Gujarat High Court
Shri Ashkokumar Mahipatbhai Shah vs Shri Bharatkumar Jayantilal Shah on 24 November, 2021
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/CRA/460/2021 JUDGMENT DATED: 24/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 460 of 2021
With
R/CIVIL REVISION APPLICATION NO. 461 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SHRI ASHKOKUMAR MAHIPATBHAI SHAH
Versus
SHRI BHARATKUMAR JAYANTILAL SHAH
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Appearance:
CIVIL REVISION APPLICATION NO.460 OF 2021
MR MIHIR THAKORE, SENIOR ADVOCATE WITH MR JAIMIN R DAVE AND
MR RUTVIJ S OZA for the Applicants
MR HM PARIKH, SENIOR ADVOCATE WITH MR RASESH PARIKH for the
Opponents
CIVIL REVISION APPLICATION NO.461 OF 2021
MR MEHUL S SHAH, SENIOR ADVOCATE WITH RUTVIJ S OZA AND MR
UMANG R VYAS for the Applicants
MR HM PARIKH, SENIOR ADVOCATE WITH MR RASESH PARIKH for the
Opponents
==========================================================
CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 24/11/2021
COMMON ORAL JUDGMENT
1. As the issue involved in both these Civil Revision Applications is identical, learned advocates appearing for the parties jointly requested that both Page 1 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 these Civil Applications be heard together. Looking to the issue involved in the matters and with the consent of the learned Senior Counsel appearing for the parties, the same are taken up for final disposal.
2. Rule. Learned advocate Mr.Rasesh Parikh waives service of notice of Rule for the respondents.
3. Both these Civil Revision Applications are filed under Section 115 of the Code of Civil Procedure, 1908 ('CPC' for short) against the judgment and order dated 22.10.2021 passed by the concerned District Court in Civil Misc. Application Nos.23 of 2019 and 24 of 2019 filed by the present applicants under Sections 5 and 14 of the Limitation Act, 1963 ("the Act of 1963" for short).
4. For the sake of brevity and convenience and as an identical issue is involved in both the Civil Revision Applications, the facts of Civil Revision Application No.460 of 2021 are considered, which are as follows:
4.1 It is the case of the applicants that the respondents issued a Public Notice dated 11.08.2010 in the concerned newspaper and illegally claimed that applicant No.5, a Partnership Firm has been dissolved. Applicant Nos.1 to 4 thereafter issued Public Notice dated 11.09.2010 clarifying that applicant No.5 Partnership Firm has not been Page 2 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 dissolved and the same is reconstituted whereby the respondents are ceased to be the partners of the said Firm. Thereafter, the respondents filed Civil Misc.
Application No.55 of 2010 before the District Court under Section 9 of the Arbitration and Conciliation Act, 1996 ("the Act of 1996" for short). In the said application, the applicants prayed for appointment of Receiver and restraining applicant Nos.1 to 4 from alienating assets of applicant No.5 Partnership Firm. However, the said application was thereafter withdrawn.
4.2 It is stated that thereafter the respondents instituted Civil Suit No.110 of 2011 before the City Civil Court, Ahmedabad for declaration and permanent injunction against applicant Nos.1 to 4 herein from using assets of applicant No.5 Partnership Firm for their personal use and also claimed share in profits of new Partnership Firm. It is also stated that applicant Nos.1 to 4 herein filed an application under Section 8 of the Act of 1996 for referring the dispute to the Arbitrator as Partnership Deed contains an arbitration clause. The respondents herein who were the original plaintiffs of the said suit opposed the application filed under Section 8 of the Act of 1996. The said application was rejected. It is stated that from the said conduct of the present respondents, it can be said that the present respondents have waived their rights under the arbitration clause in the Partnership Deed. Despite the said fact, the respondents herein invoked an Page 3 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 arbitration clause and filed an application under Section 11 of the Act of 1996 before this Court for appointment of Arbitrator being IAAP No.50 of 2010. It is stated that the present applicants opposed the said application. However, this Court vide order dated 29.04.2011 appointed an Arbitrator for adjudication of the disputes between the parties.
4.3 It is further stated that after the appointment of the Arbitrator, the applicants under wrong advice of their Advocate never appeared before the learned Arbitrator. Learned Arbitrator passed preliminary award dated 27.09.2012 and held that Arbitrator has jurisdiction to adjudicate the dispute between the parties and, therefore, after proceedings were conducted ex-parte, final awards dated 03.02.2013 came to be passed by the learned Arbitrator against the applicants.
4.4 At this stage, it is stated that the applicants thereafter filed an application under Section 34 of the Act of 1996 before the Additional Senior Civil Judge, Surendranagar. The said application was erroneously titled as Civil Suit instead of Misc. Civil Application. At this stage, it is stated that again, this was done under a patently wrong advice of the concerned Advocate. It is further stated that the present respondents - original defendants filed an application under Order VII Rule 11 of CPC for rejection of the plaint on the ground that Additional Senior Civil Judge has no jurisdiction to adjudicate Page 4 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 the application under Section 34 of the Act of 1996. It was contended in the said application that the Civil Suit is not maintainable. The said application filed by the respondents under Order VII Rule 11 of CPC was allowed vide order dated 15.02.2014.
4.5 Thereafter, the applicants sought for the opinion of the various Advocates as their Advocate on record was in judicial custody at the relevant point of time. However, in the meantime, Advocate on record in the said proceedings was released from judicial custody and the applicants, therefore, had sought his opinion in the matter. The concerned Advocate gave an opinion that the order dated 15.02.2014 passed by the concerned Civil Court is not required to be challenged as the award passed by the learned Arbitrator is nullity.
4.6 Thereafter, the applicants started receiving notices of Execution Petition filed by the respondents and, therefore, they once again approached concerned Advocate on record. Once again, the said Advocate gave wrong advice that the applicants can file an application under Section 34 of the Act of 1996 instead of preferring an appeal against the order dated 15.02.2014. Therefore, the applicants filed Misc. Civil Application No.3 of 2016 before the Additional Senior Civil Judge, Surendranagar, under Section 34 of the Act of 1996. Thereafter, the said application was transferred to Commercial Court, Rajkot, in view of enactment of Page 5 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 Commercial Courts Act, 2015 and during the course of the proceedings before the Commercial Court, an application being Commercial Civil Misc. Application No.2 of 2016 was filed. The applicants were pursuing the said application under bonafide manner. At this stage, it is also stated that thereafter, the applicants changed their Advocate in January, 2017 and new Advocate also gave advice to the applicants to pursue second application under Section 34 of the Act of 1996 instead of challenging the order passed by the Civil Court on 15.02.2014.
4.7 The concerned Advocate of the High Court gave opinion that the applicants have to challenge the order dated 15.02.2014 passed in Civil Suit No.23 of 2013 whereby the application under Order VII Rule 11 of CPC was rejected. The applicants, therefore, filed Special Civil Application No.5508 of 2019 before this Court challenging the order dated 15.02.2014 passed by the concerned Civil Court at Exh.13 in Civil Suit No.23 of 2013. It is stated that the applicants sought permission to withdraw the said petition with a liberty to file an appeal and this Court passed an order on 15.04.2019 permitting withdrawal of the said petition with such liberty. Thereafter, the applicants filed withdrawal purshish dated 16.04.2019 at Exh.61 in the proceedings being Commercial Civil Misc. Application No.2 of 2016 and the said application came to be withdrawn.
