Gujarat High Court
Kashiben vs Narshibhai on 28 October, 2005
Author: Harsha Devani
Bench: Harsha Devani
CA/10151/2011 18/ 18 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION No. 10151 of 2011 For Approval and Signature: HONOURABLE MS.JUSTICE HARSHA DEVANI ========================================= 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= KASHIBEN D/O SHIVABHAI RAJABHAI - Petitioner(s) Versus NARSHIBHAI MOHANBHAI BHUVA & 7 - Respondent(s) ========================================= Appearance : MR TUSHAR L SHETH for applicant(s) : 1.2.1, 1.2.2,1.2.3 None for Respondent(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5, 1.2.6,1.3.1 - 2, 2.2.1, 8, 8.2.1,8.3.1 MR HRIDAY BUCH for Respondent(s) : 3 - 7. RULE SERVED BY DS for Respondent(s) : 4 - 6, 8.2.2, 8.2.3, 8.2.4,8.2.5 ========================================= CORAM : HONOURABLE MS.JUSTICE HARSHA DEVANI Date : 09/02/2012 ORAL JUDGMENT
By this application under section 5 of the Limitation Act, 1963, the applicants seek condonation of delay of 1506 days caused in filing miscellaneous civil application for restoration of Civil Application No.3781 of 2007.
This case has a chequered history. Hence, it would be necessary to refer to the same in some detail.
The applicants herein, who are heirs of deceased Shivabhai Rajabhai, preferred an appeal under section 100 of the Code before this Court being Second Appeal No.42 of 2004. The appellant - Shivabhai Rajabhai died on 7.8.2004. The applicants, therefore, made an application being Civil Application (Stamp) No.10395 of 2004 for substituting themselves as heirs and legal representatives of the deceased appellant in the second appeal. The civil application was made after the expiry of the period of limitation, hence, the applicants also filed Civil Application (Stamp) No.3766 of 2005 for condonation of delay caused in filing the civil application for bringing on record the heirs and legal representatives of deceased appellant. The said Civil Application (Stamp) No.3766 of 2005 came to be dismissed for non-removal of office objections vide order dated 28.10.2005. The applicants, therefore, moved an application being Miscellaneous Civil Application (Stamp) No.3452 of 2006 for recalling the said order dated 28.10.2005. However, there was a delay in filing the said application; hence, the applicants filed an application being Civil Application No.3781 of 2007 for condoning the delay of 395 days that had occurred in filing the said miscellaneous civil application. Civil Application No.3781 of 2007 came to be rejected for want of prosecution vide order dated 12.3.2007. The applicants moved an application for restoration of the said application being Miscellaneous Civil Application No.768 of 2007. Vide order dated 19.3.2007 passed in Miscellaneous Civil Application No.768 of 2007, Civil Application No.3781 of 2007 came to be restored to file. Vide order dated 13.7.2007, Civil Application No.3781 of 2007 once again came to be rejected for want of prosecution. The applicants have, therefore, moved an application being Miscellaneous Civil Application (Stamp) No.2467 of 2011 seeking restoration of Civil Application No.3781 of 2007. However, there is a delay in filing the restoration application; hence, the applicants have made the present application seeking condonation of delay in filing the restoration application.
Mr. Tushar L. Sheth, learned advocate for the applicants invited attention to the averments made in the memorandum of application to submit that the applicants are residents of a small village and are not very literate. The appeal had been filed in the year 2004 and it was not possible for the applicants to keep watch of the proceedings and meet their advocate regularly, and as they were not informed by their advocate they were not aware of the order passed in Civil Application No.3781 of 2007. Subsequently, the applicant No.2 was served with an order dated 30.6.2011 of the Mamlatdar, Rajkot Taluka passed in Disputed Case No.76 of 2004 in the second week of July 2011, and thereafter, the Talati had issued notice under section 135-D of the Bombay Land Revenue Code on 28.7.2011 which came to be served upon the applicant No.2 after about a week. Pursuant to the order passed by the Mamlatdar and the notice under section 135-D of the Code, the applicants came to know that revenue entry No.1318 had been certified in Village Form No.6 and it was only then that the applicants came to know that the second appeal pending before this Court had been disposed of on the ground that the same had abated and that the Civil Application No.3781 of 2007 had been rejected for non-prosecution. Immediately thereafter, the applicant No.2 had reached Ahmedabad to meet their advocate Mr. B. P. Dalal, but he could not contact him. Thereafter, on the next day, the applicant No.2 came to the High Court for getting information from the office about the matter and after verifying the same physically through the clerk, he came to know about the order dated 13.7.2007 passed by this Court in Civil Application No.3781 of 2007. It was submitted that thereafter, the applicants decided to change their advocate and as suggested by a relative, had engaged another advocate in the High Court and after discussing the present matter with him were informed that they should send all necessary papers etc. Thereafter in the second week of September, 2011, the applicants had sent all necessary papers etc. to the learned advocate which had taken some time, after which the application for restoration came to be filed.
