ORDER
U.C. Maheshwari, J.
1. This order shall decide IA No. 12694/07, appellant’s application for condoning the delay in filing the appeal against the judgment and decree dated 21.4.01 passed by XIth Addl. District Judge, Jabalpur in Civil Original Suit No. 383-A/94, whereby the suit for declaration and perpetual injunction, filed by the respondent has been decreed ex-parte against it.
2. The facts giving rise to this appeal in short are that the plaintiff/respondent, being member of Institution, namely, “LIONS INDIA”,(association of persons) having its Head Office at 19, Naya Bazar, Jabalpur, filed the aforesaid representative suit declaring the threats of an action for the infringement, passing- off or for consequential damages as contained in the notice of the appellant dated 23.8.1993 are unjustified and groundless, and also issuing injunction against the appellant desisting it from continuing such threats in the forum of legal proceedings or in any other manner either personally or through the servants or agents with a prayer of any other relief which the court deems fit and proper under the circumstances.
3. As per averments of the aforesaid application, the above-mentioned suit was filed by the plaintiff/respondent on 4.4.1994 under Section 120 of the Trade And Merchandise Marks Act, 1958 ( Now the same is Section 142 of the Trade Marks Act,1999, hereinafter referred to as `the Act’) in the representative capacity. The appellant was served with the summons of the suit on dated 23.6.94, on which, Mr Sumer Chand Jain, Advocate of Jabalpur was engaged on its behalf to defend the case, who filed his Vakalatnama by mentioning the additional names of Mr. J.L.Soni and Mr Dipak Jain, Advocates on dated 12.8.94. The reply of the plaint was also filed on affidavit of Shri Ratan Dhunjishaw Mehta of Bombay, the then constituted attorney of the appellant/defendant. Thereafter on placing the case for recording the evidence, the in-chief of the respondent/plaintiff was recorded on dated 10.8.99 and 15.11.99 whose cross-examination was carried out on 22.8.2000 and 16.2.01 by Shri J.K.Verma, Advocate and on closing the evidence of respondent he took the date to adduce the evidence of appellant. Shri J.K.Verma, Advocate was never engaged to defend the suit how he appeared and defended the case it is surprise for the appellant. The appellant is unable to find out the actual circumstances regarding engagement of Shri J.K.Verma Advocate because of duly appointed counsel Shri Sumer Chand Jain is no more now. It is further stated that without giving any pre-intimation to the appellant, Shri J.K.Verma, Advocate pleaded no instructions on dated 31.3.2001, on which the case was proceeded ex-parte against it and in such premises without recording evidences of the appellant the case was closed and fixed for judgment on 12.4.01 without any fresh notice of hearing. It is also stated that engaged counsel Shri Sumer Chand Jain, never informed the appellant regarding any date of recording the evidence. On the aforesaid adjourned date 12.4.01, some additional issues No. 3 to 8, were also framed for which without giving any notice to the appellant, the impugned judgment was delivered on 24.4.01 and in pursuance of it, the decree was passed. It is further stated that initially this matter was entrusted to Mr Vispy Engineer, the then International Secretary of the appellant for India and South-East Asia, Unfortunately, he became patient of cancer and underwent for its treatment. So, under the medical advice in his remaining life he was looking after the limited work of appellant. Shri Sumer Chand Jain, Advocate assured the said office bearer informing the status of the case. Subsequently, no information in this regard, was received in the office of the appellant from the said Advocate. The named Advocates Mr J.L.Soni and Mr Dipak Jain also did not send any information about the case. The appellant being international institution involved in the activities to serve the human being at large with its principle and ethics, could not know about the aforesaid case that what kind of arrangement to defend the case was made by Shri Sumer Chand Jain Advocate in his lifetime. The same was known to official of the appellant only on filing the certified copy of the impugned judgment and decree with the affidavit of the respondent between April to June,2007 in its civil suit No. 1312/07 pending before the High Court of Judicature at Bombay, on which, the appellant/institution shocked and immediately instructed to its Advocate M/s Jahagir Guiabbhai & Bilimosia and Daruwalla to get the details about the matter why such an ex-parte decree had been passed. Thereafter, in the month of August,2007 the certified copies of the proceedings and concerned papers were obtained from the record of the trial court. The major part of such record was in Hindi-Devnagri script and the Office Bearer of it’s Advocate Firm was not acquainted with such language, therefore, the same was got translated in English, in which some time was spent, and thereafter it spent the time in obtaining the legal opinion from different Advocates. The Advocate handling the suit before the High Court of Bombay advised it, not to file the proceedings under Order 9 Rule 13 of the CPC for setting aside the ex-parte decree, while some conflicting opinion was given by the counsel of Jabalpur. Thereafter, the Advocate of Nagpur, advised it to file the regular appeal with an application under Section 5 of the Limitation Act mentioning the aforesaid all the facts along with the grounds on which the decree is not sustainable under the law. Then , this appeal along with the aforesaid IA with a prayer to condone the delay was filed on dated 26.10.07.