4.8 It is further stated that thereafter, the Page 6 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 applicants preferred an appeal before the District Court challenging the order dated 15.02.2014 passed by the Civil Court whereby the application filed under Order VII Rule 11 of CPC by the present respondents came to be allowed. However, there was a delay in filing the said appeal and, therefore, the applicants preferred an application under Sections 5 and 14 of the Act of 1963 being Civil Misc. Application No.23 of 2019. The District Court, Surendranagar, vide order dated 22.10.2021 dismissed the said application and, therefore, the present Revision Applications has been filed by the applicants.
5. Heard learned Senior Advocate Mr.Mihir Thakore assisted by learned advocates Mr.Jaimin R. Dave and Mr.Rutvij S. Oza for the applicants in Civil Revision Application No.460 of 2021, learned Senior Advocate Mr.Mehul S. Shah assisted by learned advocates Mr.Rutvij S. Oza and Mr.Umang R. Vyas for the applicants in Civil Revision Application Nos.461 of 2021 and learned Senior Advocate Mr.H.M. Parikh assisted by learned advocate Mr.Rasesh Parikh for the respondents in both the Civil Revision Applications.
6. Learned Senior Advocates Mr.Mihir Thakore and Mr.Mehul S. Shah appearing for the applicants mainly contended that the respondents herein once waived their right under the arbitration clause, it was not open for them to file an application under Section 11 of the Act of 1996 for appointment of Arbitrator and, Page 7 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 therefore, the award passed by the learned Arbitrator is nullity. It is further submitted that award passed by the learned Arbitrator was an ex-parte award and the applicants did not appear before the learned Arbitrator because of the wrong advice given by the concerned Advocate. It is further submitted that the applicants filed an application under Section 34 of the Act of 1996 before the concerned Additional Senior Civil Judge by filing a Civil Suit. It is submitted that once again, a wrong advice was given by their Advocate that Civil Suit can be filed before the Civil Court. It is submitted that the concerned Civil Court wrongly allowed the application filed by the present respondents - defendants on the ground that the Civil Court has no jurisdiction to deal with the disputes between the parties. Learned Senior Counsel submitted that the concerned Civil Court ought to have returned the plaint for presentation of the same before the concerned competent Court having jurisdiction.
6.1 Learned Senior Counsel would further contend that once again the Advocate for the applicants gave wrong advice that the order dated 15.02.2014 passed by the concerned Civil Court is not required to be challenged before the higher forum. It is submitted that the applicants had sought opinion of different Advocates as the concerned Advocate on record was at the relevant point of time in judicial custody. However, when the said Advocate was released on bail, the applicants have once again sought his advice and Page 8 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 as per his advice, fresh application under Section 34 of the Act of 1996 was filed. Thus, it is contended that the applicants were bonafidely pursuing the remedy before the wrong forum under the advice given by their Advocate. Learned Senior Counsel at this stage submitted that now, the applicants have challenged the order dated 15.02.2014 by filing First Appeal before the District Court and there was a delay in filing the appeal. Therefore, the applicants filed application under Sections 5 and 14 of the Act of 1963 for condonation of delay. The said application is rejected by the concerned District Court by the impugned order dated 22.10.2021.
6.2 Learned Senior Counsel have referred the provisions contained in Sections 5 and 14 of the Act of 1963, which read as below:
"Section 5 - Extension of prescribed period in certain cases. -- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.
Explanation.-- The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section."
"Section 14. Exclusion of time of proceeding bona fide in court without jurisdiction. --Page 9 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022
C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature. Explanation.-- For the purposes of this section,-
(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;Page 10 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022
C/CRA/460/2021 JUDGMENT DATED: 24/11/2021
(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction."
6.3 Learned Senior Counsel placed reliance upon the following decisions in support of their contention that when the applicants were pursuing their remedy bonafide under the wrong advice given by their Advocate before the wrong forum, the concerned District Court ought to have condoned the delay in filing the First Appeal.
(1) Concord of India Insurance Co. Ltd. Vs. Nirmala Devi and Ors. reported in AIR 1979 SC 1666 (2) The Punjabi University and Ors. Vs. Acharya Swami Ganesh and ors reported in (1973) 3 SCC 800 (3) N. Balakrishnan Vs. M. Krishnamurthy reported in AIR 1998 SC 3222 (4) Order dated 04.02.2019 passed by this Court in Civil Application No.1 of 2018 in F/Appeal From Order No.32594 of 2018 (5) J. Kumaradasan Nair and another Vs. IRIC Sohan and others reported in (2009) 12 SCC 175 (6) Union of India and others Vs. West Coast Paper Mills Ltd. and another reported in (2004) Page 11 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 3 SCC 458 (7) Consolidated Engg. Enterprises and Ors. Vs. Principal Secy. Irrigation Deptt. and Ors. reported in (2008) 7 SCC 169 6.3 It is, therefore, urged that the present Civil Revision Applications be allowed and the impugned judgment and order be quashed and set aside.
7. On the other hand, learned Senior Advocate Mr.H.M. Parikh appearing for the respondents has opposed these applications. Learned Senior Advocate has firstly contended that the present Civil Revision Applications are not maintainable as the concerned District Court has rejected the application filed under Sections 5 and 14 of the Act of 1963 by the applicants and, thereby, the proceedings of the First Appeal are also terminated. On the ground of maintainability, learned Senior Advocate has placed reliance upon a decision rendered by the Hon'ble Supreme Court in the case of Shyam sundar Sarma Vs. Pannalal Jaiswal and others reported in (2005) 1 SCC
436. 7.1 Learned Senior Advocate referred the separate Paper-Book as well as the documents placed on record and, thereafter, pointed out about the conduct of the present applicants. It is submitted that the applicants have not challenged the order dated 29.04.2011 passed by this Court whereby this Court Page 12 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 has appointed an Arbitrator for adjudication of the disputes between the parties. It is further pointed out that the applicants did not appear before the learned Arbitrator during the arbitration proceedings and only sent letters challenging the jurisdiction of the Arbitrator. Therefore, the learned Arbitrator was not having any option but to proceed with the matter ex-parte. It is further submitted that the present applicants also filed criminal complaint against the learned Arbitrator which shows the conduct of the present applicants. It is further submitted that the applicants, thereafter, filed Civil Suit No.23 of 2013 before the concerned Civil Court in which the present respondents filed an application under Order VII Rule 11 of CPC for rejection of plaint on the ground that the Additional Senior Civil Judge has no jurisdiction to adjudicate the application under Section 34 of the Act of 1996. Though the concerned Civil Court allowed the said application and rejected the plaint vide order dated 15.02.2014, the present applicants did not challenge the said order by filing the First Appeal at the relevant point of time. It is submitted at this stage that the respondents thereafter filed Execution Petition No.8 of 2014 on 21.02.2014 and notices issued by the concerned Court were duly served to the present applicants. In spite of that, the applicants did not challenge the order dated 15.02.2014. Once again, the applicants filed a fresh application under Section 34 of the Act of 1996 before the Additional Senior Civil Judge, Surendranagar, which was subsequently transferred to Page 13 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 the Commercial Court. It is also pointed out that even the applicants changed their Advocate in the year 2017. In spite of that, the applicants were pursuing fresh application filed under Section 34 of the Act of 1996 before the concerned forum. It is also contended that thereafter, in the year 2019, the applicants surprisingly challenged the order dated 15.02.2014 by filing Special Civil Application before this Court which was also not maintainable. The said petition was thereafter withdrawn and the applicants thereafter preferred First Appeal before the District Court.
