Gujarat High Court
Kantilal Narshibhai Rathod vs Natvarlal Mavjibhai on 8 August, 2023
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
NEUTRAL CITATION
C/CRA/205/2013 JUDGMENT DATED: 08/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 205 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2021
In R/CIVIL REVISION APPLICATION NO. 205 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
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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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KANTILAL NARSHIBHAI RATHOD & 1 other(s)
Versus
NATVARLAL MAVJIBHAI
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Appearance:
MR MRUGEN K PUROHIT(1224) for the Applicant(s) No. 1,2
JENIL M SHAH(7840) for the Opponent(s) No. 1
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2CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 08/08/2023
ORAL JUDGMENT
The captioned Civil Revision Application, is against the judgment and order dated 19.02.2013 passed by the learned 8 th Additional District Judge, Rajkot in Civil Misc. Application no.84 of 2011 whereby, the learned Judge, has condoned the delay of 3382 days occurred in filing the appeal, challenging the judgment dated 17.05.2001 passed in Civil Misc. Application no.44 of 1999, rejecting the request for restitution of the possession.
Page 1 of 25 Downloaded on : Sun Sep 17 00:44:37 IST 2023 NEUTRAL CITATION C/CRA/205/2013 JUDGMENT DATED: 08/08/2023 undefined 2. The facts in brief are as follows:- 2.1 Sukhlalbhai Lajibhai Vadgama, was owner of a building
situated near Pattani Hospital. Regular Civil Suit no.204 of 1980 was filed against one Chetankumar Mehta and respondent - Natvarlal Mavjibhai seeking recovery of the suit property on the ground that the respondent is trespasser and has no right, title or interest over it. The suit, was partly decreed; however, the possession was not granted.
2.2 Shri Sukhlalbhai Vadgama, sold the property to Rameshbhai N. Rathod and Kantibhai Narshibhai Rathod, i.e. petitioner no.1 vide registered sale deed dated 04.10.1990. Suit being Small Suit no.128 of 1993 was filed before the Small Causes Court against Chetankumar Mehta and the respondent for recovery and possession and arrears of rent. Vide judgment dated 02.09.1996, the suit was decreed and the defendants including the respondent were directed to handover the possession to the plaintiff by 30.09.1996. Apropos the Execution Petition no.27 of 1996, the possession of the suit property was handed over on 15.03.1997. After getting the possession of the suit property, Kantibhai Narshibhai Rathod - petitioner no.1, has let the suit premises to Chandulal Hirabhai Siddhpura - petitioner no.2 on 17.03.1997 and since then, the petitioner no.2 is in occupation and possession of the suit property.
2.3 The respondent filed Regular Civil Appeal under the provisions of sub-section (2) of Section 29 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the 'Rent Act'), challenging the judgment dated 02.09.1996 passed in Small Suit no.128 of 1993. Appeal, came to be partly allowed vide judgment dated 15.09.1998, which was subject matter of challenge Page 2 of 25 Downloaded on : Sun Sep 17 00:44:37 IST 2023 NEUTRAL CITATION C/CRA/205/2013 JUDGMENT DATED: 08/08/2023 undefined before this Court by way of Civil Revision Application no.1503 of 1998.
2.4 On 17.06.1999, the respondent, filed a Civil Misc. Application no.44 of 1999 before the Small Causes Court, Rajkot under the provisions of Section 144 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'the Code') for restitution of possession which came to be rejected vide order dated 17.05.2001. Simultaneously, a suit being Small Suit no.225 of 1999 was filed by the petitioner no.2 before the Small Causes Court, seeking declaration and permanent injunction against the petitioner no.1 together with application Exh.5, which came to be allowed vide order dated 30.05.2000 whereby, the injunction granted vide order dated 29.12.1999, was confirmed.
2.5 It is thereafter, that the petitioner no.2 purchased the suit property vide registered sale deed dated 24.02.2003 and subsequently, on 02.10.2006, the suit came to be withdrawn against the petitioner no.1. It is the case of the petitioners that the petitioner no.2, is in peaceful possession of the suit property since 17.03.1997.
2.6 As aforesaid, Civil Misc. Application no.44 of 1999 came to be rejected vide judgment dated 17.05.2001. Almost after a period of 10 years, the respondent, had filed Civil Misc. Application no.84 of 2011 before the 8th Additional District Judge, Rajkot challenging the judgment and order dated 17.05.2001 together with application seeking condonation of delay of 3382 days. The learned Judge, vide order dated 19.02.2013, allowed the application and condoned the delay subject to payment of costs of Rs.5,000/-, i.e. Rs.2,500/- each to the petitioner nos.1 and 2 respectively. Being aggrieved, the captioned Civil Revision Application by the petitioners.
