Gujarat High Court
State Of Gujarat vs Pwd Employees Union Through Its ... on 28 June, 2018
Author: Harsha Devani
Bench: Harsha Devani, A.S. Supehia
C/LPA/1134/2017 IA ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION NO. 2 of 2017
IN F/LETTERS PATENT APPEAL NO. 1134 of 2017
In SPECIAL CIVIL APPLICATION NO. 5529 of 2003
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STATE OF GUAJRAT Versus PWD EMPLOYEES UNION ================================================================ Appearance:
MS MANISHA LAVKUMAR SHAH, SENIOR ADVOCATE, GOVERNMENT PLEADER for the Applicants MR SHALIN MEHTA, SENIOR ADVOCATE with MS VIDHI J BHATT, Advocate for the Opponents ================================================================ CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI and HONOURABLE MR.JUSTICE A.S. SUPEHIA Date : 28/06/2018 IA ORDER (PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. By this application under section 5 of the Limitation Act, 1963 (hereinafter referred to as "the Act"), the applicants -
State of Gujarat and others seek condonation of delay of 2039 days caused in preferring the captioned letters patent appeal, wherein the judgment and order dated 14.10.2011 passed by the learned Single Judge in Special Civil Application No.5529 of 2003 is subject matter of challenge.
2. Ms. Manisha Lavkumar, Senior Advocate, learned Government Pleader, submitted that initially, a decision was taken to challenge the impugned judgment and order dated 14.10.2011 by filing a special leave petition before the Page 1 of 44 C/LPA/1134/2017 IA ORDER Supreme Court. Accordingly, steps were taken towards that end and the SLP came to be filed before the Supreme Court. It was pointed out that vide order dated 3.5.2012, the Supreme Court condoned the delay and issued notice. Subsequently, the matter came up for hearing before the Supreme Court on several occasions and on 10.1.2017, when the appeal was listed for hearing, it came to be withdrawn with liberty to pursue the remedy in accordance with law. It was submitted that, therefore, the delay that had occasioned prior to filing the SLP had been condoned by the Supreme Court and subsequent to the withdrawal of the SLP, steps were immediately taken for filing the letters patent appeal and sanction for filing the letters patent appeal came to be granted on 25.1.2017. Thereafter, on account of certain procedure that was required to be followed and for the reason that there was some delay in getting the papers etc., there was some delay in filing the letters patent appeal. It was submitted that except for the time when the applicants were bona fide pursuing their remedy before the Supreme Court, there is no considerable delay and hence, the delay caused in filing the letters patent appeal deserves to be condoned. It was urged that the applicants have a very good case on merits and having regard to the facts and circumstances of the case, the delay deserves to be condoned so that a meritorious case is not thrown out without examining the case on merits.
3. Vehemently opposing the application, Mr. Shalin Mehta, Senior Advocate, learned counsel with Ms. Vidhi Bhatt, learned advocate for the opponents, submitted that after the judgment came to be rendered by the learned Single Judge, despite the fact that the applicants could have availed of the remedy of Page 2 of 44 C/LPA/1134/2017 IA ORDER intra court appeal under clause 15 of the Letters Patent, the applicants had straightway approached the Supreme Court by filing Special Leave to Appeal No.19436 of 2012. It was contended that the applicants were well aware that they had an option of filing an appeal under clause 15 of the Letters Patent before this court, however, just to protract the entire proceedings and to deny the benefits to the opponents, the applicants had deliberately approached the Supreme Court.
3.1 It was submitted that the appeal before the Supreme Court came to be withdrawn on 10.1.2017 and even thereafter, the letters patent appeal came to be filed only on 20.6.2017, that is, after a delay of about five months which cannot be said to have been sufficiently explained.
3.2 Referring to the order dated 10.1.2017 passed by the Supreme Court, it was submitted that no liberty had been granted by the Supreme Court that when the applicants approach the alternative forum, limitation will not be looked into. It was submitted that if the Limitation Act applies, then section 14 would come to the rescue of the applicants, provided it is attracted. The attention of the court was drawn to the provisions of section 14 of the Limitation Act, to submit that what is excluded is the time when the plaintiff has been prosecuting with due diligence another civil proceeding, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. Reference was made to the decision of the Supreme Court in the case of M.P. Steel Corporation v. CCE, (2015) 7 SCC 58, wherein it has been held thus:
Page 3 of 44C/LPA/1134/2017 IA ORDER "Ingredients of Section 14
7. Section 14 of the Limitation Act reads as follows:
"14. Exclusion of time of proceeding bona fide in court without jurisdiction.--(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(3) Notwithstanding anything contained in Rule 2 of Order 23 of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under Rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature.
Explanation.--For the purposes of this section--
(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction."
8. Shri A.K. Sanghi, learned Senior Counsel appearing on behalf of the Department has stated that at no point of time has the appellant taken up a plea based on Section
14. Neither has the appellant met with any of the five Page 4 of 44 C/LPA/1134/2017 IA ORDER conditions set out in para 21 of Consolidated Engg. Enterprises v. Irrigation Deptt.5, which reads as follows:
(SCC p. 181)
21. "Section 14 of the Limitation Act deals with exclusion of time of proceeding bona fide in a court without jurisdiction. On analysis of the said section, it becomes evident that the following conditions must be satisfied before Section 14 can be pressed into service:
(1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party; (2) The prior proceeding had been prosecuted with due diligence and in good faith;
(3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature; (4) The earlier proceeding and the latter proceeding must relate to the same matter in issue; and (5) Both the proceedings are in a court."
35. This judgment is in line with a large number of authorities which have held that Section 14 should be liberally construed to advance the cause of justice--see Shakti Tubes Ltd. v. State of Bihar20 and the judgments cited therein. Obviously, the context of Section 14 would require that the term "court" be liberally construed to include within it quasi-judicial tribunals as well. This is for the very good reason that the principle of Section 14 is that whenever a person bona fide prosecutes with due diligence another proceeding which proves to be abortive because it is without jurisdiction, or otherwise no decision could be rendered on merits, the time taken in such proceeding ought to be excluded as otherwise the person who has approached the court in such proceeding would be penalised for no fault of his own. This judgment does not further the case of Shri Viswanathan in any way. The question that has to be answered in this case is whether suits, appeals or applications referred to by the Limitation Act are to be filed in courts. This has nothing to do with "civil proceedings" referred to in Section 14 which may be filed before other courts or authorities which ultimately do not answer the case before them on merits but throw the case out on some technical ground. Obviously the word "court" in Section 14 takes its colour from the preceding words "civil proceedings". Civil proceedings Page 5 of 44 C/LPA/1134/2017 IA ORDER are of many kinds and need not be confined to suits, appeals or applications which are made only in courts stricto sensu. This is made even more clear by the explicit language of Section 14 by which a civil proceeding can even be a revision which may be to a quasi-judicial tribunal under a particular statute."
3.3 Reliance was also placed upon the decision of the Supreme Court in the case of Consolidated Engg. Enterprises v. Irrigation Department, (2008) 7 SCC 169, wherein the court held thus:
"21. Section 14 of the Limitation Act deals with exclusion of time of proceeding bona fide in a court without jurisdiction. On analysis of the said section, it becomes evident that the following conditions must be satisfied before Section 14 can be pressed into service:
(1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party; (2) The prior proceeding had been prosecuted with due diligence and in good faith;
(3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature; (4) The earlier proceeding and the latter proceeding must relate to the same matter in issue and; (5) Both the proceedings are in a court.