7.2 Learned Senior Advocate Mr.Parikh therefore submits that looking to the facts and circumstances of the present case, it is clear that the applicants were not pursuing remedy bonafide and intentionally they have tried to delay the execution proceedings which are filed by the present respondents.
7.3 Learned Senior Advocate has placed reliance upon the following decisions of the Hon'ble Supreme Court.
(1) Haryana State Cooperative Labour and Construction Federation Limited Vs. Unique Cooperative Labour and Construction Cooperative Society Limited and another reported in (2018) 14 SCC 248 (2) Government of Maharashtra (Water Resources Department) Represented by Executive Engineer Page 14 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 Vs. Borse Brothers Engineers and Contractors Private Limited reported in (2021) 6 SCC 460 7.4 Learned Senior Advocate, therefore, urged that both these Civil Revision Applications be dismissed.
8. Having heard learned advocates appearing for the parties and having gone through the material placed on record including separate Paper-Book supplied by the learned advocates, it would emerge that this Court passed an order on 29.04.2011 in IAAP No.50 of 2010 filed by the present respondents under Section 11 of the Act of 1996 whereby Arbitrator was appointed for adjudication of the disputes between the parties. It is not in dispute that the present applicants have not challenged the said order. It is revealed that the applicants did not appear before the learned Arbitrator during the arbitration proceedings. The applicants wrote various letters to the learned Arbitrator and opposed jurisdiction of the learned Arbitrator. Thereafter, the learned Arbitrator passed preliminary award dated 27.09.2012 and held that he has jurisdiction to adjudicate the disputes between the parties. The said order was also not challenged before any forum by the present applicants. Thereafter, the applicants did not appear during the arbitration proceedings and, therefore, final award came to be passed against the applicants. Thereafter, the applicants challenged the award by filing Civil Suit No.23 of 2013 before the Additional Senior Civil Judge, Surendranagar. The present Page 15 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 respondents filed an application under Order VII Rule 11 of CPC for rejection of plaint on the ground that the concerned Civil Court has no jurisdiction to adjudicate the application under Section 34 of the Act of 1996, that too, by way of Civil Suit. It is further revealed that on 15.02.2014, the concerned Civil Court allowed the said application and thereby rejected the plaint. It is not in dispute that the said order is now challenged by filing First Appeal before the District Court only in the year 2019. In the meantime, the applicants once again filed fresh application under Section 34 of the Act of 1996 before the concerned Civil Court which was transferred to the Commercial Court. Such proceedings were initiated in the year 2016 only. It also transpires from the record that initially, the applicants filed Special Civil Application before this Court challenging the order dated 15.02.2014 passed by the concerned Civil Court below application Exh.13 filed under Order VII Rule 11 of CPC. It is also not in dispute that the said petition was not maintainable. In spite of that, the petition was filed before this Court which was subsequently withdrawn with a view to file First Appeal before the District Court.
9. If the aforesaid factual background of the case of the applicants is carefully examined, it is clear that the applicants were trying to delay the proceedings by filing different proceedings before the wrong forum. The contention raised by the learned Page 16 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 Senior Counsel appearing for the applicants that under the wrong legal advice given by their Advocate, they did not challenge the order dated 15.02.2014 by filing First Appeal. It is also the contention of the learned Senior Counsel for the applicants that the applicants were pursuing their remedy before the wrong forum bonafidely and, therefore, the concerned District Court ought to have condoned the delay by allowing application under Section 5 of the Act of 1963. At this stage, the decisions upon which reliance is placed by the learned Senior Counsel for the parties are required to be kept in view.
10. In the case of Concord of India Insurance Co. Ltd. Vs. Nirmala Devi and Ors. (supra), the Hon'ble Supreme Court has observed in Paragraphs-6 and 7 as under:
"6. We are not able to agree with this reasoning. A company relies on its Legal Adviser and the Manager's expertise is in company management and not in law. There is no particular reason why when a company or other person retains a lawyer to advise it or him on legal affairs reliance should not be placed on such counsel. Of course, if there is gross delay too patent even for layman or if there is incomprehensible indifference the shield of legal opinion may still be vulnerable. The correct legal position has been explained with reference to the Supreme Court decision in a judgment of one of us in AIR 1971 Ker. 211:
"The law is settled that mistake of counsel may in certain circumstances be taken into account in condoning delay although there Page 17 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 is no general proposition that mistake of counsel by itself is always a sufficient ground. It is always a question whether the mistake was bonafide or was merely a device to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an underhand way. The High Court unfortunately never considered the matter from this angle. If it had, it would have seen quite clearly that there was no attempt to avoid the Limitation Act but rather to follow it albeit on a wrong reading of the situation."
"The High Court took the view that Mr. Raizada being an Advocate of 34 years' standing could not possibly make the mistake in view of the clear provisions on the subject of appeals existing under Section 39(1) of the Punjab Courts Act and therefore, his advice to file the appeal before the District Court would not come to the rescue of the appellant under Section 5 of the Limitation Act. The Supreme Court upset this approach."
"I am of the view that legal advice given by the members of the legal profession may sometimes be wrong even as pronouncement on questions of law by courts are some times wrong. An amount of latitude is expected in such cases for, to err is human and lay men, as litigants are, may legitimately lean on expert counsel in legal as in other departments, without probing the professional competence of the advice. The court must of course, see whether in such cases there is any taint of mala fides or element of recklessness or ruse. If neither is present, legal advice honestly sought and actually given, must be treated as sufficient cause when an application under Section 5 the Limitation Act is being considered. The State has not acted improperly in relying on its legal advisers."Page 18 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022
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7. We have clarified the legal position regarding the propriety and reasonableness of companies and other persons relying upon legal opinion in the matter of computation of limitation since it is a problem which may arise frequently. If Legal Adviser's opinions are to be subjected by company managers to further legal scrutiny of their own, an impossible situation may arise. Indeed Government, a large litigant in this country, may find itself in difficulty. That is the reason why we have chosen to explain at this length the application of S. 5 vis-a-vis counsel's mistake."
