Gujarat High Court
Gitaba Bhurubha Chauhan vs State Of Gujarat on 7 February, 2024
NEUTRAL CITATION
C/SCA/20879/2023 ORDER DATED: 07/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 20879 of 2023
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GITABA BHURUBHA CHAUHAN
Versus
STATE OF GUJARAT
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Appearance:
MR DIGANT B KAKKAD(6523) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
MR SATYAM Y CHHAYA(3242) for the Respondent(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 07/02/2024
ORAL ORDER
1. The present petition is filed by the petitioners - original plaintiffs / appellants under Article 227 of the Constitution of India challenging the impugned order dated 13.10.2023 passed below Exh.13-A by the learned Principal District Judge, Kachchh at Bhuj in Civil Misc. Application No.112 of 2023, whereby the learned appellate Court below has rejected the application for condonation of delay of 1877 days in preferring the appeal against the judgment and decree dated 06.04.2018 passed below Exh.134/A by the learned Principal Senior Civil Judge, Mundra - Kachchh in Regular Civil Suit No.140 of 2017.
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2. Heard learned advocate Mr.Digant Kakkad for the petitioners, learned advocate Mr.Satyam Chhaya for the contesting respondent No.4 and learned AGP Mr.Shivam Dixit for respondents No.1 to 3 at length.
3. Rule returnable forthwith. Learned advocates waive service of notice of rule for and on behalf of the respective respondents. With consent of all the learned advocates, the matter is taken up for hearing and final disposal today. 4.1 Learned advocate Mr.Digant Kakkad for the petitioners has submitted that the land in question is in continuous possession of the petitioners and at present also, the present petitioners are in possession of the suit land. He has further submitted that pursuant to the land in question, Regular Civil Suit No.322 of 2007 has been instituted by the petitioners before the learned trial Court which was subsequently transferred to the learned Civil Court at Mundra and therefore, the suit got re-numbered as Regular Civil Suit No.140 of 2017. He has submitted that originally, the suit was instituted by one Bhurubha Mokaji Chauhan, who died during the pendency of the suit and therefore, the petitioners, being the legal heirs, had filed an application for impleadment as party plaintiffs in the said suit in the year 2016, which was allowed and therefore, the petitioners are Page 2 of 20 Downloaded on : Thu Feb 08 20:44:54 IST 2024 NEUTRAL CITATION C/SCA/20879/2023 ORDER DATED: 07/02/2024 undefined joined as plaintiffs in the suit proceeding. He has submitted that the suit was decided on 06.4.2018 by the learned Principal Senior Civil Judge, Mundra. He has submitted that when they got to know about the disposal of the suit proceeding, they immediately intend to file an appeal before the appellate Court below and therefore, there is a delay of 1877 days in preferring the appeal.
4.2 He has submitted that the petitioners are agriculturists and coming from very lower background and has no other business except agriculture on the subject land. He has submitted that all the family members are engaged in the agriculture activities and no other business they are doing. Therefore, the petitioners could not inquire about the suit proceeding for a certain period. He has submitted that when the petitioner came to know about the disposal of the suit proceeding in the year 2023, the petitioners immediately rushed to the advocate, inquired about the same and thereafter, after getting the necessary documents, filed the appeal before the learned District Court - appellate Court below. He has submitted that the petitioner came to know about the passing of such judgment and decree by the learned trial Court and when officer of respondent No.4 visited the place of the petitioners, at that time, the petitioners came to know and therefore, from that date of Page 3 of 20 Downloaded on : Thu Feb 08 20:44:54 IST 2024 NEUTRAL CITATION C/SCA/20879/2023 ORDER DATED: 07/02/2024 undefined knowledge about the dismissal of the suit, they have immediately contacted the advocate and followed the necessary procedure. Thereafter, they immediately filed an application for condonation of delay of 1877 days in preferring the appeal, which is rejected by the learned appellate Court below.
