Gujarat High Court
Bharvin Sureshbhai Patel vs Jigneshbhai Dahyabhai Patel on 2 February, 2023
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
NEUTRAL CITATION
C/CA/1908/2019 ORDER DATED: 02/02/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 1908 of 2019
In
F/CIVIL REVISION APPLICATION NO. 15077 of 2019
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BHARVIN SURESHBHAI PATEL
Versus
JIGNESHBHAI DAHYABHAI PATEL
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Appearance:
MR RD DAVE(264) for the Applicant(s) No. 1
HARSHADA K DARJI(7537) for the Respondent(s) No. 2,3
JAYDEEPSINH H RAJPUT(8185) for the Respondent(s) No. 1
MR KURIAN SANJAY(2369) for the Respondent(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 02/02/2023
ORAL ORDER
1. Heard learned advocate Mr.R.D.Dave for the applicant, learned advocate Mr.Jaydeepsinh H. Rajput for the respondent No.1 and learned advocate Mr.Harshada K. Darji for the respondent No.2 and 3.
2. This application is filed to condone delay of 265 days in preferring Civil Revision Application.
Page 1 of 21 Downloaded on : Sun Sep 17 21:24:42 IST 2023NEUTRAL CITATION C/CA/1908/2019 ORDER DATED: 02/02/2023 undefined 3.1. Learned advocate Mr.R.D.Dave for the applicant submitted that the time was consumed for obtaining the documents like loan agreement, deposit of title deeds etc. from the respondent No.4-Bank as well as from the Debt Recovery Tribunal (for short 'the DRT') and Recovery Officer as the applicant is only purchaser and did not have all the papers relating to recovery proceedings and orders.
3.2. It was therefore submitted that there is a sufficient cause to condone the delay of 265 days caused in filing the Civil Revision Application.
3.3. It was further submitted that the applicant has a good prima-facie case and balance of convenience is also in favour of the applicant as the Small Cause Court has no Page 2 of 21 Downloaded on : Sun Sep 17 21:24:42 IST 2023 NEUTRAL CITATION C/CA/1908/2019 ORDER DATED: 02/02/2023 undefined jurisdiction to entertain the Suit filed by respondent No.1 as a tenant of the property which was purchased by the applicant under auction conducted by the Recovery Officer of the Debt Recovery Tribunal (DRT) pursuant to the Recovery Certificate issued in Original Application No.251 of 2004 filed by the respondent No.4-Bank for recovery of outstanding dues under the provisions of Recovery of Debts Dues to the Banks and Financial Institutions Act, 1993 (Correct name now is 'Recovery of Debts and Bankruptcy Act, 1993)(for short 'the RDB Act').
4.1. On the other hand, learned advocate Mr.Rajput and learned advocate Ms.Darji vehemently opposed this application relying upon the averments made in the separate affidavits-in-reply filed on behalf of the Page 3 of 21 Downloaded on : Sun Sep 17 21:24:42 IST 2023 NEUTRAL CITATION C/CA/1908/2019 ORDER DATED: 02/02/2023 undefined respondent No.1 as well as respondent Nos.2 and 3. It was submitted that the applicant has failed to disclose sufficient cause to condone delay of 265 days. Reliance was placed on the following decisions of this Court as well as Hon'ble Apex Court explaining as to what is sufficient cause within meaning of Section 5 of the Limitation Act :
(1) Soni Shantaben Devshibhai Lodhiya versus Bhagvanji P. Mardia reported in 2001 (2) GLH
13.
(2) Balwant Singh (Dead) versus Jagdish Singh and Others reported in 2010 (8) SCC 685.
(3)Ramlal versus Rewa Coalfields Ltd. reported in AIR 1962 SC 361.
(4) Balwant Singh Versus Jagdish Singh reported in AIR 2010 SC 3043.
Page 4 of 21 Downloaded on : Sun Sep 17 21:24:42 IST 2023NEUTRAL CITATION C/CA/1908/2019 ORDER DATED: 02/02/2023 undefined (5) P.K.Ramchandran versus State of Kerala reported in (1997) 7 SCC 556.
4.2. Relying upon the above decisions, it was submitted that looking to the over all facts of the case and conduct of the applicant, the applicant is not entitled to get any relief as prayed for to condone the delay as the applicant has failed to point out the sufficient cause explaining the delay as the delay is explained in a very casual manner by stating the only reason that the time was consumed for gathering documents regarding proceedings of the DRT. It was submitted that the applicant has not come up with proper explanation because the applicant had preferred an application under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (for short 'the CPC') on the basis of the DRT Page 5 of 21 Downloaded on : Sun Sep 17 21:24:42 IST 2023 NEUTRAL CITATION C/CA/1908/2019 ORDER DATED: 02/02/2023 undefined proceedings and had referred all the documents before the Trial Court and therefor, the explanation tendered by the applicant to condone the delay cannot be believed.
4.3. It was further submitted that sufficient cause is a condition precedent for exercise the discretionary jurisdiction vested in Court to condone the delay in preferring the Civil Revision Application. It was therefore submitted that the application is required to be rejected for want of sufficient cause for explaining the delay in preferring the Civil Revision Application.
