The negligence of a litigant's agent is not a sufficient cause for condoning delay, and the mistake of counsel may not always be taken into account in condoning delay.

J.M. Malik, J.

1. Learned Trial Court dismissed the application under order 9 Rule 13 C.P.C. moved by the appellant, on 20.10.2006. Aggrieved by this order, first appeal has been preferred before this Court. Smt. Kamlesh, respondent filed a suit for possession, permanent injunction, mandatory injunction, damages and pendente lite mesne profits with interest. Learned Trial Court decreed the suit on 11.11.2005. This is an indisputable fact that the appellant who was arrayed as defendant No. 3 was served on 18.5.2005. He did not appear before the Court and thereforee he was proceeded against ex-parte.

2. The appellant has enumerated the following grounds in his application under Order 9 Rule 13 CPC dated 18.10.2006. The respondent/plaintiff is his real sister. The appellant received Court notice of this case on 18.5.2005. He engaged Shri D.N. Pandey, Advocate, who assured the appellant that he would represent his case diligently. The appellant kept on enquiring from his advocate. On each time, the appellant was told that his case was being properly looked after. The above said advocate assured him that he would be called, whenever, his presence was required in the Court. The appellant reposed faith in his above said Advocate. In September, 2006, out of blue, he came to know from his neighbour that some execution proceedings were pending against the suit property. He immediately contacted his advocate, who, again assured him that the appellant should not worry and that necessary and appropriate action would be initiated. Thereafter, the appellant called him on various dates but nothing came out of nothing. The said advocate proved long on promises but short in performances. The appellant engaged another counsel Mr. Deepak Sharma, Advocate on 14.10.2006. He inspected the file, it transpired that Mr. D.N. Pandey had not filed even the vakalatnama in the Court to defend his case and consequently the court proceeded against him ex-parte on 18.5.2005. The inspection of file also revealed that his own advocate Mr. D.N. Pandey had leveled false and frivolous allegations against him. It is alleged that the said counsel not only cheated him but also worked in cahoots with the opposite party. It was submitted that the appropriate action would be taken against the said advocate.

3. I have heard counsel for the parties. Learned Counsel for the appellant made only one submission. He vehemently argued that the appellant should not suffer due to the mistake of his advocate.

4. For the following reasons, I am convinced that the learned Trial Court was right in giving short shrift to the appellants eye wash. To top it all, learned Counsel for the appellant conceded at bar that no appropriate action has yet been initiated against the first counsel Mr. D.N. Pandey. No reasons have been given by the appellant. This is a very serious matter and the appellant should have lost no time in lodging the report with the Bar Council of India. The bizarre conduct of the appellant envelopes his case with an integument of doubt. The principle of Qui facit per alium facit per se is well settled. Negligence of a litigants agent is negligence of the litigant himself and is not a sufficient cause for condoning delay. The burden of proof lies on the person claiming indulgence under Section 5.

5. Secondly, learned Trial Court has relied upon authorities reported in Badri Bhagat Jhandewala Temple v. D.D.A. 2003 (4) AD Delhi 299 and Shri M. Paul Babuta v. Union of India and Anr. 1999 AIHC 495, Delhi. In addition, I also cite a few authorities. In Mata Din v. A. Narayanan : [1970] 2 SCR 90 , it was held:

The law is settled that mistake of counsel may in certain circumstances be taken into account in condoning delay although there is no general proposition that mistake of counsel by itself is always a sufficient ground. It is always a question whether the mistake was bona fide or was merely devise to cover an ulterior purpose such as laches on the part of the li