Gujarat High Court
Vijubhai Muljibhai Chauhan vs Bhavanbhai Dhanabhai Bharvad on 11 July, 2024
NEUTRAL CITATION
C/SCA/15643/2021 CAV JUDGMENT DATED: 11/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15643 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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VIJUBHAI MULJIBHAI CHAUHAN
Versus
BHAVANBHAI DHANABHAI BHARVAD
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Appearance:
MR DC DAVE, SR. ADVOCATE with MR VASIM MANSURI(8824) for the
Petitioner(s) No. 1
MR MEHUL S .SHAH, SR. ADVOCATE with MR KARTIKKUMAR K
JOSHI(8042) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 11/07/2024
CAV JUDGMENT
1. The instant petition under Article 227 of the Constitution of India is filed against the impugned order dated 2.8.2021 passed by the learned City Civil Judge, City Civil Court, Page 1 of 25 Downloaded on : Thu Jul 11 21:06:47 IST 2024 NEUTRAL CITATION C/SCA/15643/2021 CAV JUDGMENT DATED: 11/07/2024 undefined Ahmedabad in CMA No.457 of 2019 filed for condonation of delay in filing Application for restoration of Civil Suit No.1827 of 2007 and further to allow condonation of delay and direct the learned trial Court to hear the application for restoration in accordance with law.
2. Brief facts of the case are as under:
2.1 That on 07-04-1999 Respondent herein (Orig defendant) filed civil suit being 1778 of 1999 before City Civil Court, Ahmedabad against one Bharatbhai Shakarbhai Patel & Petitioner herein for cancellation of sale deeds executed in favour of Petitioner & also for injunction.
2.2 That on 23-08-2007 Petitioner herein (orig Plaintiff) filed Civil Suit no 1827/2007 against Respondent herein (Orig Defendant) & prayed for vacant and peaceful possession of suit property and injunction against Respondent herein.
2.3 That Respondent herein withdrew the aforesaid Civil Suit no 1778 of 1999 filed by him with liberty to file fresh suit. That on 02.04.2008 Hon'ble Court was pleased to pass the order to that effect.
2.4 That on 13.04.2009 Petitioner herein filed application under Order VII Rule 11 (d) of CPC for dismissal of Civil Suit no 1035/2008. That on 03.04.2013 Respondent herein filed reply to the said application u/O VII R 11 (d) filed by Petitioner in Civil suit no 1035/2008.Page 2 of 25 Downloaded on : Thu Jul 11 21:06:47 IST 2024
NEUTRAL CITATION C/SCA/15643/2021 CAV JUDGMENT DATED: 11/07/2024 undefined 2.5 In Civil Suit No.1827 of 2007 filed for declaration for possession of the disputed property and injunction on 12.12.2013, Respondent herein filed application under Order VII Rule 11 of CPC. That on 26.02.2014 Petitioner filed reply to application under Order VII Rule 11 of CPC. That thereafter matter was not listed upto 25.07.2016. Thereafter said suit was listed on 25.07.2016. The learned trial Court passed the order below Exh.1 directing the parties to produce documentary evidence within 07 days.
2.6 Thereafter matter was listed on 11.08.2016, Ld Judge framed issue. Thereafter matter listed on 27.09.2016 but Ld Judge was having business of Chamber Judge, hence matter was adjourned. Thereafter matter was listed on 08.11.2016. As Ld Judge was having business of chamber Judge, matter was sent back to Department. Thereafter, on 23.11.2016 matter came to be listed on board but none was present hence matter was adjourned and listed on 05.01.2017 but none present hence adjourned and again listed on 20.02.2017. That as none were present, matter was dismissed for default.
