Gujarat High Court
Shree R Kunvarji Co vs Trustee Of Haji Nazarali Kasambhai ... on 14 March, 2024
NEUTRAL CITATION
C/SCA/19260/2023 JUDGMENT DATED: 14/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19260 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SHREE R KUNVARJI CO & ORS.
Versus
TRUSTEE OF HAJI NAZARALI KASAMBHAI TRUST FUND & ORS.
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Appearance:
NISARG H VYAS(9431) for the Petitioner(s) No. 1,2,3,4,5,5.1
for the Respondent(s) No. 2,3
MR PJ KANABAR(1416) for the Respondent(s) No. 1,1.1,1.2,1.3,4,5,6
MS ADITI P KANABAR(5650) for the Respondent(s) No. 1,1.1,1.2,1.3,4,5,6
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 14/03/2024
ORAL JUDGMENT
1. The present petition, under Article 227 of the Constitution of India, is filed by the petitioners - original Page 1 of 30 Downloaded on : Thu Mar 14 22:38:14 IST 2024 NEUTRAL CITATION C/SCA/19260/2023 JUDGMENT DATED: 14/03/2024 undefined defendants No.1 to 5 / appellants challenging the impugned order dated 28.06.2022 passed by the learned Principal District Judge, Bhavnagar in Misc. Civil Appeal No.74 of 2021, whereby the learned appellate Court below has rejected the condonation of delay of 1557 days occurred in filing of the appeal, under the Gujarat Rents, Hotel and Lodging House Rates Control Act, 1947, against the judgment and decree dated 01.04.2017 passed by the learned Additional Senior Civil Judge, Bhavnagar in Regular Civil Suit No.637 of 2004. The petitioners have also prayed for stay of implementation, operation and execution of the judgment and decree dated 01.04.2017 passed by the learned trial Court.
2. The brief facts of the present case are as under :
2.1 The present respondents No.1.1 to 1.3 are the original plaintiffs, who have filed a suit before the learned trial Court being Regular Civil Suit No.637 of 2004 against the defendants - present petitioners No.1 to 5.1 and present respondents No.2 and 3 - original defendants No.6 and 7, for eviction of tenants and recovering arrears of rent.
2.2 The learned trial Court has, after taking into consideration the various evidence - documentary as well as oral, which are mentioned in para : 3 of its judgment, framed the issues at Exh. 20, and after taking into Page 2 of 30 Downloaded on : Thu Mar 14 22:38:14 IST 2024 NEUTRAL CITATION C/SCA/19260/2023 JUDGMENT DATED: 14/03/2024 undefined consideration the submissions made by the learned advocates for the respective parties, allowed the suit vide judgment and decree dated 01.04.2017 and thereby directed the defendants to hand over vacant and peaceful possession of the rental premises to the plaintiffs. The learned trial Cout has also directed the defendants to pay sum of Rs.26,670=68 ps., as arrears of rent and also directed the defendants to pay sum of Rs.225/- per month towards monthly rent w.e.f. 01.07.2004 to the plaintiffs until possession of the suit property is handed over to the plaintiffs.
2.3 Being aggrieved, the defendants No.1 to 3 have intended to file an appeal before the learned appellate Court below, however, there is a delay of 1557 days in preferring the appeal, therefore, they have preferred an application being Misc. Civil Application No.74 of 2021 for condonation of delay in filing an appeal before the learned appellate Court below.
2.4 The learned appellate Court below has, after considering the submissions made at the bar, rejected the said delay condonation application vide order impugned dated 28.06.2022. Since the delay is not condoned by the learned appellate Court below, the question of filing an appeal against the judgment and decree passed by the learned trial Court does not arise.Page 3 of 30 Downloaded on : Thu Mar 14 22:38:14 IST 2024
NEUTRAL CITATION C/SCA/19260/2023 JUDGMENT DATED: 14/03/2024 undefined 2.5 It is this order impugned that is challenged by the petitioners - original defendants No.1 to 5.1 before this Court.