4. In addition to the aforesaid, on merits it is stated that the appellant being an international institution, is carrying its activities with various branches not only in India but all over the world. It had its own registration, the same is known in the name of ” The International Association of Lions Clubs”/ “Lions Clubs International”/ “Lions Clubs”/ “Lions Club” and its functions are carried-out in accordance with its constituted by-laws. It’s Head Office is in U.S.A while the Area Office is situated in Mumbai. It is registered proprietors of various famous and well known trade marks in India and all over the world including collective membership marks in relation to their various services, programmes, articles and merchandise all over the world including India such as “LIONS (word per se), LIONS (EMBLEM), LIONESS (EMBLEM), LEO (EMBLEM), LIONS CLUB (words per se), LIONS INTERNATIONAL (Word per se) and LIONS CLUBS INTERNATIONAL (work per se). Its recognition is covered under the provisions of the Trade & Merchandise Marks Act, 1958 and Trade Marks Act,1999. It is further pleaded that on payment of appropriate charter fees, the “LIONS CLUB” is constituted and its initial declaration is issued. The relationship between such chartered institution with its Members, are governed by the aforesaid constituted by-laws. The appellant/institution receives vast amount of donations because of its excellent track record in rendering the services towards the Society and the Nation. In accordance with the aforesaid procedure, “The LIONS CLUB (Mid Town) Jabalpur was chartered by the appellant but subsequently, on account of non-payment of the international fee , it was placed on status-quo. In pursuance of it, such Club was deprived by all the privilege and identity as an occupant LIONS CLUB associated with the appellant. It’s charter was also cancelled on 19.6.1992 with two options, either to start the new LIONS Club with due compliance of the procedure or it’s Members could seek their transfer to other CLUB within the time frame. On such cancellation, the aforesaid CLUB of Jabalpur, instead to opt any of the aforesaid alternative, illegally changed its identity and converted to “LIONS INDIA JABALPUR MID-TOWN, JABALPUR”.
5. The aforesaid illegally constituted association of persons in the name of “LIONS INDIA MID-TOWN JABALPUR adopted that distinct intention and propriety, thereby committed flagrant infringement of the statutory right of the appellant, on which, such illegal organization was given the notice 28.1.93 through their solicitor “Crawford Bayley & Company of Bombay” intimating not to use the name of LION or LIONESS in any manner by such institution or it’s members. Instead to comply the aforesaid both the intimation the respondent as Member of the aforesaid illegally constituted club without having any locus standi, filed the impugned suit. With these averments the prayer for condoning the delay from 24.4.01 up to 26.10.07 the date of filing the appeal is made. The IA is further supported by an affidavit of Shri Navroj Patel, the attorney and Development Manager of the appellant.