5. Having heard the learned advocates for both the sides and considering the facts of the case emerging from the record, it appears that the applicant has challenged the order dated 11.05.2018 passed by the learned Judge, Page 6 of 21 Downloaded on : Sun Sep 17 21:24:42 IST 2023 NEUTRAL CITATION C/CA/1908/2019 ORDER DATED: 02/02/2023 undefined Small Cause Court No.10 below application Exh.59 in H.R.P. Suit No.527 of 2010 which was filed under Order 7 Rule 11 of the CPC for rejection of the Suit filed by the respondent No.1-plaintiff.
6. In preferring the Civil Revision Application, there is a delay of 265 days and explanation tendered by the applicant is to the effect that the applicant came to know about the impugned order on 15.10.2018 and thereafter, the certified copy was made available on 04.02.2019. It is also pointed out in the paragraph No.4 of the application to condone the delay that the applicant was advised to challenge the impugned order by way of Revision Application before this Court and various documents and proceedings of DRT as well as the Recovery Officers were required Page 7 of 21 Downloaded on : Sun Sep 17 21:24:42 IST 2023 NEUTRAL CITATION C/CA/1908/2019 ORDER DATED: 02/02/2023 undefined and time was consumed in obtaining the documents from the records of the DRT and Recovery Officers.
7. It is also pointed out that the applicant is only purchaser and did not have all the papers relating to recovery proceedings and orders and therefore the time is consumed and thus, the applicant has shown sufficient cause to condone the delay of 265 days.
8. Reliance placed by the learned advocates for the respondents on the various decisions of this Court as well as the Apex Court would be applicable with regard to the facts of each case however, when there is sufficient cause to condone the delay, more particularly, when there is a prima-facie case also in favour of the applicant as no Suit would be maintainable arising out of the proceedings under the RDB Page 8 of 21 Downloaded on : Sun Sep 17 21:24:42 IST 2023 NEUTRAL CITATION C/CA/1908/2019 ORDER DATED: 02/02/2023 undefined Act, 1993, the delay is required to be condoned to do the substantial justice.
9.In case of Perumon Bhagvathy Devaswom, Perinadu Village v. Bhargavi Amma (Dead) by Lrs. and others reported in (2008) 8 Supreme Court Cases 321, the Hon'ble Supreme Court has after considering various judgments, dealt in detail about what should be the approach of the Courts while condoning the delay as under:
"6. What should be the approach of courts while considering applications under section 5 of Limitation Act, 1963, has been indicated in several decisions. It may be sufficient to refer to two of them. In Shakuntala Devi Jain v. Kuntal Kumari [AIR 1969 SC 575], this Court reiterated the following classic statement from Krishna vs. Chathappan [1890 ILR 13 Mad 269] :
"... Section 5 gives the courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which Page 9 of 21 Downloaded on : Sun Sep 17 21:24:42 IST 2023 NEUTRAL CITATION C/CA/1908/2019 ORDER DATED: 02/02/2023 undefined are well understood; the words `sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant."
7. In N.Balakrishnan v.
M.Krishnamurthy [1998 (7) SCC 123], this Court held:
"9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a Page 10 of 21 Downloaded on : Sun Sep 17 21:24:42 IST 2023 NEUTRAL CITATION C/CA/1908/2019 ORDER DATED: 02/02/2023 undefined different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.
10....The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. ....
11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly....
12.A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice....
13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That Page 11 of 21 Downloaded on : Sun Sep 17 21:24:42 IST 2023 NEUTRAL CITATION C/CA/1908/2019 ORDER DATED: 02/02/2023 undefined alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation."
[Emphasis supplied]
8. This Court has also considered the scope of Rules 4 and 9 of Order 22 in several decisions. We will refer to them. In Union of India vs. Ram Charan (Deceased) by LRs. [AIR 1964 SC 215], this Court observed thus :
"8...The provisions of the Code are with a view to advance the cause of justice. Of course, the Court, in considering whether the appellant has established sufficient cause for his not continuing the suit in time or for not applying for the setting aside of the abatement within time, need not be over-strict in expecting such proof of the suggested cause as it would accept for holding certain fact established, both because the question does not relate to the Page 12 of 21 Downloaded on : Sun Sep 17 21:24:42 IST 2023 NEUTRAL CITATION C/CA/1908/2019 ORDER DATED: 02/02/2023 undefined merits of the dispute between the parties and because if the abatement is set aside, the merits of the dispute can be determined while, if the abatement is not set aside, the appellant is deprived of his proving his claim on account of his culpable negligence or lack of vigilance.
9.It is true... that it is no duty of the appellant to make regular enquiries from time to time about the health or existing of the respondent."
(Emphasis supplied)
9. This Court also made some observations in Ram Charan (Supra) about the need to explain, in addition to alleging that the plaintiff/appellant not being aware about the death, the reasons for not knowing about the death within a reasonable time. Those observations have stood diluted in view of subsequent insertion of sub-rule (5) in Rule 4 and addition of Rule 10A in Order 22 CPC by Amendment Act 104 of 1976, requiring (i) the court to take note of the ignorance of death as sufficient cause for condonation of delay, (ii) the counsel for the deceased party to inform the court about the death of his client.