3. Heard learned advocates at length. Rule returnable forthwith. Learned advocate Mr.Kanabar waives service of notice of rule for and on behalf of the contesting respondents. With consent of the learned advocates, this petition is taken up for hearing and final disposal today.
4.1 Learned advocate Mr. Nisarg H. Vyas for the petitioners has submitted that the property in question is a waqf property and therefore, only the Tribunal set up under the WAQF Act has remedy to try the case. He has further submitted that as per the provisions of Section 85 of the WAQF Act, 1995, the suit was not maintainable at all, however, the same was suppressed by the original plaintiffs and ignored by the learned trial Court and therefore, the judgment and decree passed by the learned trial Court was completely contrary to the law.
4.2 He has also submitted that since the judgment and decree itself are void ab initio, the delay in preferring the appeal would not come in the way of the petitioners, and the same is required to be condoned by the learned appellate Court below.
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NEUTRAL CITATION C/SCA/19260/2023 JUDGMENT DATED: 14/03/2024 undefined 4.3 He has also submitted that when the decree of the learned trial Court is without jurisdiction, the limitation would not come in the way of the petitioners. He has submitted that it is true that the suit was filed in the year 2004, the judgment came in the year 2017 and the application for condonation of delay was filed in the year 2021, however, the petitioners were waiting to establish the Waqf Tribunal since WAQF Act has come into force in the year 2013 and Waqf Property Lease Rules, 2014 were also came into effect.
4.4 In support of his submissions, he has relied upon the following decisions :
(i) AIR 2021 SC 3443 - K.P. Natarajan versus Muthalammal
(ii) 2023 Guj.HC 40927 (DB) - Chandrasinh Khumansinh Bakrola versus Ibrahim Suleman Narot (Decd.)
(iii) (1995) Supp. 3 SCC 249 - State of Orissa versus Brundaban Sharma
(iv) (2007) 4 SCC 221 - A.V. Papayya Sastry versus Government of A.P.
(v) (1994) 1 SCC 1 - S.P. Chengalvaraya Naidu (Dead) by L.Rs. versus Jagannath (Dead) By L.Rs.Page 5 of 30 Downloaded on : Thu Mar 14 22:38:14 IST 2024
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(vi) 2004 (4) GLR 2808 - Bhanumatiben D. Soni versus State of Gujarat
(vii) (2007) 10 SCC 635 - Raj Kumar Soni versus State of U.P.
(viii) 2011 (2) GLR 149 - Pagi Aataji Kacharaji versus State of Gujarat 4.5 He has submitted that this petition may be allowed.
5.1 Per contra, learned advocate Mr. P.J. Kanabar for the contesting respondents has vehemently opposed this petition by submitting that no averments were made by the petitioners in their written statement before the learned trial Court at the relevant point of time that the learned trial Court has no jurisdiction. He has further submitted that it was for the first time, that the petitioners have averred in the delay condonation application before the learned appellate Court below. He has submitted that there is no evidence to show that the suit property is a waqf property. 5.2 He has also submitted that the petitioners had never preferred any application before the learned trial Court to transfer the matter to the Waqf Tribunal. He has submitted that they have never given any application before the learned trial Court seeking a stay of the suit and referring the matter to an Arbitrator.
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NEUTRAL CITATION C/SCA/19260/2023 JUDGMENT DATED: 14/03/2024 undefined 5.3 He has also submitted that the contention of the petitioners that the suit property is waqf property is based on no evidence and besides, contrary to Exh.54 - the Trust Registration Certificate. He has submitted that judgment creditors have filed an execution proceeding in the year 2018 and the petitioners have remained absent before the learned executing Court for about 5 years.
5.4 He has also submitted that there is a huge delay of 1557 days in filing an appeal before the learned appellate Court below by the petitioners which is completely unexplained and therefore, the present petition may be dismissed.
