"Very Easy To Blame Lawyer": Orissa HC Refuses To Condone Delay In Case First Launched In 2006, Says Litigant Did Not Keep Touch With Advocate

The Orissa High Court has held that an advocate cannot be blamed for sheer negligence of a party resulting in considerable delay in compliance of Court’s order. While denying condonation of delay to the petitioner, the Division Bench of Chief Justice Subhasis Talapatra and Justice Sangam Kumar Sahoo observed,

“It is very easy to change lawyer and to put blame on the earlier lawyer for his/her negligence, but the Court cannot turn a blind eye to the surrounding circumstances, eventualities and most importantly, the conducts of the party before it marches on to believe the allegations levelled by the party against his Advocate as a gospel truth.”

The petitioner filed a writ petition seeking to quash the order passed by the Tahasildar-cum-OEA Collector, Puri which was later confirmed by the Additional District Magistrate, Puri.

The case was taken up for admission before the High Court on 21.11.2006 and requisites for issuance of notice to the opposite parties were directed to be filed by 23.11.2006. However, the petitioner did not comply with the aforesaid order. The matter remained in the cold-store for about a decade before it was finally listed for hearing on 08.01.2016. On that date, the Court adjourned the case for one week granting last opportunity to the petitioner to file the requisites, failing which it was clarified that the matter will stand dismissed automatically.

As the petitioner did not comply with the order dated 08.01.2016, the case was dismissed by the Deputy Registrar (Judicial) on 18.02.2016 without further reference to the Bench. After about four years, the petitioner filed an application for restoration of his original writ petition.

In the application, it was stated that the petitioner in good faith believed that his counsel were properly conducting his case but on 14.12.2019, it came to his knowledge that the petition has been dismissed for non-compliance of the order passed by the Court on 08.01.2016.

The petitioner alleged that he was ignorant about the aforesaid order as his counsel did not inform him about the same and due to the negligence of his counsel, the postal requisites could not be filed for which the case was dismissed.

It was further submitted that after coming to know about the order on 14.12 2019, the petitioner took immediate steps to trace out the files of the case and to file application for restoration at the earliest. It was pleaded that for the negligence of his counsel, the petitioner has suffered immensely and he will suffer irreparable loss if his case is not restored.

But the counsel for the opposite parties vehemently opposed the plea of the petitioner and contended that there is inordinate delay in filing the restoration application. It was argued that the petitioner has not explained sufficient cause to condone inordinate delay of 1391 days as each and every day of delay should be properly explained by the petitioner.

It was further stated that the explanation given by the petitioner while praying to condone the delay in filing the restoration application is a fanciful one and nowhere it is stated that due to some unavoidable circumstances beyond his control, the delay has occasioned and therefore, there is no prima facie justification for condoning the delay.

Court’s Observations

The Court noted that the sole ground taken for condonation of the delay is the negligence of the conducting counsel in taking steps at right time in complying with the order of the Court as well as unawareness on the part of the petitioner regarding the order passed by the Court.

The Court was of the opinion that when the petitioner handed over the brief to his advocate for filing the case in the High Court in 2006, it was expected of him to remain in contact with his advocate to know about the progress of the case.

“When the case was first taken up on 21.11.2006 and notice was directed to be issued, requisites were not filed in time. Then the matter came up on board of the Court straight after nine years which goes a long way to show that the petitioner was not keeping in touch with his advocate to ascertain about the status of the case and therefore, it can be said that he was absolutely careless and negligent in pursuing his case,” the Court added.

The Court opined that had the petitioner been alert to his rights which were at stake in the writ petition, it is unlikely that he would have slept over the matter for about four long years before discovering that his case has been dismissed for default.

“It is very hard to believe that a hawk-eyed litigant would not put the slightest of labour to enquire about the status of the case till the next listing, which happened only after a gap of almost a decade,” it observed.

Accordingly, the Court held that the explanation offered by the petitioner, while praying for condonation of the delay, is a ‘fanciful’ one. Thus, the application was dismissed.

Counsel for the Petitioner: Mr. Ajit Kumar Tripathy, Advocate

Counsel for the Respondent: Mr. Subrat Satpathy, Advocate; Mr. P.K. Muduli, Addl. Govt. Advocate

Citation: 2023 LiveLaw (Ori) 103

Case Title: Shankarlal Patwari v. Shri Jagannath Mahaprabhu & Ors.

Case No.: CMAPL No. 864 of 2019 (I.A. No. 348 of 2019)

Date of Judgment: September 29, 2023

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