In a civil application filed along with an appeal before the Bombay High Court seeking condonation of the delay of 203 days, a Single Judge Bench of Justice Jitendra Jain held that there was no sufficient cause for condoning the delay and hence, dismissed the civil application along with the appeal.
In the application, the delay was stated to be 176 days instead of 203 days, and hence the applicant was directed to amend the prayer clause, failing which, the application would be dismissed simply on this ground.
The reason for the delay, as mentioned in the application, was that the advocate engaged to handle the applicant’s matter neither attended hearings nor responded to the applicant’s calls. The applicant asserted that he came to know that the suit had already been decided from the website of the District Court. He then wished to proceed to file a review application, but on being informed that the same would not be maintainable, he decided to file an appeal before the High Court.
It was mentioned that the applicant had the appeal filed by another advocate, as he had lost trust in the previous advocate, and the applicant also made allegations against the advocate to justify the delay.
The Court noted that the Roznama of 20-07-2015 and 29-07-2015 stated that the applicant was present in court along with his advocate when the matter was adjourned to 06-08-2015. It was stated that the application did not specify the steps the applicant took to enquire about the hearing on 06-08-2015.
Further, the Court said that it failed to understand why, if the applicant had contacted the advocate, he had not annexed the WhatsApp chats from 06-08-2015, just as the chats from February and March 2016 had been annexed. It was stated that, except for bald statements, there was nothing on record to show that the applicant had tried to contact the advocate.
The Court said that making allegations against advocates in matters of delay without making the advocate a party has become a regular practice. It was stated that, if, as per the litigants, the advocate is responsible for the mess created, appropriate proceedings should have been taken, or the advocate should at least have been made a party. Hence, the Court held that negligence could not be attributed to the advocate without hearing him and without any material to support the allegations in the application.
The Court referred to various cases and held that no ‘sufficient cause’ was shown for condoning the delay in filing the first appeal. Thus, while rejecting a request to continue the protection order, the Court dismissed the civil application and the appeal.
Appearances:
For Applicants – Mr. Nikhil Adkine, Mr. Swaroop Godbole
For Respondents – Mr. J.K. Shah, Ms. Namrata Thakur, R J Law