11. In the case of The Punjabi University and Ors. Vs. Acharya Swami Ganesh and ors (supra), the Hon'ble Supreme Court has observed in Paragraph-3 as under:
3. The reasons given in support of the application under Section 5 of the Limitation Act are as follows : One Atma Ram was the counsel for the Punjabi University. He had been instructed by the Punjabi University, to file the appeal. A sum of Rs. 5000/-
had been paid to the Stamp vendor on February 1, 1971, itself for purchasing the necessary court fee stamps. Necessary court fee stamps had been purchased on February 2, 1971. According to Mr. Atma Ram, by some miscalculation he had noted in his brief that the last day for filing the appeal was February 11,1971. He had sent a telegram to the Registrar of the Punjabi University on February 9, 1971, informing him that he should come down immediately to Chandigarh as the appeal had to be filed by February 11, 1971. He had also informed him by telegram that the Government's sanction must be obtained by that date. The Registrar of the University went over to Chandigarh on February 10, 1971 and the appeal was filed on the same date. According to the appellants the delay in filing the appeal was due to the mistaken miscalculation made by Mr. Atma Ram. Mr. Atma Ram has filed an affidavit wherein he has stated that the appeal was filed two days after the period of limitation entirely because of his mistake. The learned Judges of the High Court have not disbelieved the version given by Mr. Atma Ram. On the other hand, they have opined that the Page 19 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 right to file the appeal was primarily that of the Punjab Government and the Punjab Government has not given sufficient reason for their delay in filing the appeal. It may be noted that the party which was essentially interested in filing the appeal was the Punjabi University. It had to pay the compensation for the lands acquired. Therefore, there was nothing surprising if the Government had left the matters in the hands of the Punjabi University. The Punjab Govt. was only fighting the case for the benefit of Punjabi University. The facts stated by Mr. Atmaram in his affidavit are highly probable and we see no reason to disbelieve the version given by him. If that version is believed, are we do, then it affords a good ground for condoning the delay in filing the appeal. It is true that Mr. Atma Ram committed a mistake in his calculation. But that is not the same thing as negligence. In matters of calculation it is common knowledge that people do commit mistakes. They are bonafide mistakes and those mistakes have got to be taken note of by the courts in considering whether the delay in filing the appeal should be condoned or not. It has been repeatedly held by courts that a mistake by a lawyer is a good ground for condoning the delay in filing the appeal. Quite recently this very question came up for consideration by this Court in Civil Appeals Nos. 821-823 of 1968. Dealing with that question this Court observed :
It may be, that the State was not properly advised regarding the remedy to be adopted to challenge the judgment in the Land Acquisition Reference Cases. But, as pointed out by the Judicial Committee in Kunwar Rajendra Singh Vs. Rai Rajeshwar Bili and Ors, if a party had acted in a particular manner on a wrong advice given by his Legal Adviser, he cannot be held guilty of negligence so as to disentitle the party to plead sufficient cause under Section 5 of the Limitation Act. In fact the Judicial Committee observes as follows :
Mistaken advice given by a legal practitioner may in the circumstances of a particular case give rise to sufficient cause within the section though there is certainly no general doctrine which saves parties from the results of wrong advice.Page 20 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022
C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 The advice given by the lawyer to file applications under Article 227, in our opinion, is also a circumstance to be taken into account in considering whether the appellant has shown sufficient cause."
12. In the case of N. Balakrishnan Vs. M. Krishnamurthy (supra), the Hon'ble Supreme Court has observed in Paragraphs-8 to 13 as under:
"8. 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 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 want of acceptable explanation whereas in certain other cases delay of 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 reversional jurisdiction, unless the exercise of discretion was on whole untenable grounds or arbitrary or perverse. But it is a different matter when the first cut refuses to condone the Page 21 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 delay. In such cases, the superior cut 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 untrammeled 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. Time limit fixed for approaching the court in different situations in 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 right 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.
Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. 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 putt to litigation). Rules of limitation are not meant to destroy the right 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 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 Page 22 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749]. 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 delay the Could should not forget the opposite party altogether.
13. It must be borne in mind that he is a looser and he too would have incurred quiet a 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."
13. This Court in Civil Application No.1 of 2018 in F/Appeal from Order No.32594 of 2018, vide order dated 04.02.2019, has held in Paragraphs-4, 5, 9, 10 and 11 as under:
"4. So far as period of limitation is concerned, it is the case of the applicant that the applicant was bona-fide litigating in Misc.
Civil Appeal No.8 of 2010 with the
District Court until 08.10.2015 and
therefore, according to the learned counsel for the applicant, in view of section 14 of the Page 23 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 Limitation Act, the period expended by the applicant bona-fide litigating the remedy is required to be excluded and on its exclusion, it would not constitute the delay.
5. Post 08.10.2015, a period of 1023 days has been consumed by the applicant preferring the Appeal from Order captioned above. The learned counsel for the applicant has pointed out numerous litigations; both civil and criminal, which the applicant was facing in various Courts. One of the contentions sought to be raised in the proposed Appeal from Order, as submitted by the learned counsel for the applicant is that the applicant was a director of the company for a very short period and most of the litigations initiated against him were after he seized to be the director. That in the identical case, the similarly situated director was exonerated by the order dated 03.08.2006 passed by the Principal Senior Civil Judge, Gandevi, below Exh.54 in Civil Suit No.1 of 2002 by deleting the said person from the cause title of the suit. It is also pointed out by him that at the time of commission of the alleged offenses, the applicant was not the director of the company and under similar circumstances, defendant no.13 in the suit was discharged by the competent Court. It is pointed out that as many as 21 proceedings were initiated against the applicant by different banks and it is stated that for want of cause of action against him; being not a director of the company on the date of the cause of action pleaded in the said proceedings, he has been exonerated in most of the 21 cases. It is submitted that being entangled with the huge chunk of litigations, the applicant was under tremendous pressure and tension. Added to the said fact, he was not updated by his counsel in Civil Suit No.1 of 2002 the counsel was not keeping well. Eventually ex-parte decree was passed. It was submitted that as happened in numerous cases, the applicant also was hopeful in getting Page 24 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 exoneration in the case on hand and there was no malice on his part to protract the litigation.
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9. On consideration of the rival contentions, it would appear that the delay as pleaded by the applicant is a huge delay but considering the settled legal position that quantum of delay is not material but its explanation is material, this Court would not be swayed away by the quantum of delay. No authority on the point is needed but if one is required, a reference may be made to N. Balakrishnan (supra). It is also settled legal position that the Court would not presume the mala-fides or malice on the part of the litigant invoking the remedy with delay to his prejudice. No litigant, more particularly, the one who pleads a good case to succeed and who points out that in similar circumstances, he had succeeded in past, would deliberately allow the time to pass eventually adding to his vows and the responsibility to explain the delay which he could have been avoided by invoking the remedy within the period of limitation. Therefore, if mala-fides or malice is pleaded, it is for the one who pleads, to prove. What has been stated by the opponent is that the applicant was watching from the fence, the proceedings, and immediately on passing of the order, he moved an application to set aside the ex-parte decree. Nothing more is pointed out as to how such conduct of the applicant benefited him.
10. This Court does not find substance in the argument that the time would start running from 02.02.2010 in view of the clear provision in section 14 contemplating exclusion of the period spent by the litigant bona-fide litigating the remedy. Thus, the period upto 08.10.2015 would get statutorily excluded by; without necessitating the applicant to explain it.Page 25 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022
C/CRA/460/2021 JUDGMENT DATED: 24/11/2021
11. So far as delay post 08.10.2015 is concerned, as noticed above, the applicant has suceeded under similar circumstances in other cases principally on the ground that the cause of action did not exist against him since he was not the director on the date the cause of action pleaded against him and other persons. A person with such a fair chance of suceeding would not deliberately cause a delay. Therefore, his explanation that he was under tremendous pressure and tension and was facing several litigations and that his counsel did not inform him about the developments in the Misc. Appeal, is required to be accepted in absence of the evidence against him of his maliciously causing the delay."
14. In the case of J. Kumaradasan Nair and another Vs. IRIC Sohan and others (supra), the Hon'ble Supreme Court has observed in Paragraphs-15, 16, 18 and 20 as under:
"15. The question which arises for consideration is as to whether only because a mistake has been committed by or on behalf of the appellants in approaching the appropriate forum for ventilating their grievances, the same would mean that the provision of Sub-section (2) of Section 14 of the Limitation Act, which is otherwise available, should not be taken into consideration at all. The answer to the said question must be rendered in the negative. The provisions contained in Sections 5 and 14 of the Limitation Act are meant for grant of relief where a person has committed some mistake.
