Gujarat High Court
Laljibhai vs Pravinbhai on 18 January, 2011
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
Print
CA/14871/2010 22/ 22 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR CONDONATION OF DELAY No. 14871 of 2010
In
CIVIL
REVISION APPLICATION (STAMP NO.) No. 154 of 2010
=========================================================
LALJIBHAI
RAVJIBHAI PATEL & 8 - Petitioner(s)
Versus
PRAVINBHAI
CHIMANLAL SHAH & 5 - Respondent(s)
=========================================================
Appearance
:
MR
MURALI N DEVNANI for
Petitioner(s) : 1 - 9.
MR MRUGEN K PUROHIT for Respondent(s) :
1,
NOTICE SERVED for Respondent(s) : 2 -
6.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 18/01/2011
ORAL
ORDER
Heard learned advocates appearing on behalf of respective parties.
This application is preferred by applicants with a prayer to condone delay of 236 days in filing present Civil Revision Application.
This application has been opposed by other side - opponent No.1 by filing affidavit-in-reply dated 23rd December, 2010.
I have considered submissions made by both learned advocates. Learned advocate Mr. Purohit has made submission almost on merits. In respect to delay, other side has raised contentions about having knowledge with applicants even though applicants have not filed appropriate proceedings in time, therefore, conduct of applicant has been doubtful and bonafide has been challenged by opponent by filing reply.
I have considered averments made in this application supported with affidavit of applicant. The question to be considered by this Court is whether sufficient cause has been shown by applicant to the satisfaction of this Court or not. The length of delay is not relevant and material. The question is whether such delay is justified by applicant by showing his conduct and bonafide efforts made by him ?
According to applicant, opponent preferred an appeal against the order passed below Ex.5 and same is pending where issue of withdrawal of suit is also raised in that appeal and said issue is really a crux of the matter. Ultimately, on receiving advise from the advocate concerned, these both orders are required to be challenged by applicant and due to that, there was a delay occurred in filing present Civil Revision Application. For that, according to applicant, it should be considered a bonafide reason of applicant and it was not a deliberate attempt on the part of the applicant for delaying the proceedings.
In light of these submissions made by both learned advocates, while considering delay condonation application, liberal approach is necessary. Ultimately, a substantial justice is to be given to both parties. So, merits of the matter which has been emphasised by learned advocate Mr. Purohit is not much relevant in light of the facts that sufficient cause has been shown by applicants to the satisfaction of this Court that delay of 236 days occurred in filing CRA cannot consider to be a deliberate delay on the part of the applicants and it can also not consider to be a malafide. The bonafide of applicants has been properly shown and legal contentions which are raised by learned advocate Mr. Purohit can be raised by opponent at the time when main Civil Revision Application is to be heard for admission. So, right to raise contentions on merits of opponent is kept open and this Court has not expressed any opinion on merits. The question of delay is to be considered with a liberal approach. That aspect has been considered by this Court in Civil Revision Application No.590 of 1997 decided on 23rd December, 2010. The relevant Para 5 is quoted as under :
5. The District Court, Surendranagar has also not considered that no dilatory tactics has been adopted by poor lady in filing appeal after 27 days. The conduct of petitioner No.1 is apparently innocent and being a victim of compelling circumstances which has been occurred with petitioner No.1 and in such a case, liberal approach is necessary and after all, it is in the interest of parties to decide appeal on merits rather than rejecting it on technical ground of delay. The Court's function is to do substantial justice between parties. For that, discretionary power is given to Court to condone delay when sufficient cause is established to the satisfaction of Court. The Court has to consider diligence of party, its bonafide, good faith and also to consider any irreparable loss caused to other side or not, if delay is condoned. These are relevant aspects, must have to be considered while deciding delay condonation application and sufficient cause words in Section-5 of Limitation Act, should receive liberal construction so as to advance substantial justice when delay is not on account of dilatory tactics, want of bonafides, deliberate inaction or negligence on part of parties. This aspect has been examined by this Court in Civil Application No.11521 of 2009 in Cross-Objection (St.) No.221 of 2009 and allied matters, decided on 17.11.2009. Relevant observations thereof are in Para.8 to 12, which is quoted as under :
"8. I have considered submissions made by both learned advocates and also perused averments made in these applications. I have also considered contentions raised by respondent No.1 in affidavit in reply. The question is that delay which has been explained by claimants can be considered to be a sufficient cause or not. One fact is clear that award passed by Reference Court is challenged by respondent No.1 before this Court by filing first appeals which have been admitted by this Court and interim relief is also granted on condition to deposit entire awarded amounts together with cost and interest, which has been deposited by respondent no.1 on 21.3.2007. But important fact is that no payment has been made in favour of claimants. Meaning thereby that disbursement is not permitted by this Court. One fact is also clear that lands belonged to claimants have been acquired permanently by respondent authority. Therefore, lands are not in possession of claimants. They have already left possession of land in question and possession of land in question received by respondents. Therefore, purpose of acquisition is fulfilled, but simultaneously, the amount of compensation which has been worked out by Reference Court has not been disbursed in favour of claimants. The claimants have received only Rs.3/- and Rs.4/- being a meagre amount, against which lands