Gujarat High Court
Oriental Insurance Co. Ltd vs Vitthalbhai M Patel on 11 April, 2023
C/SCA/13555/2021 ORDER DATED: 11/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13555 of 2021
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ORIENTAL INSURANCE CO. LTD.
Versus
VITTHALBHAI M PATEL
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Appearance:
MR VC THOMAS(5476) for the Petitioner(s) No. 1
MR JINESH H KAPADIA(5601) for the Respondent(s) No. 1,2,3,4,5,6
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 11/04/2023
ORAL ORDER
1. The present petition is filed challenging the order passed below Exh.21 in CMA No.102 of 2019 dated th 10.3.2021 by which the learned 4 Additional Senior Civil Judge, Mehsana has rejected the application for condonation of delay filed in preferring review application under Section 47 Rule 1 read with Section 152 of the Code of Civil Procedure (`CPC' for short).
2. The brief facts which are set out are that the present respondents have filed the RCS No.346 of 2014 nd (old SCS No.260 of 2000) whereby the learned 2 Additional Civil Judge, Mahesana has passed the judgment and decree dated 29.2.2016 by directing the Page 1 of 16 Downloaded on : Wed Apr 12 20:47:59 IST 2023 C/SCA/13555/2021 ORDER DATED: 11/04/2023 petitioner to pay the amount of mesne profit from 14.6.1997 and also if the present petitioner-defendant in the suit has filed to pay the said amount within six months from the date of the judgment, then thereafter the said amount will carry interest of 9% p.m., which is not challenged. Thereafter, in the year 2017, on 6.2.2017, the execution proceeding is preferred by the judgment creditor and executing Court passed the order on 23.1.2018 wherein the present petitioner is a party.
3. Thereafter, on 21.6.2019, the present application i.e. CMA No.102 of 2019 is preferred by the present petitioner-insurance company by praying for condonation of delay of more than 1207 days in filing review application preferred under Order 47 Rule 1 read with Section 152 of CPC which application was opposed by the respondent and the learned trial Court, by impugned order dated 10.3.2021, rejected the application for condonation of delay. Therefore, the present petition is preferred.
4. Heard learned advocate Mr.Thomas for the petitioner and learned advocate Mr.Kapadia for the Page 2 of 16 Downloaded on : Wed Apr 12 20:47:59 IST 2023 C/SCA/13555/2021 ORDER DATED: 11/04/2023 respondents.
5. Learned advocate Mr.Thomas for the petitioner has drawn my attention to the impugned order and submitted that the trial Court has committed error by taking a hypertechnical view and by not condoning the delay; that the application for review is filed in view of Section 152 of the CPC and therefore the question of delay will not arise as such correction can be sought at any point of time as indicated in the language of Section 152 of CPC; that the Court should decide the review application on merits as on the bare reading of the impugned direction passed in the said suit by the trial Court, it clearly indicates that the petitioner has to pay 9% interest every month if the entire amount is not paid within six weeks from the date of the decree which is on the higher side and in should be in fact 9% p.a. instead of per month; that even in view of Section 34 of the CPC, the amount which is awarded towards the interest per month is apparently erroneous and required to be set aside and therefore the application for condonation of delay is required to be considered by taking liberal view.
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C/SCA/13555/2021 ORDER DATED: 11/04/2023
6. He has heavily relied on the judgment of the Apex Court in the case of Collector, Land Acquisition, Anantnag and another V/s Mst.Katiji and Others reported in AIR 1987 SC 1353 and submitted that the Court should take liberal view while considering the delay condonation application and more particularly when Section 152 of CPC itself permits to file such application at any point of time.
7. Learned advocate Mr.Thomas has also relied on the judgment of the Madras High Court in the case of M.Muthukrishnan V/s Ethirajulu decided on 5.2.2009 in C.R.P.(NPD)(MD) No.268 of 2007 by indicating that in paragraph 9 of that judgment, the Madras High Court has considered that Section 152 of the CPC empowers the Court to amend the decree and same can be corrected by the Court either on its own motion or on application of any of the party to the suit at any time. Therefore, he prays to allow this petition by quashing and setting aside the impugned order.
8. Learned advocate Mr.Kapadia strongly opposed Page 4 of 16 Downloaded on : Wed Apr 12 20:47:59 IST 2023 C/SCA/13555/2021 ORDER DATED: 11/04/2023 the same by submitting that the petitioner has not preferred any appeal against the impugned judgment and decree. Moreover, in the year 2017, the execution proceeding is already filed where the petitioner has participated. Even from the bare reading of the application, no sufficient cause is made out for the delay caused and therefore the Court has rightly dealt with the application by considering that there is no sufficient cause made out for condonation of delay.
