Gujarat High Court
Vaghri Dhirubhai Kantibhai Through Poa ... vs Charity Commissioner, Gujarat State, ... on 19 April, 2023
C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1418 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2214 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2216 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2218 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2221 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2225 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2226 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2229 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2234 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2236 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2238 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2240 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2243 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2244 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2245 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2246 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2247 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2248 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2249 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2250 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2252 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2254 of 2022
With
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C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023
R/SPECIAL CIVIL APPLICATION NO. 2255 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2257 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2258 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2259 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2262 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2365 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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VAGHRI DHIRUBHAI KANTIBHAI THROUGH POA HOLDER SHANTILAL
RAYJIBHAI PATEL
Versus
CHARITY COMMISSIONER, GUJARAT STATE, AHMEDABAD
==========================================================
Appearance:
MR PUSHPADATTA VYAS(1296) for the Petitioner(s) No. 1
MS TANUSHREE SHRIMAL, AGP for the Respondent(s) No. 1 IN SPECIAL
CIVIL APPLICATION NO.1418 OF 2022
MS SUMAN MOTLA, AGP for the Respondent(s) No. 1 IN SPECIAL CIVIL
APPLICATION NOS.2214 OF 2022 TO 2365 OF 2022
MR SACHIN D VASAVADA(3342) for the Respondent(s) No. 2,3,4,5,6
MR UDAYAN P VYAS(1302) for the Respondent(s) No. 7
==========================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023
Date : 19/04/2023
COMMON ORAL JUDGMENT
1. At the outset, learned advocates for the parties jointly pointed out that the notice for final disposal was issued by coordinate Bench of this Court vide order dated 10.2.2022 and as all these petitions involve common question of facts and law, they requested that they may be heard together. Therefore, they are being heard together and disposed of by this common judgment.
2. Rule. Learned AGP Ms.Tanushree Shrimal for respondent nos.1 in Special Civil Application No.1418 of 2022 and learned AGP Ms.Suman Motla in Special Civil Application Nos.2214 of 2022 to 2365 of 2022, learned advocate Mr.Sachin Vasavada for respondent nos.2 to 6 and learned advocate Mr.Udayan Vyas for respondent no.7 waive service of notice of rule.
3. The present petitions are filed under Article 227 of the Constitution of India challenging the action of the learned Principal District Judge, Lunavada of entertaining and registering Regular Civil Appeals under Page 3 of 33 Downloaded on : Fri Apr 21 20:42:08 IST 2023 C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023 Section 96 of the Civil Procedure Code, 1908 (`CPC' for short) which are filed after delay of about five years without any application for condonation of delay as mentioned in the statement below in respective suits as well as the order passed below Exh.5 dated 28.12.2021 in respective appeals.
4. The Regular Civil Appeals filed against the Regular Civil Suits are mentioned in the table below for ready reference.
SCA. NO. DIST COURT R.C.S. NO Sq. Mtr.
APPEAL NO.
1418/22 38/21 54/16 18.80
2214/22 52/21` 73/16 20.61
2216/22 42/21 62/16 19.43
2218/22 51/21 66/16 33.60
2221/22 30/21 76/16 18.20
2225/22 46/21 59/16 16.50
2226/22 47/21 75/16 17.00
2229/22 26/21 57/16 26.39
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C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023
2234/22 50/21 70/16 16.50
2236/22 35/21 55/16 12.25
2238/22 37/21 67/16 29.25
2240/22 39/21 64/16 25.30
2243/22 45/21 60/16 9.21
2244/22 48/21 63/16 17.00
2245/22 29/21 68/16 19.60
2246/22 33/21 61/16 52.25
2247/22 31/21 58/16 19.40
2248/22 49/21 56/16 20.60
2249/22 34/21 53/16 9.21
2250/22 40/21 80/16 17.00
2252/22 36/21 65/16 19.26
2254/22 44/21 71/16 25.30
2255/22 43/21 72/16 25.22
2257/22 25/21 77/16 9.50
2258/22 28/21 78/16 19.20
2259/22 27/25 79/16 9.12
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C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023
2262/22 41/21 69/16 38.50
2365/22 32/21 74/16 29.40
5. For the sake of convenience, the facts of
Special Civil Application No.1418 of 2022 are considered, which are as under:
6. The brief facts which are stated in the petition are such that the respondent no.1/Charity Commissioner who is non-party in the suit filed Regular Civil Appeal No.38 of 2021 challenging the judgment and decree dated 7.10.2016 passed by the learned Senior Civil Judge, Lunavada, District Mahisagar in Regular Civil Suit No.54 of 2016. The appeal before the learned District Judge is required to be filed within a period of limitation and if not filed, application for condonation of delay is required to be filed as per the mandatory requirement of Rule 3A of Order XXXXI of CPC.
