SUPREME COURT OF INDIA

Before:- K. Venkataswami and Syed Shan Mohammed Quadri, JJ.

Civil Appeal No. 4683 of 1999, Arising out of SLP (C) No. 18341 of 1998. D/d. 23.8.1999.

Radha Krishna Rai - Appellant

Versus

Allahabad Bank and others - Respondents

Limitation Act, 1963, Section 5 and Article 116(a) - Appeal - Delay in filing - Counsel's fault - Delay of 1418 days in filing appeal before the Division Bench - Petitioner has been a victim of misrepresentation of facts by his own Advocate and was kept under the impression that the appeal is pending before the High Court whereas no appeal was in fact filed by the Advocate - It cannot be said that the appellant has not been vigilant in prosecuting the appeal - Held that, the cause shown by the petitioner is sufficient to justify condoning the delay in filing the appeal - Remitted for disposal in accordance with law.

[Para 5]

ORDER

K. Venkataswami, J. - Leave is granted limited to the question of the condonation of delay of 1418 days in preferring the appeal.

2. This appeal arises from the order dated 6-8-1998 passed by the High Court of Calcutta declining to condone the delay of 1418 days in preferring the appeal before the Division Bench. The Division Bench did not find sufficient cause to condone the delay and accordingly dismissed the appeal on 6-8-1998.

3. Dr Rajeev Dhawan, Senior Advocate appearing for the appellant submits that the appellant has been victim of misrepresentation by his own counsel and in the circumstances the High Court ought to have condoned the delay.

4. Heard learned counsel for the respondent.

5. It is a case where the appellant was kept under the impression that the appeal had already been filed. When the appellant tried to contact his advocate Mr M.M. Verma, to know about the progress of his case, he did not receive any satisfactory information. The appellant found that the progress of the matter was not satisfactory, he engaged another advocate, Mrs Heera Jain. On enquiry by Mrs Heera Jain, Advocate it came to her knowledge that no appeal was filed by the appellant before the Division Bench. Then she filed an appeal before the Division Bench with a petition to condone the delay in the circumstances mentioned above.

6. On the facts, we are of the view that though the period of delay is unduly long, the circumstances are also very unusual. The petitioner has been a victim of misrepresentation of facts by his own advocate and was kept under the impression that the appeal is pending before the High Court whereas no appeal was in fact filed by the advocate. It cannot be said that the appellant has not been vigilant in prosecuting the appeal. The cause shown by the petitioner is sufficient to justify condoning the delay in filing the appeal. We accordingly condone the delay and remit the matter to the High Court for disposing of the appeal in accordance with law.

7. The appeal is accordingly allowed.

8. No costs.

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