9. He has relied on the judgment of the Apex Court in the case of University of Delhi V/s Union of India and others reported in (2020)13 SCC 745, whereby the Court has said that in the case of insufficiency of routine explanation, sufficient cause should be indicated to justify delay, every day's delay need not be explained but reasonable and acceptable explanation is very much necessary, however, in the present case there is no explanation and the application is filed in totally mechanical manner. He has further submitted that even on merits also, considering the entire judgment passed by the learned trial Court while allowing the suit, the Court has consciously granted interest on the monthly basis Page 5 of 16 Downloaded on : Wed Apr 12 20:47:59 IST 2023 C/SCA/13555/2021 ORDER DATED: 11/04/2023 considering the fact that the petitioner has not paid any amount though they have used the premises for such a long period and therefore he has submitted that considering the provision of Section 5 of the Limitation Act, no sufficient cause is made out and no interference is required and hence, this petition be dismissed.
10. I have considered the rival submissions, the impugned order, the provisions of law and the citations cited at the bar.
11. Firstly, Section 152 of CPC is required to be considered which reads as under:
"152. Amendment of judgments, decrees or orders. - Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties."
12. Order XLVII Rule 1 reads as under:
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C/SCA/13555/2021 ORDER DATED: 11/04/2023 "1. APPLICATION FOR REVIEW OF JUDGMENT.
(1)Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b)by a decree or order from which no appeal is allowed, or
(c)by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record of for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order."
13. Now, in view of the above provisions, if we peruse the delay condonation application, it transpires that the insurance company has not given any explanation about such long delay of 1207 days. Moreover, insurance company has not preferred any appeal against the judgment and decree passed in the suit and in the execution proceedings which are initiated Page 7 of 16 Downloaded on : Wed Apr 12 20:47:59 IST 2023 C/SCA/13555/2021 ORDER DATED: 11/04/2023 in the year 2017, the insurance company has participated in the proceeding, and then at a belated stage, the application for review with delay condonation application is filed in the year 2019, which factors go against the present petitioner.
14. In the judgment of the Apex Court which is cited at the bar for learned advocate for the respondent in the case of University of Delhi, wherein in paragraphs 23 and 30, it is held as under:
"23.From a consideration of the view taken by this Court through the decisions cited supra the position is clear that, by and large, a liberal approach is to be taken in the matter of condonation of delay. The consideration for condonation of delay would not depend on the status of the party namely the Government or the public bodies so as to apply a different yardstick but the ultimate consideration should be to render even handed justice to the parties. Even in such case the condonation of long delay should not be automatic since the accrued right or the adverse consequence to the opposite party is also to be kept in perspective. In that background while considering condonation of delay, the routine explanation would not be enough but it should be in the nature of indicating "sufficient cause" to justify the delay Page 8 of 16 Downloaded on : Wed Apr 12 20:47:59 IST 2023 C/SCA/13555/2021 ORDER DATED: 11/04/2023 which will depend on the backdrop of each case and will have to be weighed carefully by the Courts based on the fact situation. In the case of Katiji (Supra) the entire conspectus relating to condonation of delay has been kept in focus. However, what cannot also be lost sight is that the consideration therein was in the background of dismissal of the application seeking condonation of delay in a case where there was delay of four days pitted against the consideration that was required to be made on merits regarding the upward revision of compensation amounting to 800 per cent."
30. Despite the writ petition having been filed belatedly in respect of certain actions which had commenced in the year 2005 and even though the writ petition was filed after obtaining approval of the Executive Council, no steps were taken to file the writ appeal for 916 days after disposal of the writ petition. In such circumstance, the cumulative effect of the delay and laches cannot be ignored. The decisions referred by the learned Senior Counsel for the appellant noted Supra cannot, therefore, be applied in the present facts and circumstance inasmuch as the consideration hereunder was not merely the explanation for the delay of few days in filing the appeal. Though contention is put forth that the delay is required to be condoned since public interest is involved, the nature of the proceedings that have taken place thus far would indicate that the matter has been examined at different stages in the earlier litigations Page 9 of 16 Downloaded on : Wed Apr 12 20:47:59 IST 2023 C/SCA/13555/2021 ORDER DATED: 11/04/2023 and if the grounds on which the appellant was assailing the action of the respondents were to be examined on merits, they ought to have been more diligent in prosecuting the matter before the Court."
15. At this stage, the judgments of the Apex Court in the case of Mohd.Sahid and others v/s Raziya Khanam (D) Thr.Lrs and another reported in AIR 2018 SC 4724 and in the case of Estate Officer, Haryana Urban Development Authority and another V/s Gopi Chand Atreja, reported in AIR 2019 SC 1423 are also required to be kept in mind.
