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Judgment
Ku. P. Janaki Amma, J.—The petitioner in both the cases is the same. He is the appellant in E.S.A. Nos. 4 and 5 of 1976 on the file of this
Court. The said appeals were dismissed by a common judgment on 29-11-1976. Aggrieved by the decision, the petitioner decided to file an
appeal to a Division Bench after obtaining leave u/s 5 of the High Court Act. He obtained copies of the judgments and decrees on 18-2-1977. In
the meanwhile, the CPC Amendment Act, 1976 came into farce on 1-2-1977 and Section 100A was introduced into the Code. He was instructed
by his counsel that by virtue of the above provision read with Section 100A of the Amendment Act, no further appeal was maintainable against the
decision in second appeal. The petitioner, therefore, did not move for obtaining leave to file appeals against the decision. But subsequently, this
Court held in Raghavan Pillai v Sainaba Beev 1977 KLT. 417 that the ban u/s 110A of the Act has no retrospective operation. When a report of
the above ruling appeared in the part of the 1977 Ker. L.T. reports dated 20th June, the counsel realied his mistake and informed the petitioner of
the correct position. Accordingly the petitioner filed applications for certificates u/s 5 of the Kerala High Court Act along with the present petitions
for condoning delay. The petitioner prays that since the delay was due to a bona fide mistake regarding the scope and application of Section
100A, the same may be condoned.
The petitions are opposed. The learned counsel for the respondents would argue that the decision in Raghavan Pillai v. Sainaba Beevi 1977
Ker. L.T. 417 has no application to the present case. There was no mistake on the part of the counsel in advising the petitioner that no further
appeal would lie against the decision of this Court. That on a later date the High Court took a view regarding the operation of Section 100A which
is different from that adopted by the counsel is, according to the respondents, no ground for condoning delay. To support his contention, reference
has been made by the learned counsel for the respondents to the decision reported in V.V. Kudva v. E.S.I. Corporation AIR 1972 Mys 204 . In
that case, the litigant concerned acquiesced in a decision of the Employees State Insurance Court and did not file an appeal in time. Subsequently,
his counsel noticed the decision of the Supreme Court in The Regional Provident Fund Commissioner, Andhra Pradesh Vs. Sri. T.S. Hariharan,
and expressed the opinion that he had a fair chance of success in case an appeal had been filed against the decision of the Employees'' State
Insurance Court. An appeal was accordingly filed with an application for condoning delay. Basing on the decision of the Supreme Court in
Tilokchand and Motichand and Others Vs. H.B. Munshi and Another, the Mysore High Court held as follows: (at p. 206)
None of the decisions relied on by Mr. Hande supports his contention that a litigant who has acquiesced in the judgment of a Court by not
preferring an appeal within the period of limitation, can wake up and prefer an appeal after a subsequent ruling of the Supreme Court or the High
Court which he considers as being favourable to him. Nor can the advice of his counsel that his case is not a fit one for appeal, which advise may
turn out to be a mistaken one in the light of a subsequent ruling of the Supreme Court or the High Court, be regarded as a sufficient ground for
condoning such delay.
It will be apposite if I quote here the following observations of Hidayatullah C.J. in Tilokchand and Motichand and Others Vs. H.B. Munshi and
Another, (at p. 902):
Everybody is presumed to know the law. It was his duty to have brought the matter before his Court for consideration. In any event, having set
the machinery of law in motion he cannot abandon it to resume it after a number of years, because another person more adventurous than him in his
turn got the statute declared unconstitutional, and got a favourable decision. If I were to hold otherwise, then the decision of the High Court in any
case once adjudicated upon and acquiesced in may be questioned in a fresh litigation revived only with the argument that the correct position was
not known to the petitioner at the time when he abandoned his own litigation.
The observations apply with equal force to the present case. It follows that even assuming that the judgment reported in Raghavan Pillai v. Sainaba
Beevi 1977 K L.T. 417 can be interpreted to mean that the petitioner retained his right to file an appeal in spite of the introduction of Section
100A to the Civil Procedure Code, that by itself is not a ground for condoning delay in respect of an application for obtaining leave.
It is also noted that the facts in Raghavan Pillai v. Sainaba Beevi 1977 Ker. L.T. 417 are different from those of the present case. The appellant
in that case had obtained leave to file appeal on 31-1-1977 before the coming into force of the CPC Amendment Act of 1976 and had, therefore,
a vested right to file an appeal on 1-2-1977, the date of commencement of that Act. In the instant case, on the other hand, no petition for issue of
certificate had been filed before the coming into force of the amended Act. Section 5 of the Kerala High Court Act did not confer on the petitioner
an absolute right of appeal. His right was conditional on the Judge who disposed of the second appeals certifying that the case was a fit one for a
further appeal. Whether under such circumstances the petitioner could be said to have had a substantive right to file appeals and whether the right
of the petitioner to move applications for granting leave to file appeal was a vested right are not questions which are decided in Raghavan Pillai v.
Sainaba Beevi 1977 Ker. L.T. 417. Therefore, it cannot be concluded on the basis of the above decision alone that there was any bona fide
mistake on the part of the counsel in interpreting the scope and application of Section 100A. In other words, the petitioner is not entitled to avail of
the above decision and seek condonation of delay on that footing.
The petitioner has not stated in his affidavit when his counsel communicated to him about the mistake. Neither has he explained the delay from
the date of such communication till 16th July, 1977, the date of filing of the application.
Sufficient grounds are not made out for condoning delay. Dismissed.