5.5 He has also submitted that the petitioners are not doing their business from the suit property. They are residing in Surat and the suit property is situated at Bhavnagar. He has submitted that they have suppressed the fact and shown the address in the cause title of Bhavnagar - suit property. He has submitted that the petitioners have adopted dilatory tactics.
5.6.1 He has drawn the attention of this Court towards the provisions of Section 2(13) and Section 2(19) of the Gujarat Public Trust Act, 1950, which read as under : Page 7 of 30 Downloaded on : Thu Mar 14 22:38:14 IST 2024
NEUTRAL CITATION C/SCA/19260/2023 JUDGMENT DATED: 14/03/2024 undefined "2(13). 'Public Trust' means an express or constructive trust for either a public religious or charitable purpose or both and includes a temple, a math, a waqf, a dharmada or any other religious or charitable endowment and a society formed either for a religious or charitable purpose or for both and registered under the Societies Registration Act, 1860.
2(19). "Waqf" means a permanent dedication by a person profession Islam of any movable or immovable property for any purpose recognised by the Islamic law as pious, religious or charitable and includes a waqf by user but does not include a waqf such as is described in Section 3 of the Mussalman Waqf Validating Act, 1913 under which any benefit is for the time being claimable for himself by the person by whom the waqf was created or by any member of his family or descendants;"
5.6.2 He has also drawn the attention of this Court Page 8 of 30 Downloaded on : Thu Mar 14 22:38:14 IST 2024 NEUTRAL CITATION C/SCA/19260/2023 JUDGMENT DATED: 14/03/2024 undefined towards the provision of Section 2(r) of the WAQF Act, 1955, which reads as under :
"2(r) "Waqf" means the permanent
dedication by any person, of any
movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes--
(i) a waqf by user but such waqf shall not cease to be a waqf by reason only of the user having ceased irrespective of the period of such cesser;
(ii) a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any other name entered in a revenue record;
(iii) "grants", including mashrat-ul- khidmat for any purpose recognised by the Muslim law as pious, religious or charitable; and
(iv) a waqf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable, provided when the line of succession fails, the Page 9 of 30 Downloaded on : Thu Mar 14 22:38:14 IST 2024 NEUTRAL CITATION C/SCA/19260/2023 JUDGMENT DATED: 14/03/2024 undefined income of the waqf shall be spent for education, development, welfare and such other purposes as recognised by Muslim law, and "waqif" means any person making such dedication;"
5.7 In support of his submissions, he has relied upon the recent decision of this Court in the case of Kantilal Narshibhai Rathod versus Natvarlal Mavjibhai reported in 2024 (1) GLR 144, more particularly paras : 16, 23 and 24 thereof.
5.8 He has submitted that this petition may be dismissed.
6.1 I have heard rival contentions made by the learned advocates for the respective parties. I have considered the various documents available on record. I have perused the impugned order passed by the learned appellate Court below as well as the judgment and decree passed by the learned trial Court. From the record, it transpires that, the suit was filed by the plaintiffs - a Trust, registered under the Bombay Public Trust Act, being the landlord, for eviction of tenants and recovering arrears of rent against the defendants who were the tenants. Hence, the suit was Page 10 of 30 Downloaded on : Thu Mar 14 22:38:14 IST 2024 NEUTRAL CITATION C/SCA/19260/2023 JUDGMENT DATED: 14/03/2024 undefined between the landlord and the tenant/s. There was a tenancy agreement by them. Since the defendants have left Bhavnagar City and reside in Surat and there was no business at the suit property and the suit property was subletting to defendants No.6 and 7, the plaintiffs have sent a legal notice for eviction and arrears of rent. The defendants have partly paid the arrears and not evicted the suit property, hence, the suit is filed.