16. In view of the above, I find that the learned trial Court has rightly considered that no cause is made out, more particularly, sufficient cause is made out for condonation of delay in preferring the application and even the application under Section 152 of CPC has to be filed within a reasonable time period and it cannot be filed after the execution proceedings are over and the the petitioner has participated in the execution proceedings and the petitioner has knowledge about the decree passed. Therefore, in my opinion, considering the totality of the facts of the present case, the learned trial Court Page 10 of 16 Downloaded on : Wed Apr 12 20:47:59 IST 2023 C/SCA/13555/2021 ORDER DATED: 11/04/2023 has not committed any error which requires interference by this Court.
17. The judgment which is relied on by learned advocate Mr.Thomas in the case of M.Muthukrishnan (supra), though is otherwise helpful on the issue of Section 152 of CPC, it is required to be adjudicated after considering the judgment in totality passed by the learned trial Court.
18. This Court, while examining the matter by exercising jurisdiction under Article 227 of the Constitution of India, has taken judicial notice about the gross negligence shown by the concerned officers of the petitioner-insurance company to protect any unnecessary loss to public money. It clearly transpires from the record of the case that suit is filed in the year 2000 and suit is decreed in the year 2016. Execution proceedings no.3 of 2017 is also filed in the year 2017 for execution of such decree. The petitioner has not challenged the decree by way of filing appeal provided under the law nor has cared to deposit such amount within six months period as directed by the learned civil Page 11 of 16 Downloaded on : Wed Apr 12 20:47:59 IST 2023 C/SCA/13555/2021 ORDER DATED: 11/04/2023 Court and has preferred such CMA No.102 of 2019 on 21.6.2019 under the provisions of Section 152 read with Order XLVII Rule 1 of CPC, though the petitioner- insurance company has panel of good lawyers and having regional officers as well as separate law officers to look after the legal mattes. When the insurance companies are hurriedly filing numbers of first appeals by challenging petty amount of claims in accident cases, it is strange that in the present case, no such attempt was made nor the decree is satisfied. This requires attention of higher authorities of petitioner company to rule out any possibilities of connivance or collusion of any officers, which caused great loss to the public exchequer and thereafter to fix the responsibility for such inaction.
19. Further, as regards the limited jurisdiction of this Court under Article 227 of the Constitution of India, the Apex Court has held in paragraphs 15 to 17 of the judgment in the case of Garment Craft V/s Prakash Chand Goel reported in (2022) 4 SCC 181, which read as under:
"15. Having heard the counsel for the parties, we are Page 12 of 16 Downloaded on : Wed Apr 12 20:47:59 IST 2023 C/SCA/13555/2021 ORDER DATED: 11/04/2023 clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. has observed:-Page 13 of 16 Downloaded on : Wed Apr 12 20:47:59 IST 2023
C/SCA/13555/2021 ORDER DATED: 11/04/2023 "6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."
17. The factum that the counsel for the appellant had Page 14 of 16 Downloaded on : Wed Apr 12 20:47:59 IST 2023 C/SCA/13555/2021 ORDER DATED: 11/04/2023 applied for the certified copy would show that the counsel for the appellant was aware that the ex-parte decree had been passed on the account of failure to lead defence evidence. This would not, however, be a good ground and reason to set aside and substitute the opinion formed by the trial court that the appellant being incarcerated was unable to lead evidence and another chance should be given to the appellant to lead defence evidence. The discretion exercised by the trial court in granting relief, did not suffer from an error apparent on the face of the record or was not a finding so perverse that it was unsupported by evidence to justify it. There could be some justification for the respondent to argue that the appellant was possibly aware of the ex-parte decree and therefore the submission that the appellant came to know of the ex-parte decree only on release from jail on 6th May 2017 is incorrect, but this would not affect the factually correct explanation of the appellant that he was incarcerated and could not attend the civil suit proceedings from 6th October 2015 to 6th May 2017. If it was felt that the application for setting aside the exparte decree was filed belatedly, the court could have given an opportunity to the appellant to file an application for condonation of delay and costs could have been imposed. The facts as known, equally apply as grounds for condonation of delay. It is always important to take a holistic and overall view and not get influenced by aspects which can be explained. Thus, the reasoned decision of the Page 15 of 16 Downloaded on : Wed Apr 12 20:47:59 IST 2023 C/SCA/13555/2021 ORDER DATED: 11/04/2023 trial court on elaborate consideration of the relevant facts did not warrant interference in exercise of the supervisory jurisdiction under Article 227 of the Constitution."
20. In view of the above discussion, this petition deserves to be dismissed and accordingly dismissed. Notice is discharged. Interim relief, if any, stands vacated.
(SANDEEP N. BHATT,J) SRILATHA Page 16 of 16 Downloaded on : Wed Apr 12 20:47:59 IST 2023