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Judgment
Kawoosa, J.—This appeal is directed against the judgement and decree dated 2nd June, 1990 whereby the learned District Judge, Kathua,
has dismissed the appellant's suit for recovery of Rs. 30,000/ on the sole point that the suit is not within time. Facts barely needed to appreciate the
point of law are as follows :
That appellant engaged two advocate namely Mr. G. D. Sharma and Mr. P. S. Dutta who were working together, to file recovery suit against
the respondents, for the amount of Rs. 30,000. The said advocates charged Rs. 2,380/ as court fee and counsel fee which was paid to them and
the appellant was told that the suit was filed in December, 197^ but the plaintiff came to know in July, 1979 that instead of filing recovery suit the
said advocates filed writ petition bearing No. 239/74 in the High Court at Jammu. Appellant engaged another lawyer who told him that the proper
course was to file a civil suit instead of writ petition and filing of writ petition was not proper course be taken under law. So he made an application
o the Hon'ble Chief Justice against those two advocates and solicited action against them. Moreover application was filed before the High Court
for the withdrawal of the writ petition with permission to file regular suit against the respondents. Hon'ble Justice Mr. I. K. Kotwal as he then was
permitted the plaintiff to withdraw the writ petition and permitted to file present suit vide His order dated 5th September, 1979. The present
appellant claimed the suit on this ground within time. According to him he was defrauded by two advocates so the period from 1974 to 1979
should be excluded. It is on this strength of order of the High Court, condonation of delay was claimed by the plaintiff on having arisen afresh cause
of action on 5th September, 1979 when he was permitted to file suit. Now the sole question arose before the trial court as to whether fraud played
by the advocates, if believed to be true, can be a ground of condonation of delay under section 14 of Limitation Act.
Learned Trial court came to the conclusion that appellantplaintiff has not prosecuted the case with due diligence and good faith. It has held that
act of fraud is foreign to the scope of action of Section 14 of the Limitation Act, for, the commission of fraud gives a distinct cause of action to the
victim to claim adequate compensation byway of filing suit for damages.
Heard learned counsel for the parties.
Learned counsel for the respondents has supported the judgement of trial court on the ground that the fraud committed by the advocates is no
ground for condonation of delay. According to him condonation of delay depends upon due diligence and good faith. Trial court has held that there
was neither good faith nor due diligence.
Learned counsel for the appellant has urged before me that the fraud committed by the advocates is a good ground for condonation of delay.
My attention has been drawn to Full Bench judgement of this court in 'Shyam Lal Dhar Vs. M/s Ply Board Industries', KLJ 1981 page 432. The
whole law on the point has been thrashed in this judgement and it has been held :
Our reply to the question whether a litigant can be held responsible for the negligence of the counsel would be that it is difficult to lay down any
inflexible rule and that each case must be decided on its own facts but generally speaking a litigant would not be responsible for the negligence of
his counsel unless there has been any rewisness on the part of the litigant himself. 1973 JKLR 780, 1974 JKLR 558, 1971 LLJ 131 discussed.
Negligence of the lawyer in this case was that he had not passed the information to his clientdefendant that exparte decree was passed against
him and it is because of his absence that such decree was passed. In this background it was held that generally speaking negligence of the lawyer is
to be treated sufficient ground for condoning the delay. Even the Apex Court has in 'N. Balakrishna Vs. M. Krishna Murthy1, AIR 1998 SC 3222
given a guideline in dealing with such matters. In the case (supra) the facts were more or less the same in the present case suit for declaration of title
was decreed exparte on 28101991. Appellantdefendant in the suit on coming to know of the decree, moved an application to set it aside but the
application was dismissed for default on 17th Feb., 1993. Appellant moved for having them set aside only in August, 1995 for which whole of 883
days delay was noted. During this period execution proceedings also started but the defendantappellants counsel did not inform him about the
dismissal of the application for setting aside the exparte. Appellant when came to know about this negligence of lawyer, he filed application to the
District Consumer Disputes Redressal Forum, ventilating his grievance and claimed compensation of Rs. 1,00,000/ against his erstwhile advocate.
Said Forum passed final order directing the said advocate to pay Rs. 50,000/ to the appellant. Trial court was pleased to accept the formers'
explanation and condoned the delay but the Single Judge of High Court of Madras heard the case in revision and expressed the view that the delay
of 883 days in filing the application has not properly been explained and justified, revision must be allowed. Order of the Magistrate was setaside.
Review application was also dismissed by the High Court. Case came to the Supreme Court. Supreme Court observed:
It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion
can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Some
times delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long
range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient it is the result of positive
exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of
discretion was on wholly utenable grounds or arbitrary or perverse. But it is a different matter when the first Court refuses to condone the delay. In
such cases, the superior could would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its
own finding even untrammeled by the conclusion of the lower court.
A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in
approaching the court is always deliberate. This Court has held that the words ""sufficient cause"" under Section 5 of the Limitation Act should
receive a liberal construction so as to advance substantial justice. See Shakuntala Devi Jain Vs. Kuntai Kumari, AIR 1969 SC 575 and State of
West Bengal Vs. The Administrator, Howrah Municipality, AIR 1972 SC 749.
It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn
down his plea and to shut the door against him. If the explanation does not smack of malafides or it is not putforth as part of a dilatory strategy the
court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party
deliberately to gain time then the court should lean against acceptance of the explanation.
In this case Court has found that the explanation of the defendant satisfactory and here the negligence of lawyer was held to be satisfactory
explanation and delay was condoned by the Apex Court and the decision of the High Court was reversed. Similarly in The Special Tehsildar, Land
Acquisition, Kerala Vs. K. V. Ayisumma', 1996(5) Supreme 774, the Apex Court has stressed that while considering the condonation of delay,
approach of the court must be pragmatic but not pedantic. Applying this method to peculiar circumstances of the case I think that trial court has not
exercised the discretion properly. In this case it has already been stated that the appellant appointed two advocates, paid them court fee and
counsel fee and instead of filing the suit, they filed a writ petition. It was not expected from the appellant to know as to what remedy lies whether
filing the suit or a writ petition. He had engaged advocates and paid the counsel fee. It was for the advocates to take the proper course in
accordance with law. They informed the appellant that they filed a suit. They grabbed court fee also. For four years appellant waited and nothing
came out, he changed the lawyer. The second lawyer advised him to withdraw the petition and file fresh suit He came to know that he was
defrauded by two advocates He filed complaint against them and withdrew the writ petition and the High Court on hearing allowed him to file a
fresh suit. I do not subscribe my view to the views taken by the trial court that appellant lacked good faith and due diligence. For these reasons,
therefore, appeal is allowed. Trial court decision dated 2nd June, 1990 is set aside. Delay is condoned. Suit is held to be within time.