6.1 It is submitted that in view of the same, the above mentioned Regular Civil Appeal of the year 2021 is apparently filed after huge delay of five years from the year 2016 and mandatory procedure and requirement Page 6 of 33 Downloaded on : Fri Apr 21 20:42:08 IST 2023 C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023 therein including of application, reasons, affidavit, notice to the petitioner and other respondents, opportunity and hearing is required, before registration and entertainment of appeal itself including any relief granted in the proceeding arising from that appeal. It is also further case of the petitioner that the petitioner with an utter shock and surprise received straightaway notice of hearing of already registered and numbered Regular Civil Appeal from the Court of learned Principal Senior Civil Judge, Lunawada District Mahisagar mentioning the date of hearing i.e. 22.12.2012. It is also averred in the petition that appeal memo reveals that the challenge in appeal, in substance is challenging the judgment and decree dated 7.10.2016 passed by the learned Senior Civil Judge, Lunawada, District Mahisagar in Regular Civil Suit No.54 of 2016 filed by the petitioner as well as sale deed dated 13.12.2017 which was not the subject matter of the suit of the petitioner and purchaser was also not party to the suit. The other reliefs were also claimed after delay of five years by suppressing material facts and complete change of suit property and further sales of newly and legally constructed property in different units. The same was even on or before year 2019 itself Page 7 of 33 Downloaded on : Fri Apr 21 20:42:08 IST 2023 C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023 and there are rights of ultimate purchasers of different units and became owners of subsequent registered sale deed and the public record of sub registrar and local authority was clear and known to all since the year 2017 and for more than three years, non-party to the suit i.e. respondent no.7 is also made party straightaway without any procedure.
6.2 It is the case of the petitioner that Regular Civil Suit No.54 of 2016 is filed by some of the occupants of the land under the impression that the property is a trust property and thereafter since the trust has no connection with the suit property and trust is having the some different property nearby the suit property, the consensus was arrived at between the plaintiff and defendant in the said suit and accordingly consent decree is passed in the year 2016. In view of this background, it is the case of the petitioner that the appellant below is the authority i.e. Charity Commissioner and aware regarding the fact that the adjoining land in question (portion of land in question), the respondent trust is not having title or document of title and there is no gift deed, sale deed, Will or any Page 8 of 33 Downloaded on : Fri Apr 21 20:42:08 IST 2023 C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023 other document qua the title of the land in question with the trust. The respondent trust tried to obstruct the peaceful settled position of the petitioner and similarly situated persons which is from the time of forefathers and is more than 60 years. The petitioner and similarly situated persons from downtrodden class of the society having their kachha/pakka construction in the portion of the land in question on total area of 828.89 sq.mtrs.
(9500 sq.ft.). The respondent trust tried to resist the suit but when the actual title, document qua lan in question came on surface for adjudication of the civil suit, the trust having no document of actual title except bare ambiguous entry and there is no claim or resistance in the settled position for more than 50 years in knowledge. The learned trial Court was pleased to consider the consent terms as well as the clear resolution of the trust itself and passed the judgment and decree dated 7.10.2016 collectively.
