High Court
Case Details
CRP 529/2012 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY
Legal Reasoning
Heard Mr. T. Islam, learned counsel for the petitioner and Mr. S.K. Chou dhury, learned counsel appearing for the respondents in both the revision petiti ons. CRP No.529/2012 has been filed against the order dated 31.07.2012 passed by the learned Civil Judge No.3, Kamrup at Guwahati, in Misc.(J) Case No.177/20 12 arising out of Title Appeal No.40/2012 dismissing the application seeking con donation of delay of 135 days in preferring the appeal. CRP No.528/2012 has been filed challenging the order dated 31.07.2012 passed by the learned Civil Judge No.3 dismissing the Title Appeal No.40/2012, in view of the dismissal of the app lication seeking condonation of delay. The present respondent instituted Title Suit No.259/2010, under the prov isions of Assam Urban Areas Rent Control Act, 1972, for eviction of the present petitioner as defendant on the ground of defaulter. The said suit was decreed on 03.12.2011. The petitioner thereafter filed Title Appeal No.40/2012 along with the application seeking condonation of delay, which was registered and numbered as Misc.(J) Case No.177/2012. The prayer for condonation of delay has been objec ted to by the present respondent by filing objection. The learned Judge upon hearing the learned counsel for the parties and u pon consideration of the averments made in the application seeking condonation o f delay and the objection filed thereto, vide order dated 31.07.2012 has rejecte d the application for condonation of delay by holding that the petitioner could not demonstrate sufficient ground in not preferring the appeal in time. The lear ned Judge consequent upon passing of the said order in the aforesaid Misc.(J) Ca se No.177/2012 has passed a separate order on the same day dismissing the appeal . Hence the present revision petitions. It has been contended by the learned counsel for the revision petitioner that as the Court is required to be liberal in the matter of condonation of del ay, the learned Judge ought not to have dismissed the application for condonatio n of delay having regard to the sufferings of the petitioner with 80% locomotor disability. It has also been submitted that the delay was caused for no fault of the petitioner as his counsel has never informed about passing of the decree on 03.12.2011, about which he came to know from his neighbour and thereafter thoug h applied and got the certified copy of the judgment and decree passed, since th e relevant papers were not made available by the learned counsel engaged by him, which were made available in the first week of April, 2012, the appeal thereaft er could be filed only on 18.04.2012 together with an application seeking condon ation of delay. It has also been submitted that the Court below was not justifie d in observing that the petitioner did not file any complain against the learned counsel for his misconduct in the Bar Council, which in fact has been filed on 28.03.2012. The learned counsel, therefore, submits that the impugned order requ ires interference in exercise of the revisional jurisdiction. The learned counsel appearing for the respondents, on the other hand, ha s submitted that though the petitioner has claimed that he was not informed by t he learned engaged counsel and the necessary papers were also not handed over to him on time, the petitioner could not prove the same and hence the learned Judg e has rightly refused to condone the delay. I have considered the submissions advanced by the learned counsel for th e parties and also the materials made available including the impugned order pas sed by the learned Civil Judge. It is evident from the averments made in the application seeking condona tion of delay supported by an affidavit that according to the petitioner his eng aged counsel did not inform him about passing of the judgment and decree on 03.1 2.2011, about which he came to know from the neighbour and immediately thereafte r on 21.02.2012 applied for certified copy. It has also been stated on oath that the learned counsel did not even handed over the necessary papers which though asked for, which eventually was handed over to him in the first week of April, 2 012 and thereafter he has filed the appeal together with an application seeking condonation of delay on 18.04.2012. It also appears from the averments made in the said application that the learned counsel despite passing of the decree dated 03.12.2011 used to collect the rent from the petitioner for depositing in Court up to the month of March, 2 012, without intimating him the fate of the suit. It also appears from the mater ials made available with the revision petition that the petitioner had lodged a complaint with the Bar Council of Assam etc. on 28.03.2012 against the alleged m isconduct committed by the learned counsel wherein all these facts have also bee n pleaded. The impugned order passed by the learned Judge reveals that the learned Judge has refused to believe such statement on the ground that no complain has b een filed by the present petitioner before the Bar Council of Assam etc., despit e making such pleading in the application. Since the petitioner could prove fili ng of such complaint before the Bar Council of Assam etc. alleging what he has s tated in the application seeking condonation of delay, I am of the view that it is a fit case where the delay should be condoned as for the fault, if any, of th e learned counsel, the party should not be allowed to suffer. In view of the above, the impugned orders dated 31.07.2012 passed in Mis c.(J) Case No.177/2012 and Title Appeal No.40/2012 are set aside. The delay occu rred in filing the said appeal is condoned. The Court below is directed to take up the appeal for hearing on merit. The parties are directed to appear before th e learned Civil Judge No.3, Kamrup at Guwahati on 16.07.2013. The revision petitions are accordingly allowed.