# Plaintiff v. Smt. Birmo Defendant/

- **Citation:** (2008) 1 ILRA 186
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-11-28
- **Bench:** S.K. Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/plaintiff-v-smt-birmo-defendant-40976
- **Pages:** 3

## Headnote

Act-Section
14Condonation of delay in filling Second
Appeal-5 years delay-No proper explanation
wrong advice of counsel-even name of such
counsel not disclosed-No complaint filed
before Bar counsel who advised to file
revision against the rejection of First Appeal
by District Judge-even on merit-no loss or
injury caused the appellant-delay not liable
to condone.
1 All] Surya Prakash Dwivedi V. State of U.P. and others
187
Held: Para 6 & 8

On careful examination of the averments as
made in the affidavit it is found that even
the name of the local counsel who has
given wrong advise has not mentioned.
There is further no averment that if the
advise given by the local counsel was
wrong then what action was taken by the
appellant against that learned Advocate i.e.
by filing complaint in the Bar Council or
otherwise suing him in the competent
court. It is unbelievable for a law graduate
that against the judgment and decree of the
civil court passed by the Additional District
Judge the advise was given to file a revision
against the order of the Naib Tahsildar
passed in the year 1991. It was the
mutation proceeding. The order of the Naib
Tahsildar is said to have been passed in the
year 1991 and thus giving of the advise of
filing revision after about ten years after
judgment of the Additional District Judge
appears to be something funny and that
makes no sense so as to give a belief to this
court about bonafide on the part of the
appellant.

In view of the aforesaid, this court is not
satisfied that there is any bonafide on the
part of appellant in filling appeal after about
five years and thus this court refuses to
condone the delay in filing the appeal.
Case law discussed:
AIR 1972 SC-749, AIR 1998 SC-2276

## Text

186 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
speak on the merit of the motion. Such
discussion shall terminate on the expiry of
two hours appointed for the commencement
of the meeting unless it is concluded earlier.
Then the motion shall be put to vote
according to provisions of Rule 33-D."

8. After the amendment of the Rules
with effect from 4.3.2005, the delivery of the
notice by five members signing the notice,
certifying the signatures of other members
signing the notice is prima facie sufficient to
satisfy the District Panchayat Raj Officer
regarding genuineness of the signatures of
the members signing the notice. He may hold
an enquiry, the manner of which is not
prescribed, to satisfy himself, with regard to
the genuineness and number of signatures on
the notice. He may also refuse to make an
enquiry in this regard. The enquiry, however,
should not be so elaborate so as to defeat the
very object of the notice. The law does not
require the enquiry officer to summon each
and every signatory or to knock on their
door, or even to ask them to assemble and to
verify the signatures/thumb impressions. The
enquiry should not be delayed or deferred
giving an opportunity to the elected Pradhan
to either withhold the members from
attending the proceedings or to manipulate to
defeat the motion. The enquiry also should
not be extended so that the members are not
provided with 15 clear days to consider the
motion.

9. In the present case the calling of the
meeting by beat of drums in the village and
thereafter asking the persons to assemble to
verify their signatures virtually pre-empted
the 'no confidence motion'. It was not
necessary to call for the members who had
signed or put their thumb impressions. They
may not be present on that date or at any
particular time to be chosen by the enquiry
officer. It is not possible to assume that more
than half of the members of village will be
present in the village on any given time
before the enquiry officer.

10. The writ petition is allowed. The
order dated 15.11.2007 passed by the District
Panchayat Raj Officer is set aside. Now since
the period of thirty days has expired, no
effective relief can be given to the petitioner
except by observing that the petitioner may
give a fresh notice, call the meeting to
consider the 'no confidence motion'. If and
when such a meeting is called, the District
Panchayat Raj Officer would hold the
enquiry regarding the genuineness of the
signatures/thumb impressions in accordance
with law as explained in the judgment.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.11.2007

BEFORE
THE HON'BLE S.K. SINGH, J.

Second Appeal No. (88) of 2006

Ram Pal

...Plaintiff Appellant
Versus
Smt. Birmo
...Defendant/Respondent

Counsel for the Appellant:
Sri A.K. Singh

Counsel for the Respondent:
Sri Amit

Indian
Limitation
Act-Section
14Condonation of delay in filling Second
Appeal-5 years delay-No proper explanation
wrong advice of counsel-even name of such
counsel not disclosed-No complaint filed
before Bar counsel who advised to file
revision against the rejection of First Appeal
by District Judge-even on merit-no loss or
injury caused the appellant-delay not liable
to condone.
1 All] Surya Prakash Dwivedi V. State of U.P. and others
187
Held: Para 6 & 8

On careful examination of the averments as
made in the affidavit it is found that even
the name of the local counsel who has
given wrong advise has not mentioned.
There is further no averment that if the
advise given by the local counsel was
wrong then what action was taken by the
appellant against that learned Advocate i.e.
by filing complaint in the Bar Council or
otherwise suing him in the competent
court. It is unbelievable for a law graduate
that against the judgment and decree of the
civil court passed by the Additional District
Judge the advise was given to file a revision
against the order of the Naib Tahsildar
passed in the year 1991. It was the
mutation proceeding. The order of the Naib
Tahsildar is said to have been passed in the
year 1991 and thus giving of the advise of
filing revision after about ten years after
judgment of the Additional District Judge
appears to be something funny and that
makes no sense so as to give a belief to this
court about bonafide on the part of the
appellant.

