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 Sec 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 argu e 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: "none of the decisions relied on by Mr. Hande supports his contention that a litigant who has acquiesced in the judgment of a court by not preferring an appeal within the period of limitation, can wake up and prefer an appeal after a subsequent ruling of the Supreme Court or the High court which he considers as being favourable to him. Nor can the advice of his counsel that his case is not a fit one for appeal, which advice may turn out to be a mistaken one in the light of subsequent ruling of the Supreme Court or the high Court, be regarded as a sufficient ground for condoning such delay. "

(3.) IT is also noted that the facts in Raghavan Pillai v. Sainaba Beevi (1977 KLT 417) are different from those of the present case. The appellant in that case had obtained leave to file appeal on 31-1-1977 before the coming into force of the Civil Procedure Code Amendment Act of 1976 and had, therefore, a vested right to file an appeal on 1-2-1977, the date of commencement of that Act. In the in s ant case, on the other hand, no petition for issue of certificate had been filed before the coming into force of the amended Act. S. 5 of the Kerala High Court Act did not confer on the petitioner an absolute right of appeal. His right was conditional on the judge who disposed of the second appeal certifying that the case was a fit one for a further appeal. Whether under such circumstances the petitioner could be said to have had a substantive right to file appeals and whether the right of the petitioner to move applications for granting leave to file appeal was a vested right are not questions which are decided in Raghavan Pillai versus Sainaba Beevi (1977 KLT 417 ). Therefore, it cannot be concluded on the basis of the above decision alone that there was any bona fide mistake on the part of the counsel in interpreting the scope and application of S. 100a In other words, the petitioner is not entitled to avail of the above decision and seek condonation of delay on that footing.