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3. Mr Mrugen K. Purohit, learned advocate for the petitioners, while arguing along the lines of the revision application submitted that various proceedings were initiated and decided amongst the parties. So far as the respondent is concerned, the suit was filed being Regular Civil Suit no.204 of 1980, which was partly decreed; however, the possession was not granted to the original owner. Thereafter, the property came to be sold in favour of the petitioner no.1 vide registered sale deed who, preferred a suit which came to be decreed on 02.09.1996 with a direction to the defendants to handover the possession and in the execution proceedings, that the possession was handed over somewhere in the month of March, 1997. Regular Civil Appeal was filed which came to be allowed which was a subject matter of challenge before this Court by way of Civil Revision Application. Subsequent thereto, the respondent had filed Civil Misc. Application for restitution of the possession, which came to be rejected vide order dated 17.05.2001. In the interregnum, another suit was filed being Small Suit no.225 of 1999 seeking declaration and permanent injunction together with application, Exh.5 which came to be allowed. It is thereafter, that the petitioner no.2, had purchased the property vide registered sale deed in the month of February, 2003 and the suit filed, came to be withdrawn.
3.1 It is submitted that the restitution application came to be rejected which order was not challenged for almost 10 years and after 10 years that Civil Misc. Application no.84 of 2011 was filed together with application seeking condonation of delay of 3382 days, which came to be allowed.
3.2 While referring to the impugned judgment, it is submitted that the learned Judge took note of the steps taken for certified copy Page 4 of 25 Downloaded on : Sun Sep 17 00:44:37 IST 2023 NEUTRAL CITATION C/CRA/205/2013 JUDGMENT DATED: 08/08/2023 undefined somewhere in the month of December, 2010 and delivery whereof, in the month of January, 2011. The learned Judge, was of the opinion that the petitioner came to know about the judgment only on 29.12.2010 and as per the provisions of the Limitation Act, that the appeal has been preferred within a period of 30 days; however, considering sufficient and reasonable reasons, there occurred a delay of further 3382 days. It is submitted that the learned Judge, took note of the proceedings, namely, the suits filed by the parties and the execution petition, so also the revision application before this Court and after considering the judgments of the Apex Court, it condoned the delay. The learned Judge, condoned the delay on the ground that an opportunity should be given to the appellant, that is the respondent and the matter to be heard and decided on merits, such approach adopted by the learned Judge is erroneous considering that no sufficient cause much less any cause was offered by the respondent in support of the delay.
3.3 It is submitted that the respondent waking up from the slumber after almost 10 years, without any explanation to be offered, has simply stated that he came to know about the judgment only in the month of December, 2010 and immediately, that the steps have been taken. It is submitted that such an explanation, cannot be construed to be sufficient explanation for the purpose of the provisions contained in Section 5 of the Limitation Act inasmuch as, there has to be sufficient explanation offered and in absence of any sufficient explanation, the learned Judge, ought not to have condoned the delay.
3.4 Reliance is placed on the judgment of the Apex Court in the case Majji Sannemma @ Sanyasirao vs. Reddy Sridevi reported in 2021 SCC OnLine 1260. The Apex Court, while referring to various judgments, namely, (i) Ramlal, Motilal and Chhotelal vs. Rewa Page 5 of 25 Downloaded on : Sun Sep 17 00:44:37 IST 2023 NEUTRAL CITATION C/CRA/205/2013 JUDGMENT DATED: 08/08/2023 undefined Coalfields Ltd., reported in (1962) 2 SCR 762; (ii) P.K. Ramachandran vs. State of Kerala reported in (1997) 7 SCC 556; (iii) Pundlik Jalam Patil vs. Executive Engineer, Jalgaon Medium Project reported in (2008) 17 SCC 448; and Basawaraj vs. Special Land Acquisition Officer, reported in (2013) 14 SCC 81, did not condone the delay as, the Apex Court, was of the opinion that there is no explanation, much less a sufficient or a satisfactory explanation offered by the respondents therein.
3.5 Further reliance is placed on the judgment in the case of Basawaraj vs. Special Land Acquisition Officer (supra). It is submitted that the Apex Court, while considering the expression 'sufficient cause' had held and observed that sufficient cause is the cause for which 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. It has also been held and observed that 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 view point of a reasonable standard of a cautious man. It is submitted that reference was also made to judgment of the Apex Court in the case of Arjun Singh vs. Mohindra Kumar reported in AIR 1964 SC 993 wherein, while explaining the difference between a "good cause" and a "sufficient cause", it has been observed that every "sufficient cause" is a good cause and vice versa. The Apex Court, further observed that the expression "sufficient cause"
should be given an 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.
Page 6 of 25 Downloaded on : Sun Sep 17 00:44:37 IST 2023 NEUTRAL CITATION C/CRA/205/2013 JUDGMENT DATED: 08/08/2023 undefined 3.6 Reliance is also placed on the judgment of this Court in the
case of State of Gujarat through Deputy Secretary vs. Kasiben Ratanjibhai Gamit reported in 2021 (3) GLR 1987. It is submitted that in case before the Division Bench of this Court, there was a delay of 1569 days, i.e. nearly 5 years on the part of the State Government. Considering the judgments, including the judgments of the Apex Court in the cases of Office of the Chief Post Master General vs. Living Media India Limited reported in (2012) 3 SCC 563 and Basawaraj vs. Special Land Acquisition Officer (supra), the Hon'ble Court, held that sufficient cause should be given liberal interpretation to ensure that the substantial justice is done, but only so long as the negligence, inaction or lack of bona fide cannot be infused. With this, the delay was not condoned and the appeal came to be dismissed.
