1. Heard. Heard finally by consent of the learned Counsel for appellant and respondent Nos. 1-A to 1-C at the stage of admission.

2. Present appeal has been filed by the appellant being aggrieved by the order dated 23/10/2021 passed by the learned District Judge-10, Nagpur in Misc. Civil Application No.323/2019 in First Appeal arising out of Judgment and Decree passed by the learned 10th Joint Civil Judge Senior Division, Nagpur vide Special Civil Suit No.366/2012, thereby rejecting the application for condonation of delay of 685 days for filing the First Appeal.

3. It is the case of the appellants that the appellants are the original defendant Nos.1 and 2 in Special Civil Suit No.366/2012 and the respondent No.1(A to C) are the legal heirs of the plaintiff. The respondent No.1 had filed the suit for possession, declaration, damages and mandatory injunction on the basis of unregistered sale deed against the present appellants which was decreed by the learned Lower Court on 02/05/2017 without giving an opportunity to the present appellants.

4. It is submitted by the Counsel for the appellants that after the receipt of the summons of the civil suit the appellants had appeared and filed their written statement by engaging advocate for defending their side. It is specifically stated that the appellants/defendant Nos.1 and 2 had entered into an agreement to sale with the defendant No.3 on 16/04/2010 in respect of the suit property. In pursuance of the agreement to sale, the appellants were put in possession of the suit property. On 12/06/2012, the respondent No.1 had filed a civil suit for possession, declaration, damages and mandatory injunction on the basis of unregistered sale-deed. But the learned Trial Court had wrongly decreed the suit and declared the ownership in favour of the respondent/plaintiff merely on the basis of unregistered sale-deed.

5. It is further contention of the appellant, after filing of the written statement the appellants were in continuous touch with their counsel, however the Counsel engaged by the appellants had informed the appellants that since it is a civil suit, it is not necessary for the parties to remain present and also assured that when their appearance will be required he will inform them and there is no need to appear on each and every date, believing on the statement of the Counsel, the appellants did not appear in the said civil suit after filing of the written statement. Consequently, the suit decided and came to be decreed on 02/05/2017 by the learned Trial Court.

6. Thereafter, the appellants received the summons of execution proceedings vide special Darkhast No.165/2012 on 10/11/2017 and came to know about the abovesaid order of learned Trial Court. Thereafter, they immediately contacted with their advocate on 20/11/2017 and inquired about the aforesaid order. On that the Counsel begged pardon by assigning various reasons and also assured that he himself by providing the service of another well known advocate file an appeal against the judgment and decree passed by the learned Lower Court in special civil suit. Thereafter, the Counsel for the appellants did not file appeal nor taken any steps in the execution proceedings. In the month of March, 2019 Bailiff of the learned Civil Court came for taking the possession of the suit property. Therefore, the appellants again contacted their Counsel and he returned the brief on 15/04/2019. Thereafter appellant handed over the brief to another Counsel who prepared an appeal with an application for condonation of delay as the delay was occurred for filing the appeal.

7. On 18/04/2021, the appellants had filed Regular Civil Appeal along with application for condonation of delay. Respondents have filed their reply to the application of condonation of delay thereby opposed the same. The learned Lower Court had rejected the application for condonation of delay vide it’s order dated 23/10/2021 for the reasons that there is a gross negligence on the part of the appellants and by giving findings that no sufficient cause has been made out to condone the delay of 685 days. It is the contention of the appellants that the learned District Judge ignored that the delay is caused due to the inadvertent mistake of the counsel and ought to have appreciated the facts that once the counsel has been appointed then in that case taking effective steps in the litigation is beyond the control of the litigants. Therefore, present second appeal has been filed by the appellant. Substantial question has been framed by this Court vide order dated 23/03/2022. The aforementioned substantial question of law is as under:

“Whether the Appellant Court was justified in holding that the appellant failed to demonstrate sufficient cause for condonation of delay in filing the appeal”

8. The learned Counsel for the appellants, in support of his contention relied on the following judgments:

"1) Hausu Dhondba Uike and Anr. Vs. Sahebrao Chintaman Salam and Anr. reported in 2014 (4) All MR 802,

2) Haribhau Ganpat Matetwar Vs. Anil Wasudeo Bobde and others in Writ Petition No.6145/2016,

3) Taresh s/o Vishwanath Dabhekar; Sudesh Vs. Ramesh s/o Vishwanath Dabhekar and Anr. reported in 2015 (2) Mh.L.J. 164,

4) Smt. Indubai w/o Arjun Gholase Vs. Mr. Bhikudeo Sakudeo Gulate and anr. in Writ Petition No.93/2017."

9. In Taresh s/o Vishwanath Dabhekar (supra), the Hon’ble High Court had held that once the Counsel has been appointed then in that case taking effective steps in the litigation is beyond the control of the litigant and in case if no due diligence and proper care has been taken by the said advocate, then in that circumstances, the litigant cannot be held guilty and in such circumstances, the Hon’ble High Court has confirmed the order by which the delay was condoned by the lower Court.

10. As against this submission, learned Advocate for respondents submitted that the view taken by the learned Court, based upon the facts and circumstances of the present case. The appellants were totally negligent, they were sitting idle and the contentions raised by them that they have made contact with their advocate cannot be taken into consideration due to the lack of any documents produced by them. The judgment and order passed by the learned Appellant Court is based on sound and justifiable reasoning. It is further submitted that there is no reason for interference by this Court in the order passed by the Appellant Court.

