VIRUBHAI H PATEL Vs. SHAIKH MOHAMMAD SAYED

JUDGEMENT

(1.) These two Civil Applications have been preferred by the appellant in each of the aforesaid two First Appeals for condonation of delay in filing the respective appeals. The facts and the dates relevant for this purpose may be stated. The opposite party had applied for a patent before the Scientific Officer of the Patent Office at Calcutta. The opposition was entered by the appellant of each of the two appeals in respect of the grant of the said patent. The appellant in each case opposed the grant through his Patent Agent and Attorney Messrs. Remfry & Sons Calcutta. The Scientific Officer by his order dated October 27 1973 overruled the objections of the appellant in each case and ordered the patent to be sealed. This decision was communicated to the aforesaid Agent of the appellants on November 1 1973 The appellants were not aware of this decision; and therefore they enquired from their Agent on December 19 1973 as regards the Judgment in the matter. Thereafter on February 15 1974 the Agent wrote to each of the appellants that the objections were over-ruled and enclosed with that letter a copy of the decision of the Scientific Officer. This letter was received by the appellant on February 23 1974 in each case; and the appeal in each case was filed on February 25 1974 the intervening day i.e. February 24 1974 being a Sunday. By the application for condoning delay the appellant in each of the two appeals has pleaded in terms negligence on the part of their Attorney and Agent at Calcutta consisting of not communicating the decision to each of the appellants till February 23 1974 inspite of an enquiry having been made on December 19 1973 from the said agent.

(2.) I am satisfied on a perusal of the affidavits filed by the respective parties as well as the correspondence produced in this case that the appellant in each of the two appeals was diligent enough to make an enquiry from his Agent on December 19 1973 as to the result of the objections filed by him. I am also satisfied that inspite of this enquiry the Attorney or the Agent of each of the appellants at Calcutta did not reply or communicate the decision till February 19 1974 i.e. for nearly four months after the decision was communicated to the Agent. This was nothing but gross negligence on the part of the Agent of each of the appellants. The decision was given by an officer at Calcutta in respect of a representation made by a person from Ahmedabad. We cannot expect the appellants to run down to Calcutta oft and on merely in order to enquire what had happened to the case particularly when the Patent proceedings had dragged on for ten years from September 1963 to September 1973. The decision of the Scientific Officer annexed to the memorandum of First Appeal shows that the notice of opposition was filed on July 31 1965 and the hearing had taken place on 12th February 13 February 6 March and 7th March 1973 Besides letter from the appellants Agent written on July 7 1973 shows that the decision was not issued till then. The Agent also wrote that as soon as they received the decision they will communicate the same to the appellant. They had therefore to depend upon their Agent at Calcutta for the purpose of communication of the decision in the matter. If we turn to the affidavit filed by each of the appellant on September 5/11 1974 it appears that they tried to get an affidavit of the agent explaining the delay by going down to Calcutta but their attempts proved fruitless. It is beyond the control of the appellant in each of the two appeals to get an affidavit of the agent filed in the present case. It is therefore clear that the appellants agent at Calcutta was negligent inasmuch as he did not communicate the decision to the appellant for nearly four months inspite of an enquiry having been made by a letter dated December 19 1973 The period from the date of the decision till the filing of the appeal which would be the period between November 1 1973 and February 25 1974 was a period during which the appellant was kept in dark as regards the result of this proceeding by the sheer negligence of his agent. Mr. Kazi for the other side no doubt argued that there is no averment made by the appellant showing that his letter of December 19 1973 was not replied to by the agent. Absence of that averment is not sufficient in the circumstances of this case to come to the conclusion that this letter must have been replied to by the agent earlier. If it was so the Agent would not have failed to file an affidavit showing that the decision was communicated earlier. On the contrary the letter of February 15 1974 from the Agent to each of the appellants in itself shows that that was the first date on which the Agent communicated the decision in respect of both the proceedings to each of the appellants. So far as the applicant in each of the two cases is concerned no negligence inaction or want of diligence can be attributed to him. He was diligent enough inasmuch as in each case the appellant made an enquiry on December 19 1973 as to the result of the patent proceedings. The patent proceedings had gone on for a number of years from September 1963 to September 1973. Naturally therefore the appellant after making the enquiry on December 19 1973 would wait for some time. I am therefore satisfied that the appellant in each case was diligent enough and that there was no inaction or negligence on his part. No negligence inaction or want of bona fides on the pert of each of the two appellants was shown on behalf of the other side.

(3.) The only answer to the aforesaid finding given by Mr. Kazi for the opposite party was that the negligence of the agent of the appellant at Calcutta is the negligence of the appellant himself in each case; and therefore on this ground delay cannot be condoned. He relied upon Buddhu and others v. Diwan and others I.L.R. 37 Allahabad page 267. Therein the only relevant observations for our purpose are to be found at page 271. They are as under:-