have been acquired by State authority. This acquisition is of 2000, more than 9 years have passed, still, claimants remained without money. It is also required to be considered by this Court that looking to averments made in present applications, it cannot be considered that delay has been occurred intentionally or lack of bona fide on part of claimants. There is no purpose to adopt dilatory tactics by claimants in not filing cross objections in time. For that, they are not benefited in any manner, but reason is given by claimants that they are illiterate persons, residing in remote area of Bharuch and they are schedule tribe people not having any effective assistance from any person, those who are residing in nearby area. Therefore, after receiving notice of this Hon'ble Court, they are not able to take decision because they are not aware about consequences of such notice issued by this Court. According to claimants, the Land Acquisition Officer has awarded Rs.35.50 ps. per sq. mtr. in similar cases of same village and for same purpose and under same notification and also against same respondents. Therefore, after receiving information from neighbour claimants, they understood consequences and having a feeling of injustice has been done with them and award passed by Reference Court whereby no proper amount of market price of land in question is being awarded. Therefore, on basis of that, claimants have thought it fit to file cross objections for getting proper amount of compensation of land in question which were made available to other claimants of same village where lands acquired for same purpose with same notification by same respondents. Therefore, this being a correct reason given by claimants why cross objections are filed before this Court after a period of 1048 days. So it can be considered to be a bona fide litigation by claimants having a legal base for filing cross objections and cross objections are not filed only as a counter blast against appeals preferred by respondent No.1. Therefore, considering aspect of illiteracy and ignorance and the facts that claimants are schedule tribe people not having any effective assistance from nearby area and also considering bona fide base for filing cross objections, according to my opinion, the cause which has been put by claimants in applications is considered to be a 'sufficient cause' for condoning delay of 1048 days in filing cross objections.
9. This aspect has been considered by Apex Court in case of J. Kumaradasan Nair & Anr. v. IRIC Sohan & Ors. reported in 2009 AIR SCW 1921 wherein it has been held that Court will not apply beneficent provisions like Sections 4 and 14 in a pedantic manner. Relevant observations of aforesaid decision are in Para.14, which is quoted as under :
"14. It is also now a well-settled principle of law that mentioning of a wrong provision or non-mentioning of any provision of law would, by itself, be not sufficient to take away the jurisdiction of a court if it is otherwise vested in it in law. Wile exercising its power, the court will merely consider whether it has the source to exercise such power or not. The court will not apply the beneficient provisions like Sections 5 and 14 of the Limitation Act in a pedantic manner. When the provisions are meant to apply and in fact found to be applicable to the facts and circumstances of a case, in our opinion, there is no reason as to why the court will refuse to apply the same only because a wrong provision has been mentioned. In a case of this nature, Sub-section (2) of Section 14 of the Limitation Act per se may not be applicable, but, as indicated hereinbefore, the principles thereof would be applicable for the purpose of condonation of delay in terms of Section 5 thereof.
In Ramlal and others v. Rewa Coalfields Ltd. [AIR 1962 SC 361], this Court held as under:
"12.
It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it. In this connection we may point out that considerations of bona fides or due diligence are always material and relevant when the court is dealing with applications made under Section 14 of the Limitation Act. In dealing with such applications the court is called upon to consider the effect of the combined provisions of Sections 5 and 14. Therefore, in our opinion, considerations which have been expressly made material and relevant by the provisions of Section 14 cannot to the same extent and in the same manner be invoked in dealing with applications which fall to be decided only under Section 5 without reference to Section 14."
In Ghasi Ram and Others v. Chait Ram Saini and Others [(1998) 6 SCC 200], this Court opined:
"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 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."
In Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department and Others [(2008) 7 SCC 167], this Court held:
"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 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."
See M/s. Shakti Tubes Ltd. Through. Director v. State of Bihar & Ors. [(2009) 1 SCC 786].
10. The aspect of 'sufficient cause' has been interpreted by Apex Court in case of State of Karnataka v. Y. Moideen Kunhi (dead) by LRs & Ors. Reported in AIR 2009 SC 2577. Relevant observations of aforesaid decision are in Para.19, which is quoted as under :
"19. The expression `sufficient cause' as appearing in Section 5 of the Indian Limitation Act, 1963 (in short the `Limitation Act') must receive a liberal construction so as to advance substantial justice as was noted by this Court in G. Ramegowda, Major etc. v. The Special Land Acquisition Officer, Bangalore (AIR 1988 SC 897). Para 8 of the judgment reads as follows:
"8.
.......The law of limitation is, no doubt, the same for a private citizen as for governmental authorities. Government, like any other litigant must take responsibility for the acts or omissions of its officers. But a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it.
Therefore, in assessing what, in a particular case, constitutes "sufficient cause" for purposes of Section 5, it might, perhaps, be somewhat unrealistic to exclude from the considerations that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the government. Governmental decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. It is rightly said that those who bear responsibility of Government must have "a little play at the joints".
