M.G. Prabhan v. Babu and others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P.B. Suresh Kumar, J.
Judgment Date: 2016-02-22
Court Decision / Holding: The second appeal is allowed; I.A.587/2004 is allowed; A.S.No.70/2004 is remitted to the Sub Court, Neyyattinkara for fresh disposal. All interlocutory applications in the appeal are closed.
Final Disposition: The second appeal allowed; matter remitted to Sub Court for fresh disposal.

Parties to the Case

Appellants / Petitioners

M.G. Prabhan

Respondents

Babu
Sarojini Amma
Baby
Bhasi (deceased)
Geetha
Biji Nanda
Nandana

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Pirappancode V.S. Sudhir

Counsels for Respondents

• Sri. L. Mohanan
• Sri. N.K. Thankachan

Case Synopsis & Summary

This Regular Second Appeal arises from a suit seeking declaration of title, possession, and fixation of a boundary, originally dismissed by the trial court. The plaintiff-appellant challenged the appellate decision that dismissed a delay-condonation application (I.A.587/2004) in filing A.S.70/2004, arguing that the delay was caused by the negligent handling of the matter by his counsel. The appellant alleged that his former counsel, who appeared before the trial court, failed to obtain a certified copy of the judgment, and only after instructions to a new counsel did the plaintiff realize that the certified copy had not been applied for. The new counsel then had to obtain such copy, resulting in delay. The appellate court rejected the delay-condonation, while the appellant contended that the delay was excusable given the inadvertence of the lawyers. The High Court, after hearing, concluded that the delay occurred due to the mistakes of the appellant’s counsel, and under the circumstances, the explanation amounts to a sufficient cause to condone the delay. Citing Rafiq v. Munshilal, the court emphasized that an innocent party should not suffer due to counsel’s negligence. Consequently, the impugned judgment was set aside, the delay application allowed, and the matter remitted for fresh disposal. The decision reflects a strong stance on accountability for counsel’s misfeasance in civil appeal timelines.

Legal Doctrines & Maxims

Innocent party should not suffer for the misfeasance/mistake of his counsel (as per Rafiq v. Munshilal)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant submits that the delay in filing the appeal arose from the inadvertence and negligence of his former counsel, who reportedly did not obtain a certified copy and misinformed the client about the need to file using the certified copy. After acquiring a new counsel, the appellant sought condonation of delay, arguing that the delay was not due to any mala fide but due to counsel’s mistakes. Relying on the principle articulated in Rafiq v. Munshilal, the appellant contends that an innocent party should not be penalized for counsel’s inaction and that substantial reasons exist to condone the delay and proceed with the appeal on merits.