6.3 It is further the case of the petitioners that thereafter, in the year 2020, the respondent no.1 Charity Commissioner has filed independent civil suit. The same was also beyond limitation and apparently not Page 9 of 33 Downloaded on : Fri Apr 21 20:42:08 IST 2023 C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023 maintainable as per the settled legal position and the petitioner as well as other similarly situated persons challenged the same by filing application under Order VII Rule 11 of the CPC and that application was rejected by the learned trial Court. Against that, the Civil Revision Applications were preferred before this Court being Civil Revision Application Nos.228 of 2021 and allied matters by the petitioners as well as similarly situated persons which was allowed by common judgment dated 6.10.2021. Thereafter, the Regular Civil Appeals were registered before the learned District Court, Mahisagar and on a very short notice, the petitioners appeared through advocate on 22.12.2021 and requested for documents and adjournment. The matter was adjourned to 27.12.2021 and without providing any document as prayed by the petitioner nor considering the application filed by the petitioners, the learned lower appellate Court has passed the order below Exh.5 on 28.12.2021 and as the present petitioners were aggrieved and dissatisfied the same, the present petitions are filed.
7. Heard learned senior advocate Mr.Dhaval Dave assisted by learned advocate Mr.Pushpadatta Vyas for Page 10 of 33 Downloaded on : Fri Apr 21 20:42:08 IST 2023 C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023 the petitioners, learned AGP for respondent no.1 and learned advocate Mr.Udayan Vyas for resopndent no.7. Learned advocate Mr.Udayan Vyas has submitted that he is supporting the submissions made on behalf of the petitioners.
7.1 Learned senior advocate Mr.Dave has raised the basic contention that in view of the provisions of Order XXXXI Rule 3A of CPC where there is no application for condonation of delay, then the appeal which is preferred by the present respondent no.1 is not maintainable in eye of law. When the appeal itself is not tenable in eye of law, the consequential order passed below Exh.5 also cannot be considered as legal and valid. He has drawn my attention towards the earlier order passed by this Court in Civil Revision Application No. 228 of 2021 and allied matters, more particularly, paragraphs 13 and 14 of the same and submitted that the Court has only observed that it is open for the respondent no.1-Charity Commissioner to file appeal under Section 96(1) of the CPC with leave of Court or to file review application before the same Court which has passed consent decree dated 7.10.2016 and also the Page 11 of 33 Downloaded on : Fri Apr 21 20:42:08 IST 2023 C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023 Court has clarified that contentions of the parties are kept open. He has drawn my attention towards the application filed by the present petitioner dated 27.12.2021 whereby the present petitioner has prayed for time of four weeks as he has received notice of the appeal which is filed after delay of five years. He has also pointed out therein that there is no application for condonation of delay, no copy of the application for condonation of delay is served along with the appeal. He has further submitted that inspite of the said application, the matter was kept for orders on very next date i.e. on 28.12.2021 and the learned lower Court has decided Exh.5 application by granting interim order which reads as under:
"The application of the applicant is hereby partly allowed and the prayer in terms of Para 37(b) is allowed and the opponents are restrained from transferring the suit property in anyway like sale, gift, mortgage, lease, licence etc. and also restrained the opponents to make any constructions or to change it in any manner till final disposal of the appeal. xxxxx"
7.2 He has, therefore, submitted that as such no proper opportunity of hearing is given to the present Page 12 of 33 Downloaded on : Fri Apr 21 20:42:08 IST 2023 C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023 petitioner to point out that the appeal itself is not competent in view of the provisions of Order XXXXI Rule 3A. Learned senior advocate Mr.Dave has further drawn my attention towards the proceedings of the appeal dated 17.12.2021 where there is no reference about the filing of application for condonation of delay and straightaway the appeal is registered.