22. The policy of the section is to afford protection to a litigant against the bar of limitation when he institutes a proceeding which by reason of some technical defect cannot be decided on merits and is dismissed. While considering the provisions of Section 14 of the Limitation Act, proper approach will have to be adopted and the provisions will have to be interpreted so as to advance the cause of justice rather than abort the proceedings. It will be well to bear in mind that an element of mistake is inherent in the invocation of Section 14. In fact, the section is intended to provide relief against the bar of limitation in cases of mistaken remedy or selection of a wrong forum. On reading Section 14 of the Act it becomes clear that the legislature has enacted the said section to exempt a Page 6 of 44 C/LPA/1134/2017 IA ORDER certain period covered by a bona fide litigious activity. Upon the words used in the section, it is not possible to sustain the interpretation that the principle underlying the said section, namely, that the bar of limitation should not affect a person honestly doing his best to get his case tried on merits but failing because the court is unable to give him such a trial, would not be applicable to an application filed under Section 34 of the Act of 1996. The principle is clearly applicable not only to a case in which a litigant brings his application in the court, that is, a court having no jurisdiction to entertain it but also where he brings the suit or the application in the wrong court in consequence of bona fide mistake or (sic of) law or defect of procedure. Having regard to the intention of the legislature this Court is of the firm opinion that the equity underlying Section 14 should be applied to its fullest extent and time taken diligently pursuing a remedy, in a wrong court, should be excluded."
3.4 It was submitted that the question arises as to whether the SLP filed by the applicants before the Supreme Court was maintainable or whether the applicants were bona fide pursuing their remedy before the wrong forum. The attention of the court was invited to the provisions of Article 136 of the Constitution of India, which provides for "Special leave to appeal by the Supreme Court" and ordains that notwithstanding anything contained in that Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. It was submitted that any order passed by any court or tribunal in the territory of India can be challenged before the Supreme Court, and hence, the SLP filed by the applicants was not defective or bad for want of jurisdiction, hence, section 14 of the Limitation Act will not be attracted.
Page 7 of 44C/LPA/1134/2017 IA ORDER 3.5 It was submitted that the applicants took a chance before the Supreme Court by filing the special leave petition instead of filing a letters patent appeal before this court and hence, are not entitled to a liberal approach while considering the question of delay. Reference was made to the decision of the Supreme Court in the case of Neeraj Jhanji v. Commissioner of Customs & Central Excise, (2015) 12 SCC 695, wherein the court has held thus:
"1. Heard. In our opinion, the initial filing of writ petition by the petitioner before the Delhi High Court against the order-in-original passed by the Commissioner of Customs, Kanpur was not at all bona fide. The Delhi High Court, however, converted the writ petition into statutory appeal under the Customs Act, 1962 by order dated 9-11-2009. On 9-9-2010 the respondent raised an objection about the territorial jurisdiction of that Court. The matter was adjourned at the instance of the petitioner. Then on 5-1-2012 the petitioner withdrew the appeal with liberty to approach the jurisdictional High Court. The Delhi High Court dismissed the appeal as withdrawn. While doing so, the Delhi High Court observed:
"It is for jurisdictional High Court to decide the prayer for waiver/exclusion. However, it does appear that the appellant in the present case had bona fide filed the appeal in this Court and has been pressing the same, as the Tribunal is located in Delhi."
2. The petitioner then filed statutory appeal before the Allahabad High Court and applied for condonation of delay by seeking the benefit under Section 14 of the Limitation Act. The Allahabad High Court dismissed the application for condonation of delay and also dismissed the appeal as time barred. It said:
"21. In the present case also as in Ketan V. Parekh, (2011) 15 SCC 30, the appellant was assisted and had the services of the counsel, who are expert in the central excise and customs cases. They first Page 8 of 44 C/LPA/1134/2017 IA ORDER filed a writ petition, and then without converting it into appeal obtained an interim order. They kept on getting the matter adjourned and thereafter in spite of specific objection taken, citing the relevant case law, which is well known, took time to study the matter. Thereafter, they took more than one year and three months to study the matter to withdraw the appeal. They took a chance, which apparently looking to the facts in Ketan V. Parekh case and this case appear to be the practice of the counsel appearing in such matters at Delhi High Court and succeeded in getting interim orders. The Supreme Court has strongly deprecated such practice of forum shopping. In this case also there is no pleading that the writ petition and thereafter appeal was filed in the Delhi High Court, under bona fide belief that it had jurisdiction to hear the appeal and that the appellant was pursuing the remedies in wrong court with due diligence. The appellant, thereafter, caused a further delay of 20 days in filing this appeal, which he has not explained.
22. For the aforesaid reasons, we are of the opinion that the appellant is not entitled to the benefit of Section 14 of the Limitation Act. This appeal is barred by limitation by 697 days, which has not been sufficiently explained by the appellant."
3. The very filing of writ petition by the petitioner in the Delhi High Court against the order-in-original passed by the Commissioner of Customs, Kanpur indicates that the petitioner took a chance in approaching the High Court at Delhi which had no territorial jurisdiction in the matter. We are satisfied that filing of the writ petition or for that matter, appeal before the Delhi High Court was not at all bona fide. We are in agreement with the observations made by the Allahabad High Court in the impugned order. The Allahabad High Court has rightly dismissed the petitioner's application of condonation of delay and consequently the appeal as time barred."
3.6 Reliance was also placed upon the decision of this court in the case of State of Gujarat and another v. Kanubhai Kantilal Rana, 2014(1) GLR 381, wherein the court held thus:
Page 9 of 44C/LPA/1134/2017 IA ORDER "10. We are, however, conscious that the right of appeal being a statutory remedy, there is no estoppel against law and even after getting the benefit of undertaking to comply with the order, one's right to prefer appeal against such order is not lost (see P. R. Deshpande v. Maruti Balaram Haibatti reported in AIR 1998 SC 2979), but when a litigant does not act with bona fide motive and at the same time, due to inaction or laches on its part, the period of limitation for filing the appeal expires, such lack of bona fide and gross inaction and negligence are the vital factors which should be taken into consideration while considering the question of condonation of delay."
"17. Law having prescribed a fixed period of limitation of 30 days for preferring the appeal, the Government cannot ignore the provisions of the period of limitation as it was never the intention of the legislature that there should be a different period of limitation when the Government is the appellant. In this connection, we may profitably refer to the following observations of the Supreme Court in the case of Office of the Chief Post Master General and Ors. v. Living Media India Ltd. and Anr reported in AIR 2012 SC 1506 while considering the case of condonation of delay of 427 days, 1 day less than the period involved in this case:
"12. 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 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. 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 bona fide, 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 Page 10 of 44 C/LPA/1134/2017 IA ORDER 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.
13. 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 the delay and there was bona fide 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 red-tape 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. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay."
3.7 It was argued that the decision to go challenge the impugned judgment and order directly before the Supreme Court was a strategic decision on the part of the applicants to obtain ex parte relief because the opponents had filed a caveat before this court. It was submitted that even on conduct, the conditions set out for being entitled to the benefit of section 14 of the Limitation Act have not been satisfied and the inordinate laches and delay cannot be condoned.
4 In rejoinder, the learned Government Pleader submitted
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C/LPA/1134/2017 IA ORDER
that this case would clearly fall within the ambit of section 14 of the Limitation Act, inasmuch as, the applicants were bona fide prosecuting the civil appeal before the Supreme Court. It was submitted that at the time of withdrawal of the SLP from the Supreme Court, the Supreme Court has granted liberty to the applicants to pursue any remedy which is available in law, and hence, the time taken for prosecuting the appeal before the Supreme Court is required to be excluded while considering the question of delay. It was submitted that the period prior to filing the appeal before the Supreme Court has been condoned by the Supreme Court and the period of delay subsequent to the withdrawal of the appeal from the Supreme Court, is not considerable and hence, the delay deserves to be condoned. It was submitted that the proceedings before the Supreme Court had been taken in good faith, and hence, the applicants are entitled to the benefit of the provisions of section 14 of the Limitation Act.