6. In reply of the respondent objecting the admissibility of the affidavit filed on behalf of the appellant. It is stated that the alleged delay of more than 2289 days round about 6 1/4 years has not been explained with sufficient cause. Thus, the application is liable to be dismissed on this count only. While in parawise reply of the application, the grounds and circumstances stated by the appellants are denied. Inter alia, it is stated that the averments of the application are falsified only on the ground that on receiving the summons of the suit, the matter was entrusted to Mr Vispy Engineer, the then International Secretary of the appellant but in the record of the trial court, the Vakalatnama with his signature is not available. In fact, Shri Sumerchand Jain appeared by filing the memo of appearance only. The written statement in the shape of affidavit filed in the trial court on 18.8.94 was also sworn by one Ratan Dhunjishaw Mehta of Bombay the constituted attorney of the appellant conversant with the facts of the case. So far the conduct of the office bearers of the appellant are concerned, it is stated that as per proceedings of the trial court, after engaging the counsel they did not care about the pendency and proceedings of the case. Even on demise of said Sumer Chand Jain, Advocate, the appellant did not take care to look-after the matter. The respondent Dr. Jagjit Singh Khanna (PW 1) was duly cross-examined on behalf of the appellant by competent counsel of Jabalpur Shri J.K.Verma, Advocate even after demise of Shri Sumerchand Jain Advocate not only for one day but for various days. At the stage of appellant evidence, when he did not receive the instructions from the appellant even on taking the adjournment then pleaded no instructions, on which, the case was proceeded ex-parte and the impugned judgment and decree was passed. Subsequent to such decree, the care was not taken by the appellant, since the date of its passing upto filing this appeal. Even after receiving the information about passing the impugned judgment and decree as stated on behalf of the appellant between April to June,2007 on filing the certified copy of the same , before the High Court of Bombay in some case from the month of April up to filing this appeal on 26.10.07, the delay of more than five months has not been properly explained with sufficient cause. Even in support of alleged causes the affidavits of concerned solicitor or it’s officials and the advocates whom the Office Bearer of appellant consulted are not filed. Specific dates of such events are not mentioned in the application. In view of such gross negligence on the part of appellant in defending the case,it does not deserve for any relief prayed in the application and prayer for dismissal of such IA is made. The reply is supported by an affidavit of the respondent.
7. Shri Ashutosh Dharmadhikari, the appearing counsel of the appellant by stating the facts stated in the IA said that appellant being international social institution and juristic person, it’s case in the available circumstances ,by adopting the liberal approach, the alleged delay, in filing the appeal may be condoned. He elaborated his arguments by referring some reported cases of the Apex court and said that while dealing with the application for condoning the delay, the merits of the case should also be taken into consideration. According to him, the impugned judgment and decree are not sustainable in existing law. He also said that the Advocate J.K.Verma was never engaged to defend the case on behalf of the appellant. In any case, the Advocate was bound to inform the appellant before pleading no instructions. The same was not intimated. Even on pleading such no instructions, before proceeding ex-parte, the trial court was bound to issue the fresh notice to the appellant by fixing the date of hearing but the same was not issued and under wrong premises the ex-parte judgment and decree has been passed the same is not sustainable. The same was known to the appellant only on filing its copy in a case pending in High Court of Bombay. Thereafter the appellant spent the time in obtaining the copies, in it’s translation and also in taking the opinion from the different counsel to file the appropriate proceedings and in continuation of it the appeal is filed and prayed for condoning the alleged delay by allowing the IA.
8. Responding the aforesaid arguments Shri Pranay Verma, learned Counsel for the respondent by referring the averments of the reply said that the appellant has failed to explain the sufficient cause for condoning the alleged delay in filing the appeal. The same is not supported by the affidavit of Ratan Dhunji Shaw Mehta, with whose signature the written statement in the shape of affidavit was filed before the trial court, stating the cause why he did not care to defend the case. Besides this, the affidavits of the concerned counsel through whom the certified copy was obtained and the counsel of different places from whom the opinion were taken by the appellant are not filed in support of such averments. Even the affidavit of Navroj Patel, the Office Bearer of the appellant is not admissible as the same is not sworn in accordance with the prescribed procedure. In such premises, the entire delay of more than 6 1/4 years in filing the appeal, in any case the period from April 2007, to October 2007, has not been properly explained with sufficient cause. In the lack of such causes, even on having the good case on merits, the appellant does not deserves for condoning the alleged delay and prayed for dismissal of the appeal.