6.2 Before the learned trial Court, various pieces of evidence were led by the parties at Exh.32, 37 to 70, which is mentioned in para : 3 of its judgment. After considering the same, the learned trial Court has framed the various issues for its determination and answered them accordingly. From the record it further transpires that there is no dispute between the parties that the plaintiff is a registered Trust, the plaintiffs are the owners of the suit property, there was an agreement between the plaintiffs and defendants No.1 to 5 for leave and license, the suit property is in possession of the defendants because of the said agreement since then, there was no business by the defendants No.1 to 5, it was given on sub-let by defendants No.1 to 5 to defendants No.6 and 7, the defendants No.1 to 5 are residing at Surat since more than 9 years and the defendants No.1 to 5 have not paid rent as agreed, the defendants No.1 to 5 have neither Page 11 of 30 Downloaded on : Thu Mar 14 22:38:14 IST 2024 NEUTRAL CITATION C/SCA/19260/2023 JUDGMENT DATED: 14/03/2024 undefined given any application to transfer the suit to Waqf Tribunal nor have given any application to send the suit to the Arbitrator for amicable solution, the defendants have not taken any contention regarding Waqf Tribunal, even the defendants No.1 have not placed on record any evidence to show that the suit property is a waqf property. 6.3 Considering the facts and circumstances of the case available on record, the learned trial Court has allowed the suit in favour of the plaintiffs and directed the defendants to hand over vacant and peaceful possession of the rental premises to the plaintiffs. The learned trial Cout has also directed the defendants to pay sum of Rs.26,670=68 ps., as arrears of rent and also directed the defendants to pay sum of Rs.225/- per month towards monthly rent w.e.f. 01.07.2004 to the plaintiffs until possession of the suit property is handed over to the plaintiffs. 6.4 The defendants No.1 to 5 have, being aggrieved, intended to file an appeal before the learned appellate Court below under the provisions of the Gujarat Rents, Hotel and Lodging House Rates Control Act, 1947, however, there is a delay of 1557 days in preferring the appeal, therefore, they have preferred an application being Misc. Civil Application No.74 of 2021 for condonation of delay in filing an appeal before the learned appellate Court below. At this stage, Page 12 of 30 Downloaded on : Thu Mar 14 22:38:14 IST 2024 NEUTRAL CITATION C/SCA/19260/2023 JUDGMENT DATED: 14/03/2024 undefined defendant Nos.1 to 5 have taken a plea for the first time that the learned trial Court has no jurisdiction to try the suit as there is a provision in the WAQF Act and therefore, the suit is required to be tried by the Waqf Tribunal. 6.5 It is noted that the suit was filed in the year 2004 and it was decided in the year 2017. The WAQF Act came into force in the year 2013. The defendants have not taken any plea regarding the jurisdiction of the learned trial Court while leading evidence before the learned trial Court. 6.6 From the record, it also transpires that the plaintiffs have filed a suit stating that the plaintiff is a Trust registered under the Bombay Public Trust Act. The defendants have never rebutted the said fact by leading any evidence - documentary and/or oral, before the learned trial Court that the suit property is a waqf property and not the Trust property.
6.7 The learned appellate Court below has, after considering the submissions made at the bar, rejected the said delay condonation application vide order impugned dated 28.06.2022. Since the delay is not condoned by the learned appellate Court below, the question of filing an appeal against the judgment and decree passed by the learned trial Court does not arise.
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NEUTRAL CITATION C/SCA/19260/2023 JUDGMENT DATED: 14/03/2024 undefined 7.1 In the petition under Article 227 of the Constitution of India at the hands of judgment debtors, that too at the stage of rejection of condonation of delay in preferring an appeal under the Gujarat Rents, Hotel and Lodging House Rates Control Act, 1947, this Court has very limited scope to interfere in it at this stage. It is noted that the learned trial Court has decided the suit on merits, after hearing the parties and after considering the pieces of evidence - documentary as well as oral on record, vide judgment and decree dated 01.04.2017. The judgment debtor i.e. present petitioners have intended to file an appeal under the Gujarat Rents, Hotel and Lodging House Rates Control Act, 1947 after a huge period of 1557 days. As observed by the learned appellate Court, the said huge delay has not been explained by the applicants in its application. The learned appellate Court below has rejected the said application. The said order is before this Court. Therefore, this Court has to only consider the impugned order on merits.