2.7 Apart from civil proceedings referred herein before, parties hereto were pursuing revenue proceedings as per following details:
a) In view of execution of sale deeds in favour of Petitioner herein, mutation entry no 6461 came to be passed on 21.01.1999 in revenue record of subjected property with regard to execution of sale deeds.Page 3 of 25 Downloaded on : Thu Jul 11 21:06:47 IST 2024
NEUTRAL CITATION C/SCA/15643/2021 CAV JUDGMENT DATED: 11/07/2024 undefined
b) The said mutation entry in favour of Petitioner herein was challenged before Prant Officer by Respondent herein, who confirmed mutation entry in favour of Petitioner herein vide its order dated 10.03.2000.
c) That Respondent herein challenged order dated 10.03.2000 passed by Prant Officer before the Collector who remanded back the matter to Prant Officer, vide its order dated 20.09.2001
d) That Respondent herein challenged order dated 20.09.2001 passed by the Collector before the SSRD who confirmed order of Collector, vide its order dated 25.06.2014.
e) That Respondent herein challenged order dated 25.06.2014 passed by SSRD before Hon'ble High Court of Gujarat by way of SCA no 13263/2014. The Hon'ble High Court vide its order dated 29.09.2014 remanded back the matter to Prant Officer.
f) That Prant Officer as per the direction of Hon'ble High Court heard remand case and confirmed mutation entry no 6461 vide its order dated 26.02.2016.
g) That Respondent herein challenged order dated 26.02.2016 of Prant Officer before the Collector who confirmed order dated 26.02.2016 passed by Prant Officer, vide its order dated 03.08.2017.
h) That Respondent herein challenged order dated 03.08.2017 of the Collector before the SSRD who confirmed order dated 03.08.2017 passed by the Collector, vide its order dated 18.02.2018.
2.8 That Respondent herein challenged order dated 18.02.2018 passed by the SSRD before the Hon'ble High Court of Gujarat by way of SCA no 9842/2018, the Coordinate Bench Page 4 of 25 Downloaded on : Thu Jul 11 21:06:47 IST 2024 NEUTRAL CITATION C/SCA/15643/2021 CAV JUDGMENT DATED: 11/07/2024 undefined of this Court on 02.07.2018 disposed of the said writ petition at admission stage.
2.9 That apart from civil proceedings and revenue proceedings referred in above, Respondent herein had given a complaint to Vigilance Commissioner, Gandhinagar on 25.01.2001 with regard to cancellation of mutation entry no 6461 on the ground of fraud.
2.10 That Respondent herein also filed criminal complaint on 16.04.2007 before Metropolitan Magistrate Ahmedabad for offence under section 406, 420, 467, 468, 469, 470, 471, 120B & 114 of IPC against Bharat Bababhai Patel, Petitioner herein & other 11 persons.
2.11 That Civil Suit no 1035/2008 was listed before, Add District Judge, City Civil Court, Ahmedabad for hearing of Application under Order VII Rule 11(d) of CPC filed by Petitioner herein. That On 04-05-2019 City Civil Court, Ahmedabad allowed application under Order VII Rule 11(d) of CPC filed by present Petitioner & rejected Civil Suit no 1035/2008.
2.12 That Respondent herein preferred First Appeal no 2476/2019 before Hon'ble High Court of Gujarat which is admitted by the Hon'ble High Court and presently pending for interim relief.
2.13 That during hearing of the petitioners application under Order VII Rule 11 of CPC for dismissal of Civil Suit no 1035 of Page 5 of 25 Downloaded on : Thu Jul 11 21:06:47 IST 2024 NEUTRAL CITATION C/SCA/15643/2021 CAV JUDGMENT DATED: 11/07/2024 undefined 2008 filed by Respondent herein, Petitioner herein requested to consolidate the Civil Suit no 1035/2008 & Civil Suit no 1827/2007 and for that prepared application for the same, at that point of time, Respondent herein for the first time declared that said Suit no 1827/2007 was dismissed for default.
2.14 That upon knowledge of dismissal of suit, Petitioner Orig Plaintiff inquired in the department and applied for certified copy of order. After receiving certified copy of the order of dismissal of the suit, Petitioner herein filed Application for restoration of suit no 1827/2007 with an application for condonation of delay, as delay occassioned.
2.15 That Respondent herein filed reply to the said application on 18.11.2019.
2.16 The application for condonation of delay is dismissed by the learned trial Court.
2.17 Hence, present petition.
3. Heard learned Senior Counsel Mr. DC Dave assisted by learned advocate Mr. Vasim Mansuri for the petitioner and learned Senior Counsel Mr. Mehul S. Shah assisted by learned advocate Mr. Kartikkumar Joshi for the respondent.