5. On 21.6.2018, this court had heard the learned counsel for the respective parties on the merits of the application for condonation of delay. After the learned counsel for the respective parties had concluded their submissions, both the learned counsel had prayed for time to place certain particulars on record and accordingly the matter was adjourned to 26.6.2018. Primarily, the State was required to explain as to why the SLP came to be withdrawn from the Supreme Court after such a length of time. Thereafter, a further affidavit in support of Civil Application No.7554 of 2017 dated 26th June, 2018 has been filed on behalf of the applicant No.3 - Executive Engineer, Ukai Circle (Civil), Ukai Dam, Surat, wherein it has been stated that after the judgment Page 12 of 44 C/LPA/1134/2017 IA ORDER and order dated 14.10.2011 was passed by the learned Single Judge in Special Civil Application No.5529 of 2003, by a communication dated 14.10.2011, the Roads and Building Department forwarded a proposal to the Legal Department seeking sanction to prefer an SLP challenging the impugned order dated 14.10.2011. Prior to forwarding the proposal dated 4.1.2012, the matter was deliberated at various levels and the file notings demonstrate that sanction at various levels, including the Principal Secretary, was obtained on 3.1.2012, and it is only after having followed the channels of the submissions, that the proposal was forwarded to the Legal Department. It is further stated that on 16.2.2012, the learned Assistant Government Pleader opined that considering the reliefs granted by this court in Special Civil Application No.5529 of 2003, which go beyond the benefits granted even to regular government employees of the State Government, the matter needs to be carried in appeal. It is further averred that vide communication dated 15.3.2012, the advocate on record appearing on behalf of the State Government was informed that the State Government has decided to file special leave petition before the Supreme Court against the order impugned and accordingly, she was requested to process the papers and to file the SLP at the earliest. The further steps taken for the purpose of filing the SLP before the Supreme Court have also been set out in the affidavit. It is averred that the matter was listed on 4.7.2012 before the Supreme Court. Reference has been made to the orders dated 4.7.2012, 29.11.2012, 4.2.2013, 2.5.2013, 2.1.2014, 8.1.2015, 11.7.2016, 29.8.2016 and 6.12.2016 passed by the Supreme Court in the said proceedings. It is further averred that on 11.1.2017, the Supreme Court was pleased to grant the Page 13 of 44 C/LPA/1134/2017 IA ORDER present appellants and petitioners leave to withdraw the special leave petitions with liberty to pursue remedy which is available in law and accordingly, the petitions came to be dismissed as withdrawn with the aforesaid liberty. It is further submitted that vide communication dated 10.1.2017, the advocate on record informed them about the proceedings that had transpired in the court. The contents of the said communication are set out in the said affidavit. It is further averred thus:
"16. I say and submit that before the Hon'ble Supreme Court, Mr. L.R. Solanki, Senior Clerk from the office of the Executive Engineer, Road and Buildings Department, Vyara was also present. It is stated on instructions that pursuant to the query raised by the Hon'ble Supreme Court as to why an LPA was not preferred against the order of the Learned Single Judge but the explanation furnished was not accepted and the Hon'ble Supreme Court dismissed the petitions granting liberty to the petitioners to avail the remedy available in law."
In paragraph 17 of the said affidavit, it is stated thus:
"17. I say and submit that vide communication dated 25.01.2017 the Office of the Government Pleader was informed by the Deputy Secretary, Legal Department to prefer an LPA against the judgment and order passed by this Hon'ble Court dated 14.10.2011. The Office of the Government Pleader was also instructed that necessary steps be taken to file an LPA in the matter and to brief the learned Advocate General. Vide the said Page 14 of 44 C/LPA/1134/2017 IA ORDER communication instruction for filing of an appeal in coordination with the Narmada Water and Water Supplies Department was also issued. Thereafter, the concerned officers from the Office of the Executive Engineer, Road and Building Division-2, Surat personally held several conferences with the Learned Advocate General and the matter was thereafter assigned to the concerned Assistant Government Pleader to draft the memo of the appeal. After verifying documents and having held several conferences with the concern officers of the department, the LPA memo was prepared. The present deponent states that they had attended at least 3 to 4 meetings with the concern Assistant Government Pleader and thereafter, the draft of the LPA was approved from the chambers of the Learned Advocate General. As though at an earlier point of time certified copy of the order was obtained, the Office of the Government Pleader recommended that a fresh certified copy also be made available and therefore on 07.06.2017 an application for obtaining the certified copy of the order impugned was filed once again on 07.06.2017. Thereafter, immediately on 09.06.2017 the present LPA came to be filed."
5.1 It may be pertinent to refer to the averments made in paragraph 22 of the affidavit, which read thus:
"It is respectfully submitted that Section 14 of the Limitation Act stipulates the exclusion of time of proceedings bona fide in court without jurisdiction. Ordinarily against the order of the Learned Single Judge, Page 15 of 44 C/LPA/1134/2017 IA ORDER an intra court appeal i.e. an LPA under Clause 15 is filed the department was of the opinion that since in the earlier round of litigation against some other employees of the Irrigation Department, the matter had travelled up to the Hon'ble Supreme Court the appropriate remedy would be to prefer the SLP. The Hon'ble Supreme Court questioned the filing of an SLP straight away before the Hon'ble Apex Court without preferring an LPA. In view of the said fact the Hon'ble Supreme Court permitted withdrawal of the petition with liberty to avail of appropriate remedy and law."
6. On behalf of the opponents, an additional affidavit has been filed by the President of the PWD & Forest Employees' Union, wherein it is, inter alia, stated thus:
"(3) .... .... I was present in the court room when the matter was being heard by the Hon'ble Supreme Court.
When the Hon'ble Supreme Court was not inclined to pass any favourable order in favour of the applicants, they decided to withdraw the Special Leave to Appeal No.19436 of 2012 with a liberty to pursue any remedy available in law. I say that a specific oral prayer was made before the Hon'ble Supreme Court to condone the delay which may arise in filing the Letters Patent Appeal before this Hon'ble Court. The said request made by the counsel for the applicants was turned down and the Hon'ble Supreme Court dismissed the special leave petitions as withdrawn with liberty to pursue any remedy available in law."
Page 16 of 44C/LPA/1134/2017 IA ORDER 6.1 It is further stated therein that after the Special Leave to Appeal No.19436 of 2012 came to be withdrawn by the applicants, they ought to have immediately filed letters patent appeal before this court. However, as no steps were taken by the applicants, on 25.4.2017, the opponents filed a contempt petition being Miscellaneous Civil Application No.1186 of 2017 in Special Civil Application No.5529 of 2003 before this court. By an order dated 27.4.2017, notice was issued in the miscellaneous civil application making it returnable on 27.6.2017. It is stated that it is only after the notice was issued by this court in the contempt petition, that the applicants filed the letters patent appeal along with application for condonation of delay on 13.6.2017. It is further stated that it is clear that the applicants have not conducted themselves in good faith or with due diligence. If the applicants were so sure about the forum chosen by them, then they should have invited an order from the Supreme Court. The applicants managed to stall the entire proceedings for five years by deliberately preferring an appeal before the Supreme Court against the order passed by the learned Single Judge, which is nothing but abuse of process of law and is required to be deprecated. Further, even after the petition came to be withdrawn from the Supreme Court, the applicants did nothing for five months and that the letters patent appeal came to be filed only in the month of June 2017. It is, accordingly, urged that the application is required to be dismissed on the ground of delay as the delay is caused by the unmindfulness of the urgency and sheer negligence on the part of various departments of the Government, which does not deserve to be condoned by this court.