7.2 It is also noted that though the petitioners have raised several contentions before the learned appellate Court below that too in the application for condonation of delay, for the first time, inspite of having knowledge about the provisions of law during the trial and not rebutted in the Page 14 of 30 Downloaded on : Thu Mar 14 22:38:14 IST 2024 NEUTRAL CITATION C/SCA/19260/2023 JUDGMENT DATED: 14/03/2024 undefined suit proceeding by way of leading appropriate and cogent documentary as well as oral evidence, it is not required to be gone into all, at this stage, except the impugned order. This observation is supported by the findings of the learned appellate Court below given in para : 9 of the impugned order that the petitioners fully knew upto 06.03.2017 that a suit with respect to the disputed property was pending before the learned trial Court and hence, the contention made by the petitioners in the appeal that the appellants original defendant Nos.1 to 5 were advised that the suit is going to be transferred to the Waqf Tribunal does not find any force and is against the record of the case.
7.3 At this stage, it would be fruitful to refer to the decision of this Hon'ble Court in the case of Samusunisha Begaum, W/o Dr. Nasrullakhan Dhaniani & others versus Vishnukumar Ambelal Patel & others reported in 2012 (2) GLR 725 and int eh case of Nazambegam Noormohammed Rangrej @ Nazmabanu Fahimbhai versus State of Gujarat and others, wherein it is held that the litigant owes a duty to be vigilant of his own right and he cannot be expected to sleep over his right and wait for the call from the Court particularly under the impression that as if the Court is a storage house of suits filed by such negligent litigants. Moreover, the delay if is of a short period, the Court can Page 15 of 30 Downloaded on : Thu Mar 14 22:38:14 IST 2024 NEUTRAL CITATION C/SCA/19260/2023 JUDGMENT DATED: 14/03/2024 undefined take a lenient view while exercising discretionary powers to condone the delay, but that does not itself vest the right in favour of every person claiming to get the delay condoned in a case when the delay appears to be gross and not supported by any cogent, sufficient and convincing reasons. 7.4 While rejecting the application for condonation of delay in preferring the appeal under the Gujarat Rents, Hotel and Lodging House Rates Control Act, 1947, by the learned appellate Court below, it is observed by the learned appellate Court below that the delay is the discretionary power of the Court but the said discretionary power can only be used when the delay has been properly explained. The learned appellate Court below has specifically observed in the impugned order that no sufficient ground has been mentioned to condone the delay and the explanation advanced by the petitioners is not sufficient for condoning the delay. 7.5.1 At this stage, it would be fruitful to refer to the decision of the Hon'ble Apex Court in the case of Office of the Chief Post Master General Versus Living Media India Limited, reported in (2012) 3 SCC 563, more particularly paras : 27 to 29 thereof, which read as under :
"27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed Page 16 of 30 Downloaded on : Thu Mar 14 22:38:14 IST 2024 NEUTRAL CITATION C/SCA/19260/2023 JUDGMENT DATED: 14/03/2024 undefined 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.
28. 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 bonafide, 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 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.Page 17 of 30 Downloaded on : Thu Mar 14 22:38:14 IST 2024
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29. 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 bonafide 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 redtape 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."
