KISHOREKUMAR VALLABHDASNI CO. Vs. LALITABEN HIRALAL THAKRAR

JUDGEMENT

(1.) xxx xxx xxx

(2.) xxx xxx xxx

(3.) I have heard learned advocate Shri S. M. Shah for the petitioner and Mr. Y. S. Mankad, learned advocate for the respondent -landlord. Mr. Shah has mainly argued that the present petitioner could not file the appeal against the judgement and decree passed by the Addl. Judge, Small Cause Court, Rajkot, because he was not properly advised by his advocate and, therefore, the delay caused in filing the appeal on account of improper advise given by his advocate must be condoned. Mr. Shah has drawn my attention towards the execution proceedings and stated that petitioner was conscious for protecting his possession and he was very much interested to proceed further in the litigation and, therefore, throughout he remained active. Even instead of filing appeal before the District Court, he has filed Regular Civil Suit No. 50/98 which is nothing, but result of ill -advice given by his advocate for which he should not be punished. Therefore, it seems that the petitioner had not left the battle and proceeded further in the matter as per the advice of his advocate and therefore, the delay in filing appeal occurred due to improper advice of his advocate and after he was given proper advice, immediately he has filed the appeal before the District Court, Rajkot, along with delay condone application. Therefore, in view of the aforesaid facts and circumstances of the case, delay caused in filing appeal against the judgement and decree dated 19 -8 -94, passed by the Addl. Judge, Small Cause Court, Rajkot, is required to be condoned. Learned counsel for the petitioner has also relied upon a decision reported in A.I.R. 1998 SC 3222 N. Balakrishnan v. M. Krishnamurthy wherein at head -note it is held as under :