Page 17 of 44C/LPA/1134/2017 IA ORDER
7. In the aforesaid backdrop, the question that arises for consideration is as to whether sufficient cause has been made out by the applicants for condonation of the delay caused in filing the letters patent appeal. As noticed earlier, there is a delay of 2039 days in filing the present letters patent appeal, which by no stretch of imagination can be said to be a small delay. Such delay can be categorized into three parts. The first part is the delay in filing the initial appeal before the Supreme Court; the second part is the delay that has occasioned in pursuing the remedy before the Supreme Court; and the third part is the delay caused between the date of withdrawal of the appeal from the Supreme Court and filing the present letters patent appeal.
8. A perusal of the averments made in the memorandum of application shows that the reasons put forth to explain the first part of the delay are that the impugned judgment and order came to be passed by the learned Single Judge on 14.10.2011. On 28.12.2011, the opinion was given by the office of the Government Pleader to challenge the said judgment. Thereafter, the appropriate authority forwarded the proposal to file an appeal to the Roads and Building Department, Gandhinagar. On 3.1.2012, the Deputy Secretary, Roads and Building Department sent the proposal to file special leave petition before the Supreme Court to the Legal Department, Gandhinagar. On 17.3.2012, the Roads and Building Department instructed the office of the Superintending Engineer, Roads and Building Department, Surat to supply the case papers immediately. On 21.3.2012, the office of the Government Pleader forwarded the case papers to the advocate on record at New Delhi. The certified copy of the Page 18 of 44 C/LPA/1134/2017 IA ORDER impugned judgment and order was applied for on 21.3.2012 and was received on the same day. On 3.4.2012, the advocate on record called the officers of the Department to supply translated copies of the original Gujarati orders, resolutions etc. On 30.4.2012, the officers of the Department had a meeting with the advocate on record and supplied relevant documents. The advocate on record supplied the draft of appeal to the Roads and Building Department. On 1.5.2012, the memorandum of appeal was approved by the Secretary, Roads and Building Department and the appeal was filed before the Supreme Court on 3.5.2012.
9. Insofar as the second part of the delay is concerned, it has been stated that the Special Leave to Appeal (C) No.19436 of 2012 was listed before the Supreme Court and the Supreme Court admitted the appeal. The said special leave to appeal was listed for hearing on 10.1.2017 and came to be withdrawn vide order dated 10.1.2017 with liberty to pursue any other remedy available in law. Thus, the period from 3.5.2012 to 10.1.2017 had elapsed in prosecuting the matter before the Supreme Court.
10. Insofar as the third part of the delay is concerned, in the memorandum of application it has been averred that the office of the Superintending Engineer forwarded the proposal to file appeal to the Roads and Building Department, which in turn forwarded such proposal to the Legal Department. The Legal Department accorded sanction vide its communication dated 25.1.2017. Thereafter, the Roads and Building Department addressed a communication dated 6.2.2017 to the Page 19 of 44 C/LPA/1134/2017 IA ORDER Superintending Engineer, Roads and Building Circle, Surat, stating that the Legal Department had accorded sanction by its communication dated 25.1.2017 and to take steps for appointment of the Advocate General to appear in the matter. It also instructed to file an appeal in coordination with the Narmada Water Resources and Water Supply Department. The officers from the office of the Executive Engineer, R&B Division 2, Surat, personally came to the office of the Government Pleader, Gujarat High Court to file an appeal with relevant records and documents. The office of the Government Pleader had demanded certain documents and copies to file the appeal. The office of the Executive Engineer, R&B Division 2, Surat applied for certified copy of the order dated 14.10.2011 on 7.6.2017, which was received on 7.6.2017. The certified copies of the Special Civil Application No.5529 of 2003 with Special Civil Application No.21935 to 22056 of 2006 were applied for in March 2017 and the same were received on 8.6.2017. The office of the Government Pleader supplied the memo of appeal on 5.6.2017. The officers from the Executive Engineer, R&B Division 2, Surat and the officers from the Irrigation Department came with the memo of appeal at the office of the Government Pleader to finalize the memo of appeal. The final draft of the appeal was supplied on 8.6.2017. The officers from the office of the Executive Engineer, R&B Division 2, Surat, came to the office of the Government Pleader to meet the Advocate General for finalizing the memo of appeal on 9.6.2017, whereafter, immediately, the appeal came to be filed. It is the case of the applicants that the delay that has occurred is a procedural delay and there is no negligence and/or inaction on the part of the Department of the Government. In sum and substance, these are the grounds Page 20 of 44 C/LPA/1134/2017 IA ORDER for explaining the inordinate delay of 2039 days caused in filing the appeal in the memorandum of application. Thereafter, further facts have been brought on record by the affidavit in support dated 26.6.2018, the contents whereof have been set out in the preceding paragraphs.
11. As noted earlier, the delay that has occasioned in filing the captioned letters patent appeal is in three parts. Insofar as the first part of the delay is concerned, namely the delay caused in filing the SLP before the Supreme Court is concerned, such delay has been condoned by the Supreme Court, and hence, the sufficient cause can be said to have been made out insofar as such period is concerned. However, it is the second part of the delay, which forms a substantial part of the delay in filing the letters patent appeal, namely the delay that has occurred on account of the fact that the applicants were pursuing the special leave petition before the Supreme Court.
12. The second part of the delay, namely the period during which the applicants were prosecuting the SLP before the Supreme Court, can be said to have been explained provided the case falls within the ambit of section 14 of the Limitation Act which reads thus:
"14. Exclusion of time of proceeding bona fide in court without jurisdiction.--(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Page 21 of 44 C/LPA/1134/2017 IA ORDER court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(3) Notwithstanding anything contained in Rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under Rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature.
Explanation.--For the purposes of this section,--
(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction."
13. The Supreme Court in Consolidated Engg. Enterprises v. Irrigation Department (supra), has analysed section 14 as follows:
"Section 14 of the Limitation Act deals with exclusion of time of proceeding bona fide in a court without jurisdiction. On analysis of the said section, it becomes Page 22 of 44 C/LPA/1134/2017 IA ORDER evident that the following conditions must be satisfied before Section 14 can be pressed into service:
(1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party; (2) The prior proceeding had been prosecuted with due diligence and in good faith;
(3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature; (4) The earlier proceeding and the latter proceeding must relate to the same matter in issue and; (5) Both the proceedings are in a court."