16. The provisions of Sections 5 and 14 of the Limitation Act alike should, thus, be applied in a broad-based manner. When Sub-section (2) of Section 14 of the Limitation Act per se is not Page 26 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 applicable, the same would not mean that the principles akin thereto would not be applied. Otherwise, the provisions of Section 5 of the Limitation Act would apply. There cannot be any doubt whatsoever that the same would be applicable to a case of this nature.
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18. It is also now a well-settled principle of law that mentioning of a wrong provision or non- mentioning of any provision of law would, by itself, be not sufficient to take away the jurisdiction of a court if it is otherwise vested in it in law. Wile exercising its power, the court will merely consider whether it has the source to exercise such power or not. The court will not apply the beneficient provisions like Sections 5 and 14 of the Limitation Act in a pedantic manner. When the provisions are meant to apply and in fact found to be applicable to the facts and circumstances of a case, in our opinion, there is no reason as to why the court will refuse to apply the same only because a wrong provision has been mentioned. In a case of this nature, Sub-section (2) of Section 14 of the Limitation Act per se may not be applicable, but, as indicated hereinbefore, the principles thereof would be applicable for the purpose of condonation of delay in terms of Section 5 thereof.
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20. In Ghasi Ram and Others v. Chait Ram Saini and Others [(1998) 6 SCC 200], this Court opined:
"10. Learned counsel appearing for the respondents urged that, assuming the High Court suffered from disability to decide the rights of party on facts, the plaintiff-appellant did not prosecute the revision petition before the High Court in Page 27 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 good faith; therefore, the appellant cannot derive any benefit of Section 14 of the Act. Before the High Court, it was not disputed that the plaintiff-appellant has prosecuted the other civil proceeding with due diligence. What is disputed is that the plaintiff did not prosecute the civil proceeding in good faith. "Good faith" is defined in the Act as under:
"2. (h) `good faith' -- nothing shall be deemed to be done in good faith which is not done with due care and attention;"
The aforesaid definition shows that an act done with due care and attention satisfies the test of "good faith". "Due care" means that sufficient care was taken so far as circumstances demanded and there was absence of negligence. In other words, the plaintiff has taken sufficient care which a reasonable man is expected to take in order to avoid any injury. It is not shown here that the plaintiff-appellant has not taken sufficient care in prosecuting the remedy. Where a plaintiff is illiterate and is not acquainted with the procedural law, the only thing that he can do is to consult some lawyer for advice. It is not disputed that the plaintiff-appellant filed the revision before the High Court on the advice of his counsel, although it may be that he was ill-advised. Learned counsel for the respondents contended that any act done in violation of law cannot be described as act done with due care. No doubt, when a party proceeds contrary to a clearly expressed provision of law, it cannot be regarded as prosecuting the other civil proceeding in good faith. It is based on sound principle of law. But the said rule cannot be enforced in rigidity in every case. Each case has to be judged on its own merits. In the present case, the plaintiff-appellant is not a legally- trained person and thus he sought advice of his counsel for future course of action.
Page 28 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 The counsel advised him to file revision in the High Court instead of bringing a fresh suit under Order 21 Rule 103 CPC. It is also true that at that time, there was no unanimity about remedy of revision amongst the various High Courts. The plaintiff- appellant's revision was entertained for hearing by the High Court and that gave expectation to the plaintiff- appellant that the order of the executing court may be set aside and further, there was no inordinate delay in filing the suit under Rule 103. If, on examining the facts, it is found that there was no lack of due care, there is no reason why the plaintiff- appellant should not be accorded the benefits of Section 14 of the Act. Does the interest of justice demand that the plaintiff should be refused the benefit of Section 14 of the Act on account of the negligence on the part of his counsel, ill- advising him to file a revision instead of filing a fresh suit? An illiterate litigant cannot be made to suffer when he is ill- advised by his counsel. On the facts and circumstances of this case, we are satisfied that the plaintiff-appellant prosecuted the earlier civil proceeding in good faith."
15. In the case of Union of India and others Vs. West Coast Paper Mills Ltd. and another (supra), the Hon'ble Supreme Court has observed in Paragraphs-14 and 15 as under:
"14. In the submission of Mr. Malhotra, placing reliance on The Commissioner of Sales Tax, U.P., Lucknow v. M/s Parson Tools and Plants, Kanpur, [1975] 4 SCC 22, to attract the applicability of Section 14 of the Limitation Act the following requirements must be specified. "(1) both the prior and subsequent proceedings are civil Page 29 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 proceedings prosecuted by the same party: (2) the prior proceedings had been prosecuted with due diligence and in good faith: (3) the failure of the prior proceedings was due to a defect of jurisdiction or other case of a like nature; (4) both the proceedings are proceeding in a Court."
In the submission of the learned senior counsel, filing of civil writ petition claiming money relief cannot be said to be a proceeding instituted in good faith and secondly, dismissal of writ petition on the ground that it was not an appropriate remedy for seeking money relief cannot be said to be "detect of jurisdiction or other cause of a like nature' within the meaning of Section 14 of the Limitation Act. It is true that the writ petition was not dismissed by the High Court on the ground of defect of jurisdiction. However, Section 14 of the Limitation Act is wide in its application, inasmuch it is not confined in its applicability only to cases of defect of jurisdiction but it is applicable also to cases where the prior proceedings have failed on account of other causes of like nature. The expression "Other cause of like nature" came up for the consideration of this Court in Roshanlal Kuthalia and Ors. v. R.B. Mohan Singh Oberai. AIR (1975) SC 824 = (1975) 4 SCC 628 and it was held that Section 14 of the Limitation Act is wide enough to cover such cases where the defects are not merely jurisdictional strictly so called but others more or less neighbours to such deficiencies. Any circumstances, legal or factual, which inhibits entertainment or consideration by the Court of the dispute on the merits conies within the scope of the Section and a liberal touch must inform the interpretation of the Limitation Act which deprives the remedy of one who has right.
15. The issue as to the legality and reasonability of the rates charged by the Railways Administration having been finally adjudicated upon by this Court, there is nothing wrong in the respondent West Coast Paper Mills Page 30 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 Limited having proceeded on an assumption that what had remained to be done was a simple direction to the Railway Administration to refund the amount of freight to which it had already been adjudged not entitled to recover. However, the High Court was not inclined to grant such relief in exercise of its writ jurisdiction and. therefore, left open the remedy of civil suit available to the respondents. By no stretch of imagination, it can be said that the West Coast Paper Mills Limited was actuated by malafides or want of good faith in instituting the writ proceedings. In our opinion. the period lost during the pendency of the writ proceedings is liable to be excluded from computing the period of limitation under Section 14(2) of the Limitation Act. Not only we have independently arrived at the finding on the submissions made by the learned counsel for the appellant, but we may also refer to the finding recorded by the 3-Judges Bench vide paragraphs 17 and 18 of the judgment dated 5th February, 2004 wherein it has been specifically held that the respondents were also entitled to get the period during which the writ petition was pending excluded from computing the period of limitation and in that view of the matter, the civil suit was filed within the prescribed period of limitation. The finding recorded by the Trial Court as also the High Court that the respondents were entitled to the benefit of Sections 14 and 15 of the Limitation Act, 1963 has been expressly upheld by the 3- Judges Bench holding, "We have no reason to take a different view"."
