellant remained in contact with his counsel, no documentary material has been produced to substantiate the said plea. No letters, correspondence, receipts, diary entries or any contemporaneous record have been placed before the Court to indicate that the appellant was diligently pursuing the matter during the intervening period. Even assuming that the counsel had informed the appellant that his personal presence was unnecessary, such advice cannot justify complete inaction for almost fifteen years. A prudent litigant is expected to make reasonable enquiries regarding the progress of his case. The plea that the appellant came to know of the dismissal only after the death of his counsel also remains unsupported by any reliable material. No particulars regarding the date of death of the counsel or the circumstances under which the appellant discovered the dismissal have been furnished. Such circumstances have no direct nexus with the failure to prosecute the appeal for nearly one and a half decades. The learned District Judge has examined the explanation offered by the appellant and rightly held that the delay was not satisfactorily explained. Merely because another view is possible does not warrant interference in appellate jurisdiction unless the discretion exercised by the Court below is arbitrary or perverse.

Considering aforesaid facts and circumstances of the case, this Court finds that the discretion exercised by the learned District Judge is based upon the material available on record and does not suffer from any jurisdictional error, perversity or illegality warranting interference under Order XLIII Rule 1(c) CPC. The contention that a litigant should not suffer due to the negligence of his advocate cannot be accepted in the peculiar facts of the present case. The doctrine cannot be invoked where the litigant himself has failed to exercise minimum diligence for an exceptionally long period. The appellant has failed to establish that he acted with reasonable care and caution. Consequently, this Court is of the considered opinion that no sufficient cause has been made out for condonation of the extraordinary delay and the learned District Judge has rightly dismissed the applications.

In view of aforesaid, this Court finds no merit in the present appeal, therefore, this miscellaneous appeal is dismissed.

Pending I.As., if any, shall stand disposed of.