The court ruled that a litigant must be vigilant about their rights and cannot solely blame their counsel for delays; inordinate delays without sufficient cause will not be condoned.

JUDGMENT

C.M.Appl.No.2/2024

1. This is an application to condone delay of 2111 days in filing the appeal. The application is opposed by the respondent by filing counter affidavit.

2. I have heard the learned counsel for the applicant Sri.Shibu Jospeh and the learned counsel for the respondent Sri. John Joseph Vettikad.

3. The learned counsel for the applicant pointed out that even though the delay is shown as 2111 days, 715 days, which was permitted to be excluded on account of COVID pandemic, is excluded, the delay is only 1,396 days.

4. The learned counsel invited my attention to the merits of the matter to substantiate the point that the applicant has a meritorious case in the appeal, and hence, the delay is liable to be condoned. The learned counsel for the applicant relied on the cited the decision of the Hon’ble Supreme Court inCollector, Land Acquisition, Anantnag and Another v. Mst.Katiji and Others [ 1987 KHC 911 ], M.K.Prasad v. P.Arumugam [ 2001 KHC 1132 ] and N.Balakrishnan v. M.Krishnamurthy [ 1998 KHC 1163 ] to substantiate the point that that refusal to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated; that as against this, when the delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties; that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non deliberate delay. The learned Counsel contended that in the present case, if the delay is not condoned, it would defeat the substantial justice in the matter as the appellant is fully entitled to succeed in the first appeal.

5. On the other hand, the learned counsel for the respondent contended that, there is clear laches on the part of the applicant in filing the appeal and it is the cause of huge delay involved in the matter.

6. I have considered the rival contentions.

7. On going through the affidavit in support of the application, it is seen that the impugned judgment of the First Appellate Court was passed on 12.07.2018, and the application for the certified copy was submitted on the very next day on 13.07.2018, and the same was delivered on 21.08.2018. The reason stated in the affidavit is that the Advocate Clerk attached with the Office of the Counsel for the appellant omitted to inform the appellant regarding the receipt of judgment and decree from the First Appellate Court and he came to know about the disposal of the appeal only on 18.01.2024, when he received notice in E.P.No.237/2019 from the Munsiff’s Court, Thiruvananthapuram to execute the decree passed by First Appellate Court.

8. The aforesaid facts itself would reveal that, for the long period from 21.08.2018 to 18.01.2024, the Appellant did not make any enquiry with his counsel about the progress of with the appeal entrusted by him. In the recent decision Nitin Mahadeo Jawale v. Bhaskar Mahadeo Mutke [ 2024 KHC OnLine 6660 ], the Hon'ble Supreme Court has deprecated the growing tendency of the part of the litigants in throwing the entire blame on the head of the advocate. The Hon'ble Supreme Court has made a categorical finding that 'even if we assume for a moment that the concerned lawyer was careless or negligent, this, by itself, cannot be a ground to condone long and inordinate delay as the litigant owes a duty to be vigilant of his own rights and is expected to be equally vigilant about the judicial proceedings pending in the court initiated at his instance. The litigant, therefore, should not be permitted to throw the entire blame on the head of the advocate and thereby disown him at any time and seek relief'. In view of the above dictum of the Hon'ble Supreme Court, the appellant shall not be permitted to put the blame on the counsel who appeared for him in the Trial Court or his clerk. When a