Gujarat High Court
Sunil vs Sudhakar on 6 April, 2010
Author: K.M.Thaker
Bench: K.M.Thaker
Gujarat High Court Case Information System
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CA/11150/2009 3/ 13 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR CONDONATION OF DELAY No. 11150 of 2009
In
MISC.CIVIL
APPLICATION (STAMP NUMBER) No. 2319 of 2009
In
FIRST APPEAL No. 3442 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.M.THAKER
=========================================================
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 ?
=========================================================
SUNIL
BALAK PAL & 13 - Petitioner(s)
Versus
SUDHAKAR
MADHUKAR CHAUDHARY & 39 - Respondent(s)
=========================================================
Appearance
:
MS
KJ BRAHMBHATT for
Petitioner(s) : 1 - 14.MSVARSHABRAHMBHATT for Petitioner(s) : 1 -
14.
MR JB PARDIWALA for Respondent(s) : 1,
UNSERVED-REFUSED (R)
for Respondent(s) : 2 - 3, 7, 12, 26,29 - 30, 33, 36, 38,
RULE
SERVED BY DS for Respondent(s) : 4 - 6, 9.2.1,9.2.2 - 11,13 - 18,20 -
24,27 - 28, 31, 35,
MR RUSHABH R. SHAH FOR MRS KETTY A MEHTA for
Respondent(s) : 8,
None for Respondent(s) : 9,
RULE SERVED for
Respondent(s) : 19,
RULE UNSERVED for Respondent(s) : 25, 32, 34,
37, 39,
- for Respondent(s) : 0.0.0
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 06/04/2010 & 29/04/2010
ORAL
JUDGMENT
1. Present application has been preferred by the applicants with the prayer to condone delay of 725 days caused in filing the Misc. Civil Application seeking review of the judgment and order dated 24.08.2007 (passed by the learned Single Judge in First Appeal No.3442/2007).
2. By order dated 24.08.2007 passed in First Appeal No.3442/2007, the Court (Coram: Hon'ble Mr. Justice: K.M. Mehta as his Lordships then was), was pleased to dismiss the First Appeal No.3442/2007.
3. It is claimed that against the said judgment, present appellants have not preferred appeal (either in this Court or in the Hon'ble Apex Court) and now after delay of 725 days, 14 applicants have come out seeking review of the aforesaid judgment dated 24.08.2007 and they also seek that the delay of 725 days caused in filing the application for review, may be condoned.
4. The application has been opposed by the opponents and it is submitted, inter-alia, that there is no reason or justification in entertaining the application and/or condoning delay of 725 days caused in preferring application for review of the order dated 24.08.2007.
5. The opponents have also claimed that the averments in support of the request are incorrect and the applicants have not come to the Court with clean hands. The so-called reasons urged by the applicants do not tender explanation which can be considered as satisfactory explanation regarding the inordinate delay. The opponents have also urged that actually there is no reason or cause for preferring Review Application, much less, after such long delay.
6. Ms.Bhrahambhatt, learned advocate, has appeared and argued the case for the applicants and Mr. Rushabh R. Shah learned advocate for Mrs. Mehta, learned advocate for the opponent No.8 has appeared and opposed the application.
7. Before proceeding further, it is necessary to note that earlier on couple of occasions, the applicants' advocate and the Senior Counsel had got the application adjourned on the ground that process of negotiation to arrive at a settlement was going on and the parties required time to finalise the settlement.
8. After getting the application adjourned for couple of times by making such statement, Ms.Brahmbhatt the learned advocate for the applicants has now informed the Court that the settlement is not feasible and it was unlikely that the applicants may be able to settle the matter. Therefore, the Counsel for the applicants was asked to proceed with the hearing of the application, however, even after the retreat as aforesaid the learned counsel sought time on the ground of non-availability of the learned Senior Counsel. After a passover when the application was again taken up for hearing, the request for adjournment was reiterated on the ground of non-availability of Senior Counsel. The request was declined.
9. Ms.Bhrahambhatt learned advocate for applicants has submitted that the delay caused in preferring the Misc. Civil Application seeking review of the order dated 31.08.2007 may be condoned and the relief prayed for in the application may be granted. She has submitted that the applicants did not know that the order dated 24.08.2007 was passed by the Court. She read out the averments in the application by virtue of which the applicants have alleged that the learned advocate, who appeared for present applicants (at the hearing of the appeal) had not informed the applicants about the order dismissing the appeal. On the basis of the averments in the application Ms.Bhrahambhatt, learned advocate submitted that only when the notice of the Hon'ble Court in First Appeal No.5435/2007 was served on the applicants (i.e. on 20.01.2009), the applicants came to know about the order. She urged that even after 20.01.2009 i.e. after the applicants came to know about the order, any action could not be taken because the applicants being layman did not know any procedure and that it being a group matter, the applicants approached some of the co-holders and then they decided to challenge the order. On the basis of such allegations and explanation the applicants have prayed that the delay of 725 days caused in filing the application may be condoned.
