V. Rajamani vs The Co-operative Sugars Ltd, Chettur

K.B.N. Singh, C.J.—This application is for condoning the delay of 401 days in filing the appeal. The appellant was the defendant in the suit which was dismissed. The plaintiff-respondent herein filed an appeal against that after a delay of 112 days and the appellant appeared through Mr. V.C.Palaniswami, for opposing the application to excuse the delay. The delay was, however, condoned and the appeal was admitted and finally it was disposed of on 21.07.1980 in which the petitioner appellant was shown to be ex parte . The grievance of the appellant is that the name of his counsel did not appear in the list when the appeal was listed for hearing with the result the appellant could not contest the said appeal when it was taken up for final disposal. The appellant came to know about the result of the appeal when he received the notice on 13.08.1981, about the execution proceedings. He came to Madras soon thereafter that is on 22.08.1981, and applied for a certified copy of the judgment in the appeal.

Thereafter he filed an application for rehearing the appeal on the ground that his counsel''s name was not printed in the list. That application filed on 29.10.1981 was dismissed on 17.11.1981. Consequently the appellant filed the present appeal on 19.11.1981, along with the present petition to excuse the delay in filing the above appeal.

The learned counsel for the respondent submitted that the counsel for the appellant out to have intimated to the office that he was appearing not only for opposing the application for condoning the delay but he is appearing in the appeal also. We do not think that there is any rule which compels the appellant to do so. IN our considered opinion once a counsel has entered appearance at any interlocutory stage of such application for respondent, it becomes a bounded duty of the office to enquire from the counsel as to whether he appears in the appeal also after the limitation is condoned and the appeal is admitted. Unilaterally the office could not have omitted to show the name of the lawyer in subsequent proceedings in the appeal without hearing anything from the lawyer who has appeared.

There is no undue delay in filing the application for certified copy, as the petitioner immediately after coming to know of the ex parte order, came to Madras for the said purpose. We are satisfied that the petitioner appellant has shown sufficient cause for the delay in filing the appeal and we accordingly condone the delay in filing the appeal.

Where a vakalat is filed in applications for condoning the delay on behalf of the respondent the office should inquire from the concerned counsel whether he appears in the appeal also after the limitation is condoned and the appeal is admitted. His name should appear in the list, unless he informs to the contrary.

Order accordingly.