4. Learned Senior Counsel Mr. Dave would submit that there was a sufficient and justifiable reason explaining the delay in preferring restoration application. Yet, the learned trial Court Page 6 of 25 Downloaded on : Thu Jul 11 21:06:47 IST 2024 NEUTRAL CITATION C/SCA/15643/2021 CAV JUDGMENT DATED: 11/07/2024 undefined rejected application on hyper-technical ground. He would further submit that "sufficient cause" appearing in section 5 of the Limitation Act, 1963 (in short "the Act") was properly explained by the petitioner in background of the facts of the case. He would further submit that there were two suits; one was filed by the petitioner and another was filed by the respondent. He would further submit that the petitioner was thinking that his counsel engaged to conduct the suit is conducting the suit, but when the petitioner came to know that two suits having same subject matter have been filed, he reached to the Court to club or tag both the suits, but unfortunately, at that time, he found that his learned advocate has expired and the Court has dismissed the suit for non prosecution on 20.2.2017. Therefore, need arises to file restoration application . However, delay of 823 days caused and therefore, an application for condonation of delay was moved, which was registered as CMA No.457 of 2019. Learned Senior Counsel would further submit that the learned trial Court after hearing both the sides, dismissed the application for condonation of delay and as such committed serious error.
4.1 Learned Senior Counsel would further submit that in fact, while rejecting the condonation of delay application, the learned trial Court has allowed to die the cause of action pleaded by the petitioner without being adjudicated on the merit. He would further submit that the learned trial Court has taken very myopic view to decline to condone the delay of 823 days articulating that the delay is not properly explained. However, while passing such reason, the learned trial Court failed to Page 7 of 25 Downloaded on : Thu Jul 11 21:06:47 IST 2024 NEUTRAL CITATION C/SCA/15643/2021 CAV JUDGMENT DATED: 11/07/2024 undefined notice that the reasons for delay on the merits in the matter are succinctly explained by the petitioner in restoration application.
4.2 Learned senior counsel would further submit that when application for condonation of delay is filed along with restoration application, the Court was required to read both the applications together to find out the reasons explaining the delay, as to do substantial justice, but in the present case, the learned trial Court has tried to read the application for delay in isolation, which itself is a pedantic approach. He would further submit that the learned trial Court has taken technical consideration to win over the principle of substantial justice and defeat the doctrine of liberal approach.
4.3 Learned Senior Counsel Mr. Dave has referred and relied upon the judgment of Hon'ble Apex Court in the case of Collector, Land Acquisition, Anantnag and Anr. v/s. Mst. Katiji and Ors. [AIR 1987 SC 1353], more particularly, para 3 thereof, which reads as under:-
"3. The legislature has conferred the power to condone delay by enacting Section 51 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on Page 8 of 25 Downloaded on : Thu Jul 11 21:06:47 IST 2024 NEUTRAL CITATION C/SCA/15643/2021 CAV JUDGMENT DATED: 11/07/2024 undefined principle as it is realized that:-
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is con-
doned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non- deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a stepmotherly treatment when the 'State' is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinary (no one in charge of the matter is directly hit or Page 9 of 25 Downloaded on : Thu Jul 11 21:06:47 IST 2024 NEUTRAL CITATION C/SCA/15643/2021 CAV JUDGMENT DATED: 11/07/2024 undefined hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even handed justice on merits in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time barred, is therefore. set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides."