10. Mr.Rushabh R. Shah, learned advocate for the opponent No.8, has opposed the application and submitted that the averments and submissions claiming that the applicants had no knowledge and were not aware about judgment in the First Appeal are, on the face of it, totally incorrect and unjustified. The learned advocate for the opponents also submitted that the application is malafide. The learned advocate for the opponents submitted that the applicants have conveniently not mentioned the correct and relevant details in the application and the correct and relevant facts have been suppressed from the Court.
11. Learned advocate for the opponents submitted that after the judgment and order dated 24.08.2007 in the First Appeal No.3442/2007, an Execution Application (Darkhast No.40/2007) was filed against present applicants on 15th October, 2007 in the Court of Principal and Senior Civil Judge, Valsad. He submitted that the applicants have suppressed the fact about Darkhast Application. He submitted that even if the applicants' submissions are, without admitting and accepting the submission (that on the date when the order was passed the applicants had no knowledge) considered then also after the presentation of the Darkhast the applicants cannot claim that they had no knowledge about the order. So as to support his submission, the learned advocate for the opponents referred to and relied upon the averments made in para-2(A), 2(B)(i) to (v) from the reply affidavit filed by the opponent No.8 and the documents annexed to the reply affidavit of the opponent No.8, at Annexures:A to E which include the copy of the Darkhast, copy of the report of the bailiff and copy of the vakalatnama filed in the proceedings of Darkhast by the advocate of present application and copy of the reply filed by present applicants opposing the Darkhast Application.
12. Having regard to the facts obtaining on record and from the submissions, it emerges that by judgment and order dated 24.08.2007, the Court dismissed the First Appeal No.3442/2007 wherein present applicants had challenged the judgment and decree dated 11.04.2007 passed by the learned Trial Court in Special Civil Suit No.9/1994.
13. It is claimed by the applicants that after the said judgment dated 24.08.2007 was passed by the Court, the applicants have not challenged the said judgment by way of appeal (either in this Court or before the Hon'ble Apex Court).
14. In this factual backdrop, it is appropriate to take a look at the averments made in the application on the basis of which the applicants have urged that the delay of 725 days may be condoned. In view of the facts of the case and the allegations based on which the applicants are prosecuting the application, it is appropriate and necessary to reproduce the application in toto:
14. The applicants herein are filing the present application for condonation of delay of 725 days caused in preferring Misc. Civil Application for review of the judgment and order dated 24.08.2007 by the Learned Single Judge of this Hon'ble Court in First Appeal No.3442 of 2007.
15. The applicants further say and submits that the applicant did not know about passing of the order dated 24.08.2007 by the Learned Single Judge as the said fact was not conveyed by the learned advocate who appeared for the applicant in the First Appeal No.3442 of 2007 and independently also, the applicants has not been served with the said order. Even nobody else has informed the applicants about the same.
The applicants says that the applicants came to know about the said order only when the notice of this Hon'ble Court in First Appeal No.5435 of 2007 was served upon the applicant on 20.01.2009. The applicant says that having come to know about the said order, the applicant is completely a layman and does not know any legal procedure. Since it was a group matter, the applicant approached some of the other plot holders and it was decided to challenge the said order. Therefore, the applicant came to the Registry of this Hon'ble Court and tried to get the papers. The applicant had to obtain copy of the First Appeal No.3442 of 2007 as the Sarpanch Katibhai who was attending the matter earlier said that he had no such copy. The applicant, therefore, approached this Hon'ble Court and tried to get orders in First Appeal No.3435 of 2007 as well as First Appeal no.3442 of 207 and it took nearly 20 days for the same. Thereafter, joint meeting of all the plot holders was called for and in the said meeting, it was decided that review application be filed in this Hon'ble Court. Hence, the applicants and other plot holders approached the office of the advocate at the High Court of Gujarat and thereafter review application is prepared and the same is filed in this Hon'ble Court. Hence, it is within time. However, if there is any delay, the same may kindly be condoned in the interest of justice.
16. The applicant has already made the prayer to condone the delay in the Misc. Civil Application for review. However, as the Registry of this Hon'ble Court took out the objection that separate Civil Application for condonation of delay is required to be filed and, therefore, the present Civil Application is filed.
15. It deserves to be noted that curiously the number of the paragraphs start from No.14 (instead of No.1). Though the paragraphs in the application memo are only three they are numbered as Nos.14, 15 and
16. Even the pagination right from first page of the cause title starts with no.13 and goes upto page-24 and ends at page-20.
16. It can be seen from the averments, the only reason urged by the applicants in support of the request for condonation of delay, is alleged lack or absence of knowledge about the judgment and order dated 24.08.2007 passed in the First Appeal and the allegation against an advocate that he had not informed the applicants about the order and the applicants being layman were not aware about the procedure.
17. It is pertinent that though such allegations have been made against an advocate, he has not been impleaded as party.
18. It is also pertinent to note that the affidavit of the advocate, who appeared in the appeal is not filed though the allegation is of serious nature so far as the advocate is concerned. The said allegation in the application has been made and urged during the hearing without any supporting material, and more particularly, without impleading the learned advocate as opponents.
