Deewan Singh Bohra Vs Suresh Chandra (Uttarakhand High Court)
Summary: The Uttarakhand High Court condoned a delay of 226 days in filing a civil revision against a decree for eviction and recovery of arrears of rent passed in SCC Case No. 19 of 2017, Suresh Chandra Vs Deewan Singh Bohra. The Small Causes Court had decreed the suit on 3 August 2019, with the decree dated 13 August 2019. The revisionist, who was the defendant in the original proceedings, attributed the delay to assurances allegedly given by advocate Dushyant Mainali regarding the filing of the revision and obtaining a stay order.
According to paragraphs 5, 6 and 11 of the affidavit supporting the delay-condonation application, the revisionist’s trial court counsel, Manoj Bhatt, had advised him to challenge the judgment and decree before the High Court. His wife subsequently engaged advocate Dushyant Mainali at Haldwani, handed over the case records and paid the requisite professional fees and expenses. The revisionist stated that he was elderly, illiterate and suffering from asthma, which prevented him from travelling regularly to Nainital. He therefore relied upon the advocate’s assurance that the revision would be filed within time and appropriate interim protection obtained.
The revisionist further alleged that, despite repeated telephonic enquiries, the advocate informed him that the revision had already been filed but could not be listed because of COVID-19 restrictions. The advocate allegedly also represented that a stay order had been obtained and produced before the Small Causes Court. However, when the revisionist learned on 29 March 2022 about the issuance of a warrant or process for delivery of possession, he visited Nainital on 30 March 2022 and discovered that no revision had been filed.
The High Court considered the explanation furnished in the delay-condonation application and the respondent’s objections, particularly the replies concerning paragraphs 5, 6, 11 and 14 of the affidavit. It observed that the material allegations had not been specifically denied, although they concerned matters that might not have been within the respondent’s personal knowledge. The Court reasoned that litigants ordinarily place considerable trust in their advocates and that communications between counsel and client need not invariably be in writing. It concluded that the revisionist could not be held exclusively responsible for the delayed filing.
The High Court also made adverse observations concerning the advocate’s alleged conduct and directed the Registrar General to refer the matter to the Uttarakhand Bar Council for disciplinary proceedings under the applicable procedures and the Advocates Act. The Bar Council was directed to conclude the proceedings within six months and report its decision to the High Court.
Consequently, the High Court condoned the 226-day delay and directed that the civil revision be listed the following week for hearing at the admission stage. The order did not decide the merits of the eviction decree or the revision itself.
Related Judgment: The Supreme Court subsequently examined the adverse observations against the advocate and ordered their expunction for violation of natural justice. Read Supreme Court Expunges Adverse Remarks Against Advocate Made Without Hearing.
FULL TEXT OF THE JUDGMENT/ORDER OF UTTARAKHAND HIGH COURT
Mr. Sanjeev Kumar Sah, Advocate for the respondent.
The petitioner before this Court is a defendant. in an SCC suit proceedings which was held by way of SCC Case No. 19 of 2017, Suresh Chandra Vs. Deewan Singh Bohra. The suit was decreed by the judgement of 03.08.2019. Being aggrieved against the aforesaid judgment passed by the Judge, Small Causes Court, whereby a decree of an eviction and recovery of arrears of rent was rendered against the present revisionist. This revision was preferred on 03.08.2019 accompanied with a delay condonation application preferred by the revisionist where the reason for delay has been more appropriately described in paragraph 5, 6 and 11 of the affidavit filed in support of delay condonation application, which is extracted hereunder:-
“5. That after receiving the certified copy of the order dated 03.08.2019 as well as the decree dated 13.08.2019 the counsel of the trial court Shri. Manoj Bhatt advised the deponent /revisionist to challenge the impugned judgement and decree by way of filing revision before the Hon’ble High Court therefore the wife of the deponent contacted Shri. Dushyant Mainali Advocate High Court at his office at Haldwani and instructed him to file a revision against the impugned judgement dated 03.082019 and decree dated 13.08.2019 before the Hon’ble High Court and paid all the before the Hon’ble High Court and paid all the necessary expenses and the requisite fee of the counsel after handing over the entire record of the case to Shri. Dushyant Mainali, Advocate High Court and the wife of the deponent also informed him that the deponent is suffering from asthma and due to his old age he could not come to Nainital regularly and Shri. Dushyant Mainali Advocate made a promise to the wife of the deponent that he will file the aforesaid revision against the impugned judgement and decree dated 03.08.2019 and 13.08.2019 as such after the assurance so given by Shri Dushyant Mainali to the wife of deponent, the deponent as communicated to him the same by her wife was under the hope that his advocate will file the aforesaid revision within time and will take necessary stay order from the High Court.
