Gujarat High Court
Ashokbhai Ukabhai Molaviya vs Chandrakant Mancharam Patel on 20 September, 2023
NEUTRAL CITATION
C/SCA/20518/2017 JUDGMENT DATED: 20/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 20518 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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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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ASHOKBHAI UKABHAI MOLAVIYA
Versus
CHANDRAKANT MANCHARAM PATEL & 21 other(s)
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Appearance:
MR SHITAL PATEL, ADVOCATE for MR. KISHAN H DAIYA(6929) for the
Petitioner(s) No. 1
NILESH S PIPALIYA(7050) for the Petitioner(s) No. 1
for the Respondent(s) No. 10,11,12,15,16,17,18,19,20,22,9
DECEASED LITIGANT for the Respondent(s) No. 14
DHRUVIN P BHUPTANI(8295) for the Respondent(s) No. 21
MR ABHISHEK M MEHTA(3469) for the Respondent(s) No.
1,2,3.1,3.2,3.4,3.5,3.6,5,6,7,8
MR. JAY M THAKKAR(6677) for the Respondent(s) No. 21
MR.VISHVESHKUMAR H PANDYA(10227) for the Respondent(s) No.
10,11,12,13,15,16,17,18,19,20,22,9
RULE SERVED for the Respondent(s) No. 3.3,4
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 20/09/2023
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NEUTRAL CITATION
C/SCA/20518/2017 JUDGMENT DATED: 20/09/2023
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ORAL JUDGMENT
1. Present petition is filed by the petitioner challenging order dated 2.8.2016 passed by the learned 18 th Addl. Senior Civil Judge, Surat below Exh.1 in Special Civil Suit No.259 of 2002.
2. Briefly stated facts are that the petitioner has filed Regular Civil Suit No.259 of 2002 before the learned Civil Court at Surat for the relief of specific performance, declaration and cancellation of sale deed on the basis of kabja receipt dated 16.2.1990 said to have been issued regarding land of revenue survey No.50, block No.81 admeasuring 4-69-45 h-a-sm at village Jahangirpura, Dist: Surat.
3. The injunction application was rejected on 22.8.2006. The issues were framed vide Exh.78 on 30.9.2015. Since no one for the plaintiff remained present for proceeding into the suit, on 2.8.2016, the learned 18th Addl. Senior Civil Judge, Surat dismissed the suit for want of prosecution under Order 17 Rule 2 r/w Order 9 Rule 3 of the CPC.
4. The petitioner has filed CMA No.111 of 2016 for seeking relief of restoration of the suit. The learned trial Court after hearing both the sides, passed order below Exh.1 on 11.9.2017 and dismissed the restoration application, which has given rise to the present petition.
5. Heard learned advocates for the respective parties.
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6. Learned advocate Mr. Shital Patel for learned advocate Mr. Kishan Daiya for the petitioner referring to the judgment of the Hon'ble Apex Court in case of Sesh Nath Singh and another Vs. Baidyabati Sheoraphuli Cooperative Bank Ltd and another reported in (2021) 7 SCC 313 would submit that section 5 of the Limitation Act does not speak of any application. The section enables the Court to admit an application or appeal if the applicant or the appellant, as the case may be, satisfies the Court that he had sufficient cause for not making the application within the time prescribed. He would further submit that in the present case, the learned trial court has taken hyper technical approach. He has further submitted that in the restoration application, sufficient averments are made by the petitioner to show that why delay has been caused in preferring restoration application. He would further submit that filing of delay condonation application is just formality and it is not mandatory. He would further submit that there is only three days delay in preferring the restoration application. The learned trial court was required to take the liberal and justice oriented approach while deciding the restoration application. He would further submit that the learned trial court has totally missed to read the provisions of law. Learned advocate for the petitioner has relied upon para 61 and 62 of the judgment in case of Sesh Nath Singh (supra), which are extracted herein below:-
"61. Section 5 of the Limitation Act, 1963 does not speak of any application. The section enables the court to admit an application or appeal if the applicant or the appellant, as the case may be, satisfies the court that he had sufficient cause for not making the application and/or preferring the appeal, within the time prescribed. Although, it is the general practice to make Page 3 of 9 Downloaded on : Mon Sep 25 20:35:03 IST 2023 NEUTRAL CITATION C/SCA/20518/2017 JUDGMENT DATED: 20/09/2023 undefined a formal application under Section 5 of the Limitation Act, 1963, in order to enable the court or tribunal to weigh the sufficiency of the cause for the inability of the appellant applicant to approach the court/tribunal within the time prescribed by limitation, 14 there is no bar to exercise by the court/tribunal of its discretion to condone delay, in the absence of a formal application.