11. Heard both the parties at length.

12. As per contention of the appellants, after receipt of suit summons, they contacted their counsel and appeared in the said suit. They have also filed their written statement. As per assurance given by their counsel that he would contact them whenever they would required for the purpose of the trial. However, their counsel did not inform them about the progress and suit came to be decreed on 02/05/2017. Thereafter, the appellant received summons in execution proceeding on 10/11/2017. Therefore they again contacted their counsel. He assured that he will take effective step and file appeal and appear on their behalf in execution proceeding. However, in spite of this, applicants regularly visited the counsel. The said advocate had not given proper reply. In the month of March 2019, bailiff came for taking possession. They again rushed to their counsel, however, their counsel returned the file and asked to engage some other counsel. Immediately they approached to other advocate. He filed application for condonation of delay in filing appeal for want of proper guidance and failure on the part of counsel to take necessary steps, the applicants could not filed appeal within limitation. That is the only reason pleaded in the application for condonation of delay before Appellate Court.

13. Learned Appellate Court held that after filing of written statement applicants have not contacted to their counsel which shows inaction, negligence, conduct and behaviour. It is observed by learned Appellate Court that there is inordinate delay of 685 days in filing appeal and therefore, strict approach is warranted. By placing reliance in Esha Bhattacharji vs. Managing Committee reported in (2013) 12 SCC 649 [LQ/SC/2013/1033] and held that the applicants were totally negligent and were sitting idle and the contention raised by them that they have made contact with their advocate cannot be taken into consideration for want of documents. While rejecting application for condonation of delay, learned Appellate Court lost it’s sight that it is a matter of fact that many old suits are pending for their turn to come. In such circumstances, after filing a written statement it would not expected that the client should come on each date and it is quite plausible that their advocates might have asked them not to come till they are required in the matter. This possibility cannot be ruled out at all in view of the fact about pendancy of matter. If parties could not have filed written statement also in spite of service of suit summons one may have concluded that they are negligent idle. As held in Taresh s/o Vishwanath Dabhekar (supra), as argued in the said matter that the negligence of the advocate should not be considered as showing sufficient cause unless, it is also shows that party had been pursuing the matter with the advocate and could not succeed in his efforts for the reasons beyond his control. The High Court at Nagpur held that when it comes to exercise of discretion of the Court under Section 5 of the Limitation Act rigour of due diligence test prescribed under the proviso to Rule 17, Order 6 of Code of Civil Procedure would require the due diligence to exercise basically by parties himself and if the advocate is negligent, it would amount to negligence of the party or otherwise, it may provide an effective tool to the lazy and indolent party to conveniently get over the barrier of provision of Rule 17, Order 6 of the Civil Procedure. While exercising discretion under Section 5 of Limitation Act the consideration of this Court, as can be seen from several precedence of the Hon’ble Apex Court, are wider and governed by desire of the Court of justice to advance the cause of substantial justice and to reject any resistance of the party on the ground of technicalities. Therefore, the principle settled by the Hon’ble Apex Court would require the Court to look for absence of any deliberate act or malafide on the part of litigant and also inconvenience of other party and if the Court is satisfied that the litigant himself was not negligent and was not sitting idle aspect of inconvenience can be taken care of. The Court can view negligence of the advocate as different from negligence of the party and thus be a sufficient cause for exercising its discretion under Section 5 in favour of the party. It is held by learned Appellate Court after filing of written statement, applicants were totally negligent and sitting idle till they received summons of the execution proceeding. They have not taken any effective step. Contention of the applicant that after receipt of summons he contacted his advocate or not taken into consideration by the Appellate Court for want of documents. In my considered opinion, this is too technical approach by the Appellate Court. The parties are resident of Nagpur and their counsel also from Nagpur. It is difficult for any litigant to have a document of visit to his advocate. The learned Appellate Court totally erred in holding that act of the applicant certainly negligent and therefore are not entitled for any discretion to be exercised in their favour. There is no sufficient cause as held by learned Appellate Court to condone the delay. In my considered opinion, there is question of immovable property involved in the matter. It is not the case that applicants have not filed any written statement. They have filed the written statement when question of their immovable property was involved, the parties could not have deliberately remained absent at the cost of their loosing their rights in the property. Thus, I am satisfied that the delay caused is for sufficient and bonafide reason and neither deliberate nor malafide. Failure on the part of Counsel for litigant should not be resulted in miscarriage of justice. Having considered settled legal position in my considered view the impugned order is unsustainable as against well settled principles of law. There are no malafide or deliberate attempt to protract the matter and they reposed implicit faith in their counsel. They were under impression that as assured by their advocate that he will take appropriate and effective steps but unfortunately he failed to do so. As such, I hold that sufficient cause had been shown by them and the appeal needs to be allowed. The substantial question of law is answered in the negative. The Appellate Court not justified in rejecting the application for condonation of delay in filing appeal. The inconvenience caused to the respondent can be taken care of by imposing cost. Hence I pass the following order:

O R D E R

1. The second appeal is allowed.

2. The order passed by learned Appellate Court dated 23/10/2021 in Misc. Civil Application No. 323/2019 below Exhibit- 01 in first appeal arising out of judgment and decree passed by 10th Jt. CJSD, Nagpur vide Spl.C.S. No. 366/2012 is hereby quashed and set aside.

3. Delay in filing Appeal before District Judge-10, Nagpur, is hereby condoned.

4. Exhibit- 01 in Misc. Appeal No.323/2019 is allowed, subject to cost of Rs.10,000/- to be deposited before the Appellate Court.

5. The matter be remitted back for registration of First appeal.