"Party Should Not Suffer Due to Inaction of the Advocate": Gujarat HC Condones Delay of 3330 Days In Filing Written Statement

The Petitioner herein submitted that the Respondent party had filed a civil suit in 2010 for declaration and permanent injunction. Pursuant to the summons, the Petitioners filed their appearance through their advocate. However, subsequently, there were no instructions from the advocate representing the Petitioners for filing the written statement owing to which the Petitioner's right to file the written statement was closed on 1^st May 2012. The Respondent, thereafter, filed his affidavit in lieu of examination in chief and the Petitioners then learnt that their written statement had not been filed leading to a delay of 3,330 days.

The Trial Judge, however, did not appreciate this fact, per the Petitioners and the legitimate right of the petitioners was exhausted. The Petitioner insisted that the Judge had committed "a material irregularity" in passing the order and by not exercising powers under Order VIII Rule I of the Civil Procedure Code. Averring that the Judge disallowed the application on hypertechnical grounds, the Petitioners urged the petition to file their written statement.

Justice Ashokkumar Joshi while noting that the advocate did not inform the Petitioner party about filing of the written statement relied on Indian Oil Corporation Ltd. and Ors. vs Subrata Borah Chowlek and Ors. MANU/SC/1252/2010 to observe:

"It is true that even upon showing a sufficient cause, a party is not entitled to the condonation of delay as a matter of right, yet it is trite that in construing sufficient cause, the Courts generally follow a liberal approach particularly when no negligence, inaction or mala fides can be imputed to the party."

Further reliance was place on Ram Nath Sao Alias Ram Nath Sahu and Ors. v. Gobardhan Sao and Ors. MANU/SC/0135/2002 where the Apex Court had ruled:

"But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over-jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party."

Emphasising that the Petitioner party herein was not at fault and that the delay was caused due to the advocate representing the party, the Bench allowed the petition with a direction to pay costs of INR 20,000 to the Trial Court within 15 days.

Case Title: Nimesh Dilipbhai Brahmbhatt vs Hitesh Jayantilal Patel

Citation: 2022 LiveLaw (Guj) 150

Case No.: C/SCA/6547/2020

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