Gujarat High Court
Dilipsinh Pravinsinh vs Suvidha Builders Thro' Administrator on 10 February, 2004
Author: C.K. Buch
Bench: C.K. Buch
JUDGMENT C.K. Buch, J.
1. This is an application under Sec.5 of Indian Limitation Act praying for condonation of delay caused in preferring an appeal against the order passed below application exh.5 passed by ld. Civil Judge (S.D.), Ahmedabad (Rural) dated 17.10.2001. The operative part of the order which the applicants intend to challenge is of prohibitory nature passed on merits and that too in absence of any objections to the application exh.5 preferred under O.39 R.1 & 2 of Civil Procedure Code (CPC for short). I would like to quote the operative part of the order for convenience :-
" This injunction application filed by the plffs vide exh.5 is now hereby stands as allowed hereon.
The defts are now hereby restrained to the effect that they should not cause any hinderance, obstacle, disturbance, interference, over the plffs. legal possession pertaining to the suit land, and they should not usurp the suit land from the plffs illegally and forcibly too, and they should not transfer, sell, mortgage, the suit to any other persons, in any manners till the final disposal of this suit with recourses to law,either personally or even through any of the agencies made available to them. No order as to costs."
2. The applicants are original defendant nos. 1 & 2 in the above-said civil suit and it is contended that delay of 526 days caused in preferring appeal for the reasons narrated in the application should be condoned. It is, inter alia, contended that they have already instituted one suit being Regular Civil Suit No.165/2000 for injunction in the Court of ld. Civil Judge (J.D.), Ahmedabad (Rural) wherein the ld. Judge has granted ad-interim injunction as applicants were apprehending the forcible dispossession of the land referred to in Special Civil Suit No.81/2001. The main ground canvassed by the applicants is that they came to know about the judgment and order passed below exh.5 only when it was pointed out by the other side while resisting the injunction application in RCS No.165/2000. It is averred that above-quoted prohibitory order dated 17.10.2001 came to be passed when their Advocate was not present and he remained absent during the course of hearing of the said application exh.5. It is further contended that even after passing of the impugned order, the applicants were not informed by their Advocate till the date on which they came to know about the order in the proceedings in RCS No.165/2000.
3. It has been argued by ld. Sr.Counsel Mr. Y.N.oza appearing for ld. counsel Mr.J.C.Vyas for the applicants that the applicants have asserted their civil rights in RCS No.165/2000 and still they want to assert the said right in resisting the suit as well as application exh.5 preferred by the contesting respondents, applicants should not be thrown out but for some negligence on the part of their Advocate. It is argued that cause pleaded for delay is sufficient cause and for the reasons beyond control which prevented the applicants in preferring the appeal in prescribed period of limitation, application for condonation of delay should be allowed. placing reliance on some decisions, it is contended that delay of even very long period can be condoned and, therefore, the present application should be allowed.
4. Mr. M.C.Bhatt, ld. Sr.Counsel appearing for ld. counsel Mr. A.G.Amin for the opponent no.1 and partners of Suvidha Builders has resisted the say of the applicants. Affidaviat-in-reply which is at page-27 of the application deals with the contentions of the application. It is not a matter of dispute that RCS No.165/2000 is instituted by the applicants by suppressing material fact that much prior to the institution of the suit, i.e before several years, the lands in question were sold by different documents and, therefore, the said application for injunction preferred in RCS No.165/2000 was resisted. The Commissioner's Report was also considered and ultimately after hearing the parties, ld. Civil Judge, vide order dated 20.6.2002, vacated the interim relief granted in the said proceedings.
5. The grievance expressed by the opponent in this application is that the very order was challenged by way of appeal and though it is alleged by the applicants that their counsel has not informed them regarding passing of the order by their Advocate Mr. K.B.Patel, no formal affidavit of ld. Advocate Shri K.B.Patel is filed in the present proceedings. It is the say of the opponent that the applicants are in the habit of making false allegations against advocate and this Court, according to ld. Sr.Counsel Mr. Bhatt, should not believe the bare words of the applicants that three advocates in two different matters appearing for them did not inform them regarding passing of the order by the trial Court. It is pertinent to note that even in Spl.CS No.81/2001, the present applicants have not filed their written statement nor raised any objections against the said application exh.5. Even on the date of filing of the reply affidavit in the present application, the written statements were not taken on record by the ld. trial Judge. It is argued by ld. Sr.Counsel Mr. Bhatt that applicants have lost their interest in the suit land and now they are attempting to exploit the situation when opponents Builder and occupants of the Co.Op.Housing Society have initiated the construction activities on the suit land. It is specifically stated in the reply affidavit that right to file written statement so far as original defendant no.2 is concerned, was closed on 27.8.2001 and on 7.9.2001, the trial Court decided to proceed ex-parte against other defendants. Even for two consecutive dates i.e. 12.9.2001 and 29.9.2001 trial Court did not hear the application for injunction, who lastly considering the merits of the case of the plaintiff (present opponent) passed the impugned order dated 17.10.2001.
6. No sufficient cause is either pleaded nor satisfactorily established by the applicants. Mere allegations made against Advocate Mr. Patel representing the applicants in the trial Court in RCS No.165/2000 and Advocate appeared for defendant no.2 in Spl.CS No.81/2001, are found baseless. Their ignorance about the order dated 17.10.2001 should have been established by the applicants in a convincing manner. Copy of the delay condonation application filed in Civil Misc. Application No.37/2003 in the Court of ld. District Judge, Ahmedabad (Rural) is materially inconsistent with the stand taken by the applicants in the present application for condonation of delay. It seems that this application is moved only with a view to put the formal resistance by Suvidha Builders (original plaintiff nos. 1 to 3 and 5 to 8 of Spl.CS No.81/2001) and other appellants challenging the decision below exh.30 preferred by the present applicants.
7. It is true that approach of the Court while dealing with the application preferred under Sec.5 of the Limitation Act should be pragmatic and liberal and nobody should be thrown out of litigation,when one has fairly arguable case, on technical ground like point of limitation, but this principle on facts is not found applicable in the present case.
8. In view of above, there is no merits in this application and relief to condone delay of 526 days in preferring the appeal from order is hereby rejected. Application, therefore, is dismissed. Rule is discharged. No costs. Registration of A.O. is refused.