4.4 Learned Senior Counsel Mr. Dave would further submit that when substantial justice and technical consideration are pitted with each other, the cause of substantial justice deserves to be preferred and given primacy. He would further submit that by getting the delay condoned, the petitioner would not get anything more than the right to adjudicate his case on merit. He would further submit that there is no presumption available that the delay is occasioned deliberately in the background that learned counsel for the petitioner representing him in the suit has expired and it was not within the knowledge of the petitioner. He would further submit that the petitioner was the plaintiff in the civil suit and he would not be benefited by resorting to dilatory tactics. In fact, the petitioner was not Page 10 of 25 Downloaded on : Thu Jul 11 21:06:47 IST 2024 NEUTRAL CITATION C/SCA/15643/2021 CAV JUDGMENT DATED: 11/07/2024 undefined knowing the stages of the proceedings, but as soon as, he came to know that his suit is dismissed, he preferred an application for restoration, but delay of 823 days has been caused in preferring the restoration application, hence the petitioner preferred application u/s 5 of the Act to condone the delay, but the learned trial Court rejected the said application on hyper- technical approach. The learned trial Court was expected to adopt the justice oriented approach from the perspective that the judiciary is respected not on account of its power to legalize injustice on technical ground, but because it is capable of removing injustice and is expected to do so. Learned Senior Counsel would also submit that not condoning the delay would adversely effect the petitioner's right to be espoused in the suit on merit, more particularly, when the identical suit has been filed by the other side being Civil Suit No.1035 of 2018 is rejected, but appeal is pending.
4.5 Upon above submission, learned Senior Counsel Mr. Dave submits to allow this petition and to quash and set aside the impugned judgment and order passed in CMA No.457 of 2019 and to condone the delay prayed therein.
5. On the other hand, learned Senior Counsel Mr. Mehul S. Shah would submit that there is gross delay of nearly three years. He would further submit that the delay could be condoned provided that there is justifiable explanation offered by the petitioner and has explained the sufficient cause prevented him from filing the litigation. He would further submit that not only sufficient cause should be pleaded, but Page 11 of 25 Downloaded on : Thu Jul 11 21:06:47 IST 2024 NEUTRAL CITATION C/SCA/15643/2021 CAV JUDGMENT DATED: 11/07/2024 undefined also to be proved by necessary implications. Taking this Court through the application on record seeking condonation of delay, learned Senior Counsel would submit that the petitioner has not pleaded whisper of word except pleading two dates to explain delay. He would further submit that no satisfactory explanation has been given by the petitioner explaining gross delay. In that circumstances, the learned trial Court has rightly rejected the condonation of delay application.
5.1 Learned senior counsel would further submit that there may be a long delay, but if it is sufficiently explained, it could be condoned; and there may be short delay, but if it is not explained sufficiently, no question of condoning the delay would arise. He would further submit that taking of liberal approach by the Court is subject to the explanation offered by the petitioner explaining sufficient cause preventing him from filing the petition. He would further submit that in the present case, since the petitioner has failed to explain sufficient cause, the learned trial Court has rightly dismissed the application for condonation of delay. The impugned order is just, proper and legal and not calling any interference. He would further submit that due to the inaction on the part of the petitioner, the right gained by the respondent has been perfected. He would further submit that since the law of limitation is founded on the public policy, although, the object of law of limitation is not to destroy the rights of party, but to ensure that litigant do not resort to dilatory tactics, but seek remedy without delay.
5.2 Learned senior counsel would further submit that the Page 12 of 25 Downloaded on : Thu Jul 11 21:06:47 IST 2024 NEUTRAL CITATION C/SCA/15643/2021 CAV JUDGMENT DATED: 11/07/2024 undefined word "sufficient cause" though require to receive liberal construction, but the liberal construction normally is to introduce the concept of "reasonableness" as it is understood in its general connotation. In the present case, the petitioner has not explained the quite long or inordinate delay and in view of that the learned trial Court has rightly concluded not to condone the delay. Thus, learned Senior Counsel submits that the impugned order is just, correct and proper and does not require any interference under Article 227 of the Constitution of India.
5.3 Upon above submission, learned Senior Counsel Mr. Shah requests to dismiss the petition.
5.4 In support of his arguments, learned Senior Counsel Mr. Shah has relied upon the decision of this Court in case of Satyendrakumar Vallabhdas Modi Vs. Kundanben Chinubhai Modi rendered in Special Civil Application No.7962 of 2017, in case of State of Gujarat Vs.Lajbarkhan Pathan rendered in Special Civil Application No.18903 of 2021, judgment of the Hon'ble Apex Court in case of Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy & Others, (2013) 12 SCC 649 (relied upon by learned advocates for both the sides) and judgment of the Hon'ble Apex Court in case of Union Of India Versus Jahangir Byramji Jeejeebhoy (D) Through His Lr reported in 2024(2) GLH 217.
