A client cannot be penalized for the inaction of their counsel if the client has acted diligently in preparing the appeal.

JUDGMENT

Order on Delay Condonation Application:

This appeal is directed against the order dated 31.07.2023 passed in Testamentary Suit No. 4 of 1985 whereby the application filed by appellant No. 2 Dr. Madhu Dixit seeking transposition as plaintiff in place of Administrator General has been dismissed.

2. The office has reported that the appeal is barred by 105 days. Initially, an application was filed under Section 5 of the Limitation Act on 18.12.2023 along with affidavit of the appellant Dr. Madhu Dixit with the submissions that the certified copy of the order dated 31.07.2023 was applied on 03.08.2023 and the same was prepared by the Registry on 25.08.2023. It was claimed that the appeal was prepared on 31.08.2023, however, on account of the call given by the Bar Council of Uttar Pradesh to abstain from work, the counsel for the appellant-applicant went to his village on 02.09.2023 to attend his ailing relative from where he returned on 28.10.2023; it was claimed that it slipped from the mind of the counsel that the appeal prepared was yet to be filed by him. It was then claimed that while going through the files in his office on 14.12.2023, the counsel came across the papers relating to the present special appeal and the same was, therefore, filed in the Registry of the Court on 15.12.2023. It was indicated that on the office making a report regarding the appeal being barred by limitation, the counsel informed the appellant-applicant who came to Allahabad on 17.12.2023 for swearing the affidavit and signing the application under Section 5 of the Limitation Act, which was being filed. It was claimed that there was no negligence on the part of the appellant and only on account of the fact that the counsel went to his village, non-filing slipped from his mind, the appeal could not be filed in time. It is prayed that the delay of 105 days in filing the appeal be condoned. The affidavit sworn in support of the application and the averments contained therein were indicated to be based on the information received from the counsel. A perusal of the affidavit indicates that the same bears photo verification as required for filing affidavit before this Court dated 30.08.2023.

3. Counter affidavit to the application seeking condonation of delay was filed by Defendant No. 25 in the testamentary case wherein the averments made in the application seeking condonation of delay in relation to non-availability of the counsel on account of illness of the relative was seriously contested. It was submitted that the averments made in this regard were factually incorrect and that the appellant has not approached this Court with clean hands. Along with the counter affidavit few orders passed by this Court specifically indicating the presence of the counsel during the period it was claimed that he was at his village due to illness of his relative were annexed.

4. Counter affidavit was also filed on behalf of respondent Nos. 2 & 3 in the present appeal and in the said response also, similar allegations were made regarding the fact of the counsel being not available for a certain period on account of illness of his relative being incorrect. Along with the counter affidavit, orders indicating the presence of the counsel passed by this Court during the period in question in other matters were annexed.

5. When the matter came up before the Court and submissions were made based on the application filed under Section 5 of the Limitation Act as well as the counter affidavits seeking to question the veracity of the averments contained therein, counsel for the appellant made submissions that the appellant cannot be made to suffer on account of the conduct of the counsel in not filing the appeal in time though the same was prepared in time, time was granted to file further affidavit.

6. Another affidavit dated 01.04.2024 has been filed, inter alia, indicating that after passing of the order dated 31.07.2023, the appellant was called by her counsel for comple