7.5.2 It would also be fruitful to refer to the decision of the Hon'ble Apex Court in the case of Maniben Devraj Shah versus Municipal Corporation of Bruhin Mumbai reported in (2012) 5 SCC 157, more particularly paras : 9, 11, 13, 14, 19, 23 to 26 and 29 thereof, which read as under :
"9. The appellants contested the prayer made by the Corporation for condonation of delay by asserting that the story of Page 18 of 30 Downloaded on : Thu Mar 14 22:38:14 IST 2024 NEUTRAL CITATION C/SCA/19260/2023 JUDGMENT DATED: 14/03/2024 undefined misplacement of the papers is unbelievable and is liable to be discarded because the applications for condonation of delay do not mention as to when the misplaced papers were traced out by the concerned department. They also pleaded that the transfer of Shri Ranindra Y. Sirsikar from one section to the other has no bearing on the issue of condonation of delay because the Corporation has employed several advocates and no explanation whatsoever has been offered for not filing the applications for certified copies of the judgment of the trial Court till 23.8.2010.
11. Shri A.S. Bhasme, learned counsel for the appellants argued that the reasons assigned by the learned Single Judge for condoning more than 7 years and 3 months delay in filing the appeals are legally unsustainable and the impugned order is liable to be set aside because the explanation given by the Corporation lacked bonafides and was wholly unsatisfactory. Learned counsel emphasized that in the absence of any denial by the Corporation that it has a battery of advocates to deal with the litigation, the Page 19 of 30 Downloaded on : Thu Mar 14 22:38:14 IST 2024 NEUTRAL CITATION C/SCA/19260/2023 JUDGMENT DATED: 14/03/2024 undefined transfer of Shri Ranindra Y. Sirsikar in January, 2004 to Miscellaneous Court and, thereafter, to other Courts has no bearing on the issue of delay because the suits filed by the appellants had been decided in May, 2003 and no explanation has been given as to why applications for certified copies could not be filed for 7 years and 5 months.
13. Shri Pallav Shishodia, learned senior counsel appearing for the Corporation argued that the discretion exercised by the learned Single Judge of the High Court to condone the delay does not suffer from any legal infirmity and the mere possibility that this Court may, on a fresh analysis of the pleadings of the parties, form a different opinion does not furnish a valid ground for exercise of power under Article 136 of the Constitution. Shri Shishodia submitted that in last more than two decades the Courts have time and again emphasized that while considering the question of condonation of delay, the pleadings of the parties should be construed liberally and the genuine cause of a party should not be defeated by refusing to condone the delay. In support of his Page 20 of 30 Downloaded on : Thu Mar 14 22:38:14 IST 2024 NEUTRAL CITATION C/SCA/19260/2023 JUDGMENT DATED: 14/03/2024 undefined argument, Shri Shishodia relied upon the often cited judgments in Collector, Land Acquisition, Anantnag V/s. Mst. Katiji (supra) and State of Nagaland V/s. Lipok AO (supra). Shri Shishodia also pointed out that the appellants had raised illegal construction and if the challenge to the decrees passed by the trial Court was aborted by the High Court by refusing to condone the delay, serious injury would have been caused to the public interest.
14. We have considered the respective arguments / submissions and carefully scrutinized the record. The law of limitation is founded on public policy. The Limitation Act, 1963 has not been enacted with the object of destroying the rights of the parties but to ensure that they approach the Court for vindication of their rights without unreasonable delay. The idea underlying the concept of limitation is that every remedy should remain alive only till the expiry of the period fixed by the Legislature. At the same time, the Courts are empowered to condone the delay provided that sufficient cause is shown by the applicant for not availing the Page 21 of 30 Downloaded on : Thu Mar 14 22:38:14 IST 2024 NEUTRAL CITATION C/SCA/19260/2023 JUDGMENT DATED: 14/03/2024 undefined remedy within the prescribed period of limitation.
19. In P.K. Ramachandran V/s. State of Kerala, (1997) 7 SCC 556, this Court while reversing the order passed by the High Court which had condoned 565 days delay in filing an appeal by the State against the decree of the Sub- Court in an arbitration application, observed that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the Courts have no power to extend the period of limitation on equitable grounds.
