NARAYANA IYER KULATHU IYER Vs. MANAKKADU DEVASWOM

JUDGEMENT

(1.) The petitioner in both the cases is the same. He is the appellant in ESA. Nos. 4 and 5 of 1976 on the file of this Court. The said appeals were dismissed by a common judgment on 29-11-1976. Aggrieved by the decision, the petitioner decided to file an appeal to a Division Bench after obtaining leave under S.5 of the High Court Act. He obtained copies of the judgments and decrees on 18-2-1977. In the meanwhile, the Civil Procedure Code Amendment Act, 1976 came into force on 1-2-1977 and S.100A was introduced into the Code. He was instructed by bis counsel that by virtue of the above provision read with S.100A of the Amendment Act, no further appeal was maintainable against the decision in second appeal. The petitioner, therefore, did not move for obtaining leave to file appeals against the decision But subsequently, this Court held in Raghavan Pillai v. Sainaba Beevi ( 1977 KLT 417 ) that the ban under S.100A of the Act has no retrospective operation. When a report of the above ruling appeared in the part of the 1977 KLT reports dated 20th June, the counsel realised his mistake a ad informed the petitioner of the correct position. Accordingly the petitioner filed applications for certificates under S.5 of the Kerala High Court Act along with the present petitions for condoning delay. The petitioner prays that since the delay was due to a bona fide mistake regarding the scope and application of S.100A, the same may be condoned.

(2.) The petitions are opposed. The learned counsel for the respondents would argue that the decision in Raghavan Pillai v. Sainaba Beevi (1977 KLT 417) has no application to the present case. There was no mistake on the part of the counsel in advising the petitioner that no further appeal would lie against the decision of this Court. That on a later date the High Court took a view regarding the operation of S.100A which is different from that adopted by the counsel is, according to the respondents, no ground for condoning delay. To support his contention, reference has been made by the learned counsel for the respondents to the decision reported in V. V. Kudva v. E. S. I Corporation (AIR 1972 Mysore 204). In that case, the litigant concerned acquiesced in a decision of the Employees State Insurance Court and did not file an appeal in time. Subsequently, his counsel noticed the decision of the Supreme Court in Provident Fund Inspector, Guntur v. T. S. Hariharan ( AIR 1971 SC 1519 ) and expressed the opinion that he had a fair chance of success in case an appeal had been filed against the decision of the Employees State Insurance Court. An appeal was accordingly filed with an application for condoning delay. Basing on the decision of the Supreme Court in Tilokchand Motichand v. H. B. Munshi ( AIR 1970 SC 898 ) the Mysore High Court held as follows:

(3.) It will be apposite if I quote here the following observations of Hidayatulla C. J. in Titokcnand Motichand v. H. B. Munshi (AIR 1970 SC 898):