Case Note & Summary
The case involves a Notice of Motion filed by H.P. Mehta (the applicant) seeking condonation of a delay of 828 days in filing the motion and recall of an order dated 15 February 2010 passed by a Division Bench of the Bombay High Court. The original suit was filed by M/s. Anurag Sites (the respondent) in 1985 for recovery of rent and damages regarding hoardings. The suit was decreed on 20 October 2008, awarding compensation at Rs.875 per month for 36 months prior to the suit and mesne profits at Rs.200 per day from the date of suit until removal of the hoarding. The applicant filed an appeal against this decree. On 29 January 2010, the appeal was adjourned by consent. However, on 15 February 2010, the appeal was dismissed after the applicant's counsel stated that he had no instructions from the applicant. The applicant claimed he was unaware of this dismissal until he received an execution notice in May 2012. He alleged that his earlier advocate, Mr. Devendra Udani, kept assuring him that the matter was being handled. The Court considered whether the delay should be condoned and the order recalled. The Court found that the applicant had shown sufficient cause for the delay, as he was misled by his advocate. The Court held that a litigant should not suffer due to the negligence of his advocate. Consequently, the Court condoned the delay, recalled the order dated 15 February 2010, and restored the appeal to its original number.
Headnote
A) Civil Procedure - Recall of Order - Condonation of Delay - Sufficient Cause - The applicant sought recall of an order dated 15 February 2010 dismissing the appeal due to advocate's statement of no instructions, and condonation of 828 days delay in filing the motion. The Court held that the applicant had shown sufficient cause for the delay as he was misled by his advocate who kept assuring him that the matter was being looked after. The Court recalled the order and restored the appeal to its original number. (Paras 1-15) B) Civil Procedure - Advocate's Negligence - No Instructions - The Court observed that the applicant was not at fault for the advocate's failure to appear or seek instructions. The Court emphasized that a litigant should not suffer due to the negligence of his advocate. (Paras 10-14)
Issue of Consideration
Whether the order dismissing the appeal due to advocate's statement of no instructions should be recalled and the delay in filing the motion for recall should be condoned.
Final Decision
Notice of Motion allowed. Delay condoned. Order dated 15 February 2010 recalled. Appeal restored to its original number.
Law Points
- Recall of order
- Condonation of delay
- Sufficient cause
- Advocate's negligence
- No instructions
- Restoration of appeal
