The main legal point established in the judgment is the liberal approach to condonation of delay and the principle that a litigant cannot be made to suffer on account of a mistake of his lawyer.

JUDGMENT :

Heard learned counsel for the parties.

2. This is an Appeal under Order 43 Rule 1 (c), Code of Civil Procedure, 1908 against an order dated 10.01.2020 passed by Ist Additional District Judge, Rishikesh, Dehradun in Misc. Case No. 13 of 2019. By the said order, delay condonation application filed by appellants with their application under Order 9 Rule 9 CPC, has been rejected. Consequently, the restoration application filed by appellants too has been rejected.

3. Perusal of the impugned order reveals that the delay condonation application filed by appellants has been rejected only on the ground that appellants’ counsel was present before the Court on 03.01.2019, when the next date was fixed for 08.01.2019, therefore, the plea raised by appellants that due to mistake the next date was noted as 08.02.2019, is not believable.

4. Learned counsel for appellants submits that appellants’ non-appearance on 08.01.2019 was due to a bonafide mistake, as the next date fixed in the suit was noted as 08.02.2019; while, actually the date fixed was 08.01.2019, and due to this inadvertent mistake, they could not appear before the Trial Court on the date fixed. He further submits that restoration application with delay condonation application was filed immediately when appellants came to know about dismissal of the suit. He further submits that appellants acquired knowledge about dismissal on 15.03.2019 and restoration application was filed on 08.04.2019 with delay condonation application. He further submits that the appellants had filed the said suit seeking relief of specific performance, in 2012, since valuable property right of appellants is involved in the suit, therefore, their non-appearance on the date fixed cannot be said to be deliberate.

5. Per contra, Mr. Aditya Singh, learned counsel for respondent-defendant supports the order passed by learned Trial Court by contending that appellants had knowledge of the date fixed, as their counsel was present on 03.01.2019, thus their non-appearance before the Trial Court was deliberate.

6. In the delay condonation application, stand taken by appellants is that they learnt about dismissal of the suit only on 15.03.2019 and certified copy of dismissal order was received by them on 05.04.2019; restoration application under Order 9 Rule 9 CPC was filed thereafter on 08.04.2019, thus, there was no delay, if seen from the date of knowledge of the order of dismissal.

7. Learned counsel for the appellants contends that even if limitation is calculated from date of dismissal of the suit, then also, there is delay of only 39 days, after adjusting the time spent in obtaining certified copy of the order. He further contends that learned Trial Court, instead of confining itself to the merits of the delay condonation application, considered extraneous fact, namely reason for non-appearance on 08.01.2019. Thus, according to him, appellants had shown sufficient cause for condoning the delay and learned Trial Court was not justified in rejecting the delay condonation application, which has resulted in miscarriage of justice.

8. Learned Trial Court has rejected the delay condonation application by holding that on the previous date, i.e. 03.01.2019, case was adjourned on an application filed by the lawyer appearing on behalf of the appellants, therefore, the stand taken by them in their delay condonation application regarding lack of knowledge about the next date fixed, i.e. 08.01.2019, cannot be believed.

9. Learned counsel for the appellants submits that stand taken by his clients was that their counsel, due to bonafide mistake, noted 08.02.2019 as the next date fixed, which led to their non-appearance before the Trial Court on 08.01.2019.

10. Bonafide mistake by lawyer can be a valid ground for condonation of delay, as held by Hon’ble Supreme Court in the case of Punjabi University and others v. Acharya Swami Ganesh and another, reported in (1973) 3 SCC 800. In the case of Indian Oil Corporation Ltd. v. Subra