16. In the case of Consolidated Engg. Enterprises and Ors. Vs. Principal Secy. Irrigation Deptt. and Ors (supra), the Hon'ble Supreme Court has observed in Paragraphs-10 to 12 and 19 as under:
Page 31 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 "10. A bare reading of sub-section (3) of Section 34 read with the proviso makes it abundantly clear that the application for setting aside the award on the grounds mentioned in sub-section (2) of Section 34 will have to be made within three months. The period can further be extended, on sufficient cause being shown, by another period of 30 days but not thereafter. It means that as far as application for setting aside the award is concerned, the period of limitation prescribed is three months which can be extended by another period of 30 days, on sufficient cause being shown to the satisfaction of the Court. Section 29(2) of the Limitation Act, inter alia provides that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period of limitation prescribed by the schedule, the provisions of Section 3 shall apply as if such period was the period prescribed by the schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 shall apply only insofar as, and to the extent, they are not expressly excluded by such special or local law.
When any special statute prescribes certain period of limitation as well as provision for extension upto specified time limit, on sufficient cause being shown, then the period of limitation prescribed under the special law shall prevail and to that extent the provisions of the Limitation Act shall stand excluded. As the intention of the legislature in enacting sub-section (3) of Section 34 of the Act is that the application for setting aside the award should be made within three months and the period can be further extended on sufficient cause being shown by another period of 30 days but not thereafter, this Court is of the opinion that the provisions of Section 5 of the Limitation Act would not be applicable because the applicability of Section 5 of the Limitation Act stands excluded because of the provisions of Section 29(2) of the Limitation Act.
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11. However, merely because it is held that Section 5 of the Limitation Act is not applicable to an application filed under Section 34 of the Act for setting aside an award, one need not conclude that provisions of Section 14 of the Limitation Act would also not be applicable to an application submitted under Section 34 of the Act of 1996.
12. Section 14 of the Limitation Act deals with exclusion of time of proceeding bona fide in a court without jurisdiction. On analysis of the said Section, it becomes evident that the following conditions must be satisfied before Section 14 can be pressed into service: (1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party; (2) The prior proceeding had been prosecuted with due diligence and in good faith; (3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature; (4) The earlier proceeding and the latter proceeding must relate to the same matter in issue and; (5) Both the proceedings are in a court. The policy of the Section is to afford protection to a litigant against the bar of limitation when he institutes a proceeding which by reason of some technical defect cannot be decided on merits and is dismissed. While considering the provisions of Section 14 of the Limitation Act, proper approach will have to be adopted and the provisions will have to be interpreted so as to advance the cause of justice rather than abort the proceedings. It will be well to bear in mind that an element of mistake is inherent in the invocation of Section 14. In fact, the section is intended to provide relief against the bar of limitation in cases of mistaken remedy or selection of a wrong forum. On reading Section 14 of the Act it becomes clear that the legislature has enacted the said section to exempt a certain period covered by a bona fide litigious activity. Upon the words used in the section, it is not possible to sustain the Page 33 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 interpretation that the principle underlying the said section, namely, that the bar of limitation should not affect a person honestly doing his best to get his case tried on merits but failing because the court is unable to give him such a trial, would not be applicable to an application filed under Section 34 of the Act of 1996. The principle is clearly applicable not only to a case in which a litigant brings his application in the court, that is, a court having no jurisdiction to entertain it but also where he brings the suit or the application in the wrong court in consequence of bona fide mistake or law or defect of procedure. Having regard to the intention of the legislature this Court is of the firm opinion that the equity underlying Section 14 should be applied to its fullest extent and time taken diligently pursuing a remedy, in a wrong court, should be excluded.
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19. To attract the provisions of Section 14 of the Limitation Act, five conditions enumerated in the earlier part of this Judgment have to co- exist. There is no manner of doubt that the section deserves to be construed liberally. Due diligence and caution are essentially pre- requisites for attracting Section 14. Due diligence cannot be measured by any absolute standards. Due diligence is a measure of prudence or activity expected from and ordinarily exercised by a reasonable and prudent person under the particular circumstances. The time during which a court holds up a case while it is discovering that it ought to have been presented in another court, must be excluded, as the delay of the court cannot affect the due diligence of the party. Section 14 requires that the prior proceeding should have been prosecuted in good faith and with due diligence. The definition of good faith as found in Section 2(h) of the Limitation Act would indicate that nothing shall be deemed to be in good faith which is not done with due care and attention. It is true that Section 14 will not help a party Page 34 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 who is guilty of negligence, lapse or inaction. However, there can be no hard and fast rule as to what amounts to good faith. It is a matter to be decided on the facts of each case. It will, in almost every case be more or less a question of degree. The mere filing of an application in wrong court would not prima facie show want of good faith. There must be no pretended mistake intentionally made with a view to delaying the proceedings or harassing the opposite party. In the light of these principles, the question will have to be considered whether the appellant had prosecuted the matter in other courts with due diligence and in good faith. As is evident from the facts of the case, initially the appellant had approached the court of learned Civil Judge, Senior Division, Chitradurga for setting aside the award made by the arbitrator. On direction dated October 29, 2002 issued by the learned Civil Judge (Senior Division), Chitradurga, the appellant had presented the application for setting aside the award before the learned District Judge, Chitradurga. Before the learned District Judge, Chitradurga an objection was raised by the respondent that the application was not maintainable before the said court and that the application was maintainable before the learned Judge, City Civil Court, Bangalore. The District Judge, Chitradurga by an order dated February 3, 2003 held that it had no jurisdiction to entertain the application submitted by the applicant and accordingly returned the application for presentation before the appropriate court. The question of jurisdiction was seriously contested between the parties not only before the court of learned Civil Judge (Senior Division), Chitradurga but also before the learned District Judge, Chitradurga. The question of jurisdiction had to be considered by the courts below because of establishment of City Civil Court, Bangalore under a special enactment and in view of the definition of the word courtµ as given in Section 2(e) of the Arbitration and Conciliation Act, 1996 which means the principal civil court of original jurisdiction in a district. The Page 35 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 record does not indicate that there was pretended mistake intentionally made by the appellant with a view to delaying the proceeding or harassing the respondent. There was an honest doubt about the court competent to entertain the application for setting aside the award made by the arbitrator. The mere fact that the question of jurisdiction is an arguable one would not negative good faith because the appellant believed bona fide that the court in which it had instituted the proceeding had jurisdiction in the matter. By filing the application in the courts which had no jurisdiction to entertain the same, the appellant did not achieve anything more particularly when the lis was never given up. Under the circumstances this Court is of the opinion that the Division Bench of the High Court of Karnataka was not justified in concluding that the appellant had not prosecuted the matter in other courts with due diligence and in good faith. The said finding being against the weight of evidence on record, is liable to be set aside and is hereby set aside. We, therefore, hold that the appellant had prosecuted the matter in other courts with due diligence and in good faith and, therefore, is entitled to claim exclusion of time in prosecuting the matter in wrong courts. Therefore, the appeal arising from SLP(C) No.15619 of 2005 will have to be allowed."
17. In the case of Haryana State Cooperative Labour and Construction Federation Limited Vs. Unique Cooperative Labour and Construction Cooperative Society Limited and another (supra), the Hon'ble Supreme Court has observed in Paragraphs-14, 15 and 17 as under:
"14. After availing of five remedies to assail the arbitral award dated 20.2.2008, summarized in paragraph 9 above, the appellant sought 3 Page 36 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 more remedies, firstly, before the Additional District Judge, Panchkula, under Section 34 of the Arbitration Act, which was rejected on 17.5.2014, then by preferring FAO no. 4560 of 2014, which was dismissed on 30.9.2016, and finally before this Court, through the instant Civil Appeal no.5332 of 2017 (arising out of SLP (C)No.12338.... CC no. 6737 of 2017). All the remedies availed of by the Haryana Federation, as noticed above were totally frivolous. The Haryana Federation ought to have, with the least application of mind, been aware of the outcome, even before the remedies were availed of. The position of law, on the issue(s) which arise in this case, has been declared by this Court repeatedly, and the same was confirmed by the learned counsel for the Haryana Federation, who fairly acknowledged the same.