62. A plain reading of Section 5 of the Limitation Act makes it amply clear that, it is not mandatory to file an application in writing before relief can be granted under the said section. Had such an application been mandatory, Section 5 of the Limitation Act would have expressly provided so. Section 5 would then have read that the court might condone delay beyond the time prescribed by limitation for filing an application or appeal, if on consideration of the application of the appellant or the applicant, as the case may be, for condonation of delay, the court is satisfied that the appellant applicant had sufficient cause for not preferring the appeal or making the application within such period. Alternatively, a proviso or an Explanation would have been added to Section 5, requiring the appellant or the applicant, as the case may be, to make an application for condonation of delay. However, the court can always insist that an application or an affidavit showing cause for the delay be filed. No applicant or appellant can claim condonation of delay under Section 5 of the Limitation Act as of right, without making an application."
7. Upon such submission, learned advocate for the petitioner would submit to allow this petition by taking liberal approach.
8. On the other hand. learned advocate Mr. Hemang Parikh for learned advocate Mr. VH Pandya for respondent Nos.9 to 13, 15 to 20 and 22 raised contention that while dismissing the restoration application, the learned trial Court has given the Page 4 of 9 Downloaded on : Mon Sep 25 20:35:03 IST 2023 NEUTRAL CITATION C/SCA/20518/2017 JUDGMENT DATED: 20/09/2023 undefined reason that the restoration application was not filed within stipulated time period and the petitioner has not moved an application for condonation of delay and that reason has weighed the learned trial Court to dismiss the petition.
9. Learned advocate Mr. Hemang Parikh, referring to the judgment of the Hon'ble Apex Court in case of Ragho Singh Vs. Mohan Singh and others reported in (2001) 9 SCC 717 would submit that when the application for restoration is filed beyond the stipulated time period, without filing application for condonation of delay, restoration application was required to be rejected, which rightly has been rejected by the learned trial court. Learned advocate for the respondents has placed reliance upon para 6 of the judgment in case of Ragho Singh (supra), which reads as under:-
"6. We have heard learned counsel for the parties. Since it is not disputed that the appeal filed before the Additional Collector was beyond time by 10 days and an application under Section 5 of the Limitation Act was not filed for condonation of delay, there was no jurisdiction in the Additional Collector to allow that appeal. The appeal was liable to be dismissed on the ground of limitation. The Board of Revenue before which the question of limitation was agitated was of the view that though an application for condonation of delay was not filed, the delay shall be deemed to have been condoned. This is patently erroneous. In this situation, the High Court was right in setting aside the judgment of the Additional Collector as also of the Board of Revenue. We find no infirmity in the impugned judgment. The appeal is dismissed. No costs."
10. Learned advocate Mr. Parikh also relied upon the judgment Page 5 of 9 Downloaded on : Mon Sep 25 20:35:03 IST 2023 NEUTRAL CITATION C/SCA/20518/2017 JUDGMENT DATED: 20/09/2023 undefined in case of Kalpeshbhai Natwarlal Patel Vs. State of Gujarat and others reported in 2009(3) GLH 372, more particularly, para 12 for the purpose of arguing that in absence of application for condonation of delay, the learned trial Court cannot condone the delay only on the ground of meager delay. Para 12 of the judgment reads as under:-
"12. The law is well settled that in case where a statutory time limit is prescribed for initiating 15 remedial action, the aggrieved person is bound by the said time schedule and in the event the remedy is invoked beyond the statutory period of limitation. the Authority cannot entertain the proceeding on merits before first recording a decision as to whether the delay which has occasioned in instituting the proceeding has been explained or not. In the facts of the present case, in absence of any such decision by the Deputy Collector, the order dated 23.10.2003 is bad in law 20 having been made without jurisdiction to entertain the Appeal on merits."
