Litigants cannot blame former counsel for inaction; diligence is mandatory to avoid dismissal for non-prosecution.

ORDER

The petitioners are appellants in A.S.No.354 of 2012. Aggrieved by the order in I.A.No.1 of 2023 passed by the First Appellate Court, the petitioners are before this Court, with the present revision petition.

2.I have heard Mr.G.Vivekanand, learned counsel for the revision petitioners and Mr.V.G.Sureshkumar, learned counsel for the 1^st respondent and Mr.N.Nagu Sah, learned counsel for the respondents 3 and 4.

3.Mr.G.Vivekanand, learned counsel appearing for the revision petitioners, at the outset, would state that the petitioners filed an application in I.A.No.1 of 2023 under Section 5 of the Limitation Act, to condone a delay of 1904 days in representing CMP.SR.No.40297 of 2015 in A.S.No.354 of 2012. He would therefore state that the suit being one for partition, the petitioners should be given a fair opportunity to put forth all their defence and contentions and the appeal was dismissed for non prosecution since the counsel had not followed up the matter diligently and had not chosen to even inform the petitioners. He would further state that the counsel, who was on record in the appeal died in the month of August 2022 and hence, return of the application in CMP.SR.No.40297 of 2015 could not be taken and represented in time. Further delay occasioned on account of the demise of the 1^st appellant on 09.09.2018 and the legal representatives of the 1^st appellant had to be brought on record.

4.The learned counsel for the petitioners would further contend that though the petitioners informed the earlier counsel about the death of the 1^st appellant, the counsel failed to take steps and there was a delay of 1447 days in filing the application to bring on record the deceased 1^st appellant in the appeal. He would therefore state that a fair opportunity may be given to the petitioners to prosecute the appeal on merits, as their valuable rights in the immovable property are involved in the appeal suit.

5.Per contra, Mr.V.G.Sureshkumar, learned counsel appearing for the 1^st respondent would submit that the petitioners are purchasers, pending the suit for partition and they were also arrayed as defendants in the suit. A preliminary decree was passed only in their presence. Final decree application was also taken out subsequently and when the proceedings were nearing completion, the petitioners filed an appeal against the preliminary decree in the year 2012. The said appeal was not followed up diligently, which resulted in the appeal being dismissed for non prosecution. Though the petitioners claim to have filed the application even in 2015, they have not chosen to follow up the same for close to 10 years and the delay in representing the application is clearly malafide and only with a view to protract the proceedings and delay and finality in the final decree proceedings.

6.Mr.N.Nagu Sah, learned counsel appearing for the respondents 3 and 4, apart from adopting the submissions of the Mr.V.G.Sureshkumar, would state that the suit for partition was filed in the year 1978 and for the past several decades, the plaintiffs are forced to wait on account of repeated delay tactics. He would further state that even the final decree application is pending from 2017 onwards and a Commissioner has already been appointed and he has also filed a report, along with a Civil Engineer’s report as early as in 2021. The learned counsel for the respondents 3 and 4 would submit that the petitioners were fully aware of all these proceedings and having slept over the matter for years together, cannot now wake up and contend that they should be given an opportunity to represent the application to restore the appeal to file.

7.I have carefully considered t