ANANTA NAIK Vs. A KESHABA REDDY

JUDGEMENT

(1.) 21.8.1998 - The Second Appeal is directed against the judgment and decree passed by the Subordinate Judge, Chatrapur in Title Appeal No. 31 of 1989. The judgment was passed on 6.7.1993. The present appeal has been filed in the High Court on 19.2.1998. It is stated by the appellant that, in fact, Civil Revision No. 104/93 corresponding to Civil Revision No. 106/95 was filed before the 2nd Addl. District Judge, Berhampur. It is further stated that the aforesaid Civil Revision was filed before the District Judge, Berhampur, on the wrong advice of the counsel. Subsequently, the said revision was dismissed for default on 26.2.1996, but the said order of dismissal was not within the knowledge of the present appellant; as the same was not communicated by the concerned counsel. It is further stated that the appellant came to know about the dismissal of the revision in September, 1997 only when the respondent tried to create disturbance in the possession of the appellant. It is further stated that due to his old age and extreme poverty, the appellant could not arrange for the necessary amount to come to Cuttack with necessary papers to file the appeal in the High Court. It is submitted by the counsel for the appellant that the appeal has been filed through the Legal Aid; and Advisory Board. The respondent has filed a counter affidavit denying the aforesaid allegations.

(2.) IN course of hearing of this application, the learned counsel for the appellant has produced; before me the certified copy of the order dated 26.2.1996 whereunder the Civil. Revision was dismissed for default. From the endorsement in the certified copy it is apparent that the certified copy was applied for on 26.9.1997 and copy was made available on 27.9.1997. It is obvious that the Civil Revision was filed by mistake before the District Judge on the basis of wrong advice given by the counsel. The very fact that the Civil Revision itself was filed within time indicates that the appellant was pursuing his case diligently and wrong filing before the District Judge was obviously a bona fide mistake of the petitioner though no such advice was expected to be given by any Advocate. Law is now well settled that a litigant should not suffer on account of the mistake committed by his counsel. In the present case, the mistake legal advice is palpable and cannot be attributed to the negligence of the appellant. It is true that after the Civil Revision was dismissed for default on 26.2.1996, and after the appellant knew about the same on 27.9.1997, there has been further delay in filing the appeal in this Court. However, it is apparent that the appellant himself is aged about 80 years. He has asserted that due to extreme poverty he could not arrange for money and the appeal has been filed through the assistance from the Legal Aid and Advisory Board. The appellant was not likely to derive any advantage by filing the appeal belatedly. Therefore, the plea of the appellant that due to poverty he could not arrange funds and could not take steps appears to be genuine. For the aforesaid reasons, I am inclined to condone the delay. Since the respondent had no contribution in the matter and is likely to face a fresh round of litigation, it is directed that the aforesaid order relating to condonation of delay is subject to payment of cost of Rs. 500/ - which should be paid to the counsel appearing for respondent by 21st October, 1998. The Misc. Case is accordingly disposed of.