6. That several times the deponent made an enquiry telephonically from his advocate above named i.e. Shri Dushyant Mainali about the matter but he assured and convinced the deponent that the aforesaid revision has been filed before the Hon’ble High Court but the said revision could not be listed for final hearing due to COVID -19 and the stay order so obtained in the revision so filed by the advocate of the deponent Shri. Dushyant Mainali against the impugned judgement and decree dated 03.08.2019 has been produced before the Judge S.C.C. in S.C.C Case No. 19 of 2019 “Suresh Chandra V/s Diwan Singh Bora.”
11. That there was no communication about the progress of the case from the side of the advocate of the deponent i.e. Shri Dushyant Mainali and when on 29.03.2022 the facts came to the knowledge of the deponent about the issuance of Parwana for handing over the possession then on 30.03.2022 the deponent came to Nainital and enquired the matter regarding filing of the aforesaid Civil Revision wherein he came to know that no aforesaid Civil Revision has been filed by Shri. Dushyant Mainali against the impugned judgement and decree before the Hon’ble High Court till today. The deponent is an old and illiterate person and is suffering from asthma thereby when it came to the knowledge of the deponent that no revision has been filed by the advocate engaged by him Shri Dushyant Mainali since 2019 therefore the deponent was shocked by the conduct of his advocate toward the deponent.”
Though, at this stage, it would be too premature to record any statement with regards to the conduct of the counsel, whose name has been specifically referred to in the affidavit filed in support of the delay condonation application, because that would be exclusively a subject matter to be decided by the registering body of the counsel concerned i.e. the Uttarakhand Bar Council, because no professional registered with the Bar Council could be permitted to take liberty and play foul with a litigant by giving a wrongful understanding of taking the brief! informing the client that he has filed the case! thereafter informing him that he has got a stay order in his favour! thereafter making a statement that the stay order has been filed before the executing court! All these statements are per se apparently false because there is no prior pending revision, than the one at hand which has been instituted and there is no reason to disbelief the grounds taken by the revisionist in the delay condonation application of the Assurances extended by the counsel Mr Dushyant Manali. This false assurance extended by counsel for the revisionist as per the opinion of this court is of the view is tentatively and apparently true would amount to be a professional misconduct for which this Court is taking a suo moto cognizance and referring the matter to the bar council to draw an appropriate proceedings disciplinary against the counsel concerned for wrongful extension of information to the litigant due to which the revision had preferred the revision at a belated stage, when the revisionist faced the order passed by the executing court in pursuance to the impugned decree which has been put to challenge in the present revision.
The Bar Council is directed to proceed strictly in accordance with the procedures governing with the disciplinary proceedings of the bar council as well as under the provisions of the Advocates act. Having apparently considered the reasons which has been given in the delay condonation application, logically this Court is of the view that any litigant blindfoldedly relies upon the statement given by the counsel and he acts upon that and in all the circumstances, it is not necessary that the said communication made by the counsel to the client has had to be in writing. In that eventuality, prima facie and so far as the revisionist is concerned individually, he cannot be held responsible for delayed filing of a revision when the revisionist counsel Mr. Dushyant Mainali has duped him by making a false statement, which was bonafidely believed by the revisionist. In that eventuality, this court directs the Registrar General of this Court to refer the matter to the Bar Council of Uttarakhand to draw and appropriate disciplinary proceedings against the professional misconduct on part of Mr. Dushyant Mainali and to conduct and conclude the proceedings against him within a period of six months from today and report back to this Court of decision taken.
Having considered the reasons given in the delay condonation application and also after considering the objection raised by the respondent to the delay condonation application, particularly in the context of the reply given to paragraph 5, 6, 11 and 14, the contents of which, have not been specifically denied and quite logically too, because the grounds taken in paragraph 5, 6, 11 and 14 may not be within the knowledge of the deponent who has objected the delay condonation application, but, still the petitioner cannot be held to be exclusively responsible for belated filing of the revision. In that eventuality, the delay which has chanced in preferring the revision with the delay of 226 days, would hereby stand condoned.
The revision is directed to be listed next week for hearing at admission stage immediately after fresh.