15. At each juncture, when the judicial process was invoked by the Haryana Federation, detailed orders came to be passed eight times over. Had the Haryana Federation approached the rightful court, with reference to which the said federations attention was repeatedly drawn, on almost each of the first five occasions, when it attempted to assail the arbitral award - dated 20.2.2008, it may have well been entitled to some relief. It is difficult to figure out why the wrong forum was chosen. Any observation(s) on this aspect of the matter, would fall in the realm of conjecture. Insofar as the computation of the period of limitation contemplated under Section 34 of the Arbitration Act is concerned, it was acknowledged by the learned counsel for the appellant himself, that the period of limitation, to file objections against an award, could not extend beyond 3 months and 30 days. Why were the objections filed in any case, after the Haryana Federation had occasioned a delay of 5 years and 8 months, despite being fully aware of the fact, that even the exclusion of the period spent before different authorities/Courts would not salvage the situation for the appellant? Having attained a clear and Page 37 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 unambiguous determination vide order dated 17.5.2014 passed by the Additional District Judge, Panchkula (after the appellant preferred objections under Section 34 of the Arbitration Act), there remained absolutely no justification for the Haryana Federation to continue to avail the judicial redress, firstly, before the High Court, and then, before this Court. Failure before each forum was imminent, and that was the eventual result. Why then did the Haryana Federation, repeatedly seek judicial redress? Was it only for the purpose of demonstrating, that despite its efforts, it could not get any relief from the judicial fora? Did the Haryana Federation only seek a judicial certification? If the answers to the aforesaid are in the affirmative, which is our considered view, then the reason for the backlog of arrears in Courts, is not far to fetch. This abuse of the judicial process must stop.
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17. In the facts and circumstances of the case, we are of the considered view, that the instant appeal deserves to be dismissed with exemplary costs, on account of the abuse of the judicial process, by the appellant - the Haryana Federation. Accordingly, the appeal is dismissed with costs quantified at Rs. 5,00,000/- (Rs. five lakhs). The aforesaid costs shall be deposited by the Haryana Federation with the Supreme Court Advocates-on-Record Welfare Trust, within one month. In case the costs are not deposited within the time indicated hereinabove, the Registry shall re-list the matter for an open Court hearing for recovery of costs."
18. In the case of Government of Maharashtra (Water Resources Department) Represented by Executive Engineer Vs. Borse Brothers Engineers and Contractors Private Limited (supra), the Hon'ble Page 38 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 Supreme Court has observed in Paragraphs-58, 61 to 63 as under:
"56. Given the object sought to be achieved under both the Arbitration Act and the Commercial Courts Act, that is, the speedy resolution of disputes, the expression sufficient cause is not elastic enough to cover long delays beyond the period provided by the appeal provision itself. Besides, the expression sufficient cause is not itself a loose panacea for the ill of pressing negligent and stale claims. This Court, in Basawaraj v. Land Acquisition Officer, (2013) 14 SCC 81, has held:
9. Sufficient cause is the cause for which the defendant could not be blamed for his absence. The meaning of the word sufficient is adequate or enough, inasmuch as may be necessary to answer the purpose intended.
Therefore, the word sufficient embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, sufficient cause means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has not acted diligently or remained inactive. However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the court that he was prevented by any sufficient cause from prosecuting his case, and unless a satisfactory explanation Page 39 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 is furnished, the court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose. (See Manindra Land and Building Corpn. Ltd. v. Bhutnath Banerjee, Mata Din v. A. Narayanan, Parimal v. Veena and Maniben Devraj Shah v.
Municipal Corpn. of Brihan Mumbai.
10. In Arjun Singh v. Mohindra Kumar, this Court explained the difference between a good cause and a sufficient cause and observed that every sufficient cause is a good cause and vice versa. However, if any difference exists it can only be that the requirement of good cause is complied with on a lesser degree of proof than that of sufficient cause.
11. The expression sufficient cause should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned, whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible. (Vide Madanlal v. Shyamlal and Ram Nath Sao v. Gobardhan Sao.
12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The court has no power to extend the period of limitation on equitable grounds. A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation. The statutory provision may cause hardship or Page 40 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means the law is hard but it is the law, stands attracted in such a situation. It has consistently been held that, inconvenience is not a decisive factor to be considered while interpreting a statute.
13. The statute of limitation is founded on public policy, its aim being to secure peace in the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. It seeks to bury all acts of the past which have not been agitated unexplainably and have from lapse of time become stale. According to Halsbury's Laws of England, Vol. 28, p. 266: 605. Policy of the Limitation Acts. The courts have expressed at least three differing reasons supporting the existence of statutes of limitations namely, (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence. An unlimited limitation would lead to a sense of insecurity and uncertainty, and therefore, limitation prevents disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence or laches. (See Popat and Kotecha Property v. SBI Staff Assn., Rajender Singh v. Santa Singh and Pundlik Jalam Patil v. Jalgaon Medium Project)
14. In P. Ramachandra Rao v. State of Karnataka, this Court held that judicially engrafting principles of limitation amounts to legislating and would fly in the face of Page 41 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 law laid down by the Constitution Bench in Abdul Rehman Antulay v. R.S. Nayak.
15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the sufficient cause which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature. (emphasis supplied)"
xxx xxx xxx
61. In a recent judgment, namely, State of M.P. v. Chaitram Maywade, (2020) 10 SCC 667, this Court referred to Postmaster General (supra), and held as follows:
1. The State of Madhya Pradesh continues to do the same thing again and again and the conduct seems to be incorrigible. The special leave petition has been filed after a delay of 588 days. We had an occasion to Page 42 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 deal with such inordinately delayed filing of the appeal by the State of Madhya Pradesh in State of M.P. v. Bherulal [State of M.P. v. Bherulal, (2020) 10 SCC 654] in terms of our order dated 15-10-2020.
2. We have penned down a detailed order in that case and we see no purpose in repeating the same reasoning again except to record what are stated to be the facts on which the delay is sought to be condoned. On 5-1-2019, it is stated that the Government Advocate was approached in respect of the judgment delivered on 13-11-
2018 [Chaitram Maywade v. State of M.P., 2018 SCC OnLine HP 1632] and the Law Department permitted filing of the SLP against the impugned order on 26-5-2020. Thus, the Law Department took almost about 17 months' time to decide whether the SLP had to be filed or not. What greater certificate of incompetence would there be for the Legal Department!
3. We consider it appropriate to direct the Chief Secretary of the State of Madhya Pradesh to look into the aspect of revamping the Legal Department as it appears that the Department is unable to file appeals within any reasonable period of time much less within limitation. These kinds of excuses, as already recorded in the aforesaid order, are no more admissible in view of the judgment in Postmaster General v. Living Media (India) Ltd. [Postmaster General v. Living Media (India) Ltd.