11. Referring to Article 122 of the Limitation Act, learned advocate for the respondents would submit that limitation for filing the restoration application is 30 days and in the present case, there is delay on the part of the petitioner to file the restoration application. He has not filed the restoration application within the stipulated time period and further the petitioner has not filed delay condonation application and therefore the petition deserves no consideration and is required to be rejected.
12. Upon such submission, learned advocate for the respondents would submit to dismiss this petition.
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13. What undisputed fact emerges from the record is that the petitioner plaintiff did not remain present before the learned trial court for proceeding further in the suit. The issues were framed on 30.9.2015 and the learned trial court dismissed the suit for want of prosecution almost after one year of framing of the issues. The learned trial court has exercised the power under Order 17 Rule 2 read with Order 9 Rule 3 of the CPC for dismissing the suit for want of prosecution.
14. The suit was dismissed on 2.8.2016. Admittedly, the petitioner has asked for the certified copy of the order passed below Exh.1 of the suit on 30.8.2016 and the petitioner has received certified copy of the order on 1.9.2016. The petitioner has filed a restoration application on 6.9.2016. Thus, restoration application was filed beyond the stipulated time period of 30 days. It is an admitted position that the petitioner has not filed application for condonation of delay, but straightway has filed the application for restoration of the suit. To get away from the situation, learned advocate for the petitioner has relied upon the judgment of Sesh Nath Singh (supra) to argue that the petitioner is not required to file application for condonation of delay. The judgment of Sesh Nath Singh (supra) operates on different facts. In that case, in para 55, the Hon'ble Apex Court has framed issues involved in the appeal which reads as under:-
"55.1. (i) Whether delay beyond three years in filing an application under Section 7 IBC can be condoned, in the absence of an application for condonation of delay made by the applicant under Section 5 of the Limitation Act, 1963?
55.2. (ii) Whether Section 14 of the Limitation Act, 1963 Page 7 of 9 Downloaded on : Mon Sep 25 20:35:03 IST 2023 NEUTRAL CITATION C/SCA/20518/2017 JUDGMENT DATED: 20/09/2023 undefined applies to applications under Section 7 IBC? If so, is the exclusion of time under Section 14 is available, only after the proceedings before the wrong forum terminate?"
15. So it was the issue before the Hon'ble Apex Court that whether delay beyond three years in filing application under section 7 of the Insolevency and Bankruptcy Code, 2016 can be condoned in absence of the application for condonation of delay and whether section 14 of the Limitation Act applies to application under section 7 of the IBC, and if so, the exclusion of time under section 14 is available only after the proceedings before the wrong forum terminate.
16. On reading, para 61 and 62 of the said judgment, it appears that whether to condone the delay or not is the discretion of the court. The Hon'ble Apex Court has also observed that the court can always insist that an application or affidavit showing cause for the delay be filed. It is also held by the Hon'ble Apex Court that no applicant or appellant can claim condonation of delay as of right without making any application. Thus, the ratio on this aspect is very much clear.
17. In case of Ragho Singh (supra), the Hon'ble Apex Court has clearly held that in absence of application for condonation of delay, no condonation can be made. Same ratio has been settled in case of Kalpeshbhai Natwarlal Patel (supra).
18. In the present case, on perusal of the restoration application, it appears that delay eminently exposes therefrom that the restoration application is not filed within the stipulated Page 8 of 9 Downloaded on : Mon Sep 25 20:35:03 IST 2023 NEUTRAL CITATION C/SCA/20518/2017 JUDGMENT DATED: 20/09/2023 undefined time period. Of course, the delay is of meager days, but there is delay. The petitioner has not filed any application for seeking relief of condonation of delay. No reason has been assigned by the petitioner for not filing the application for condonation of delay. As settled by the Hon'ble Apex Court, it is not the right of the party to seek that condonation of delay as right without making any application.
19. Under the circumstances, the petitioner has failed to make out the case to exercise supervisory jurisdiction under Article 227 of the Constitution of India. Reliance has been placed upon the observations made by the Hon'ble Apex Court in para 15 and 16 in case of Garment Crafts Vs. Prakash Chand Goel reported in (2022) 4 SCC 181. Thus, the petition sans merit and it is accordingly dismissed. Rule discharged. Interim relief, if any, stands vacated forthwith.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 9 of 9 Downloaded on : Mon Sep 25 20:35:03 IST 2023