Litigant Can't Be Held Responsible For Counsel's Failure to File Appeal Within Statutory Period Of Limitation: Allahabad High Court

The Allahabad High Court has held that a litigant cannot be held responsible for her/his counsel's inaction in filing the appeal within the statutory limitation period.

In the case at hand, the Appellants filed a special appeal against the order passed by a Single Judge in a Testamentary Suit rejecting the application by the second appellant seeking transposition as plaintiff in place of Administrator General. The special appeal was filed with a delay of 105 days and was barred by limitation.

In the delay condonation application filed by the appellants, it was stated that when the appeal was prepared, the Bar Council of Uttar Pradesh had declared a strike, and thereafter, the counsel for the appellant went to his village to attend to his ailing relatives.

Accordingly, it was pleaded that while going through his office, he found that an appeal had not been filed yet. Subsequently, the appeal was filed along with the delay condonation application.

In the counter-affidavit to the delay condonation application, it was contested that the counsel for the appellants was never ill and had been regularly appearing before the High Court. Several orders passed by various benches of the High Court were annexed to show that the courts had noted his presence.

It was also argued that the deponent had used two different Aadhar Cards with different addresses at her convenience. Lastly, it was argued that the appellants could not escape responsibility for the delay as the council acted as their agent.

The Court observed that the affidavit contained a photo verification dated 30.08.2023, while the appeal was filed in December 2023. The photo verification done in August 2023 showed that the appeal was ready in August; however, the same was not filed by the counsel.

The Court disbelieved the story of the earlier counsel for the appellants regarding his relative's illness and his not being in town based on the orders produced by the counsel for the defendants in their counter-affidavits.

“The appellant apparently believing the story of the counsel filed the affidavit in support of application seeking condonation of delay, however, when on account of filing of the counter affidavit to the application seeking condonation of delay, she became aware of the true facts, another affidavit has been filed indicating the facts as noticed herein before regarding non filing of the appeal by the counsel and getting filed an incorrect affidavit,” observed the Court.

The Court held that the appellants were prudent persons who relied upon the counsel for filing the appeal within limitation. It was held that the litigant could not be held responsible for the inaction on the part of her counsel in not filing the appeal within statutory limitation.

The Court observed that once the appellants were brought before the court regarding the previous counsel's inaction, they changed their counsel and filed a fresh affidavit disclosing all facts, and thus, they cannot be said to have approached the High Court with unclean hands.

While condoning the delay of 105 days, the bench comprising Chief Justice Arun Bhansali and Justice Vikas Budhwar held that “it has been established as a fact that the memo of appeal was ready on 31.08.2023 and the counsel got prepared the affidavit seeking condonation of delay with incorrect facts essentially to cover up the lapses on his part in not filing the appeal in time, it cannot be said that the appellant was in any manner negligent so as to disentitle her to seek condonation of delay.”

Case Title: Rani Rewati Devi Ravi Pratap Nyas And Another v. Administrator General,Uttar Pradesh And 22 Others 2024 LiveLaw (AB) 431 [SPECIAL APPEAL DEFECTIVE No. - 115 of 2024]

Case Citation: 2024 LiveLaw (AB) 431

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