A party should not suffer for the fault of his advocate, and reliance on the advice of the advocate can justify delay in taking legal action.

Valmiki J. Mehta, J (Oral)

1. This first appeal is filed against the impugned judgment of the court below dated 9.11.2011 which has dismissed the applications filed by the appellant-plaintiff under Order 9 Rule 9 CPC and Section 5 of the Limitation Act, 1963. By the applications, the appellant-plaintiff sought restoration of the suit for recovery of Rs.17,50,000/-filed under Order 37 CPC, and which was dismissed in default on 30.3.2009.

2. Appellant-plaintiff filed the subject suit for recovery of money on the ground that he had given a friendly loan to late Sh. Gurdial Chand Khosla, and who is now represented before the court below by his widow Smt. Sudhershan Khosla. Summons in the suit for appearance under Order 37 CPC were issued and the defendant filed appearance. Suit was dismissed in default on 30.3.2009 when no one appeared for the appellant-plaintiff.

3. The case of the appellant-plaintiff is that his earlier lawyers kept him in the dark by not informing him of the dismissal in default of the suit, and when in June-July, 2010, counsels started avoiding him, it transpired to him that actually the suit was dismissed in default much earlier in March, 2009. Appellant-plaintiff claims to have been befooled/duped by his earlier counsels and consequently appellant-plaintiff has also filed complaint with the Bar Council of Delhi on 15.9.2010. After obtaining the goshwara number of the disposed of suit, and which is given to the suit record after disposal of the suit, and the necessary particulars were obtained, thereafter the subject applications were filed for restoration of the suit. There is therefore on account of the aforestated facts a delay of 534 days in filing the application for restoration.

4. Learned counsel for the appellant-plaintiff argued that there is no reason why the appellant-plaintiff would not pursue his suit especially because the suit was for a huge amount of Rs. 17,50,000/-, and, with respect to which, not only court fees were paid but fees of the counsel were also paid. It is argued that appellant-plaintiff should not be made to suffer for the negligence and the default of his earlier counsel against whom complaint has already been filed with the Bar Council. It is argued that the appellant-plaintiff was told by his earlier counsel that no personal appearance is required in a civil suit because the case is not a criminal case and hence appellant/plaintiff /sole proprietor did not appear in the court on every date fixed by the court. It is therefore prayed that the court below has erred in not restoring the suit and has illegally dismissed the applications under Order 9 Rule 9 CPC and Section 5 of the Limitation Act, 1963.

5. On behalf of the respondent, it is very vehemently argued that the appellant-plaintiff is guilty of delay and negligence. It is argued that the complaint to the Bar Council has already been filed only on 15.9.2010, and that enquiries before the Bar Council reveal that adequate number of complaints have not been filed and that it is not supported by affidavit. It is argued that in the facts of the present case, there is no ground for allowing of the appeal and restoration of the suit.

6. In my opinion the appeal deserves to be allowed because there is no reason why appellant-plaintiff would be guilty of negligence or deliberate inaction for getting a suit for recovery of a huge amount of Rs. 17,50,000/- dismissed in default and where not only court fees were paid but counsel fees have also been paid. There is nothing unnatural for the appellant-plaintiff in relying upon the assurance by its advocates that no personal appearance is required, and which is a normal procedure in a civil suit. It is only when the appellant-plaintiff’s advocates started avoiding him that the appellant on realizing the seriousness made detailed enquiries and came to know of dismissal in default of the suit. The stand of the appellant-plaintiff in my opinion is buttressed by complaint having been