7.3 He has relied on the judgment of Division Bench of our High Court in the case of Paschim Gujarat Vij Company Ltd. V/s Khemchand Nathabhai Gadhavi, reported in 2011(2) GLH 90, more particularly, paragraphs 5 to 10 of the same and submitted that in view of the decision of the Division Bench of this Court, the said appeal cannot be considered as legally instituted appeal and the impugned order which is passed under Exh.5 amounts to nullity and proceedings of appeal without filing application for condonation of delay is also null and void. He has further submitted that otherwise also, the respondent no.1 has preferred the proceeding in the year 2020 after the delay of almost more than three years. The equities have also changed and therefore also the present proceedings deserves to be allowed and order Page 13 of 33 Downloaded on : Fri Apr 21 20:42:08 IST 2023 C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023 passed below Exh.5 is required to be quashed and the proceedings of appeal is also required to be quashed and set aside.
8. Per contra, learned AGP Ms.Shrimal for the respondent no.1 has opposed the said submissions by drawing attention towards the affidavit-in-reply filed by the state government which is verified by Charity Commissioner and has submitted that the Charity Commissioner has rightly initiated proceedings as the opportunity is granted in view of the observation made by this Court in order passed in Civil Revision Application No.2228 of 2021 and allied matters. She has further submitted that even the delay condonation application is also prepared but as the registry of the Court below has not asked for the same, the same was not produced on record. She has further submitted that the Charity Commissioner is not aware about the proceedings and therefore when it came to the knowledge of the Charity Commissioner, the proceedings were initiated for the first time in the year 2020 and therefore she has submitted that the Charity Commissioner has rightly availed the remedy and more Page 14 of 33 Downloaded on : Fri Apr 21 20:42:08 IST 2023 C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023 particularly, when this Court, in Civil Revision Applications, observed to avail remedy available to the present respondent no.1 to file appeal under Section 96(1) of the CPC or review application before the same Court and accordingly on the technical ground of delay condonation application not being filed, the appeal should not be considered as incompetent and considering the over all facts, the Court should not exercise any discretion and not exercise supervisory powers by interfering with the impugned judgment and order.
9. Having heard the learned advocates for the parties and having gone through the material placed on record, it transpires that after the order was passed in Civil Revision Application by this Court, Regular Civil Appeals were registered after a delay of five years, without any application for condonation of delay and the order was passed in Exh.5 preferred therein.
10. This Court would like to examine the provision of law, upon which the reliance is placed by learned advocate for the petitioners, which reads as under:
Order XXXXI Rule 3A of CPC reads as under:Page 15 of 33 Downloaded on : Fri Apr 21 20:42:08 IST 2023
C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023 "Application for condonation of delay:
(1) When an appeal is presented after the expiry of the period of limitation specified therefore, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period.
(2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under rule 11 or rule 13, as the case may be.
(3) Where an application has been made under sub-rule(1), the Court shall not make an order for the stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not, after hearing under rule 11, decide to hear the appeal."
11. At this juncture, it is relevant to refer to the relevant operative portion of the order dated 6.10.2021 passed in Civil Revision Application Nos. 228 of 2021, which read as under:
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C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023 "13. Keeping in view of the aforesaid observations made by the Full Bench of this Court, if the facts of the present case as discussed hereinabove are examined, this Court is of the view that separate civil suit filed by the respondent no.1-Charity Commissioner, who was not party to Regular Civil Suit No.61/2016 challenging the consent decree dated 07.10.2016, is barred by law and, therefore, the trial court ought to have allowed the application filed by the applicant under Order 7, Rule 11 of the Code. It is always open for the respondent no.1-Charity Commissioner to file an Appeal under Section 96(1) of the Code with leave of the Appellate Court or to file review application before the same Court, which has passed the consent decree dated 07.10.2016, however, separate suit challenging the consent decree dated 07.10.2016 is not maintainable.
14. Therefore, in view of the above, all these Civil Revision Applications allowed. The impugned orders in all Civil Revision Applications passed in applications filed by the applicant under Order 7, Rule 11 of the Code are hereby quashed and set aside. Accordingly, the respective plaints filed by the respondent no.1-Charity Commissioner are rejected. However, liberty is reserved to the respondent no.1-
Charity Commissioner to file an Appeal challenging the consent decree dated 07.10.2016 with leave of the Court and/ or to file review application as observed hereinabove before the same Court. It is clarified that this Court has not Page 17 of 33 Downloaded on : Fri Apr 21 20:42:08 IST 2023 C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023 examined the merits of the case of the applicant and, therefore, as and when the respondent no.1-Charity Commissioner files an Appeal under Section 96(1) of the Code or Review Application, same shall be decided on its own merits. It is also clarified that all contentions of the parties are kept open. Rule is made absolute."
