S.K.Singh, J.@mdashHeard Sri A.K. Singh, learned Advocate in support of delay condonation application and Sri Amit, learned Advocate who appeared for the respondent.
2. This appeal has been filed against the judgment and decree passed by the lower appellate Court dated 7.4.2001. In view of report of the stamp reporter the appeal is barred by time by four years 273 days. Affidavit has been tiled in support of the delay condonation application to which counter affidavit has been filed by the respondent and rejoinder affidavit is also there.
3. The ground which has been taken for condonation of delay is that under wrong advise of the local Counsel appellant pursued a wrong remedy and after exhausting that remedy when he came to the present learned Counsel he was correctly advised to file appeal and thus this appeal has been filed. It is on these premises delay in filing the appeal is sought to be condoned. In support of the submission that pursuing a different remedy than appeal on wrong advise of a Counsel constitute substantial cause, reliance has been placed on the decision given by the Apex Court in case of State of Weft Bengal v. How rah Municipality. AIR 1972 SC 749.
4. The aforesaid stand was contested by the respondent by filing counter affidavit. Learned Counsel for the respondent submits that if the explanation is not satisfactory then delay is not to be condoned as that is to cause irreparable injury to the other side. In support of his submission learned Counsel for the respondent placed reliance on the judgment given by the Apex Court in case of P.X. Ramachandran v. State of Kerala and another. 1997 (31) ALR 412 (SC).
5. In view of the aforesaid, this Court has examined the matter.
6. The suit was for cancellation of sale deed which is said to have been executed by plaintiffappellant on 13.7.84. The suit was filed in the year 1991 which was numbered as Original Suit No. 279 of 1991. The suit was dismissed on 16.10.1999. The appeal was dismissed on 7.4.2001. Admittedly second appeal has been filed after delay of four years 273 days as noted above. The ground is that appellant pursued a wrong remedy under wrong advise of local Counsel.
7. On careful examination of the averments as made in the affidavit it is found that even the name of the local Counsel who has given wrong advise has not been mentioned. There is further no averment that if the advise given by the local Counsel was wrong then what action was taken by the appellant against that learned Advocate i.e. by filing complaint in the Bar Council or otherwise suing him in the competent Court. It is unbelievable for a law graduate that against the judgment and decree of the Civil Court passed by the Additional District Judge the advise was given to file a revision against the order of the Naib Tahsildar passed in the year 1991. It was the mutation proceeding. The order of the Naib Tahsildar is said to have been passed in the year 1991 and thus giving of the advise of filing revision after about ten years after judgment of the Additional District judge appears to be something funny and that makes no sense so as to give a belief to this Court about bonafide on the part of the appellant. After 2001 it is said that revision was tiled against the order of the Naib Tahsildar of the year 1991 and when it was rejected then a recall application was also filed and when that too was rejected then appellant came to present learned Advocate who gave him correct advise to file this second appeal. .
8. The suit for cancellation of sale deed was filed in the year 1991. First appeal came to be decided in the year 2001 and after about five years prayer is to entertain this appeal on the excuse of wrong advise by the local Counsel. Neither his name has been given nor action taken has been staled. Against the wrong advise as given by the learned advocate whose name is still to be ascertained, it is better for the appellant to take appropriate action against him by filing complaint before the Bar Council by giving complete details. This is not a case of pursuing remedy in a forum where the appellant can be said to have bonafide belief of getting relief. After dismissal of the suit by the Trial Court and dismissal of the appeal by the First Appellant Court in the year 2001 there cannot be any occasion.of getting any relief from the Court of Naib Tahsildar in respect to the sale deed by challenging the order of the Naib Tahsildar passed in the year 1991 i.e. after about ten years. In this situation appellant will have to fight with learned Advocate if contention of wrong advise is accepted for the sake of argument to be correct. This cannot be a case of
granting indulgence in the garb of section 14 of the Limitation Act which permits condonation on account of bonafide litigation in a wrong Court.
9. So far the judgment of the Apex Court given in case of State of West Bengal (supra) that happened to be a case of land acquisition proceeding and litigation came to this Court and remedy was found to be to challenge the judgment in the land acquisition reference case. The fact of the present case cannot be equated with the fact of the case, referred above. Thus on the facts, this Court is not satisfied that appellant can get any help from the decision on which reliance has been placed.
10. In view of the aforesaid, this Court is not satisfied that there is any bonafide on the part of appellant in filing appeal after about five years and thus this Court refuses to condone the delay in filing the appeal.
11. Accordingly, this application is rejected and thus appeal also stands dismissed.