In view of the aforesaid, this court is not
satisfied that there is any bonafide on the
part of appellant in filling appeal after about
five years and thus this court refuses to
condone the delay in filing the appeal.
Case law discussed:
AIR 1972 SC-749, AIR 1998 SC-2276

(Delivered by Hon'ble S. K. Singh. J.)

1. Heard Sri A.K. Singh, learned
Advocate in support of delay condonation
application and Sri Amit, learned Advocate
who appeared for the respondent.

2. This appeal has been filed against
the judgment and decree passed by the lower
appellate court dated 7.4.2001. In view of
report of the stamp reporter the appeal is
barred by time by four years 273 days.
Affidavit has been filed in support of the
delay condonation application to which
counter affidavit has been filed by the
respondent and rejoinder affidavit is also
there.

3. The ground which has been taken
for condonation of delay is that under wrong
advise of the local counsel appellant pursued
a wrong remedy and after exhausting that
remedy when he came to the present learned
counsel he was correctly advised to file
appeal and thus this appeal has been filed. It
is on these premises delay in filing the appeal
is sought to be condoned. In support of the
submission that pursuing a different remedy
than appeal on wrong advise of a counsel
constitute substantial cause reliance has been
placed on the decision given by the Apex
Court in case of State of West Bengal Vs.
Howrah Municipality, reported in AIR1972,
SC, page 749.

4. The aforesaid stand was contested
by the respondent by filing counter affidavit.
Learned counsel for the respondent submits
that if the explanation is not satisfactory then
delay is not to be condoned as that is to cause
irreparable injury to the other side. In support
of his submission learned counsel for the
respondent placed reliance on the judgment
given by the Apex Court in case of P.K.
Ramachandran Vs. State of Kerala and
another reported in AIR 1998 SC, 2276.

5. In view of the aforesaid, this court
has examined the matter.

The suit was for cancellation of sale
deed which is said to have been executed by
plaintiff-appellant on 13.7.84. The suit was
filed in the year 1991 which was numbered
as Original Suit No. 279 of 1991. The suit
was dismissed on 16.10.1999. The appeal
was dismissed on 7.4.2001. Admittedly
second appeal has been filed after delay of
four years 273 days as noted above. The
188 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
ground is that appellant pursued a wrong
remedy under wrong advise of local counsel.

6. On careful examination of the
averments as made in the affidavit it is found
that even the name of the local counsel who
has given wrong advise has not mentioned.
There is further no averment that if the
advise given by the local counsel was wrong
then what action was taken by the appellant
against that learned Advocate i.e. by filing
complaint in the Bar Council or otherwise
suing him in the competent court. It is
unbelievable for a law graduate that against
the judgment and decree of the civil court
passed by the Additional District Judge the
advise was given to file a revision against the
order of the Naib Tahsildar passed in the year
1991. It was the mutation proceeding. The
order of the Naib Tahsildar is said to have
been passed in the year 1991 and thus giving
of the advise of filing revision after about ten
years after judgment of the Additional
District Judge appears to be something funny
and that makes no sense so as to give a belief
to this court about bonafide on the part of the
appellant. After 2001 it is said that revision
was filed against the order of the Naib
Tahsildar of the year 1991 and when it was
rejected then a recall application was also
filed and when that too was rejected then
appellant came to present learned Advocate
who gave him correct advise to file this
second appeal.

7. The suit for cancellation of sale deed
was filed in the year 1991. First appeal came
to be decided in the year 2001 and after
about five years prayer is to entertain this
appeal on the excuse of wrong advise by the
local counsel. Neither his name has been
given nor action taken has been stated.
Against the wrong advise as given by the
learned advocate whose name is still to be
ascertained, it is better for the appellant to
take appropriate action against him by filing
complaint before the Bar Council by giving
complete details. This is not a case of
pursuing remedy in a forum where the
appellant can be said to have bonafide belief
of getting relief. After dismissal of the suit by
the trial court and dismissal of the appeal by
the First Appellate Court in the year 2001
there cannot be any occasion of getting any
relief from the court of Naib Tahsildar in
respect to the sale deed by challenging the
order of the Naib Tahsildar passed in the year
1991 i.e. after about ten years. In this
situation appellant will have to fight with
learned Advocate if contention of wrong
advise is accepted for the sake of argument to
be correct. This cannot be a case of granting
indulgence in the garb of Section 14 of the
Limitation Act which permits condonation
on account of bonafide litigation in a wrong
court.

7. So far the judgment of the Apex
Court given in case of State of West Bengal
(Supra) that happened to be a case of land
acquisition proceeding and litigation came to
this court and remedy was found to be to
challenge
the
judgment
in
the land
acquisition reference case. The fact of the
present case cannot be equated with the fact
of the case, referred above. Thus on the facts,
this court is not satisfied that appellant can
get any help from the decision on which
reliance has been placed.

8. In view of the aforesaid, this court is
not satisfied that there is any bonafide on the
part of appellant in filling appeal after about
five years and thus this court refuses to
condone the delay in filing the appeal.

9. Accordingly, this application is
rejected and thus appeal also stands
dismissed.
---------