Contentions of Respondents

The respondents opposed the condonation of delay, arguing that the appellant had in fact obtained a carbon copy of the trial judgment and that there was no bonafide justification for the delay. They contended that the appellate court correctly dismissed the condonation petition, leading to dismissal of the appeal on that basis. They relied on procedural norms regarding certified copies and the timelines for filing appeals, arguing that the delay cannot be excused merely on the ground of counsel’s alleged lapses.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Rafiq v. Munshilal	AIR 1981 SC 1400	Positive	Cited to support the principle that an innocent party should not suffer for the negligence or inaction of counsel, justifying condonation of delay in this case.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **MONDAY, THE 22ND DAY OF FEBRUARY 2016/3RD PHALGUNA, 1937** **RSA.No. 601 of 2005** **---------------------------------AGAINST THE JUDGMENT AND DECREE IN A.S.NO.70/2004 AND I.A.NO.587/2004 IN A.S.NO.70/2004 OF SUB COURT, NEYYATTINKARA** **AGAINST THE JUDGMENT AND DECREE IN O.S.NO.577/1999 OF PRINCIPAL MUNSIFF'S COURT, NEYYATTINKARA** **--------------------** **APPELLANT(S)/APPELLANT/PLAINTIFF :** **------------------------------------------------------------------** **M.G.PRABHAN, S/O.GOVINDA PANICKER, URIYARIKKUNNU PUTHEN VEEDU, KARUMKULAM DESOM, KARUMKULAM VILLAGE.** **BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR** **RESPONDENT(S)/RESPONDENTS/DEFENDANTS :** **---------------------------------------------------------------------------** **1. BABU, S/O.KRISHNA PILLAI, KULAPPURAKETTIYA VEEDU, PUTHIYATHURA, KARUMKULAM DESOM, KARUMKULAM VILLAGE.** **2. SAROJINI AMMA, W/O.LATE KRISHNA PILLAI, KULAPPURAKETTIYA VEEDU, PUTHIYATHURA, KARUMKULAM DESOM, KARUMKULAM VILLAGE.** **3. BABY, S/O.SAROJINI AMMA, KULAPPURAKETTIYA VEEDU, PUTHIYATHURA, KARUMKULAM DESOM, KARUMKULAM VILLAGE.** - **4. BHASI, S/O.KRISHNA PILLAI, KULAPPURAKETTIYA VEEDU, PUTHIYATHURA, KARUMKULAM DESOM, KARUMKULAM VILLAGE. (DIED)** ## *** ADDITIONAL R5 TO R7 IMPLEADED** **5. GEETHA, W/O.LATE BHASI, KULAPPURAKETTIYA VEEDU, PUTHIYATHURA, KARUMKULAM DESOM, KARUMKULAM VILLAGE.** **6. BIJI NANDA, D/O.LATE BHASI, KULAPPURAKETTIYA VEEDU, PUTHIYATHURA, KARUMKULAM DESOM, KARUMKULAM VILLAGE.** **..2/-** **..2..** ## **RSA.No. 601 of 2005** **--------------------------------** ## **7. NANDANA, D/O.LATE BHASI, KULAPPURAKETTIYA VEEDU, PUTHIYATHURA, KARUMKULAM DESOM, KARUMKULAM VILLAGE.** ## *** LEGAL REPRESENTATIVES OF DECEASED 4TH RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 5 TO 7 AS PER ORDER DATED 18.02.2016 IN I.A.NO.419 OF 2015.** **R4 BY ADVS. SRI.L.MOHANAN R5 & R7 BY ADV. SRI.N.K.THANKACHAN** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. ## **P.B.SURESH KUMAR, J.** **----------------------------------------------R.S.A. No.601 of 2005** ## **----------------------------------------------Dated 22[nd] February, 2016.** ## **J U D G M E N T** The plaintiff in a suit for declaration of title and possession as also for fixation of boundary, is the appellant in this second appeal. 2. The suit was dismissed by the trial court. The plaintiff preferred an appeal challenging the decision of the trial court with a petition to condone the delay of 376 days in filing the appeal. According to the plaintiff, one Adv.G.K.Noble was conducting the suit on his behalf and when he lost the suit, he entrusted the matter to Adv.K.Jayachandran for preferring the appeal. It is stated by the appellant in the affidavit filed in support of the application for condoning the delay that when the matter was entrusted to the new counsel, the certified copy of the decision of the trial court was not received by the appellant and consequently, he entrusted his new counsel to RSA No.601 of 2005 2 obtain the certified copy from the court and prefer the appeal. It is also stated by the appellant in the said affidavit that later, on 16.2.2004, when his new lawyer made enquiries about the stage of the certified copy of the trial court judgment, it was revealed that the certified copy of the decision of the trial court has not been applied on behalf of the appellant. Consequently, according to the appellant, a certified copy of the decision of the trial court had to be applied by the new counsel engaged by the appellant and the appeal could be filed only after obtaining the certified copy applied for by the new counsel. It is stated that it is on account of the said reason, the delay of 376 days in filing the appeal occurred. The application was opposed by the respondents in the appeal. According to them, a carbon copy of the decision of the trial court was applied for and obtained by the plaintiff and as such, there is no bonafides in contending that the certified copy of the trial court judgment was not applied for by the appellant. 