It was urged that it was in view of the aforesaid facts that the delay has occasioned and there was no intentional delay on the part of the applicants and that if the matter is not restored, it would result in foreclosing the statutory remedy available under law. It was submitted that, Mr. Dalal, the learned advocate representing the applicants had gone abroad for a long time and had not made any arrangement for attending the matter in his absence, nor were the applicants informed about the said order. It was submitted that on account of default on the part of the learned advocate, the litigant should not be made to suffer. In support of his submissions, the learned advocate placed reliance upon the decision of the Supreme Court in Ram Kumar Gupta and others v. Har Prasad and another, (2010) 1 SCC 391, for the proposition that the litigants cannot be punished for non-appearance of the learned counsel. Reliance was also placed upon the decision of the Supreme Court in N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123, for the proposition that in every case of delay, there can be some lapse on the part of the litigant concerned. That 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. It was submitted that in the present case, the applicants' conduct does not warrant holding them to be irresponsible litigants. What they did was not very far from what a litigant would do. It was submitted that the applicants being illiterate persons residing in a village, were not in a position to contact their advocate regularly and as such, the delay being unintentional and caused out of bona fide and genuine reasons, in the larger interest of justice, deserves to be condoned.
Vehemently opposing the application, Mr. Hriday Buch, learned advocate for the respondents reiterated the submissions made in the affidavit-in-reply filed by the respondents and submitted that the explanation put forth by the applicants is not genuine. Inviting attention to the averments made in the affidavit-in-reply filed by the respondent No.4, it was pointed out that at all stages there was a default on the part of the applicants. That the applicants were aware of the pendency of the proceedings in the form of second appeal. The fact that upon the death of the sole appellant, an application for bringing legal heirs, that is, the present appellants on record was also filed, which establishes that the applicants were aware of the proceedings and were in contact with their advocate at Ahmedabad. It was argued that the applicants never remained vigilant. That three proceedings came to be filed in the form of miscellaneous civil applications and civil applications in the year 2006-2004 which indicate that even in the year 2006-2004, the applicants were aware that such proceedings have been conducted. It was further submitted that the writs of the orders passed by this court in Civil Application No.3781 of 2007 and Second Appeal No.42 of 2004 had been duly served upon the applicants through the Registry in the normal/due course and as such, the applicants were well aware of the disposal of the same. It was submitted that despite the aforesaid facts, the applicants did not take any steps for filing the application for restoration, and thereby have waived their rights to take appropriate proceedings and have acquiesced with the orders passed by this court by remaining silent for more than four years. When Civil Application No.3781 of 2007 came to be rejected and the appeal came to be dismissed as having abated, the applicants remained idle and did not do anything till the year 2011. It was submitted that the applicants appeared in the revenue proceedings thereafter, filed the present applications. It was submitted that in the circumstances, the contention that they were not aware of the order dated 12.3.2007 is patently false. In support of his submission the learned advocate placed reliance upon the decision of the Supreme Court in the case of Balwant Singh (dead) v. Jagdish Singh and others, (2010) 8 SCC 685, for the proposition that even if the term "sufficient cause"
has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of "reasonableness" as it is understood in its general connotation. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of its acting vigilantly.
It was submitted that the conduct of the applicants is evident from the history of the litigation namely, the number of applications that have been filed for restoration of one application after the other. It was submitted that, thus, the applicants have been thoroughly negligent in exercising their rights and remedies. Under the circumstances, it is unfair to deprive the respondents herein of the valuable right that has accrued to them in law. It was submitted that the explanation tendered by the applicants cannot in any manner be said to make out sufficient cause so as to condone the inordinate delay of more than 1500 days. It was urged that the delay occasioned in filing the application is substantial and there is no reason to believe that it is bona fide and for genuine reasons. On the contrary, the same is caused because of lethargic approach of the applicants. Reliance was placed upon the decision of the Supreme Court in the case of Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation and another, (2010) 5 SCC 459, wherein the court held that the expression "sufficient cause" employed in section 5 of the Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which subserves the ends of justice. Although, no hard-and-fast rule can be laid down in dealing with the applications for condonation of delay, the Court has justifiably advocated adoption of a liberal approach in condoning delay of short duration and a stricter approach where the delay is inordinate. The Court held that what is to be seen is whether the party has offered any plausible/tangible explanation for the long delay. Reliance was also placed upon the decision of the Supreme Court in the case of Lanka Venkateswaralu (dead) By LRs v. State of Andhra Pradesh and others, (2011) 4 SCC 363, wherein the Court has held that the concepts such as "liberal approach", "justice oriented approach", "substantial justice" cannot be employed to jettison the substantial law of limitation.