14. Thus, for the purpose of pressing section 14 of the Limitation Act into service, all the above conditions are required to be satisfied cumulatively. Insofar as the first condition is concerned, undisputedly both the proceedings are civil proceedings prosecuted by the same party. As regards condition (2) the question as to whether the prior proceeding had been prosecuted in good faith shall be discussed at a later stage. Condition (3) which is the most relevant condition insofar as the present case is concerned, provides that the failure of the prior proceeding should be due to defect of jurisdiction or other cause of like nature. In the present case, the applicants took a conscious decision to bypass the remedy under clause 15 of the Letter Patent by way of filing a letters patent appeal before this court and filed a special leave petition before the Supreme Court. The SLP was entertained by the Supreme Court and vide order dated 4.7.2012, the Supreme Court requested the High Court to await those proceedings in the contempt petition filed by the opponent Page 23 of 44 C/LPA/1134/2017 IA ORDER before this court. The opponent entered appearance in the proceedings before the Supreme Court and the matter was processed further. It appears that the parties filed their pleading and by an order dated 4.2.2013, the matter was adjourned for filing rejoinder affidavit. On 2.1.2014, the matter was ordered to be listed for final disposal on a non- miscellaneous day. Thereafter the matter was adjourned from time to time. On 11.7.2016, the learned counsel for the applicants circulated letters for adjournment and the learned counsel for the respondent circulated letter opposing adjournment and the matter came to be adjourned. Lastly the matter was listed for hearing on 10.1.2017 and after hearing the counsel the following order came to be passed by the Supreme Court:
"Learned counsel for the petitioners seeks leave to withdraw these special leave petitions with liberty to pursue any remedy which is available in law. Permission granted. The special leave petitions are accordingly dismissed as withdrawn with the aforesaid liberty, as prayed for."
15. Thus, it is evident that the Supreme Court had entertained the special leave petition filed by applicants and the petition was dismissed as withdrawn. In the entire memorandum of application as well as the affidavit in support filed on behalf of the applicants there is not even a whisper that there was any defect of jurisdiction or other cause of like nature in the proceedings before the Supreme Court, nor is it the case of the applicants that out of ignorance or lack of knowledge they had directly preferred the SLP before the Page 24 of 44 C/LPA/1134/2017 IA ORDER Supreme Court instead of filing a letters patent appeal before this court. The case of applicants as stated in the affidavit in support is that ordinarily against an order of the learned Single Judge an intra court appeal under clause 15 of the Letters Patent is filed, however, the department was of the opinion that since in the earlier round of litigation against some of the employees of the Irrigation Department the matter had travelled up to the Supreme Court the appropriate remedy would be to prefer an SLP. Therefore, out of the two remedies available to the applicants for challenging the impugned judgment and order, the applicants chose the remedy by way of filing a special leave petition before the Supreme Court instead of filing a letters patent appeal before this court and prosecuted the same right from the year 2012 till January, 2017. Thereafter, about five years after the filing of the SLP, it came to be withdrawn with liberty to pursue any remedy available in law. Thus, the applicants who had taken a conscious decision to file an SLP before the Supreme Court chose to withdraw the same without taking it to its logical conclusion and inviting a decision on merits. From the order passed by the Supreme Court, it is evident that the Supreme Court has not ousted the applicants on the ground of jurisdiction or any other technical ground, but it is the applicants who have chosen to withdraw the appeal.
16. For the purpose of challenging the impugned judgment and order, the applicants had two choices, either to file a letters patent appeal before this court or to file a special leave petition before the Supreme Court. The applicants made a choice and opted to file a special leave petition before the Supreme Court and thus, they took a chance before the Page 25 of 44 C/LPA/1134/2017 IA ORDER Supreme Court. Once the applicants opted to avail of the remedy before the Supreme Court, which was a remedy available in law and did not suffer from any defect of jurisdiction or other cause of like nature, the requirements of condition (3) would not be satisfied. Insofar as conditions (4) and (5) are concerned, both stand satisfied in the present case as the earlier proceeding and the latter proceeding both relate to the same matter in issue and both the proceedings are in a court. Therefore, the conditions precedent for pressing section 14 of the Limitation Act into service, are not clearly not satisfied.
17. Insofar as the scope of section 14 of the Limitation Act is concerned, in the case of Ghasi Ram v. Chait Ram Saini, (1998) 6 SCC 200, the Supreme Court held thus:
"10. Learned counsel appearing for the respondents urged that, assuming the High Court suffered from disability to decide the rights of party on facts, the plaintiff-appellant did not prosecute the revision petition before the High Court in good faith; therefore, the appellant cannot derive any benefit of Section 14 of the Act. Before the High Court, it was not disputed that the plaintiff-appellant has prosecuted the other civil proceeding with due diligence. What is disputed is that the plaintiff did not prosecute the civil proceeding in good faith. "Good faith" is defined in the Act as under:
"2. (h) 'good faith' -- nothing shall be deemed to be done in good faith which is not done with due care and attention;"
The aforesaid definition shows that an act done with due care and attention satisfies the test of "good faith".
"Due care" means that sufficient care was taken so far as circumstances demanded and there was absence of negligence. In other words, the plaintiff has taken Page 26 of 44 C/LPA/1134/2017 IA ORDER sufficient care which a reasonable man is expected to take in order to avoid any injury. It is not shown here that the plaintiff-appellant has not taken sufficient care in prosecuting the remedy. Where a plaintiff is illiterate and is not acquainted with the procedural law, the only thing that he can do is to consult some lawyer for advice. It is not disputed that the plaintiff-appellant filed the revision before the High Court on the advice of his counsel, although it may be that he was ill-advised. Learned counsel for the respondents contended that any act done in violation of law cannot be described as act done with due care. No doubt, when a party proceeds contrary to a clearly expressed provision of law, it cannot be regarded as prosecuting the other civil proceeding in good faith. It is based on sound principle of law. But the said rule cannot be enforced in rigidity in every case. Each case has to be judged on its own merits. In the present case, the plaintiff-appellant is not a legally-trained person and thus he sought advice of his counsel for future course of action. The counsel advised him to file revision in the High Court instead of bringing a fresh suit under Order 21 Rule 103 CPC. It is also true that at that time, there was no unanimity about remedy of revision amongst the various High Courts. The plaintiff-appellant's revision was entertained for hearing by the High Court and that gave expectation to the plaintiff-appellant that the order of the executing court may be set aside and further, there was no inordinate delay in filing the suit under Rule 103. If, on examining the facts, it is found that there was no lack of due care, there is no reason why the plaintiff-appellant should not be accorded the benefits of Section 14 of the Act. Does the interest of justice demand that the plaintiff should be refused the benefit of Section 14 of the Act on account of the negligence on the part of his counsel, ill- advising him to file a revision instead of filing a fresh suit? An illiterate litigant cannot be made to suffer when he is ill-advised by his counsel. On the facts and circumstances of this case, we are satisfied that the plaintiff-appellant prosecuted the earlier civil proceeding in good faith."
18. In Roshanlal Kunthalia v. R.B. Mohan Singh Oberoi, (1975) 4 SCC 628, the Supreme Court held thus:
Page 27 of 44C/LPA/1134/2017 IA ORDER "25. Section 14, which neatly fits in, is simple in its ingredients, to the extent we are called upon to consider.
26. It is a sine qua non of a claim under Section 14 that the earlier proceeding is prosecuted in good faith. It is beyond cavil that before launching on execution of the Pakistani decree Shri Oberoi had taken advice from two leading Indian lawyers and set about the job diligently. Bona fides is thus writ large in his conduct. The controversy is that the defect of non-executability of the foreign decrees by virtue of the Governor-General's Order does not savour of a jurisdictional or like error but of a mere misconstruction of law. We need not labour the obvious that here the prosecution of the execution proceedings was repelled because and only because the institution of such proceeding on the execution side was without jurisdiction. Normally, a money claim due under a foreign decree can be enforced on the original side by a suit under Sections 9, 13 and 26 CPC, in the appropriate court and the executing court has no jurisdiction to straightway levy execution under Order 21 CPC. An exception is provided in this regard by the Governor-General's Order and a special forum viz. the High Court is indicated when the decree to be executed is of the Supreme Court of Pakistan. All this pertains to jurisdiction and in the Associated Hotels case this Court negatived executability solely on grounds jurisdictional or quasi-jurisdictional. Section 14 thus comes to the rescue of the defendant in this suit.