19. It is also pertinent to note that after the reply affidavit was filed (through opponent No.8) opposing the application (giving details about the Darkhast Application, date on which the Darkhast Application was filed, the date on which the learned Executing Court had issued notice in the Darkhast, the date on which the notice was made returnable, the date on which the bailiff served the process on the applicants and the fact that the applicants have appeared in the Darkhast proceedings) any counter affidavit opposing the factual details and assertions by the opponents have not been filed though the application has been adjourned many times.
20. The averments and assertions made in the opponents' affidavit and the documents annexed thereto have remained undisputed and uncontroverted.
21. From the reply affidavit and the documents annexed thereto it emerges that the Darkhast Application was filed on 15th October, 2007 and along with the Darkhast, a copy of the judgment and order dated 24.08.2007 was also produced at Exh:4.
22. After the presentation of the Darkhast Application along with the copy of the judgment and order dated 24.08.2007, the learned Civil Court had issued notice to all the parties (including present applicants) on 17th October, 2007 and the notice was made returnable on 17th November, 2007.
23. The notice issued by the learned Trial Court was served by the bailiff on the applicants on 16th November, 2007. From the said documents, it also transpires that the applicants also entered appearance through advocate/s in the Darkhast Application.
24. It follows from the said events that the applicants have not disclosed the details about the Darkhast and that after service of the process, appearance was entered into on the record of the Darkhast on their behalf. Thus, The averments and submissions made by the applicants claiming that they had no knowledge is incorrect and misleading besides being hit by vice of suppression. The application is preferred on incorrect averments and the submissions of the applicants are not true and they are unjustified. They are not justified in claiming that until 20th January, 2009, they were not aware about the order dated 24.08.2007. The factual backdrop and the documents annexed to the affidavit demonstrate that the application lacks bonafides and is made on the basis of averments which are untrue. The applicants have not come with clean hands.
25. In light of the said reply affidavit and its contents and the annexed documents, the main reason and the platform on which the application is built (viz. that the applicants had no knowledge about the order dated 24.08.2007 passed in First Appeal) falls to the ground and does not survive and cannot be accepted or entertained and when the said ground is lost, any other reason would pale into insignificance.
26. The applicants have sought the relief by not disclosing relevant fact. The applicant suffers from vice of suggestio falsi and suppressio veri.
27. In view of the facts noted and discussed above, it is relevant to take into account the observations of the Hon'ble Apex Court in the case between Pundlik Jalam Patil (D) by Lrs. v. Exe. Eng. Jalgaon Medium Project & another (JT 2008 (11) SC 596) wherein the Hon'ble Apex Court has observed that :
In our considered opinion incorrect statement made in the application seeking condonation of delay itself is sufficient to reject the application without any further inquiry as to whether the averments made in the application reveal sufficient cause to condone the delay. That a party taking a false stand to get rid of the bar of limitation should not be encouraged to get any premium on the falsehood on his part by condoning delay.
28. The result is that the applicants have also failed to satisfy the Court that they were not negligent in preferring the application and/or they have failed to establish that they were prevented by such reason and circumstances, which were not in their control.
29. The applicants have also failed to tender any satisfactory explanation in support of the request to condone delay. The applicants have failed to make out sufficient cause to condone delay of 725 days in filing review application. Actually the so-called explanation in the application is based on untrue averments which are contrary to records. Thus, the applicants have failed to make out any case in support of the request to condone such inordinate delay of 725 days caused in preferring the application.
30. The applicants have suppressed from the Court the fact, which in view of the nature of case is relevant and materially about filing of Darkhast Application and the service of process of Court in Darkhast Proceeding and that appearance on behalf of the applicants was entered. In this background, the Court cannot ignore the contention and objection of the opponents.
31. The applicants have failed to make out sufficient cause to condone delay. The reason or explanation given by the applicants in support of the request is contrary to the record and therefore, cannot be accepted. The application, therefore, fails and the same is rejected.
32. It deserves to be mentioned that before the dictation could be completed, the learned Senior Counsel instructed by the learned advocate Ms.Bhrahambhatt who appeared and argued the application on behalf the applicants, appeared and requested that another round/opportunity may be granted to him to argue the matter. Such request, after the matter was fully argued at length, to say the least, being improper, was not accepted. More so when the applicant's advocate was given sufficient opportunity to make her submission and the learned advocate had argued the applicant's case at length and only on her request (for time to make last effort to bring about the settlement) the Court had differed the order, even after she had earlier declared that the process of settlement had failed. The learned Senior Counsel requested for further time to make further/last effort to bring about the settlement. Only with a view affording opportunity to the parties to arrive at a settlement, the applicants were granted time and further dictation of the order was differed. However, it has become clear that there is no possibility that the settlement may materialize. Thus, the order cannot be differed further. Hence, it is further dictated and completed today.
(K.M. Thaker, J.) rakesh/ Top