T KRISHNA RAO Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) the short point for consideration is whether the impugned order of the Karnataka appellate tribunal, Bangalore, passed in appeal No. 12/80 dated 4.10.1983 deserves to be set aside, in the circumstances and facts of the case?

(2.) the impugned order arises out of anapplication for condonation of delay filed by the petitioner. The undisputed facts are that the earlier writ petition was dismissed by this court on 20.6.1979 in writ petition No. 2718/79 on the ground that an alternative remedy was available to the petitioner before the tribunal and it was not open to the petitioner to approach the high court and invoke the wi,t jurisdiction. Subsequent to the disposal of the writ petition, the petitioner appears to have made an application for certain documents and the same were received by him on 6,8.1979 from the court. Thereafter it is stated that the papers had been misplaced in the lawyer's office on 5.1.1980. Thereafter, the learned counsel for the petitioner who appeared before the tribanal preferred an appeal before the tribunal on 9.1 1980. In the application for condonation of delay, detailed explanation was offered by the petitioner, but the tribunal rejected the application on the ground that the negligence of the lawyer cannot be condoned and the application for condonation of delay cannot be sustained. The tribunal proceeded to make caustic observations in para-7 and 8 of the impugned order with elaborate comments on the negligence of the lawyer, influenced by some ancient decision. But unfortunately the tribunal did not have the advantage of looking into the ruling of the Supreme Court in rafiq & another v munshilal & another, AIR 1981 SC p. 1400. That is the case, where an appeal filed by the appellant was disposed of in the absence of his counsel, so also his application for recall of order of dismissal which was rejected by the high court. The Supreme Court in appeal set aside both the orders of dismissal on ground that a parly who, as per the present adversary legal system, has selected his advocate, briefed him and paid his fee can remain supremely confident that his lawyer will look after his interest and such an innocent, party who has done everything in his power expected of him, should not suffer for the inaction, deliberate omission or misdemeanour of his counsel. The Supreme Court proceeded to observe as follows:

(3.) on facts, this case stands on a betterfooting inasmuch as an explanation was offered for the delay of the lawyer in preferring the appeal and the explanation is that the papers had been misplaced in the office of the lawyer. It is not for me to give a finding whether or not there is sufficient and reasonable cause lo believe the assertion that the papers had been misplaced in lawyer's office, but I do not think it would be unreasonable to accepl the explanalion on its face value. This is not a case of default in the sense as it is understood, and there was no wanton delay on the part of the lawyer. It is difficult to characterise it as a case of negligence. In these circumstances, I do not think that the tribunal has proceeded on the proper premise and the view taken by the tribunal if I may observe, is cock-eyed.