4.3 He has submitted that the appellate Court below has not considered the reasons for delay which are bona fide. He has submitted that the petitioners have not remained negligent. He has submitted that the advocate of the petitioners who represented their case before the learned trial Court, has not informed the petitioners about the dismissal of the suit. He has submitted that when the petitioner got to know about the dismissal of the suit, they immediately rushed and received the relevant papers and filed the application for condonation of delay in preferring an appeal before the learned appellate Court and therefore, there is a delay of 1877 days which is bona fide and not intentional. He has submitted that the petitioners are the agriculturists and all the family members are actively involved in the agriculture activities continuously, therefore, they could not inquire about the suit proceedings regularly. He has submitted that if delay is not condoned then serious prejudice would be caused to the petitioners as they are in possession Page 4 of 20 Downloaded on : Thu Feb 08 20:44:54 IST 2024 NEUTRAL CITATION C/SCA/20879/2023 ORDER DATED: 07/02/2024 undefined since years.
4.4 In support of his submissions, he has relied upon the decision in the case of Ram Nath Sao alias Ram Nath Sahu versus Gobardhan Sao reported in AIR 2002 SC 1201, more particularly paras 7, 10 & 11 thereof. He has submitted that the Court should take liberal view under such peculiar facts as in the present case, it cannot be said that the petitioners remained negligent. He has submitted that soon after came to know about the dismissal of the suit, the petitioners immediately rushed to the appellate Court below and filed the application for condonation of delay. He has submitted that this petition may be allowed as sufficient cause is made out to condone the delay by the petitioners. He has submitted that the impugned order passed by the learned appellate Court below is erroneous as the appellate Court below has taken a hyper technical view. He has submitted that this petition may be allowed. 5.1 Per contra, learned advocate Mr. Satyam Chhaya for the contesting respondent No.4 has vehemently opposed this petition. He has submitted that he has filed affidavit in reply. He has submitted that there is a huge delay of more than five years. He has submitted that the petitioners are aware about the fact that the said land in allotted for the Page 5 of 20 Downloaded on : Thu Feb 08 20:44:54 IST 2024 NEUTRAL CITATION C/SCA/20879/2023 ORDER DATED: 07/02/2024 undefined purpose of Special Economic Zone (SEZ) by the Government to respondent No.4 - company, as it was the Government land which can be seen from the erstwhile record of the village forms. He has submitted that it is within the knowledge of the petitioners about the proceeding pending before the learned trial Court. He has submitted that after the demise of the original plaintiff viz., Bhurubha Mokaji Chauhan, the petitioners, being the legal heirs of the deceased, have approached the learned trial Court for impleading them as party plaintiffs, which was allowed by the learned trial Court and therefore, the petitioners have become the original plaintiffs.
5.2 He has submitted that under the circumstances, it cannot be denied by the petitioners that they were not aware about the proceeding pending before the learned trial Court. He has submitted that after impleading the petitioners as party plaintiffs in the suit proceeding, they remained negligent for years together. Therefore, the averments made in the application for condonation of delay would not constitute any cause, more particularly sufficient cause which is required to be considered while considering the application under Section 5 of the Limitation Act. He has submitted that the conduct of the petitioners itself speaks a lot and no prudent person would sit idle for more than five years when Page 6 of 20 Downloaded on : Thu Feb 08 20:44:54 IST 2024 NEUTRAL CITATION C/SCA/20879/2023 ORDER DATED: 07/02/2024 undefined he has knowledge about the pendency of the suit proceeding and that too without inquiring anything about the suit proceeding with the concerned lawyer and/or trial Court. 5.3 In support of his submissions, he has relied upon the following decisions :
(i) Office of the Chief Post Master General Versus Living Media India Limited - (2012) 3 SCC 563 (Paras 27 to 29 thereof)
(ii) Oriental Aroma Chemical Industries Ltd., versus Gujarat Industrial Development Corporation - (2010) 5 SCC 459 (Paras 15 and 16 thereof)
(iii) Maniben Devraj Shah versus Municipal Corporation of Bruhin Mumbai - (2012) 5 SCC 157 (Paras 14, 15, 23 to 25 thereof) 5.4 He has submitted that when no sufficient cause is made out, learned appellate Court below has rightly rejected the application and there is no perversity or illegality in the findings given by the learned appellate Court below. He has submitted that no interference is called for by exercising the powers under Article 227 of the Constitution of India. He has submitted that this petition may be dismissed.Page 7 of 20 Downloaded on : Thu Feb 08 20:44:54 IST 2024
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6. Learned AGP Mr.Shivam Dixit for respondents No.1 to 3 - State Authorities has adopted the arguments made by learned advocate for respondent No.4. He has submitted that now, the dispute is between the petitioners and respondent No.4. He has submitted that since the land in question is originally in the name of the Government and the Government has allotted the land in turn to the respondent No.4 Company, therefore, the Government has very limited role now. He has submitted that this petition may be dismissed.