10. In Ram Nath Sao vs. Gobardhan Sao [2002 (3) SCC 195] this Court observed thus :
Page 13 of 21 Downloaded on : Sun Sep 17 21:24:42 IST 2023NEUTRAL CITATION C/CA/1908/2019 ORDER DATED: 02/02/2023 undefined "12. Thus it becomes plain that the expression "sufficient cause" within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependent upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps.
But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over-jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party.
On the other hand, while
considering the matter the
courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner. However, by taking a pedantic Page 14 of 21 Downloaded on : Sun Sep 17 21:24:42 IST 2023 NEUTRAL CITATION C/CA/1908/2019 ORDER DATED: 02/02/2023 undefined and hypertechnical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates, either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way."
[Emphasis supplied]
11. In Sital Prasad Saxena (dead) by LRs. v. Union of India & Ors. [1985 (1) SCC 163], this Court stated :
"6...once an appeal is pending in the High Court, the heirs are not expected to keep a constant watch on the continued existence of parties to the appeal before the High Court which has a seat far away from where parties in rural areas may be residing. And in a traditional rural family the father may not have informed his son about the litigation in which he was involved and was a party. Let it be recalled what has been said umpteen times that rules of procedure are designed to advance justice and should be so interpreted as not to make them penal statutes for Page 15 of 21 Downloaded on : Sun Sep 17 21:24:42 IST 2023 NEUTRAL CITATION C/CA/1908/2019 ORDER DATED: 02/02/2023 undefined punishing erring parties."
12. In State of Madhya Pradesh vs. S. S. Akolkar - 1996 (2) SCC 568, this Court held :
"6...Under Order 22 Rule 10A, it is the duty of the counsel, on coming to know of the death of a party, to inform it to the Court and the Court shall give notice to the other party of the death. By necessary implication delay for substitution of legal representatives begins to run from the date of knowledge....
7. It is settled law that the consideration for condonation of delay Under Section 5 of Limitation Act and setting aside of the abatement under Order 22 are entirely distinct and different. The Court always liberally considers the latter, though in some cases, the Court may refuse to condone the delay Under Section 5 in filing the appeals. After the appeal has been filed and is pending, Government is not expected to keep watch whether the contesting respondent is alive or passed away. After the matter was brought to the notice of the counsel for the State, steps were taken even thereafter after due verification belated application came to be filed. It is true that Section 5 of Limitation Act would be applicable and delay is required to be explained. The delay in Page 16 of 21 Downloaded on : Sun Sep 17 21:24:42 IST 2023 NEUTRAL CITATION C/CA/1908/2019 ORDER DATED: 02/02/2023 undefined official business requires its broach and approach from public justice perspective."
13. 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.Page 17 of 21 Downloaded on : Sun Sep 17 21:24:42 IST 2023
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(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 Page 18 of 21 Downloaded on : Sun Sep 17 21:24:42 IST 2023 NEUTRAL CITATION C/CA/1908/2019 ORDER DATED: 02/02/2023 undefined keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal."
10. In case of Balwant Singh (Dead) Versus Jagdish Singh and Others reported in (2010) 8 SCC 685, also the Hon'ble Supreme Court has held as under:
"34. Liberal construction of the expression `sufficient cause' is intended to advance substantial justice which itself presupposes no negligence or inaction on the part of the applicant, to whom want of bona fide is imputable. There can be instances where the Court should condone the delay; equally there would be cases where the Court must exercise its discretion against the applicant for want of any of these ingredients or where it does not reflect `sufficient cause' as understood in law. [Advanced Law Lexicon, P. Ramanatha Aiyar, 2nd Edn., 1997]
35. The expression `sufficient cause' implies the presence of legal and adequate reasons. The word `sufficient' means adequate enough, as much as may be necessary to answer the purpose intended. It embraces no more than that which provides a plentitude which, when Page 19 of 21 Downloaded on : Sun Sep 17 21:24:42 IST 2023 NEUTRAL CITATION C/CA/1908/2019 ORDER DATED: 02/02/2023 undefined done, suffices to accomplish the purpose intended in the light of existing circumstances and when viewed from the reasonable standard of practical and cautious men. The sufficient cause should be such as it would persuade the Court, in exercise of its judicial discretion, to treat the delay as an excusable one. These provisions give the Courts enough power and discretion to apply a law in a meaningful manner, while assuring that the purpose of enacting such a law does not stand frustrated.
36. We find it unnecessary to discuss the instances which would fall under either of these classes of cases. The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edn., 2005]"
11. In view of the above settled legal position and considering the explanation given by the applicant being satisfactory, this application is allowed and the delay of 265 Page 20 of 21 Downloaded on : Sun Sep 17 21:24:42 IST 2023 NEUTRAL CITATION C/CA/1908/2019 ORDER DATED: 02/02/2023 undefined days in preferring the Civil Revision Application is ordered to be condoned.
12. The Civil Application is accordingly disposed of.
(BHARGAV D. KARIA, J) PALAK Page 21 of 21 Downloaded on : Sun Sep 17 21:24:42 IST 2023