4. We have also expressed our concern that these kinds of the cases are only certificate cases to obtain a certificate of dismissal from the Supreme Court to put a quietus to the issue. The object is to save the skin of officers who may be in Page 43 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 default. We have also recorded the irony of the situation where no action is taken against the officers who sit on these files and do nothing. 5. Looking to the period of delay and the casual manner in which the application has been worded, the wastage of judicial time involved, we impose costs on the petitioner State of Rs 35,000 to be deposited with the Mediation and Conciliation Project Committee. The amount be deposited within four weeks. The amount be recovered from the officer(s) responsible for the delay in filing and sitting on the files and certificate of recovery of the said amount be also filed in this Court within the said period of time. We have put to Deputy Advocate General to caution that for any successive matters of this kind the costs will keep on going up.
62. Also, it must be remembered that merely because sufficient cause has been made out in the facts of a given case, there is no right in the appellant to have delay condoned. This was felicitously put in Ramlal v. Rewa Coalfields Ltd. as follows: (SCR p. 771: AIR p. 365, Para
12)
12. It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right.The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by s. 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that Page 44 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it. In this connection we may point out that considerations of bona fides or due diligence are always material and relevant when the Court is dealing with applications made under s. 14 of the Limitation Act. In dealing with such applications the Court is called upon to consider the effect of the combined provisions of ss. 5 and 14.
Therefore, in our opinion, considerations which have been expressly made material and relevant by the provisions of s. 14 cannot to the same extent and in the same manner be invoked in dealing with applications which fall to be decided only under s. 5 without reference to s. 14"
63. Given the aforesaid and the object of speedy disposal sought to be achieved both under the Arbitration Act and the Commercial Courts Act, for appeals filed under section 37 of the Arbitration Act that are governed by Articles 116 and 117 of the Limitation Act or section 13(1A) of the Commercial Courts Act, a delay beyond 90 days, 30 days or 60 days, respectively, is to be condoned by way of exception and not by way of rule. In a fit case in which a party has otherwise acted bona fide and not in a negligent manner, a short delay beyond such period can, in the discretion of the court, be condoned, always bearing in mind that the other side of the picture is that the opposite party may have acquired both in equity and justice, what may now be lost by the first party's inaction, negligence or laches"Page 45 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022
C/CRA/460/2021 JUDGMENT DATED: 24/11/2021
19. In the case of Shyam sundar Sarma Vs. Pannalal Jaiswal and others (supra), the Hon'ble Supreme Court has held in Paragraphs-8 and 9 as under:
"8. The first question to be considered is whether an appeal accompanied by an application for condoning the delay in filing the appeal is an appeal in the eye of law, when the application for condoning the delay in filing the appeal is dismissed and consequently the appeal is dismissed as being time barred by limitation, in view of Section 3 of the Limitation Act. There was conflict of views on this question before the High Courts. But the Privy Council in Nagendra Nath Dey vs. Suresh Chandra Dey ( 59 Indian Appeals 283) held, "there is no definition of appeal in the Civil Procedure Code, but their Lordships have no doubt that any application by a party to an appellate Court, asking it to set aside or revise a decision of a subordinate court, is an appeal within the ordinary acceptation of the term and that it is no less an appeal because it is irregular or incompetent."
8.1 These observations were referred to with approval by this Court in Raja Kulkarni and others vs. The State of Bombay.
9. The specific question involved, came to be considered by this Court in Messrs Mela Ram and Sons vs. The Commissioner of Income Tax, Punjab ( 1956 SCR 166 ). This Court held that an appeal presented out of time is an appeal and an order dismissing it as time barred is one passed in an appeal. This Court referred to and followed the view taken by the Privy Council and by this Court in the two respective decisions above referred to. This Court quoted with approval the observations of Chagla C.J. in K.K. Page 46 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 Porbunderwalla vs. Commissioner of Income Tax ( 1952 ) 21 ITR 63 ) to the following effect:
".. although the Appellate Assistant Commissioner did not hear the appeal on merits and held that the appeal was barred by limitation his order was under Section 31 and the effect of that order was to confirm the assessment which had been made by the Income-tax Officer."
9.1 In Sheodan Singh vs. Daryao Kunwar ( AIR 1966 SC 1332 ) rendered by four learned Judges of this Court, one of the questions that arose was whether the dismissal of an appeal from a decree on the ground that the appeal was barred by limitation was a decision in the appeal. This Court held:
"We are therefore of opinion that where a decision is given on the merits by the trial court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial court on the merits, itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal."
9.2 In Board of Revenue vs. M/s Raj Brothers Agencies Etc. (1973 (3) SCR 492 ), this Court approved the decision of the Madras High Court which had applied the principle stated in Messrs Mela Ram and sons."
20. From the aforesaid decisions rendered by the Hon'ble Supreme Court as well as this Court, it transpires that where party claimed that wrong legal advice was given by the Advocate, the Court must see Page 47 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 any taint of mala-fides or element of recklessness or ruse. If the legal advice is erroneously sought and actually given, then only, the same can be treated as sufficient cause when an application under Section 5 of the Act of 1963 is being considered. It is also held by the Hon'ble Supreme Court that mistaken advice given by a legal practitioner may in the circumstances of a particular case give rise to sufficient cause within Section 5 of the Act of 1963, though there is certainly no general doctrine which saves parties from the results of wrong advice.
It further transpires from the above decisions that 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 has occasioned by the party deliberately to gain time, then the Court should lean against acceptance of the explanation.
It also transpires that when a party proceeds contrary to a clearly expressed provision of law, it cannot be regarded as prosecuting the other civil proceeding in good faith. It is based on sound principle of law and an illiterate litigant may not be made to suffer when he is ill-advised by his counsel. The Hon'ble Supreme Court has held that Section 14 of the Act of 1963 will not help a party who is guilty of negligence, lapse or inaction. The Page 48 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 expression "sufficient cause" should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned.
23. Keeping in view the aforesaid decisions rendered by the Hon'ble Supreme Court as well as this Court, if the facts of the present case as discussed hereinabove are carefully examined, it can be said that the applicants remained negligent throughout the proceedings. They were not pursuing their remedy bonafidely. It is also not in dispute that legal advice was given by some of the Advocates to the applicants that First Appeal is to be filed against the order dated 15.02.2014 passed by the concerned Civil Court. In spite of that, the applicants did not file the First Appeal at the relevant point of time. In the meantime, the applicants received notices issued by the concerned executing Court in the execution proceedings filed by the present respondents. The said execution proceedings are pending since 2014 against the applicants and till date, the award dated 03.02.2013 is not executed. Thus, the applicants have adopted dilatory tactics in order to see that the award is not executed. Hence, when the applicants are deliberately delaying execution proceedings, in the facts and circumstances of the present case, the present applicants have failed to point out Page 49 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022 C/CRA/460/2021 JUDGMENT DATED: 24/11/2021 sufficient cause for condonation of delay in filing the First Appeal. Further, the benefit of provisions contained in Section 14 of the Act of 1963 would also not be available to the applicants. Thus, decisions upon which, reliance is placed by the learned Senior Counsel appearing for the applicants would not render any assistance to them.
24. This Court has also gone through the reasoning recorded by the concerned District Court while rejecting the application filed under Sections 5 and 14 of the Act of 1963 by the applicants and this Court is of the view that no error, much less, jurisdictional error is committed by the District Court while passing the impugned order and, therefore, the impugned orders are not required to be interfered with.
25. Accordingly, Civil Revision Applications are dismissed. Rule is discharged.
(VIPUL M. PANCHOLI, J) piyush Page 50 of 50 Downloaded on : Wed Jan 12 04:09:03 IST 2022