6. Having heard learned advocates for both the sides, at the outset, I may refer section 5 of the Limitation Act, which reads Page 13 of 25 Downloaded on : Thu Jul 11 21:06:47 IST 2024 NEUTRAL CITATION C/SCA/15643/2021 CAV JUDGMENT DATED: 11/07/2024 undefined as under:-
"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 21 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."
7. It is true that expression 'sufficient cause' in Section 5 has to receive a liberal construction so as to advance substantial justice and generally should receive pragmatic approach and delay to be condoned in the interest of justice provided that appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within the prescribed time period; there was no negligence or deliberate inaction or lack of bona fide is imputable to the party seeking condonation of the delay. It is the discretion of the Court which is in respect of the jurisdiction is to be exercised in a way, the judicial power and discretion hoped to be exercised upon approach which are well understood.
7.1 It was stressed that pedantic and hyper-technical approach should not be taken to insist that explanation of sufficient cause for condonation of delay should be pleaded only in application, but Court is needed to cull out explanation for inability to prefer an application within time limit, from Page 14 of 25 Downloaded on : Thu Jul 11 21:06:47 IST 2024 NEUTRAL CITATION C/SCA/15643/2021 CAV JUDGMENT DATED: 11/07/2024 undefined collateral pleadings (in present case, from restoration application) and should allow the cause to survive. It is also stressed that the Court should not try to read the application for condonation of delay in isolation, but has to be read along with another annexure i.e. restoration application.
8. In G. Ramegowda, Major and others V/s. Special Land Acquisition Officer, Bangalore,(1988) 2 SCC 142, the Hon'ble Apex Court after referring to the judgment of the Collector, Land Acquisition, Anantnag (supra), has opined following:-
"The contours of the area of discretion of the courts in the matter of condonation of delays in filing appeals are set out in a number of pronouncements of this Court. See : Ramlal, Motilal and Chhotelal V/s. Rewa Coalfield Ltd., (1962) 2 SCR 762 ; Shakuntala Devi Jain V/s. Kuntal Kumari, (1969) 1 SCR 1006 ; Concord of India Insurance Co. Ltd. V/s. Nirmala Devi, (1979) 3 SCR 694 ; Lala Mata Din V/s. A. Narayanan, (1970) 2 SCR 90 ; Collector, Land Acquisition V/s.
Katiji etc., There is, it is true, no general principle saving the party from all mistakes of its counsel. If there is negligence, deliberate or gross inaction or lack of bona fide on the part of the party or its counsel there is no reason why the opposite side should be exposed to a time-barred appeal. Each case will have to be considered on the particularities of its own special facts. However, the expression 'sufficient cause' in Section 5 must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay."
8.1 Useful reference can also be made to the judgment of the Hon'ble Apex Court in case of Oriental Aroma Chemical Industries Limited V/s. Gujarat Industrial Development Page 15 of 25 Downloaded on : Thu Jul 11 21:06:47 IST 2024 NEUTRAL CITATION C/SCA/15643/2021 CAV JUDGMENT DATED: 11/07/2024 undefined Corporation and another, (2010) 5 SCC 459, the Hon'ble Apex Court observed thus:-
"14. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. Thereafter, the learned Judges proceeded to state that this Court has justifiably advocated adoption of liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate."
8.2 The Hon'ble Apex Court in the above judgment thereafter, proceeded to state that the Court has justifiably advocated adoption of liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate. While stating that each case has to be weighed from its own facts and circumstances, in which the party acts and behaves for seeking condonation of delay application, the Hon'ble Apex Court in case of Improvement Trust, Ludhiana V/s. Ujagar Singh and others, (2010) 6 SCC 786, observed following:-
"While considering an application for condonation of delay no straitjacket formula is prescribed to come to the conclusion if sufficient and good grounds have been made out or not. It has been further stated therein that each case has to be weighed from its facts and the circumstances in which the party acts and behaves."Page 16 of 25 Downloaded on : Thu Jul 11 21:06:47 IST 2024
NEUTRAL CITATION C/SCA/15643/2021 CAV JUDGMENT DATED: 11/07/2024 undefined 8.3 Principle laid down in case of Balwant Singh (dead) V/s. Jagdish Singh and others, (2010) 8 SCC 685 is also profitable. In the said judgment, the Hon'ble Apex Court after referring to series of earlier authorities, in para 25 and 26, held thus:-
"25. We may state that even if the term "sufficient cause" has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of "reasonableness" as it is understood in its general connotation.
26. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly."
8.4 In Maniben Devraj Shah V/s. Municipal Corporation of Brihan Mumbai, (2012) 5 SCC 157, the Hon'ble Apex Court opined that a distinction must be made between a case where the delay is inordinate and a case where the delay is of few days. The relevant observation is as under:-
""23. What needs to be emphasized is that even though Page 17 of 25 Downloaded on : Thu Jul 11 21:06:47 IST 2024 NEUTRAL CITATION C/SCA/15643/2021 CAV JUDGMENT DATED: 11/07/2024 undefined a liberal and justice-oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost.
24. What colour the expression "sufficient cause" would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay."
8.5 In Esha Bhattacharjee (supra), the Hon'ble Apex Court has laid down broad principles:-
"21.1. (i) There should be a liberal, pragmatic, justice- oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
21.2. (ii) The terms sufficient cause should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. 21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.Page 18 of 25 Downloaded on : Thu Jul 11 21:06:47 IST 2024
NEUTRAL CITATION C/SCA/15643/2021 CAV JUDGMENT DATED: 11/07/2024 undefined 21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. 21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. 21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. 21.12. (xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. 21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude."
"22. To the aforesaid principles we may add some more Page 19 of 25 Downloaded on : Thu Jul 11 21:06:47 IST 2024 NEUTRAL CITATION C/SCA/15643/2021 CAV JUDGMENT DATED: 11/07/2024 undefined guidelines taking note of the present day scenario. They are:
22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.
22.2. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. 22.3. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. 22.4. (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters."
8.6 Recently, the Hon'ble Apex Court in case of Union Of India Versus Jahangir Byramji Jeejeebhoy (D) Through His Lr reported in 2024(2) GLH 217, reiterated the ratio laid down in case of Esha Bhattacharjee (supra).
9. The guidelines stated by the Hon'ble Apex Court speak that the application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.
10. Keeping the guidelines in mind, now let scrutinize the Page 20 of 25 Downloaded on : Thu Jul 11 21:06:47 IST 2024 NEUTRAL CITATION C/SCA/15643/2021 CAV JUDGMENT DATED: 11/07/2024 undefined application filed by the petitioner before the learned trial Court seeking condonation of delay as to check that whether the application is drafted properly, explaining term "sufficient cause". The reading of the application (Annexure L) would indicate that except para 5 of the application, no other paragraphs averred or pleaded which could be said explanation for seeking condonation of delay. Para 1 to 4 of the application are in accordance with the facts of the case. Para 6 pleaded that if delay would not be condoned, the plaintiff will suffer substantial injustice. Para 5, which is pleaded by the plaintiff to condone the delay and submitted as explaining the delay reads as under:-
"It is the say of the applicant that the Civil Suit No. 1827/2007 was dismissed on 20-2-2017 and within one month of that date i.e. by 23-3-2017, Refiling Application should have been filed. But due to the above mentioned fact, delay of about 27 months from 20-3-2017 to 30-6-2019 has occurred to prefer Refiling Application to restore the Civil Suit No. 1827/2007. Hence, it is required to condone that delay and for that purpose the present application has been preferred."
11. Surprisingly, atypical argument made by learned Senior Counsel Mr. Dave that the Court should look at the averments made in the restoration application to find out that sufficient explanation has been made by the petitioner, as the restoration application exposes the merit of the case and if such merit is allowed to be adjudicated on merit, it would sub-serve the principle of substantial justice. The submission is completely hollow, void and baseless. The Court while dealing with the prayer for condonation of delay has to remind with the basic Page 21 of 25 Downloaded on : Thu Jul 11 21:06:47 IST 2024 NEUTRAL CITATION C/SCA/15643/2021 CAV JUDGMENT DATED: 11/07/2024 undefined fact that whether the petitioner has sufficiently explained the delay and satisfied the Court about sufficient cause preventing him from filing the petition. To find out "sufficient cause" for inability to file application within time, pleading alone of the petition could be seen. The Court cannot search explanation of sufficient cause hither and thigher or at random. Even, merit of the dispute cannot be looked into. It has been settled by the Hon'ble Apex Court in case of State of Jharkhand and others Vs. Ashokkumar Chokhani, AIR 2009 SC 1927 that the merits of the case cannot be considered while dealing with the application for condonation of delay in filing the appeal.