12. With the above background, on perusal of the record available with this Court i.e. the pleadings of the party, memo of petition, documents and affidavit-in-reply filed by respondent no.1, it transpires that the suit is compromised between the present petitioners and trust way back on 7.10.2016 by way of consent decree passed by the learned trial Court and on the basis of the consent decree, the trust has no say in the suit land as trust has no document regarding right, title of the suit land and the trust is having ownership of adjoining land which is not the subject matter of the suit land and therefore, after passing necessary resolution by the trust on 5.7.2016, the consent decree was passed by the learned Additional Senior Civil Judge, Lunawada in the respective suits filed by the present petitioners. It transpires from the record that till 2020, no one has Page 18 of 33 Downloaded on : Fri Apr 21 20:42:08 IST 2023 C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023 challenged the said consent decree and in the year 2020, the Charity Commissioner who is respondent no.1 herein has preferred independent suit which is registered as Regular Civil Suit No.71 of 2020 where the present petitioners and similarly situated other petitioners have filed application under Order VII Rule 11 of the CPC to reject the plaint, which application is rejected by the learned trial Court and aggrieved by that order, the present petitioner and other similarly situated persons have preferred Civil Revision Application No.228 of 2021 and allied matters, wherein this Court, by order dated 6.10.2021, has allowed the revision application with some observations as mentioned hereinabove. It also transpires that relying on that observation, the respondent no.1 Charity Commissioner has preferred appeal before the learned Court at Lunawada at Mahisagar, but without filing application for condonation of delay challenging the consent judgment and decree passed in the above respective suits by the learned Civil Court in the year 2016. From the perusal of the rojkam of the appeal produced along with this petition, nowhere it is reflected that the application for condonation of delay along with the appeal is filed but it transpires that the appeal is Page 19 of 33 Downloaded on : Fri Apr 21 20:42:08 IST 2023 C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023 straightaway registered on 17.12.2021 and thereafter the Court has issued summons by keeping the returnable date on 22.12.2021. On returnable date, the learned advocate for the petitioners has appeared and filed vakalatnama and has also filed application for adjournment which was adjourned to 27.12.2021 and thereafter on 27.12.2021, the learned advocate for the respondent has filed application praying time for four weeks as the learned advocate for the petitioners has appeared on 22.12.2021 only and needed some papers regarding the subject matter. It further transpires that by way of this application, the learned advocate for the present petitioners has categorically raised objection about non-filing of the application for condonation of delay by pointing out that there is huge delay of about five years in filing of such proceedings. It seems that the learned trial Court, without recording any reasons, has rejected the said application and has proceeded further and on very next day i.e. on 28.12.2021, allowed Exh.5 application. It also transpires that present petitioners were never heard by learned lower appellate Court and it further transpires that new parties are added in Appeal without following necessary procedure under Page 20 of 33 Downloaded on : Fri Apr 21 20:42:08 IST 2023 C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023 Order I Rule 10 of CPC or any other provisions of CPC, which is also ex-facie erroneous and improper. This chain of events clearly show that though it is required under the provisions of Order XXXXI Rule 3A of CPC to file appeal along with the delay condonation application whenever the appeal is preferred after expiry of period of limitation, the same is not admittedly done, as transpired from the record available with this Court.