7.1 I have heard rival contentions raised by the learned advocates for the respective parties. I have considered the documents annexed with the petition. I have perused the impugned order passed by the learned appellate Court below. On bare perusal of the impugned order passed by the learned appellate Court below, this Court finds that the appellate Court has not committed any error, much less error of law while passing the impugned order. The appellate Court has rightly come to the conclusion that it is impossible to believe that the petitioners sit idle for about more than five years, though knowing fully well about the pendency of the suit proceeding before the learned trial Court. In fact, the petitioners themselves have filed an application for impleading Page 8 of 20 Downloaded on : Thu Feb 08 20:44:54 IST 2024 NEUTRAL CITATION C/SCA/20879/2023 ORDER DATED: 07/02/2024 undefined them as party plaintiffs after the demise of their father viz., Bhurubha Mokaji Chauhan. Further, they are also fully aware about the fact that the said application is allowed by the learned trial Court and they were joined as plaintiffs in the suit proceedings.
7.2 Looking to the record, it transpires that the land in question was in the name of the Government since inception, which can be seen from the various erstwhile revenue records and it is an undisputed fact, which can also be seen from the various litigation filed by the deceased father of the petitioners before the various revenue authorities to allot the land to them. Further, the learned trial Court has specifically observed in its judgment that the plaintiffs have not produced any documentary evidence to show that they are in possession of the suit land. Therefore, it can be said that it was the Government land. Further, the land in question was therefore allotted to the respondent No.4 Company and the respondent No.4 company has paid the amount as decided by the Authority.
7.3 Further, the petitioners have shown sufficient cause that they could not inquire about the suit proceeding pending with the learned trial Court for about five years due to continuous agricultural activities, cannot be believable. It is Page 9 of 20 Downloaded on : Thu Feb 08 20:44:54 IST 2024 NEUTRAL CITATION C/SCA/20879/2023 ORDER DATED: 07/02/2024 undefined not believable that the person cannot get one day time to inquire about the suit proceeding in five years, more particularly they were aware about the suit proceeding as they joined as party plaintiffs on their application being the heirs. The learned appellate Court below has rightly observed that the agricultural activities could not continue for 365 days continuously that too for about five years. The petitioners can visit and inquiry about the suit proceeding before the learned trial Court and/or with the advocate concerned. Therefore, the reasons shown by the petitioners causing the delay of about five years in approaching the appellate Court are not justifiable. Such finding given by the learned appellate Court below is logical and in consonance with the settled position of law. It is always expected that when the person approaches this Court with an application for condonation of delay under Section 5 of the Limitation Act, then he has to show sufficient cause for the delay. 7.4 It is relevant to note that no material is available on record to show that it is one of the allegations that the advocate of the plaintiffs has not informed them about the dismissal of the suit. The petitioners have not raised any grievance against the advocate concerned before any authority. In absence of such material, merely throwing a burden upon the shoulder of the advocate concerned, who represented their Page 10 of 20 Downloaded on : Thu Feb 08 20:44:54 IST 2024 NEUTRAL CITATION C/SCA/20879/2023 ORDER DATED: 07/02/2024 undefined case before the learned trial Court, will not helpful to the petitioners to establish sufficient cause for condoning the delay. On the contrary, prima facie, it transpires that the petitioners, for the reasons best known to them, though having sufficient knowledge about the pendency of the suit proceeding, have not proceeded after the judgment and decree passed by the learned trial Court in the year 2018 and that too till 2023 i.e. to approach the learned appellate Court below. Under the circumstances, the delay of 1877 days caused in preferring the appeal in the year 2023 against the judgment and decree passed by the learned trial Court in the year 2018 is not explained by the petitioners sufficiently, in any manner. Therefore, prima facie, no cause is made out by the petitioner to condone the delay.
