SAVITA SADI CENTRE Vs. BANK OF BARODA

JUDGEMENT

(1.) ADMIT. Heard by consent of the advocates for the parties.

(2.) BY the impugned order, the lower Appellate Court condoned the delay in filing the appeal. The facts in brief are that, the non-applicant had filed a suit for recovery of an amount of Rs. 26,556. 05 ps. from the applicant herein. The suit was disposed of by a decree dated 2-5-1987. It is the case of the non-applicant that, on account of the bona fide mistake on the part of the non-applicants advocate in giving advice to prefer the appeal before the High Court instead of before the District Court, the appeal was originally filed before this Court and consequently there was delay in filing appeal before the lower Appellate Court. The lower Court, on going through the records, has held that, there was a bona fide mistake on the part of the non-applicants advocate in giving the said advice and placing reliance upon the Judgment of the Apex Court in the case of (Mata Din v. A. Narayanan) reported in 1971 Mah. L. J. N. O. C. I and the Judgment of the Orissa High Court in (State v. Man Mohanlal and another) reported in A. I. R. 1966 Orissa, 219, has condoned the delay since the non-applicant was prosecuting the proceedings before the wrong forum under bona fide belief and in good faith.

(3.) THE learned advocate for the applicant while assailing the impugned order submitted that, there was no material before the lower Appellate Court to hold that there was a bona fide mistake on the part of the non-applicants advocate in giving the said advice and there was no deligence shown by the non-applicant in obtaining the certified copy before filing the appeal and this aspect has been totally ignored by the lower Court while condoning the delay and thereby has committed error in exercise of its jurisdiction while passing the impugned order. He placed reliance in the Judgment in the matter of (Mariambi and another v. Hanifabai and another) reported in A. I. R. 1967 Madhya Pradesh 107, and in the case of (Keshav Prasad v. State of Rajasthan) reported in A. I. R. 1967 Rajasthan 24 and in the case of (Gajjan Singh v. Ram Lok) reported in A. I. R. 1978 Punjab and Haryana 307.