Especially where the court concludes that there is no justification for the delay. The decision of the Supreme Court in the case of Katari Suryanarayana and others v. Koppisetti Subba Rao and others, (2009) 11 SCC 183, was cited wherein the Supreme Court had observed that it was inconceivable that the petitioners therein were not in touch with their learned advocate from 1999 to December 2006. If not every week, they are expected to contact their lawyers once in a year. Ignorance of legal consequence without something more would not be sufficient to condone such a huge delay. The learned advocate further submitted that even after the applicants came to know in June 2011 about the dismissal of the appeal and the rejection of the application for condonation of delay in restoring the application, there is a delay of three to five months and that no reasons have been stated in respect of the said delay so as to call for exercise of discretion in favour of the applicants. It was submitted that the suit came to be instituted in the year 1982 and on account of the negligence on the part of the applicants; the respondents are deprived of the fruits of the decree in their favour. It was, accordingly, urged that considering the extent of delay and the explanation furnished by the applicants, the delay caused in preferring the application for restoration does not deserve to be condoned.
In rejoinder, Mr. Tushar Sheth, learned advocate for the applicants submitted that one of the most important aspects of the matter is that the applicants are illiterate persons who have come before this court as and when their advocate informed them. It was submitted that it is only while filing the last application that there is a considerable delay as the learned advocate had gone abroad without informing the applicants. It was submitted that in the circumstances, sufficient case having been made out by the applicants, the delay deserves to be condoned in the interests of justice.
From the facts and contentions noted hereinabove, it is apparent that it is the case of the applicants that they were not aware of the passing of the order dated 13.7.2007 passed by this court rejecting Civil Application No.3781 of 2007 as well as the order dated 13.7.2007 disposing of the appeal as having abated. That it was only when the applicant No.2 was served with the order dated 30.6.2011 passed by the Mamlatdar, Rajkot in Disputed Case No.76 of 2004 in the second week of July 2011 and thereafter when the Talati issued notice dated 28.7.2011 under section 135-D of the Bombay Land Revenue Code, 1879, that the applicant No.2 came to know from the Mutation Entry No.1318 made in the Village Form No.6 that the second appeal which was pending before this court had been disposed of. On behalf of the respondents, it has been urged that the applicants were very well aware of the passing of the said orders as the record of the case indicates that the writ of the court was sent to the learned Principal Senior Civil Judge, Rajkot and the learned Joint Civil Judge (S.D.), Rajkot. In this regard a perusal of the record of the case shows that the bailiff appears to have effected service upon the deceased Shivabhai Rajabhai through the daughter-in-law of the applicant No.2, Ramaben Sureshbhai Bhuva on 18.12.2007 and that the same was accepted by her. It is not as if the copy of the writ has been served upon all the three applicants. Insofar as the writ of the order rejecting Civil Application No.3781 of 2007 is concerned, the applicants do not appear to have been served with any copy of the said order. Ramaben Sureshbhai, daughter-in-law of the applicant No.2 has filed an affidavit stating that after receipt of the notice, she had forgotten to inform her husband and father in-law about the same. She has further stated that though she is informed that there is an endorsement of "received copy", copy of the writ of this court had not been given to her. She has further stated that she has studied only upto Standard IV and does not know the English language and due to her household work, forgot to inform her husband and her father in-law as regards signing such a court document written in English. Thus, it is the case of the applicants that they were unaware of the passing of the orders dated 13.7.2007.
From the record of the court, it is not possible to state that any of the three applicants have been served with copies of the writ of this court. Insofar as the service effected is concerned, the same indicates that on behalf of Shivabhai Rajabhai, Ramaben Sureshbhai had accepted the service.
From the facts noted hereinabove, it is apparent that as soon as the applicant No.2 came to know about the passing of the orders dated 13.7.2007 during the course of revenue proceedings, he has immediately tried to contact the learned advocate representing him and upon not being able to contact him, came to this court and verified the same through the clerk, whereupon he came to know of the order rejecting Civil Application No.3781 of 2007 for non-prosecution as well as disposal of Second Appeal No.42 of 2007 as having abated. Had the applicants given up the cause, there was no reason for the applicants to come to this court after they came to know about the mutation entry, which gives reason to believe that they were genuinely not aware of the orders dated 13.7.2007 passed by this court.