13. Even in the affidavit-in-reply filed by the respondent, it is recorded in paragraph 12 as under:
"12. It is respectfully submitted that as per the mandatory requirements of rule 3(A) of the Order 41 of CPC is as follows:- Sub-rule(1) of Rule 3A of Order 41 of Civil Procedure Code provides that, when a time barred appeal is filed, it has to be accompanied by an application and affidavit for condonation of delay. In compliance to the mandatory provision, the office of charity commissioner forwarded to the DGP Office memo of appeal, accompanied by an application supported by affidavit for condoning delay in filing the appeal. However, neither registry nor the learned court deemed it fit to ask for the delay application as there was no delay and therefore, the appeal was admitted and injunction application was heard and decided."Page 21 of 33 Downloaded on : Fri Apr 21 20:42:08 IST 2023
C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023
14. In view of the above admission in the affidavit-in-reply, it is clear that though the application is prepared, the same was not filed as the registry has not asked for the same and therefore it is admitted position that the application under Order XXXXI Rule 3A of CPC is not filed. It is a moot question which has remained unanswered as to how the registry has accepted such defective appeal and thereafter registered the said appeal. Moreover, assuming for the sake of argument that such application is filed, then also the petitioners and other affected parties are required to be heard before considering the aspect of condonation of delay in filing the appeal which was not admittedly done in the present proceedings. Further, the judgment of the Division Bench of this Court in the case of Paschim Gujarat Vij Company Ltd. (supra), clearly supports the case of the present petitioners that in absence of any application for condonation of delay such appeal itself is not maintainable. Paragraphs nos.5 to 10 of the said judgment 5 to 10 read as under :
"5. Order 41 Rule 3A of The Code of Civil Procedure, 1908 reads as under:Page 22 of 33 Downloaded on : Fri Apr 21 20:42:08 IST 2023
C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023 "3A. Application for condonation of delay-(1) When an appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period.
(2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under rule 11 or rule 13, as the case may be.
(3) Where an application has been made under sub-rule (1), the Court shall not make an order for the stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not, after hearing under rule 11, decide to hear the appeal."
Sub-rule (1) of Rule 3A of Order 41 of Civil Procedure Code provides that when an appeal is presented after expiry of the period of limitation, it shall be accompanied by an application supported by an affidavit giving all the detailed facts on which the appellant wants to satisfy the Court that he was prevented by sufficient cause in not filing the appeal within the prescribed period of limitation. Therefore, this Page 23 of 33 Downloaded on : Fri Apr 21 20:42:08 IST 2023 C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023 Rule mandates that if a time barred appeal is filed, it has to be accompanied by an application and affidavit for condonation of delay. In absence, the appeal is rendered incompetent and is liable to be dismissed. The Rule is mandatory in nature and its non-compliance is fatal.
6. Chapter-V, Rule 67(i) of the Gujarat High Court Rules reads as under:
"67(i) When an appeal, application or memorandum of cross- objection is presented after the expiry of the period of limitation specified therefore, shall be accompanied by separate application for condonation of delay."
This Rule has been framed in consonance with Order 41 Rule 3A(1) of the CPC and makes it incumbent for the appellant to file a separate application for condonation of delay at the time of presentation of the appeal, if the appeal has been preferred beyond the period of limitation. Since the limitation for filing the appeal expired on 30th August, 2008, the appeal was filed on 16th May, 2009, it was mandatory for the appellant to file an application for condoning the delay supported by an affidavit. In absence of non-compliance of Rule 67(i), the appeal is liable to be dismissed.
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7. There is another aspect of the matter for which it is necessary to extract Section 3(1) of The Limitation Act, 1963 which reads as under:
"3. Bar of limitation-(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.
(2) xxx xxx xxx"
8. From the bare reading of the aforesaid provision, it is clear that if the appeal is filed beyond the period of limitation, then it has to be accompanied by an application supported by affidavit for condoning delay in filing the appeal. In absence of any application supported by an affidavit for condoning of delay, the appeal is rendered time barred and is liable to be dismissed even in absence of plea of limitation having been set up as a defence. The appeal was time barred when it was filed. The defect could not be cured by filing a delay condonation application subsequently.