3. The appellate court took the view that in so far as the appellant has applied for and obtained a carbon copy of RSA No.601 of 2005 3 the judgment of the trial court, there is no bonafides in contending that there was omission on the part of the appellant in applying for a certified copy of the trial court judgment for the purpose of preferring the appeal. Consequently, the appellate court dismissed the application filed by the appellant seeking orders to condone the delay in filing the appeal. Since the application to condone the delay in filing the appeal was dismissed, the appeal was also dismissed on that basis. The plaintiff is aggrieved by the said decision of the appellate court and hence this second appeal. 4. Though the appeal was admitted and respondents were issued notice, there is no appearance for the respondents. 5. Heard the learned counsel for the appellant. 6. The learned counsel for the appellant contended that the counsel with whom the matter was entrusted for the purpose of preferring the appeal was under the impression that the appeal could be filed only making use of the certified copy of the decision of the trial court and it is on account of the said RSA No.601 of 2005 4 reason that the said lawyer had applied for a certified copy of the judgment of the trial court on behalf of the appellant and the appeal was filed making use of the certified copy obtained by him. According to the learned counsel, though the appeal could have been filed making use of the carbon copy issued from the trial court, the appellant cannot be held responsible for the mistake, if any, committed by his lawyer. He also relied on the decision of the Apex Court in **Rafiq v. Munshilal** (AIR 1981 SC 1400), wherein, it was held by the Apex Court that as per the present adversary legal system, a party who has selected his advocate, briefed him and paid his fee can remain supremely confident that his lawyer will look after his interest and such a innocent party who has done everything in his power and expected of him, should not suffer for the inaction, deliberate omission or misdemeanour of his counsel. 7. In the light of the submission made by the learned counsel for the appellant, the following question was formulated for decision : Was the appellate court justified in dismissing RSA No.601 of 2005 5 the application filed by the appellant to condone the delay in filing the appeal? As noted above, the case of the appellant is that he had entrusted the matter to a lawyer for the purpose of preferring the appeal against the decision of the trial court. It is also his case that he had informed the lawyer to whom the matter was entrusted that the lawyer who appeared for him before the trial court had informed him that he had applied for a certified copy of the decision of the trial court and the appeal can be filed making use of that certified copy. It is his further case that when the lawyer with whom the matter was entrusted made enquiries, it was understood that the lawyer who appeared for the appellant before the trial court did not apply for a certified copy. It is his further case that since the lawyer who appeared for the appellant before the trial court did not apply for a certified copy, the new lawyer had to apply for a certified copy of the decision of the trial court and consequently, the appeal could be filed only after obtaining the said certified copy and it RSA No.601 of 2005 6 is on account of the said reason that the delay in filing the appeal occurred. There is nothing on record to indicate that the appellant was aware of the fact that his lawyer before the trial court had not applied for a certified copy of the decision of the trial court. The appellant cannot also be made responsible for the laches, if any, committed by the counsel engaged by him for not preferring the appeal making use of the carbon copy of the judgment obtained on his behalf. It is conceded that in a case of this nature, what is to be seen by the court is as to whether the appellant is guilty of neglect or laches in not filing the appeal on time. As the delay in filing the appeal occurred on account of the mistakes committed by the lawyers engaged by the appellant, according to me, the lower appellate court ought to have accepted the explanation offered by the appellant as sufficient cause for the delay. The question formulated for decision is thus answered in favour of the appellant. 8. In the result, the impugned judgment is set aside, I.A.No.587 of 2004 is allowed and A.S.No.70 of 2004 is RSA No.601 of 2005 7 remitted to the Sub Court, Neyyattinkara for fresh disposal. The second appeal is allowed as above. All the interlocutory applications in the appeal are closed. Sd/- ## **P.B.SURESH KUMAR, JUDGE.** tgs (true copy)