Due recognition of these limitations on governmental functioning - of course, within reasonable limits - is necessary if the judicial approach is not to be rendered unrealistic. It would, perhaps, be unfair and unrealistic to put government and private parties on the same footing in all respects in such matters. Implicit in the very nature of governmental functioning is procedural delay incidental to the decision-making process. In the opinion of the High Court, the conduct of the law officers of the Government placed the Government in a predicament and that it was one of those cases where the mala fides of the officers should not be imputed to Government. It relied upon and trusted its law officers. Lindley, M.R., in the In re National Bank of Wales Ltd. (1899) 2 Ch. 629 at p.673 observed, though in a different context:
"Business cannot be carried on upon principles of distrust. Men in responsible positions must be trusted by those above them, as well as by those below them, until there is reason to distrust them."
11. Recently, the Apex Court has considered 'sufficient cause' in case of Perumon Bhagvathy Devaswom Perinadu Village v. Bhargavi Amma (dead) by LRs & Ors. Reported in 2008 AIR SCW 6025. Relevant observations of aforesaid decision are in Para.8, which is quoted as under :
8. The principles applicable in considering applications for setting aside abatement may thus be summarized as follows :
(I) The words "sufficient cause for not making the application within the period of limitation" should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words `sufficient cause' in section 5 of Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bonafides, deliberate inaction or negligence on the part of the appellant.
(ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement.
(iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation.
(iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal.
The courts view applications relating to lawyer's lapses more leniently than applications relating to litigant's lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in refiling the appeal after rectification of defects.
(v) Want of `diligence' or `inaction' can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal."
12. In view of observations made by Apex Court, as referred above, the reasons which has been canvassed by applicants for condonation of delay in filing cross objections that delay occurred is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on part of claimants. The liberal construction of sufficient cause should receive so as to advance substantial justice. Looking to facts of present case, claimants are having reasonable bona fide base for filing cross objections against first appeals. It is not merely filing cross objections being a counter blast by claimants against appeals preferred by respondent No.1. Therefore, there is a genuine and legal reason for filing cross objections by claimants. It is also equally correct that claimants are illiterate persons, schedule tribe people and having ignorance of legal proceedings and residing in remote area of Bharuch where no effective assistance made available to them, who can guide properly to claimants to file cross objections immediately after receiving notice in appeal proceedings before this Court. Therefore, practically claimants are socially and economically handicapped persons, not able to get immediate assistance from any competent persons, who residing in nearby area, therefore, there is a delay in filing cross objections and some of claimants have expired, therefore their legal heirs are naturally not aware about legal proceedings and therefore, in totality of facts and circumstances narrated by claimants in present applications, considering opposition by respondent No.1, according to my opinion, this can be considered to be genuine sufficient cause and bona fide efforts made by claimants for filing cross objections based on legal right, therefore, in the interest of justice, the prayer made by applicants in present applications is required to be granted. It is also necessary to note that respondent No.1 has not to put any adverse situation or it will not cause any prejudice to respondent No.1 if delay is condoned because the claimants even otherwise entitled to file cross objections as a matter of right if cross objections are filed in time. Merely question come in the way of delay if it is not condoned, then it amounts to depriving the claimants for his legal right to file cross objections. Therefore, there is no prejudice caused to respondent No.1 if delay is condoned by this Court in the interest of justice. Therefore, delay of 1048 days caused in filing cross objections is condoned. Rule is made absolute accordingly in each civil application."
In light of observations made by this Court while considering the decision of Apex Court in case of State of Karnataka v. Moideen Kunhi (dead) by Lrs. & Ors. reported in AIR 2009 SC 2577, according to my opinion, applicants have not adopted any dilatory tactics in filing present Civil Revision Application after a period of 236 days. It is always in the interest of parties to decide proceedings on merits rather than rejecting it on technical ground of delay. The Court's function is to do substantial justice between parties. For that, discretionary power is given to the Court when sufficient cause is established to the satisfaction of the Court. The Court has to consider diligence of party, its bonafide, good faith and also to consider any irreparable loss caused to other side or not, if delay is condoned. These are relevant aspects, must have to be considered while deciding delay condonation application and sufficient cause words in Section 5 of the Limitation Act, should receive liberal construction so as to advance substantial justice when delay is not on account of dilatory tactics, want of bonafides, deliberate inaction or negligence on part of parties.
Therefore, considering aforesaid background, according to my opinion, applicants have satisfied this Court and also shown sufficient cause for condoning delay of 236 days in filing CRA. Accordingly, present application is allowed. Delay of 236 days is hereby condoned in the interest of justice while reserving right/giving liberty to opponents to make submissions on merits in accordance with law at the time when main Civil Revision Application is notified for admission.
Now, delay is condoned by this Court, therefore, there is no office objection which is required to be removed by applicant, therefore, registry is directed to notify main Civil Revision Application on 21 st January, 2011 for admission.
[H.K. RATHOD, J.] #Dave Top