7.5 There is no dispute about the proposition of law enunciated in the judgments cited by the learned advocate for the petitioners, however, considering the peculiar facts and circumstances of the present case, more particularly the fact that it is indisputably a Government land, allotted to the respondent No.4 Company in Special Economic Zone, paid amount by the respondent No.4 Company as decided by the Government after taking permissions from the various authorities, the suit is filed by the deceased father of the petitioners, after the demise, the petitioners have joined as Page 11 of 20 Downloaded on : Thu Feb 08 20:44:54 IST 2024 NEUTRAL CITATION C/SCA/20879/2023 ORDER DATED: 07/02/2024 undefined party plaintiffs on their own application, they have knowledge about the suit proceedings, sit idle for about five years after dismissal of the suit, it cannot be said that it is a bona fide on the part of the petitioners. This Court should not lose sight of the fact that by not taking steps within reasonable time, the valuable right of the allottee - the respondent No.4 in the present case, is being lightly defeated by condoning delay in a routine manner, as observed by the Hon'ble Apex Court in the case of Ram Nath Sao alias Ram Nath Sahu (supra).
7.6 At this stage, it would be fruitful to refer to the decisions of the Hon'ble Apex Court, as relied upon by learned advocate for respondent No.4, which are as under :
7.6.1 In the case of Office of the Chief Post Master General Versus Living Media India Limited - (2012) 3 SCC 563, more particularly paras 27 to 29 thereof.
"27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent Page 12 of 20 Downloaded on : Thu Feb 08 20:44:54 IST 2024 NEUTRAL CITATION C/SCA/20879/2023 ORDER DATED: 07/02/2024 undefined persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.
28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.
29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for Page 13 of 20 Downloaded on : Thu Feb 08 20:44:54 IST 2024 NEUTRAL CITATION C/SCA/20879/2023 ORDER DATED: 07/02/2024 undefined the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural redtape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few."
7.6.2 In the case of Oriental Aroma Chemical Industries Ltd., versus Gujarat Industrial Development Corporation - (2010) 5 SCC 459, more particularly paras 15 and 16 thereof.
"15. The expression "sufficient cause"
employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which subserves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal Page 14 of 20 Downloaded on : Thu Feb 08 20:44:54 IST 2024 NEUTRAL CITATION C/SCA/20879/2023 ORDER DATED: 07/02/2024 undefined approach in condoning the delay of short duration and a stricter approach where the delay is inordinate - Collector, Land Acquisition, Anantnag v. Mst. Katiji (1987) 2 SCC 107 : (AIR 1987 SC 1353), N. Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123 : ( AIR 1998 SC 3222 : 1998 AIR SCW 3139) and Vedabai v. Shantaram Baburao Patil (2001) 9 SCC 106 : (AIR 2001 SC 2582 :
2001 AIR SCW 2809).
16. In dealing with the applications for condonation of delay filed on behalf of the State and its agencies/instrumentalities this Court has, while emphasizing that same yardstick should be applied for deciding the applications for condonation of delay filed by private individuals and the State, observed that certain amount of latitude is not impermissible in the latter case because the State represents collective cause of the community and the decisions are taken by the officers/agencies at a slow pace and encumbered process of pushing the files from table to table consumes considerable time causing delay - G. Ramegowda v. Spl. Land Acquisition Officer (1988) 2 SCC 142 : (AIR 1988 SC 897), State of Haryana v. Chandra Mani (1996) 3 SCC Page 15 of 20 Downloaded on : Thu Feb 08 20:44:54 IST 2024 NEUTRAL CITATION C/SCA/20879/2023 ORDER DATED: 07/02/2024 undefined 132 : (AIR 1996 SC 1623 : 1996 AIR SCW 1672), State of U.P. v. Harish Chandra (1996) 9 SCC 309 : (AIR 1996 SC 2173 : 1996 AIR SCW 2785), State of Bihar v. Ratan Lal Sahu (1996) 10 SCC 635 : (AIR 1996 SC 3500 :
1996 AIR SCW 3507), State of Nagaland v. Lipok Ao (2005) 3 SCC 752 : (AIR 2005 SC 2191 : 2005 AIR SCW 1748), and State (NCT of Delhi) v. Ahmed Jaan (2008) 14 SCC 582 : (AIR 2009 SC (Supp) 695 : 2008 AIR SCW 5692)."