27. Certainly, Section 14 is wide enough to cover periods covered by execution proceedings (See 1959 SCR 811 at 8181). After all Section 47 itself contemplates transmigration of souls as it were of execution petitions and suits. The substantial identity of the subject-matter of the lis is a pragmatic test. Moreover, the defects that will attract the provision are not merely jurisdictional strictly so called but others more or less neighbours to such deficiencies. Any circumstance legal or factual, which inhibits entertainment or consideration by the Court of the dispute on the merits, comes within the scope of the section and a liberal touch must inform the Page 28 of 44 C/LPA/1134/2017 IA ORDER interpretation of the Limitation Act which deprives the remedy of one who has a right [See (1971) 2 SCR 397 at 401]. In the Associated Hotels case (i. e. the very lis in its earlier round on the execution side) this Court pointed out [(1961) 1 SCR 259] that the question was one of initial jurisdiction of the Court to entertain the proceedings. Thus in this very matter, the obstacle was jurisdictional and the exclusionary operation of Section 14 of the Limitation Act was attracted."
19. In Zafar Khan v. Board of Revenue, 1984 Supp. SCC 505, the Supreme Court held thus:
"12. Section 14(1) of the Limitation Act reads as under:
"14. (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it."
13. In order to attract the application of Section 14(1), the parties seeking its benefit must satisfy the court that: (i) that the party as the plaintiff was prosecuting another civil proceeding with due diligence; (ii) that the earlier proceeding and the later proceeding relate to the same matter in issue, and (iii) the former proceeding was being prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. It may be assumed that the earlier proceeding under Section 144 of the Code of Civil Procedure was a civil proceeding for the purpose of Section 14. It may as well be assumed in favour of the appellants that they were prosecuting the same with due diligence and in good faith, as they relentlessly carried the proceeding upto the High Court invoking its extraordinary jurisdiction. The first of the aforementioned three cumulative conditions can be said to have been satisfied."
"15. The question however is whether the third condition for attracting Section 14(1) is satisfied. The Page 29 of 44 C/LPA/1134/2017 IA ORDER appellants must further satisfy the court that the earlier proceeding failed on account of defect of jurisdiction or other cause of a like nature. Now at no stage it was contended that the authority to whom the application was made for restitution had no Jurisdiction to entertain the application, nor through the course of the proceedings upto the High Court anyone, anywhere, questioned the jurisdiction of the authority to grant restitution. Therefore, it can be safely said that the previous proceeding did not fail on account of defect of jurisdiction.
16. The next limb of the submission was that as in the former proceeding restitution was refused on the ground that in the proceeding under the 1953 Act the land in dispute was allotted to the respondents and the allotment had become final, it can safely be said that the proceeding failed on account of a cause of like nature such as defect of jurisdiction and the appellants would be entitled to exclude the time spent in that proceeding while computing the period of limitation in the suit. It is true that where the expression as a whole reads "from defect of jurisdiction or other cause of a like nature, is unable to entertain it", the expression "cause of a like nature" will have to be read ejusdem generis with the expression "defect of jurisdiction". So construed the expression "other cause of a like nature"
must be so interpreted as to convey something analogous to the proceeding words "from defect of jurisdiction". The defect of jurisdiction goes to the root of the matter as the court is incompetent to entertain the proceeding. The proceeding may as well fail for some other defect. Not all such defects can be said to be analogous to defect of jurisdiction. Therefore the expression "other cause of a like nature" on which some light is shed by the Explanation (c) to Section 14 which provides "misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction", must take its colour and content from the just preceding expression, "defect of jurisdiction". Prima facie it appears that there must be some preliminary objection which if it succeeds, the court would be incompetent to entertain the proceeding on merits, such defect could be said to be "of the like nature" as defect of jurisdiction. Conversely if the party Page 30 of 44 C/LPA/1134/2017 IA ORDER seeking benefit of the provision of Section 14 failed to get the relief in earlier proceeding not with regard to anything connected with the jurisdiction of the court or some other defect of a like nature, it would not be entitled to the benefit of Section 14. Where, therefore, the party failed in the earlier proceeding on merits and not on defect of jurisdiction or other cause of a like nature, it would not be entitled to the benefit of Section 14 of the Limitation Act. (See India Electric Works Ltd. v. James Mantosh)
17. The appellants failed in the earlier proceeding not on the ground that the authority had no jurisdiction to entertain the application nor on the ground that there was any other defect of a like nature, but on merits inasmuch as the authorities and the High Court held that in view of the decision of the authorities under 1953 Act, the appellants are not entitled to restitution. That was the decision on merits of the dispute and the appellants' application was rejected. Therefore, the High Court rightly declined to grant benefit of the provision of Section 14 of the Limitation Act to the appellants."
20. On a conspectus of the above decisions, it emerges that the principle of section 14 of the Limitation Act is that whenever a person bona fide prosecutes with due diligence another proceeding which proves to be abortive because it is without jurisdiction, or otherwise no decision could be rendered on merits, the time taken in such proceeding ought to be excluded as otherwise the person who has approached the court in such proceeding would be penalised for no fault of his own.
20.1 The policy of the section is to afford protection to a litigant against the bar of limitation when he institutes a proceeding which by reason of some technical defect cannot be decided on merits and is dismissed. An element of mistake is inherent in the invocation of section 14 and in fact, the Page 31 of 44 C/LPA/1134/2017 IA ORDER section is intended to provide relief against the bar of limitation in cases of mistaken remedy or selection of a wrong forum. On reading section 14 of the Act, it becomes clear that the legislature has enacted the said section to exempt a certain period covered by a bona fide litigious activity. The principle is clearly applicable not only to a case in which a litigant brings his application in the court, that is, a court having no jurisdiction to entertain it, but also where he brings the suit or the application in the wrong court in consequence of bona fide mistake law or defect of procedure.
20.2 The words "or other cause of a like nature" which follow the words "defect of jurisdiction" in the section 14 of the Limitation Act are very important. Their scope has to be determined according to the rule of ejusdem generis. According to that rule, they take their colour from the preceding words "defect of jurisdiction" which means that the defect must have been of an analogous character barring the court from entertaining the previous suit. Thus, the court which tried the previous suits should be precluded from entertaining them because of any defect of jurisdiction. What is, therefore, required to be seen is only whether the said court was unable to entertain the former suits on account of any defect of an analogous character.
20.3 It is a sine qua non of a claim under section 14 of the Limitation Act that the earlier proceeding is prosecuted in good faith. Any circumstance legal or factual, which inhibits entertainment or consideration by the court of dispute on the merits, comes within the scope of the section and a liberal Page 32 of 44 C/LPA/1134/2017 IA ORDER touch must inform the interpretation of the Limitation Act which deprives the remedy of one who has a right.