12. At the cost of repetition, if we see the application for condonation of delay, the petitioner has not offered any explanation for gross delay of 823 days in preferring the restoration application. There seems to be a gross negligence and indolence on the part of the petitioner or he has not preferred the petition with due diligence, hence, there is no reason to condone the delay. The learned trial Court has rightly and justifiably discussed this issue in the impugned order. No interference is called in well-reasoned order.
13. Before parting with the order, let refer recent judgment of the Hon'ble Apex Court in case of K.B.Lal (Krishna Bahadur Lal) Versus Gyanendra Pratap And Others reported in 2024 (4) SCR
616. Para 10 is material, where the Hon'ble Apex Court has referred its earlier decision and reiterated the principles, which are to be kept in mind for condonation of delay stated in Esha Page 22 of 25 Downloaded on : Thu Jul 11 21:06:47 IST 2024 NEUTRAL CITATION C/SCA/15643/2021 CAV JUDGMENT DATED: 11/07/2024 undefined Bhattacharjee (supra). Para 10 reads as under:-
"10. There is no gainsaying the fact that the discretionary power of a court to condone delay must be exercised judiciously and it is not to be exercised in cases where there is gross negligence and/or want of due diligence on part of the litigant ( See Majji Sannemma @ Sanyasirao v. Reddy Sridevi and Others (2021) 18 SCC 384 ). The discretion is also not supposed to be exercised in the absence of any reasonable, satisfactory or appropriate explanation for the delay ( See P.K. Ramachandran vs. State of Kerala and Anr., (1997) 7 SCC 556 ). Thus, it is apparent that the words sufficient cause' in Section 5 of the Limitation Act can only be given a liberal construction, when no negligence, nor inaction, nor want of bona fide is imputable to the litigant ( See Basawaraj and Anr. vs. Special Land Acquisition Officer., (2013) 14 SCC 81 ). The principles which are to be kept in mind for condonation of delay were succinctly summarised by this Court in Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and Others, (2013) 12 SCC
649.
14. Another aspect that could be noticed that this Court is not hearing application seeking condonation of delay, but sitting in supervisory jurisdiction under Article 227 of the Constitution of India to examine the correctness of the impugned order, in former question is limited to condone the delay or not, but in later. Whether there has been any error in part of trial Court, which needs to be interfered under supervisory jurisdiction, would be a question.
15. Let refer the nature of scope of the supervisory jurisdiction under Article 227 of the Constitution of India, which is enlightened in case of Garment Crafts Vs. Prakash Chand Goel Page 23 of 25 Downloaded on : Thu Jul 11 21:06:47 IST 2024 NEUTRAL CITATION C/SCA/15643/2021 CAV JUDGMENT DATED: 11/07/2024 undefined reported in (2022) 4 SCC 181, wherein the Hon'ble Apex Court in para 15 and 16, held as under:-
"15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal [Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC 217]. The jurisdiction exercised is in the nature of correctional1 jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97 has observed:-
"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction Page 24 of 25 Downloaded on : Thu Jul 11 21:06:47 IST 2024 NEUTRAL CITATION C/SCA/15643/2021 CAV JUDGMENT DATED: 11/07/2024 undefined of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."
16. In view of above, this Court does not find any reason to interfere with the impugned order under the limited and supervisory jurisdiction of Article 227 of the Constitution of India. Accordingly, the petition stands dismissed. Notice discharged. Interim relief, if any, granted earlier stands vacated.
17. R & P, if any, to be sent back forthwith to the concerned trial Court.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 25 of 25 Downloaded on : Thu Jul 11 21:06:47 IST 2024