9. The view taken by us finds support in paragraphs 32 and 33 of the decision of the Apex Court in Noharlal Verma vs. District Cooperative Central Bank Ltd., Jagdalpur, (2008) 14 Supreme Court Cases 45, wherein the Apex Court held as under:
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C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023 "32. Now, limitation goes to the root of the matter. If a suit, appeal or application is barred by limitation, a court or an adjudicating authority has no jurisdiction, power or authority to entertain such suit, appeal or application and to decide it on merits.
33. Sub-section (1) of Section 3 of the Limitation Act, 1963 reads as under:
"3. Bar of limitation- (1) Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence." (emphasis supplied).
Bare reading of the aforesaid provisions leaves no room for doubt that if a suit is instituted, appeal preferred or application is made after the prescribed period, it has to be dismissed even though no such plea has been raised or defence has been set up. In other words, even in absence of such plea by the defence, respondent or opponent, the court or authority must dismiss such suit, appeal or application, if it is satisfied that the suit, appeal or application is barred by limitation."
10. In view of the legal position as explained by the Apex Court and in view of the fact that when the appellant had Page 26 of 33 Downloaded on : Fri Apr 21 20:42:08 IST 2023 C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023 filed the appeal beyond limitation and it did not accompany any application for condonation of delay supported by any affidavit, the appeal was not entertainable. We have therefore, no hesitation in holding that a time barred appeal filed without delay condonation application supported by an affidavit is not maintainable. The appeal deserves to be dismissed as time barred."
15. It is very clear from the above where the Division Bench of this Court has held that from the bare reading of the provisions of Order XXXXI Rule 3A of CPC, it is clear that if the appeal is filed beyond period of limitation then it has to be accompanied by an application supported by affidavit for condonation of delay in filing appeal and in absence of any application supported by affidavit for condonation of delay, the appeal is rendered time barred and is liable to be dismissed even in absence of plea of limitation having been set up as defence. If the appeal was time barred when it was filed, the defect could be cured by filing delay condonation application subsequently.
16. At this stage, it is required to refere to the judgment of the Apex Court in the case of Noharlal Verma V/s District Cooperative Central Bank Ltd., Page 27 of 33 Downloaded on : Fri Apr 21 20:42:08 IST 2023 C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023 Jagdalpur, reported in 2008(14) SCC 45, wherein in paragraphs 32 and 33, it is held that the appeal which is instituted after prescribed period of limitation without filing application for condonation of delay is incompetent and the Court or authority must dismiss such appeal if it is barred by limitation.
17. At this stage, it is fruitful to refer the judgment reported in AIR Online 2020 SC 731, in the case of Sagufa Ahmed V/s Upper Assam Plywood Products Pvt.Ltd., more particularly, paragraphs 22 and 23, which read as under:
"22. The words "prescribed period" appear in several Sections of the Limitation Act, 1963. Though these words "prescribed period" are not defined in Section 2 of the Limitation Act, 1963, the expression is used throughout, only to denote the period of limitation. We may see a few examples:(i) Section 3(1) makes every proceeding filed after the prescribed period, liable to be dismissed, subject however to the provisions in Sections 4 to 24.(ii) Section 5 enables the admission of any appeal or application after the prescribed period.(iii) Section 6 uses the expression prescribed period in relation to proceedings to be initiated by persons under legal disability.Page 28 of 33 Downloaded on : Fri Apr 21 20:42:08 IST 2023
C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023
23.Therefore, the expression "prescribed period" appearing in Section 4 cannot be construed to mean anything other than the period of limitation. Any period beyond the prescribed period, during which the Court or Tribunal has the discretion to allow a person to institute the proceedings, cannot be taken to be "prescribed period".
