L.K. KAUL Vs. PRADEEP KUMAR KHANNA

JUDGEMENT

(1.) The challenge in this first appeal is to the order dated 5th September 2013 passed by the learned Single Judge whereby I.A. No.8587/2011, seeking condonation of delay of 548 days in filing the application for restoration of the suit has been dismissed.

(2.) Addressing arguments on behalf of the appellant, Mr.Rattan K. Singh, Advocate, vehemently contends that the learned Single Judge did not appreciate that Mr. L.K. Kaul, who was the plaintiff in the suit and is represented by his legal representatives (LRs) herein, was suffering from a serious medical ailment i.e. Alzheimer's disease since the year 2007, which was diagnosed sometime in October/ November 2008 and therefore, in such a state of mind, the appellant failed to remember having filed such a suit and thus he could not be blamed for non prosecution of the said suit, which came to be dismissed in default on 11th September 2009. He further submits that even the LRs of Late Mr. Kaul were not aware of any such suit having been filed by him and that they got to know about its dismissal in default only on 20th October 2010 through the written submissions filed by the respondents before the Hon'ble Supreme Court in the S.L.P. (C) Nos. 17156/2009, 11859/2009 and 11501/2009. He also submits that having learnt about the pendency as well as the dismissal of the suit by the learned Single Judge, the appellant posed necessary queries to his previous counsel and thereafter, took immediate steps to file an application to seek restoration of the suit alongwith an application to seek condonation of delay. He submits that the counsel who was conducting C.S. (OS) No. 425/1993 before the learned Single Judge stopped appearing in the matter and a different counsel had appeared before the Hon'ble Supreme Court. It is submitted that the learned Single Judge was under a wrong impression that the counsel appearing before the Hon'ble Supreme Court was the same as the one who was representing the appellant in the suit. He also submits that the counsel who was representing the appellant in the suit did not seek his discharge by seeking the leave of the Court and therefore, in terms of Rule 4 (2) of Order III, CPC, the power of attorney of the counsel continues to remain in force.

(3.) Another contention raised by the learned counsel for the appellant is that the learned Single Judge has adopted a hyper technical approach while deciding the said two applications without giving any weightage to the fact that substantial injustice would be caused to the appellant because of the huge amount of recovery involved in the suit on which, an amount of Rs. 5, 90, 000/- has been affixed as Court fees. He also submits that it is a settled legal position that for deciding a condonation of delay application, the Courts have to adopt a liberal, lenient and pragmatic view so as to do substantial justice to the parties and not a stringent approach which would deflect the course of justice. He submits that Alzheimer's disease is a de-generate disease in which the death of brain cells results in memory loss and therefore, the appellant could not be blamed, because of his failing memory to remember filing of the said suit by him or for his lack of follow up action with the counsel engaged by him in the suit. He also submits that this Court in the exercise of its appellate jurisdiction can examine all these questions afresh so as to do complete justice between the parties. To support his arguments, the learned counsel for the appellant has placed reliance on the following judgments:-