20.4 Where the expression as a whole reads "from defect of jurisdiction or other cause of a like nature, is unable to entertain it", the expression "cause of a like nature" will have to be read ejusdem generis with the expression "defect of jurisdiction". So construed the expression "other cause of a like nature" must be so interpreted as to convey something analogous to the preceding words "from defect of jurisdiction". The defect of jurisdiction goes to the root of the matter as the court is incompetent to entertain the proceeding. The proceeding may as well fail for some other defect. Not all such defects can be said to be analogous to defect of jurisdiction. Therefore, the expression "other cause of a like nature" on which some light is shed by the Explanation (c) to section 14 which provides "misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction", must take its colour and content from the just preceding expression, "defect of jurisdiction". There must be some preliminary objection which if it succeeds, the court would be incompetent to entertain the proceeding on merits in which case such defect could be said to be "of the like nature"
as defect of jurisdiction. Conversely, if the party seeking benefit of the provision of section 14 failed to get the relief in earlier proceeding not with regard to anything connected with the jurisdiction of the court or some other defect of a like nature, it would not be entitled to the benefit of section 14 of the Act.Page 33 of 44
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21. Thus, in the light of the principles enunciated in the above decisions, the applicants must satisfy this court that the earlier proceeding before the Supreme Court failed on account of defect of jurisdiction or cause of a like nature. However, if the failed to get the relief in earlier proceeding not with regard to anything connected with the jurisdiction of the court or some other defect of a like nature, they would not be entitled to the benefit of section 14 of the Limitation Act.
22. In the present case, at the cost of reiteration it may be stated that it is nowhere the case of the applicants that the Supreme Court had no jurisdiction to entertain the appeal or that anyone had questioned its jurisdiction to entertain the appeal. As pointed out by the learned counsel for the opponents, under Article 136 of the Constitution of India, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. Thus, even taking a most liberal approach, it would not be possible to hold that the Supreme Court was unable to entertain the special leave petition on any ground analogous to the defect of jurisdiction. The facts as emerging from the record, clearly establish that the applicants failed to get the relief from the Supreme Court in the earlier proceeding not with regard to anything connected with the jurisdiction of that court or some other defect of a like nature but because they chose to withdraw the appeal presumably to avoid inviting an adverse order. Clearly therefore, the applicants are not entitled to the benefit of section 14 of the Limitation Act for exclusion of the time taken in prosecuting the matter before the Supreme Court.Page 34 of 44
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23. In terms of condition (2) as laid down in Consolidated Engg. Enterprises (supra), the applicants are also required to satisfy that they were prosecuting the matter before the Supreme Court in good faith. In this regard, the facts as emerging from the record reveal that the respondents had filed a caveat before this court in connection with the judgment and order which is sought to be impugned in the letters patent appeal, which was duly served upon the applicants. The applicants, though they had the assistance of legal experts, chose not to file a letters patent appeal before this court and took a conscious decision to directly approach the Supreme Court. A perusal of the documents annexed along with the further affidavit in support of the civil application filed on behalf of the applicant No.3 shows that vide a communication dated 3rd May 2012, the learned counsel appearing on behalf of the applicants before the Supreme Court had informed the Deputy Secretary, Government of Gujarat, Roads and Building Department, that they had filed the Special Leave Petition on 3.5.2012 and that the matter would come up for hearing after the summer vacation. It is further stated therein that, "We fail to understand that why the department has not availed the remedy of filing an LPA before the Division Bench of the High Court." Thus, even before the matter came up for hearing before the Supreme Court, the applicants were informed about the remedy of filing an LPA before the High Court. Nonetheless, they chose to prosecute the special leave petition before the Supreme Court. Evidently, therefore, the applicants appear to have acted against legal advice and persisted on pursuing the matter before the Supreme Court instead of availing the remedy of Page 35 of 44 C/LPA/1134/2017 IA ORDER filing a letters patent appeal before this court, therefore, prima facie it appears that the applicants were not prosecuting the matter before the Supreme Court in good faith.
24. At this juncture reference may be made to the decision of the Supreme Court in Ketan V. Parekh v. Enforcement Directorate, (2011) 15 SCC 30, wherein the appellants therein had invoked the jurisdiction of the Delhi High Court and not the Bombay High Court despite the fact that they were residents of Bombay and had been contesting other matters, including the proceedings pending before the Special Court at Bombay. The Supreme Court held that the appellants therein took a chance before the Delhi High Court and succeeded in persuading the learned Single Judge of the Court to entertain their prayer for stay of further proceedings before the Appellate Tribunal. The court, accordingly, held that the appellants therein were not entitled to the benefit of section 14 of the Limitation Act.
25. A perusal of the documents annexed along with the further affidavit in support of the application filed by the applicant No.3 shows that various orders of the Supreme Court in the proceedings before it have been annexed along therewith, which reveal that the opponents had moved a contempt application before this court for non-compliance of the decision of the learned Single Judge, whereafter by an order dated 4.7.2012, the Supreme Court condoned the delay in filing the special leave petition and issued notice and also observed thus:
"In view of the fact that notice has been issued in these Page 36 of 44 C/LPA/1134/2017 IA ORDER proceedings, we request the High Court, await the decision of these proceedings."
Thus, the applicants took a chance before the Supreme Court and were able to obtain relief in the proceedings filed by them. Thus, the above referred decision would be squarely applicable to the facts of the present case, and consequently, the applicants are not entitled to the benefit of section 14 of the Limitation Act.
26. As noted earlier, on 10.1.2017, the Supreme Court passed an order in the following terms:
"Learned counsel for the petitioners seeks leave to withdraw these special leave petitions with liberty to pursue any remedy which is available in law.
Permission granted. The special leave petitions are accordingly dismissed as withdrawn with the aforesaid liberty, as prayed for."
26.1 A plain reading of the order passed by the Supreme Court reveals that while liberty to avail any remedy available in law has been granted to the applicants, it has not been stated that the period during which the applicants were prosecuting the matter before the Supreme Court should stand excluded for the purpose of section 14 of the Limitation Act. In this regard, it may be germane to refer to certain decisions of the Supreme Court.
26.2 In Steel Authority of India Ltd. v. CCE, (2001) 10 SCC 601, when the appeals were taken up for admission before the Supreme Court, the learned counsel for the revenue had raised an objection that the appeals themselves were not Page 37 of 44 C/LPA/1134/2017 IA ORDER maintainable. The court, accordingly, dismissed the appeals as not maintainable. It, however, observed that insofar as the question of limitation is concerned, it will be open for the appellants therein to seek benefit of section 14 of the Limitation Act in accordance with law.
26.3 In Virendra Kumar Rai v. Union of India, (2004) 13 SCC 463, the Supreme Court was of the view that instead of moving the special leave petitions directly before it, the appellants therein should have moved the appropriate High Court concerned challenging the appellate order and as such, it was not inclined to entertain the same. The court, accordingly, disposed of the petitions by giving liberty to the appellant therein to move the appropriate High Court challenging the validity of the appellate order. The court further observed that the High Court shall not throw out the same on the ground of delay, but consider it on merit without being prejudiced by any observation made by the High Court in the impugned order dated 20.8.1997 passed in the writ applications.
26.4 Thus, where the Supreme Court intends to give the benefit of section 14 of the Limitation Act, it is generally specifically specified in the order. Moreover, the order passed by the Supreme Court does not record any request having been made on behalf of the applicants for exclusion of the time during which they were prosecuting the matter before it, while considering the question of condonation of delay while availing of the remedy available in law.