23. What needs to be emphasised is that even though a liberal and justice oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the Courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost.Page 22 of 30 Downloaded on : Thu Mar 14 22:38:14 IST 2024
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24. What colour the expression "sufficient cause" would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay.
25. In cases involving the State and its agencies/instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and / or its agencies / instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury Page 23 of 30 Downloaded on : Thu Mar 14 22:38:14 IST 2024 NEUTRAL CITATION C/SCA/19260/2023 JUDGMENT DATED: 14/03/2024 undefined to the public interest.
26. In the light of the above, it is to be seen whether the explanation given by the respondent for condonation of more than 7 years and 3 months delay was satisfactory and whether the learned Single Judge of the High Court had correctly applied the principles laid down by this Court for the exercise of power under Section 5 of the Limitation Act.
29. Unfortunately, the learned Single Judge of the High Court altogether ignored the gapping holes in the story concocted by the Corporation about misplacement of the papers and total absence of any explanation as to why nobody even bothered to file applications for issue of certified copies of judgment for more than 7 years. In our considered view, the cause shown by the Corporation for delayed filing of the appeals was, to say the least, wholly unsatisfactory and the reasons assigned by the learned Single Judge for condoning more than 7 years delay cannot but be treated as poor apology for the exercise of discretion by the Court Page 24 of 30 Downloaded on : Thu Mar 14 22:38:14 IST 2024 NEUTRAL CITATION C/SCA/19260/2023 JUDGMENT DATED: 14/03/2024 undefined under Section 5 of the Limitation Act."
8.1 The limitation has got a specific purpose and object and more specifically to avoid prejudice to the respective parties. Section 5 of the Limitation Act provides 'sufficient cause' is the only criterion for condoning delay. 'Sufficient Cause' is the cause for which a party could not be blamed.
8.2 The law is well settled that delay cannot be condoned as a matter of 'judicial generosity' in any special case. An order extending time should give sufficient indication that the discretion given by the law has been judicially exercised. An Appellate Court will not ordinarily interfere with the discretion exercised by the Court below. But the deciding factor is whether the exercise of discretionary power is just and proper.
8.3 It is true that each day's delay need not to be explained but it is enjoined on the petitioners to make out sufficient cause for not filing the application within the period of limitation. Uncondonable delay cannot be condoned in absence of any valid reason. Unless proper explanation is offered, the Court cannot exercise its discretion in the proper perspective to advance substantial justice. It is also well settled that when a Court has exercised its discretionary Page 25 of 30 Downloaded on : Thu Mar 14 22:38:14 IST 2024 NEUTRAL CITATION C/SCA/19260/2023 JUDGMENT DATED: 14/03/2024 undefined power to condone the delay, the appellate Court, in exercise of its discretion, should not ordinarily interfere with such decision unless the discretion exercised is arbitrary and overlooking the interest accrued to another party to the dispute.
8.4 At the same time, the discretion must not be exercised in any arbitrary or vague or fanciful manner, but must be exercised like any other judicial discretion with vigilance and circumspection. Where delay could have been avoided by due care and caution, the Court may not exercise the discretion to condone the delay.