18. It is also relevant to refer to the decision reported in AIR 1962 SC 361 in the case of Ramlal and others V/s Rewa Coalfields Ltd. , more particularly, paragraphs 6 to 8, which read as under:
"6.Section 5 of the Limitation Act provides for extension of period in certain cases. It lays down, inter alia, that any appeal may be admitted after the period of limitation prescribed therefor when the appellant satisfies the Court that he had suffi cient cause for not preferring the appeal within such period. This section raises two questions for consideration. First is, what is sufficient cause; and the second, what is the meaning of the clause "within such period'? With the first question we are not concerned in the present appeal. It is the second question which has been decided by the Judicial Commissioner against the appellant. He has held that "within such period" in substance means during the period prescribed for making the appeal. In other words, according to him, when an appellant prefers an Page 29 of 33 Downloaded on : Fri Apr 21 20:42:08 IST 2023 C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023 appeal beyond the period of limitation prescribed he must show that he acted diligently and that there was some reason which prevented him from preferring the appeal during the period of limitation prescribed. If the Judicial Commissioner had held that "within such period" means "the period of the delay between the last day for filing the appeal and the date on which the appeal was actually filed"
he would undoubtedly have come to the conclusion that the illness of Ramlal on February 16 was a sufficient cause. That clearly appears to be the effect of his judgment. That is why it is unnecessary for us to consider what is "a sufficient cause" in the present appeal. It has been urged before us by Mr. Andley, for the appellant that the construction placed by the judicial Commissioner on the words "within such period" is erroneous.
7.In construing S. 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree- holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if Page 30 of 33 Downloaded on : Fri Apr 21 20:42:08 IST 2023 C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023 sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in trial behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan, ILR 13 Mad 269, "Section 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable in the appellant."
8.Now, what do the words "within such period" denote? it is possible that the expression "within such period" may sometimes mean during such period. But the question is :
Does the context in which the expression occurs in S. 5 justify, the said interpretation? If the Limitation Act or any other appropriate statute prescribes different periods of limitation either for appeals or applications to which S. 5 applies that normally means that liberty is given to the party intending to make the appeal or to file an application to act within the period prescribed in that behalf. It would not be reasonable to require a party to take the necessary Page 31 of 33 Downloaded on : Fri Apr 21 20:42:08 IST 2023 C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023 action on the very first day after the cause of action accrues. In view of the period of limitation prescribed the party would be entitled to take its time and to file the appeals on any day during the said period; and so prima facie it appears unreasonable that when delay has been made by the party in filing the appeal it should be called upon to explain its conduct during the whole of the period of limitation prescribed. In our opinion, it would be immaterial and even irrelevant to invoke general considerations of diligence of parties in construing the words of S. 5. The context seems to suggest that "within such period" means within the period which ends with the last day of limitation prescribed. In other wards, in all cases falling under S. 5 what the party has to show is why he did not file an appeal on the last day of limitation prescribed. That may inevitably mean that the party will have to show sufficient cause not only for not filing the appeal on the last day but to explain the delay made thereafter day by day. In other words, in showing sufficient cause for condoning the delay the party may be called upon to explain for the whole of the delay covered by the period between the last day prescribed for filing the appeal and the day on which the appeal is filed. To hold that the expression "within such period" means during such period would, in our opinion, be repugnant in the context. We would accordingly hold that the learned Judicial Commissioner was in error in taking the view that the Page 32 of 33 Downloaded on : Fri Apr 21 20:42:08 IST 2023 C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023 failure or the appellant to account for its non-diligence during the whole of the period of limitation prescribed for the appeal necessarily disqualified it from praying for the condonation of delay, even though the delay in question was only for one day; and that too was caused by the party's illness."
19. In the present case, it is admitted fact that the compromise decree which is sought to be challenged by way of appeal is of the year 2016 and appeal is filed in the year 2021 and therefore the same is apparently barred by provisions of Limitation Act and therefore these petitions are required to be allowed.
20. In view of the above discussion, all these petitions are allowed. The impugned orders passed below Exh.5 in respective Regular Civil Appeals are quashed and set aside. The Regular Civil Appeals which are filed before the Court below against the respective Regular Civil Suits, as mentioned in the statement hereinabove in paragraph 4 are declared as null and void and therefore dismissed. Rule is made absolute in each petition. No order as to costs.
(SANDEEP N. BHATT,J) SRILATHA Page 33 of 33 Downloaded on : Fri Apr 21 20:42:08 IST 2023