A party to a litigation should not suffer due to the mistake of their advocate, and the court may grant an opportunity to rectify such mistakes to ensure justice.

JUDGMENT :

By this Writ petition, the petitioner (original defendant no.5) has challenged order dated 20.12.2021, passed by the Court of District Judge- II, Panaji (hereinafter referred to as the District Court) whereby an application for condonation of delay in filing written statement has been dismissed. As a consequence, the trial is likely to proceed in the absence of the written statement on behalf of the petitioner.

2. The respondent nos.1 and 2 in the present case have filed a suit for declaration and permanent and mandatory injunction against the defendants, including the petitioner herein. The challenge in the said suit is to a technical clearance order and construction license granted to the petitioner for carrying out repairs/reconstruction of the structure in question, on the allegation that the said technical clearance order and construction license were obtained by playing fraud and misrepresentation.

3. In the said suit an application for temporary injunction was filed on behalf of respondent nos.1 and 2. The said application was rejected by the District Court, but a challenge is raised against the same by way of filing writ petition before this Court. It is informed that there is an interim order passed against the petitioner and that the said writ petition is pending.

4. The petitioner filed application for condonation of delay in filing written statement, along with written statement before the District Court. There were certain reasons stated for condonation of delay, including pendency of the certain other proceedings. But the District Court found that the explanation was not satisfactory and it was recorded that the delay of about one year ten months was not properly explained. On this basis, the application for condonation of delay was dismissed.

5. In the present Writ Petition on 17.1.2022, this Court directed the petitioner to deposit an amount of Rs.50,000/- in this Court towards security for costs, within a period of two weeks while issuing notice in the Writ Petition. It was recorded in the aforesaid order that prima facie it did appear that there was absence of proper explanation for condoning delay in filing written statement. Yet, the Writ Petition was being entertained having regard to the immense prejudice that the petitioner would face in the absence of written statement before the District Court.

6. Upon service of notice, the respondents have appeared through Counsel.

7. When the Writ Petition is called out for hearing, the learned Counsel appearing for the petitioner has invited attention of this Court to an affidavit dated 3.1.2022 filed by the Advocate appearing for the petitioner i.e. original defendant no.5 before the District Court. In the affidavit, the Advocate has explained as to the bonafide impression under which she proceeded that the written statement was already filed, while factually the written statement was not filed before the District Court. A perusal of the said affidavit shows that it was a mistake or an error on the part of the Advocate representing the petitioner before the District Court, which was one of the factors that led to delay in filing written statement. This aspect of the matter was not brought to the notice of the District Court and the Advocate representing the petitioner before the District Court did not make an effort to file such an affidavit, explaining the reasons why the written statement was not placed on record within time.

8. A perusal of the impugned order shows that it cannot be said that the District Court fell in error in rejecting the application for condonation of delay in filing written statement, but, at the same time this Court cannot be oblivious of the material now brought on record, particularly the affidavit filed by the Advocate representing the petitioner before the District Court. The present case could be said to be a case where the petitioner is likely to suffer immense prejudice due to mistake or error on the part of his Advocate. This C