Besides, a perusal of the order dated 13.7.2007 dismissing the appeal indicates that the learned advocate for the applicants had filed a leave-note on that day. The order also indicates that he had gone abroad for a long time. In case the learned advocate had gone abroad and filed a leave-note, in all probability, he would neither be aware of the orders dated 13.7.2007 being passed, nor would he have informed the litigants about the dismissal of the appeal. Generally, a litigant would repose faith in an advocate and expect him to deal with his case diligently. The applicants being rustic villagers having engaged an advocate and that too, of the standing of Mr. Dalal would have no reason to believe that the litigation would not be prosecuted diligently. Besides, the order dated 13.7.2007 rejecting the civil application, is self-speaking as it indicates that the advocate had gone abroad and filed a leave-note. In the circumstances, for default on the part of the advocate, the litigant cannot be penalized. Besides, even if it is presumed that the applicant No.2 was aware of the passing of the order as service was effected upon his daughter-in-law, the applicants No.1 and 3 do not appear to have been ever served with the orders. It may also be noted that the general practice in the court is that the leave-notes and sick-notes are respected unless it has been expressly ordered that on the next adjournment, no sick-note or leave-note shall be entertained. In cases where the learned advocates are absent for long periods, generally notice is issued to the party after observing the same, calling upon him to make alternate arrangement. In the present case, possibly considering the chequered history of the case, the court has thought it fit to dismiss both, the application for restoration and consequently, the appeal, despite the fact that the learned advocate had filed a leave-note, without putting the litigant to notice. In the circumstances, it is difficult to lay the blame on the applicants.
True it is that there is considerable delay in filing the present application seeking condonation of delay in filing the restoration application. However, considering the nature of the relief granted by the trial court, in the opinion of this court, no serious prejudice would be caused to the respondents if the appeal is heard on merits.
The Supreme Court, in the case of N. Balakrishnan v. M. Krishnamurthy (supra), has held thus :
"[8] The appellant's conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that the he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life, an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences.
[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 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 untrammelled by the conclusion of the lower court.
[10] The reason for such a different stance is thus:
The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause.
[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. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (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. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
[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 vide Shakuntala Devi Jain v. Kuntal Kumari and State of W.B. v. Administrator, Howrah Municipality.
[13] It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That 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. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss."
In Ram Kumar Gupta and others v. Har Prasad and another (supra), the Supreme Court had held that it would be improper that the appellants therein should be punished for non-appearance of the learned counsel for the appellants at the time when the writ petition was taken up for hearing, as, the Court was of the view that the appellants were suffering injustice merely because their chosen advocate had defaulted. In Ram Nath Sao alias Ram Nath Sahu and others v. Gobardhan Sao and others, (2002) 3 SCC 195, the Supreme Court after referring to its earlier decision in the case of N. Balakrishnan v. M. Krishnamurthy (supra), held that the expression "sufficient cause" within the meaning of section 5 of the Limitation Act, 1963 or Order 22 Rule 9 CPC 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 that case. There cannot be a straitjacket formula for accepting or rejecting the explanation furnished for the delay caused in taking steps. However, 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.
In the backdrop of the aforesaid facts, this court is of the view that no deliberate negligence or inaction or want of bona fides can be imputed to the applicants herein. It appears that the applicants were genuinely not aware of the passing of the orders dated 13.7.2007 rejecting Civil Application No.3781 of 2077 for want of prosecution and dismissing the appeal as having abated. As observed by the Supreme Court in the case of N. Balakrishnan v. M. Krishnamurthy (supra), it may be said that the litigant should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life, an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences. The aforesaid observations apply with full force in the facts of the present case.
The Supreme Court, in the case of N. Balakrishnan v. M. Krishnamurthy (supra), further observed that while condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss. Considering the extent of delay in the present case, the court is of the view that the respondents must be compensated.
Since the court has come to the conclusion that there is justification for the delay, the decisions on which reliance has been placed by the learned advocate for the respondents would not in any manner come to the aid of the respondents.
In the light of the aforesaid discussion, sufficient cause has been made out so as to persuade the court to exercise discretion and condone the delay that has occasioned in filing Miscellaneous Civil Application (Stamp) No.2467 of 2011 for restoration of Civil Application No.3781 of 2007.
The application is, therefore, allowed. The delay caused in filing miscellaneous civil application for restoration of Civil Application No.3781 of 2007 is hereby condoned, but on a condition that the applicants shall pay a sum of Rs.5,000/- to the respondents (or deposit the same in this High Court) within one week from today. Rule is made absolute accordingly.
[HARSHA DEVANI, J.] parmar*