8.5 It is true that "sufficient cause" should receive liberal construction to do substantial justice. What is "sufficient cause" is a question of fact in the given circumstances of the case. It is true that condonation of delay is discretion of the Court. Length of delay is no matter, but acceptability of the explanation is the only criterion. Thus, the Courts have taken a clear view that the intention of the parties in filing appeal belatedly after causing prejudice to the interest of the other parties, then also the delay cannot be condoned by exercising the power of discretion. Therefore all these aspects have to be considered. 9.1 Unless and until the appellant gives the sufficient Page 26 of 30 Downloaded on : Thu Mar 14 22:38:14 IST 2024 NEUTRAL CITATION C/SCA/19260/2023 JUDGMENT DATED: 14/03/2024 undefined cause for condonation of delay under Section 5 of the Limitation Act, is clearly mentioned that when sufficient cause is not given then the delay cannot be condoned. The law of limitation is enshrined in the legal maxim ' Interest Reipublicae Ut Sit Finis Litium' means it is for the general welfare that a period be put to litigation. Rules of limitation are not meant to destroy the rights of the parties, rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time. However, the Court while allowing such application of delay has to draw a distinction between delay and inordinate delay for want of bonafides of an inaction or negligence would deprive a party of the protection under the Act. Sufficient cause is a condition precedent for exercise of discretion by the Court for condoning the delay. The Court cannot condoned the delay on sympathetic grounds alone. Looking to the longer delay as well as the negligence on the part of the petitioners, the Court cannot be liberal to take it easy in granting condonation of delay. Looking to the ratio laid down in the judgment of the Hon'ble Apex Court in case of Lanka Venkateswarlu reported in AIR 2011 SC 1199, wherein it was observed as under :
" Whilst considering applications for condonation of delay under S.5 of the Limitation Act, the Court do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have Page 27 of 30 Downloaded on : Thu Mar 14 22:38:14 IST 2024 NEUTRAL CITATION C/SCA/19260/2023 JUDGMENT DATED: 14/03/2024 undefined to be exercised within reasonable bounds, know to the law. The discretion has to be exercised in any systematic manner informed by reason. Whims or fancies, prejudices or predilections cannot and should not form the basis of exercising discretionary powers."
9.2 In the case of Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy & Others reported in MANU/SC/0932/2013, the Hon'ble Supreme Court of India made an observation as follows :
"15. From the aforesaid authorities the principles that can broadly be culled out are: (i) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. (ii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. (iii) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
9.3 In this background while considering condonation of delay, the routine explanation may not be enough but it has to be in the nature of indicating "sufficient cause" to Page 28 of 30 Downloaded on : Thu Mar 14 22:38:14 IST 2024 NEUTRAL CITATION C/SCA/19260/2023 JUDGMENT DATED: 14/03/2024 undefined justify the delay which will depend on the backdrop of each case and will have to be weighed carefully by the Court based on the fact situation. In the case of inordinate delay, a strict approach is warranted because "delay defeats equity".
10. In the present case, the suit is of the year 2004 and is decided by the learned trial Court on 01.04.2017. The petitioner has intended to file an appeal against the said judgment and decree passed by the learned trial Court in the year 2021 and therefore, they have filed an application for condonation of delay in filing an appeal. In the meantime, the judgment creditor has filed execution proceeding, wherein the petitioners remained absent though having knowledge of the same for the reasons best known to them. Neither the petitioners have approached the higher forum challenging the judgment and decree passed by the learned trial Court nor has approached the Waqf Tribunal, as averred later on, nor has attended the execution proceeding. This conduct of the petitioners smacks a lot and it tilts the balance against them.
11. There cannot be any dispute with regard to the proposition of law enunciated in the decisions relied upon by the learned advocate for the petitioners, however, looking to the conduct of the petitioners as well as considering the peculiar facts of the present case, the same are not helpful Page 29 of 30 Downloaded on : Thu Mar 14 22:38:14 IST 2024 NEUTRAL CITATION C/SCA/19260/2023 JUDGMENT DATED: 14/03/2024 undefined to the petitioners.
12. Under the circumstances, the petitioners fail to establish their case before this Court. They have not satisfactorily explained the delay caused in preferring an appeal before the learned appellate Court below. The petitioners have not shown any perversity or illegality in the impugned order passed by the learned appellate Court below. This Court finds that the learned appellate Court below has rightly passed the impugned order by showing cogent and convincing reasons. The impugned order is therefore just, legal and proper and no interference is required by this Court. This petition is therefore required to be dismissed and is dismissed accordingly.
(SANDEEP N. BHATT,J) M.H. DAVE Page 30 of 30 Downloaded on : Thu Mar 14 22:38:14 IST 2024