The Orissa High Court held that an advocate cannot be blamed if the litigant was not vigilant enough in pursuing the case with due diligence. In this case, a petition sought condonation of a delay of 1391 days in filing a restoration application after the dismissal of the original writ petition which was initially dismissed due to the petitioner's failure to file the requisites for issuing notice to the opposing parties within the specified time frame. He contended that the delay was due to a communication gap with the Advocate and lack of awareness about the court's order.

A Division bench of Chief Justice Subhasis Talapatra and Justice Sangam Kumar Sahoo held that, “It is very easy to change lawyer and to put blame on the earlier lawyer for his/her negligence, but the Court cannot turn a blind eye to the surrounding circumstances, eventualities and most importantly, the conducts of the party before it marches on to believe the allegations leveled by the party against his Advocate as a gospel truth.”

Advocate Ajit Kumar Tripathy appeared for the Petitioner and Advocate Subrat Satpathy appeared for the Opposite Parties.

The writ petition was taken up for admission in 2006, and notice was issued to the opposing parties. The petitioner claimed that he was unaware of this order until 2019 and upon discovering the dismissal; he promptly took action to engage new counsel and filed the restoration application.

The opposing party no.1, opposed the restoration, arguing that the delay in filing the restoration application was not justified and that the petitioner failed to provide a valid explanation for the delay. The opposing party emphasized that the law of limitation must be applied rigorously and that the petitioner's reasons for the delay were not compelling.

The Court noted that the petitioner's main grounds for seeking condonation of delay were the negligence of the conducting counsel and the petitioner's unawareness of the court's orders. However, the Court questioned why no action had been taken against the negligent advocate, who was a designated Senior Advocate of the court. The Court said, “Learned counsel for the opposite party as well as the learned Additional Government Advocate rightly brought to the notice of this Court that Sri Bidyadhar Mishra is a designated Senior Advocate of this Court and he regularly appears before this Court in different matters and therefore, the plea taken by the petitioner that Sri Mishra is residing at Bhubaneswar and not attending the Court for few years is nothing but a cock and bull story.”

The Court referred to a Supreme Court case emphasizing the importance of not brushing aside the doctrines of delay and laches. The Court highlighted the need for a petitioner to remain vigilant and maintain regular contact with their counsel, especially when a case was pending in court.

The Court noted, “When the case was first taken up on 21.11.2006 and notice was directed to be issued, requisites were not filed in time. Then the matter came up on board of the Court straight after nine years which goes a long way to show that the petitioner was not keeping in touch with his advocate to ascertain about the status of the case and therefore, it can be said that he was absolutely careless and negligent in pursuing his case.”

In this case, the petitioner had not stayed in touch with their advocate for a significant period, demonstrating carelessness. Despite multiple court orders, the petitioner failed to act promptly. The Court found the petitioner's explanation for the delay fanciful and lacking sufficient cause.

The Court said, “It is very hard to believe that a hawk-eyed litigant would not put the slightest of labour to enquire about the status of the case till the next listing, which happened only after a gap of almost a decade.”

Considering the discretionary power to condone delay, the Court held that the delay of 1391 days was inordinate and not justifiable. Therefore, the Court dismissed the interim application for condonation of delay, leading to the dismissal of the restoration application.

Cause Title: Shankarlal Patwari v. Jagannath Mahaprabhu & Ors.