9. Having heard the counsel, keeping in view the facts stated by the parties in the application and its reply, I have examined the record of the trial court and also perused the impugned judgment and decree. It is undisputed fact on record that after filing the aforesaid suit by the respondent, its notice was duly served on the respondent, on which the appellant engaged Shri Sumer Chand Jain Advocate of Jabalpur to defend the case. Although he filed the memo of appearance along with the name of Shri J.L.Soni, Advocate and the same was submitted through Dipak Jain Advocate on 20.7.94 but the same is not signed by said Dipak Jain Advocate. Subsequent to it, a Vakalatnama of Srikrishna Jain and Surendra Kumar Jain Advocate of Indore was filed on behalf of the appellant. So, it can be inferred that the pendency of the case was in the knowledge of the appellant through its Office Bearers. The witness of respondent was cross-examined on behalf of the appellant by it’s counsel Shri J.K.Verma Advocate on various dates with all his ability. But on fixing the case for recording the evidence on 16.3.01, he took adjournment saying that inspite his intimation the witnesses have not come from Bombay on which the case was fixed for appellant’s evidence on 31.3.01. On such date, Shri J.K.Verma pleaded no instructions on which, the case was proceeded ex-parte and posted for ex-parte judgment on 12.4.01. On such date some additional issues were framed and again fixed for argument on 16.4.01. It is apparent from the proceedings of the trial court that on making the aforesaid submission by the appellant counsel on dated 16.3.01 in support of it, the copy of the letter, it’s postal receipt or certificate intimating the date to the appellant was not placed on record. Subsequent to it, on adjourned date 31.3.01 without making any submission about intimating such date to the appellant Shri J.K.Verma Advocate pleaded no instructions on which the trial court without issuing any fresh notice to appellant proceeded ex-parte against it and fixed the case for judgment on 12.4.01, on which instead to deliver the judgment some additional issues were framed and without giving the notice of such additional issues to the appellant by fixing the date 16.4.01 heard the case and decided ex-parte. It has been revealed by the aforesaid proceedings that on fixing the case for appellants evidence, twice the same was not intimated to the appellant in any case the subsequent adjourned date was not intimated and no instruction was pleaded by it’s counsel Shri J.K.Verma, on which, the trial court proceeded ex-parte without issuing a notice to the appellant by fixing some other date of hearing. Subsequent to it, on first date of delivery of the judgment on framing the additional issues and fixing the date for argument, on such issues, no notice was given to the appellant in this regard. I have not found any circumstance showing that after passing such ex-parte decree the same was intimated to the appellant either by it’s engaged counsel or the counsel who pleaded no instructions on it’s behalf or even by the trial court. It is noted that the appellant being an international institution, is a juristic person and not the living person, thus, it cannot be expected from it that it could have received the intimation regarding the stage and status of the case or the factum of ex-parte decree specially when it’s Advocate himself pleaded no instructions without intimating to it. Such decree was known to it’s officials only on producing it’s copy in the above mentioned case before the High Court of Bombay between April to June 2007.
10. It is apparent from the averments of the IA that soonafter receiving the knowledge of such decree the steps to file the appropriate proceedings in this regard the Office Bearer approached to different Advocates, Solicitors for their opinion, meanwhile also got translated the pleadings and document, in english language to consult them. In such process, the time was spent by the appellant and appeal was preferred on 26.10.07. Thereby the delay in filing the appeal after having the knowledge of the decree appears to be properly explained. In the above-mentioned factual matrix filing the affidavits of the Advocates and Solicitors from whom the opinion was taken by the appellant do not appear to be necessary.
11. Considering the situation, withdrawal of the counsel from the case without pre-intimation to the party by pleading no instruction, on which the ex-parte decree was passed, the apex Court answered such questions in the matter of Sushila Narhari v. Nand Kumar in following terms:
(4) A reading of the facts leaves us with no doubt that the advocate has derelicted his duty to inform the client by registered post if there was any noncooperation on behalf of the appellants. Consequently, when the suit had come up for trial, he had withdrawn his vakalatnama without notice to the appellants. The trial court set the appellants ex parte and decreed the suit for specific performance. The application for condonation of delay of 40 days was filed. The court refused to condone the delay. In view of the above, we find that she is well justified in filing the application with the delay. The delay is accordingly condoned. The ex parte decree is set aside. The trial court is directed to give opportunity to the appellants to cross-examine the witness examined by the respondents of the suit and also adduce evidence on her behalf. The trial court is further directed to dispose of the matter as expeditiously as possible, preferably within one year from the date of receipt of the copy of the order.