7.6.3 In the case of Maniben Devraj Shah versus Municipal Corporation of Brihan Mumbai - (2012) 5 SCC 157, more particularly paras 14, 15, 23 to 25 thereof.
"14. We have considered the respective arguments / submissions and carefully scrutinized the record. The law of limitation is founded on public policy. The Limitation Act, 1963 has not been enacted with the object of destroying the rights of the parties but to ensure that they approach the Court for vindication of their rights without unreasonable delay. The idea underlying the concept of limitation is that every remedy should remain alive only till the expiry of the period fixed by the Legislature. At the same time, the Courts Page 16 of 20 Downloaded on : Thu Feb 08 20:44:54 IST 2024 NEUTRAL CITATION C/SCA/20879/2023 ORDER DATED: 07/02/2024 undefined are empowered to condone the delay provided that sufficient cause is shown by the applicant for not availing the remedy within the prescribed period of limitation.
15. The expression 'sufficient cause' used in Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to enable the Courts to apply the law in a meaningful manner which serve the ends of justice. No hard and fast rule has been or can be laid down for deciding the applications for condonation of delay but over the years this Court has advocated that a liberal approach should be adopted in such matters so that substantive rights of the parties are not defeated merely because of delay.
23. What needs to be emphasised is that even though a liberal and justice oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the Courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost.Page 17 of 20 Downloaded on : Thu Feb 08 20:44:54 IST 2024
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24. What colour the expression "sufficient cause" would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay.
25. In cases involving the State and its agencies/instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and / or its agencies / instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public Page 18 of 20 Downloaded on : Thu Feb 08 20:44:54 IST 2024 NEUTRAL CITATION C/SCA/20879/2023 ORDER DATED: 07/02/2024 undefined interest."
7.7 In view of above, there is no dispute that sufficient cause is required to be made out and when there is no negligent or inaction or want of bona fide on the part of the party who is praying to condone the delay, then the Court should exercise discretion in favour of the party, but in the present case, there is a lack of bona fide on the part of the petitioners, so also sufficient cause is not shown by the petitioners to condone the delay of about 1877 days in preferring the appeal before the appellate Court below. Thus, the judgments cited by the learned advocate for the petitioners are therefore not helpful to the petitioners. On the contrary, the decision cited by learned advocate for respondent No.4 noted above are helpful to the respondent No.4.
7.8 Considering the totality, the petitioners failed to show sufficient cause to condone the delay as required under Section 5 of the Limitation Act. Therefore, this Court finds that there is no reason to interfere in the impugned order passed by the learned appellate Court below. The impugned order is passed in consonance with the law and no illegality and infirmity is found in the findings of the learned appellate Court below. Therefore, considering the ratio laid down by the Hon'ble Apex Court in the case of Garment Page 19 of 20 Downloaded on : Thu Feb 08 20:44:54 IST 2024 NEUTRAL CITATION C/SCA/20879/2023 ORDER DATED: 07/02/2024 undefined Craft versus Prakash Chand Goel reported in (2022) 4 SCC 181, the scope of this Court to interfere in the impugned order is very limited and therefore, this Court is inclined to exercise the powers under Article 227 of the Constitution of India in favour of the petitioners.
8. In view of above, this petition therefore deserves to be dismissed and is dismissed accordingly. Rule is discharged. No order as to costs.
(SANDEEP N. BHATT,J) M.H. DAVE Page 20 of 20 Downloaded on : Thu Feb 08 20:44:54 IST 2024