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27. The third part of the delay, viz. the delay of about five months after the special leave petition came to be withdrawn from the Supreme Court till the letters patent appeal came to be filed before this court may now be adverted to. It may be noted that after the Supreme Court dismissed the special leave petitions as withdrawn vide order dated 10.1.2017, on the same day, the learned counsel appearing on behalf of the applicants before the Supreme Court informed the Deputy Secretary, Government of Gujarat, Roads and Building Department about the above order and requested him to file a letters patent appeal before the Division Bench of the High Court within a period of fifteen days. A copy of the letter was also endorsed to the Legal Department with a request to give immediate sanction for filing the letters patent appeals before the High Court as the matters involve huge stake. This letter appears to have been received by the applicants on 13.1.2017. On 25.1.2017, the Legal Department gave sanction for filing letters patent appeal and addressed a communication to the office of the Government Pleader to take necessary steps to file letters patent appeal at once. Despite the aforesaid position, the letters patent appeal came to be filed only in June 2017, that is, after a period of more than five months from the date when the special leave petitions came to be withdrawn from the Supreme Court. In the further affidavit, an explanation is sought to be put forth with regard to the delay that had occasioned after the special leave petitions came to be withdrawn, however, one fails to understand the requirement for holding so many conferences when an appeal had already been preferred before the Supreme Court against the impugned judgment and order and the memorandum of appeal which was filed before the Supreme Court was very Page 39 of 44 C/LPA/1134/2017 IA ORDER much available with the respondent authorities. In any case, having regard to the fact that there was already an inordinate delay in filing the letters patent appeal, the applicants were certainly not justified in causing any further delay subsequent to the withdrawal of the special leave petition, more so, when the learned counsel appearing on behalf of the applicants before the Supreme Court, had categorically requested them to file the letters patent appeal within a period of fifteen days. Under the circumstances, for the reasons recorded hereinabove, it cannot be said that the third part of the delay caused in filing the letters patent has been sufficiently explained.
28. In view of the above discussion, the court is of the view that the applicants are not entitled to the exclusion of the period of about five years when they were prosecuting the matter before the Supreme Court under section 14 of the Limitation Act. Consequently, such period cannot be said to have been explained nor can sufficient cause be said to have been made out for condoning such delay. Even for the period after the special leave petition came to be withdrawn, it is evident that the applicants had not diligently prosecuted the matter inasmuch as despite the fact that they were specifically requested to file a letters patent appeal within fifteen days from the date of passing of the order by the Supreme Court, under the specious plea that they were following the required procedure, the applicants have whiled away time for almost five months and it is only when the opponents filed a contempt petition for compliance of the order passed by the learned Single Judge, that the letters patent appeal came to be filed. The plight of the opponent is also required to be considered.
Page 40 of 44C/LPA/1134/2017 IA ORDER On account of the applicants filing the special leave petition before the Supreme Court, the opponents were required to appear before the Supreme Court. Now after a period of more than five years since the passing of the impugned judgment and order in their favour, they still have not got the benefit of the judgment and are now faced with fresh proceedings before this court. In the interregnum they had to file two contempt petitions for compliance of the order passed by the learned Single Judge, whereupon the applicants sprung into action and firstly approached the Supreme Court and thereafter this court. Thus, the applicants have failed to show that they were prevented by sufficient cause from filing the letters patent appeal within the prescribed period of limitation and hence, the delay that has occasioned in filing the letters patent appeal does not deserve to be condoned.
29. At this stage, it may be noted that after the learned advocates for the respective parties had been heard and the arguments were concluded, on a request was made by the learned advocates for time to place certain particulars on record, the matter had been adjourned. The particulars that were required to be brought on record were mainly as regards the reason as to why the special leave petition came to be withdrawn and other grounds explaining the delay in filing the letters patent appeal. However, it is distressing to note that in paragraph 20 of the further affidavit in support of Civil Application No.7554 of 2017, the applicants have averred thus:
"It is respectfully submitted that the present matter came up for hearing before the Hon'ble Court (Coram:
Hon'ble Chief Justice Mr. R. Subhas Reddy and Hon'ble Page 41 of 44 C/LPA/1134/2017 IA ORDER Justice Mr. V.M. Pancholi). When the delay condonation application was taken up for hearing it was requested by the learned counsel appearing for the respondents that the applications seeking condonation of delay may not be decided for the present and the main matter be examined on merits. In the event, the Hon'ble Court is convinced on the merits of the matter the delay may be contained. However, if the Hon'ble Court is not inclined to entertain the appeal, the matter may be dismissed on merits as well as on delay. Thereafter, the matter was came up for adjourned from time to time for hearing before a coordinate Division Bench of this Hon'ble Court, Hon'ble Mr. Justice M. R. Shah and Hon'ble Mr. Justice Biren Vaishnav, the matter was argued at some length before the said Hon'ble Court. Thereafter, the matter was adjourned on several occasions. The matter then came up for hearing before another Division Bench of this Hon'ble Court, Hon'ble Mr. Justice S.R. Brahmbhatt and Hon'ble Mr. Justice Akil Kureshi, where also the matter was argued on merits."
It is further stated that the above referred facts are stated only to appraise the court with regard to the manner in which the matter has progressed till date.
29.1 In the opinion of this court, propriety demands that such averments should not have found place in the affidavit. As to what has transpired in the proceedings before the earlier benches which heard the matter, ought not to have been even mentioned before this bench, under the circumstances, the bringing of such facts on record in the affidavit made by the Page 42 of 44 C/LPA/1134/2017 IA ORDER applicants, which appear to have been stated with an oblique motive, deserves to be deprecated in the strictest terms. Apart from the fact that such averments should not have found place in the affidavit, once such averments were made, in all fairness, the applicants also ought to have stated as to what had transpired before this bench when such facts were stated before this bench at the inception before the commencement of hearing of the application, and should have stated that after the aforesaid facts had been brought to the notice of this bench, the learned Government Pleader was called upon to point out as to whether it was legally permissible for this court to adopt such a course of action of hearing the appeal on merits without first considering the application for condonation of delay, and it was only after the learned counsel expressed inability to do so, that the application for condonation of delay was taken up for hearing. Besides, the fact regarding the learned counsel for the respective parties having submitted that they are willing to conduct the main matter itself along with the delay condonation application has been recorded by a co-ordinate bench vide order dated 22.2.2018 and that being so, there was no necessity of making such averments in the affidavit. What the learned counsel for the applicants was required to point out is that it was legally permissible for this court to consider the matter on merits without first crossing the hurdle of limitation.
29.2 Besides, the contents of paragraph 20 of the affidavit also appear to have been very casually drafted, inasmuch as, it does not even reflect the correct composition of the concerned benches. In the last four lines of the said paragraph, it is stated, "The matter then came up for hearing before Page 43 of 44 C/LPA/1134/2017 IA ORDER another Division Bench of this Hon'ble Court, Hon'ble Mr. Justice S.R. Brahmbhatt and Hon'ble Mr. Justice Akil Kureshi, where also the matter was argued on merits." Apart from the fact that Mr. Justice Akil Kureshi is senior to Mr. Justice S.R. Brahmbhatt, a perusal of the record of the case shows that the Division Bench was comprised of Mr. Justice S.R. Brahmbhatt and Mr. Justice A.G. Uraizee.
30. Another aspect which requires to be noted is that the affidavit in support dated 26th June, 2018 has been made by the Executive Engineer, Surat. It is not averred by him in the affidavit that he was personally present before the court and is conversant with the above facts that had transpired before the earlier benches. In the verification of the affidavit, it is stated that the statements of facts are derived from the relevant record and files and are true to the best of his knowledge and he believes the same to be true. It is difficult to comprehend as to how what had transpired before the benches could be derived from the relevant record and files. Thus, it is not clear as to on what basis the deponent of the affidavit has stated the facts contained in paragraph 20 of such affidavit.
31. In the light of the above discussion, no case is made out for condoning the inordinate laches and delay of 2039 days in filing the captioned letters patent appeal. The application, therefore, fails and is, accordingly, rejected.
(HARSHA DEVANI, J) (A. S. SUPEHIA, J) B.U. PARMAR Page 44 of 44