12. Such question is also answered by this Court in the matter of Beni Bai v. Smt Champa Bai in which it was held as under:
7. …It is the duty of a counsel to inform him before he proceeds to plead no instructions. If Shri Lokras had pleaded no instructions it was the duty of the Court also to inquire from Shri Lokras as to why and under what circumstances he was pleading no instructions. The Court cannot be a silent spectator to the scene which is staged in the Court. If a counsel declined to act up to his duty then the Judge is posed to the duty to the judicial administration. The judicial conscience of the Judge should always be satisfied before he permits a lawyer either to withdraw or to retire from the case. In the instant case, it does not appear from the proceedings that the learned Judge had taken all necessary steps to ensure that the counsel had sufficient reason not to appear for the party who engaged him or to plead no instructions. If a Judge in disregard of duties permits a lawyer to withdraw from the case then he is virtually violating the principle of justice. A party who reposes confidence and relies on counsel is entitled to be under the belief that his interest would be looked after properly by the counsel. A Judge ordinarily should not permit a lawyer to plead no instructions unless the lawyer satisfies the judicial conscience of the Court that for the compelling reasons he was posed to plead no instructions. In the instant case on that short ground alone the ex parte order passed on 276- 90 is liable to be set aside.
13. Apart the above, in view of the facts of the case as mentioned-above, the valuable rights of the appellant protected under the Trade Marks Act and concerning laws may be affected and destroyed without deciding the same on merits, if by condoning the delay this appeal is not adjudicated on merits. In such circumstances, this Court is lashed with the authority to examine the rights of the parties under dispute on merits for condoning the delay. Such authority may be invoked by this Court in the light of the judgment of the Apex Court announced in the matter of M. K. Prasad V. P. Arumugam :
9. In the instant case, the appellant tried to explain the delay in filing the application for setting aside the ex parte decree as is evident from his application filed under Section 5 of the Limitation Act accompanied by his own affidavit. Even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigate him as an irresponsible litigant. He should have been more vigilant but on his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property, concededly to be valuable. While deciding the application for setting aside the ex parte decree, the Court should have kept in mind the judgment impugned, the extent of the property involved and the stake of the parties. We are of the opinion that the inconvenience caused to the respondent for the delay on account of the appellant being absent from the Court in this case can be compensated by awarding appropriate and exemplary costs. In the interests of justice and under the peculiar circumstances of the case we set aside the order impugned and condone the delay in filing the application for setting aside ex parte decree. To avoid further delay, we have examined the merits of the main application and feel that sufficient grounds exist for setting aside the ex parte decree as well.
14. So far condoning the long delay is concerned, it is settled proposition of law that the sufficient cause should be construed liberally as the justice should not be lost in technicalities or because of the barrier of procedure. In such premises the acceptability of the explanation of such delay is the sole criterion, length of delay is not the relevant factor. When sufficient cause is made out then by condoning the delay, the interest of the opposite party may be compensated by imposing the cost keeping in view the litigation expenses incurred by him. Such principle is laid down by the Apex Court in the matter of N.Balkrishnan v. M. Krishnamurthy in which it was held as under:
9. It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammeled by the conclusion of the lower Court.
10. The reason for such a different stance is thus : The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause.
11. …
12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words “sufficient cause” under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari and State of West Bengal v. The Administrator, Howrah Muni-cipality .
13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put-forth as part of a dilatory strategy the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the Court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite a large litigation expenses. It would be a salutary guideline that when Courts condone the delay due to laches on the part of the applicant the Court shall compensate the opposite party for his loss.
15. In view of the aforesaid discussion, the cause mentioned by the appellant is held to be sufficient for condoning the alleged delay of 2289 days in filing the appeal but simultaneously court is bound to compensate the other side by imposing the cost on the appellant.
16. It is noted that the respondent’s counsel placed his reliance on following citations:
1. Ramlal v. Rewa Coalfields Ltd. .
2. State of Gujarat v. Sayed Mohd. Baquir El. Edross .
3. P. K. Ramachandran v. State of Kerala .
4. State of W.B. v. Administrator, Howrah Municipality .
5. Kiran Singh v. Chaman Paswan .
17. So far principles laid by the Apex Court in the aforesaid cases are concerned, this Court did not have dispute but in view of holding the sufficient cause for condoning the alleged delay in former paras of this order, these citations are not helping to the respondent in present circumstances of the case at hand.
18. Under the aforesaid premises, by holding the sufficient cause for condoning the delay in filing the appeal, subject to payment of the cost Rs. 10,000/- to the respondent within fifteen days, the IA is allowed and the aforesaid entire delay is hereby condoned. Now, subject to payment of the cost in the aforesaid period, this matter be listed for admission and consideration of other pending I.A.