3.7 Reliance is also placed on the judgment of this Court in the case of Samusunisha Begaum w/o. Dr. Nasarullahkhan Dhaniani vs. Vishnukumar Ambelal Patel reported in 2012 (2) GLH 725. It is submitted that the issue before this Court, was of the filing of the affidavit by the advocate trying to explain the circumstance under which delay has occurred. This Court, did not condone the delay observing that the litigant owes a duty to be vigilant of his own rights and is expected to be equally vigilant about the judicial proceedings pending in the Court initiated at his instance and the litigant, cannot be permitted to throw entire blame on the head of the advocate and thereby disown him any time and seek relief. It is submitted that therefore, the common thread running through all the judgments, is that if the negligence or inaction, is attributed to the petitioner and if the sufficient cause is not offered, the delay, should not be condoned.
Page 7 of 25 Downloaded on : Sun Sep 17 00:44:37 IST 2023 NEUTRAL CITATION C/CRA/205/2013 JUDGMENT DATED: 08/08/2023 undefined 3.8 It is submitted that a bare perusal of the application filed by
the respondent seeking condonation of delay, suggests that it is mere narration of the fact and the only explanation offered, is in one line and that too in paragraph 3 that the respondent was not aware about the judgment dated 17.05.2001. Paragraph 4 of the application, indicates that when the respondent went to the learned advocate that it came to his notice that the application, has been rejected and thereafter, that the certified copy, was applied for and was made available and immediately thereafter, that the Civil Misc. Application has been filed challenging the order dated 17.05.2001. It is therefore, submitted that in the application, except last line in paragraph 3, there is not a whisper as to why the respondent, had not taken any steps for challenging the judgment dated 17.05.2001, for almost ten years.
3.9 It is further submitted that the respondent, was dispossessed in the year 1997, during the execution proceedings and it is thereafter, that an application was filed under Section 144 of the Code seeking restitution. It is submitted that it is difficult to believe that the person, who is dispossessed, will not take any action for 10 years. Furthermore, in the application, there is no explanation, no account of any dates mentioned and delay, is explained in a cryptic manner.
3.10 It is submitted that the petitioner no.2, has purchased the property and had filed suit against the petitioner no.1, as he was inducted in the year 1997. Also, another suit, was filed in the year 1999 and application, Exh.5 was allowed. The petitioner no.2 purchased the property from the petitioner no.1 by registered sale deed in the year 2003. Substantial development took place in the interregnum and the respondent had been inactive for all these years and in absence of any sufficient explanation offered, the Page 8 of 25 Downloaded on : Sun Sep 17 00:44:37 IST 2023 NEUTRAL CITATION C/CRA/205/2013 JUDGMENT DATED: 08/08/2023 undefined learned Judge ought not to have allowed the application and should have rejected the same. It is therefore, urged that the captioned Civil Revision Application, deserves to be allowed.
4. On the other hand, Mr Jenil M. Shah, learned advocate for the respondent submitted that in the proceeding being Small Suit no.128 of 1993, though the respondent was party, it proceeded ex parte. It is submitted that the suit, was decreed and the defendants, including the respondent was directed to vacate and handover the possession. Therefore, in the execution proceeding, the possession was taken on 15.03.1997. It is submitted that immediately on 17.03.1997, that the petitioner had rented the premises to the petitioner no.2. Against the said ex parte decree that the appeal was filed by the respondent which came to be allowed vide judgment dated 15.09.1998. Against which, the Civil Revision Application was filed before this Court. It is next submitted that since the suit was filed by one of the petitioners, and was pending, that the respondent did not take any steps.
4.1 It is submitted that assuming that the delay has not been explained by the respondent satisfactorily, does it mean that the decree in favour of the respondent of the year 1988 which did not allow the petitioner of the possession, can be ignored. It is submitted that neither any malice nor dilatory tactics has been attributed on the part of the respondent and therefore, to suggest that the delay ought not to have been condoned, would be an attempt on the part of the petitioners to stultify the right otherwise accrued in favour of the respondent, after the Civil Suit no.204 of 1980 got partly decreed in favour of the plaintiff. It is submitted that the attempt on the part of the petitioner is only to defeat the said decree passed by the Court of competent jurisdiction.
Page 9 of 25 Downloaded on : Sun Sep 17 00:44:37 IST 2023 NEUTRAL CITATION C/CRA/205/2013 JUDGMENT DATED: 08/08/2023 undefined 4.2 Reliance is placed on the judgment of the Apex Court in the
case of N. Balakrishnan vs. M. Krishnamurthy reported in (1998) 7 SCC 123. It is submitted that the Apex Court has held and observed 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 of 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 revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. It has also been held and observed that if the explanation does not smack of mala fides or it is not put forth as a part of the 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.
4.3 Reliance is also placed on the judgment of the Apex Court in the case of B.T. Purushothama Rai vs. K.G. Uthaya reported in (2011) 14 SCC 86. It is submitted that the Apex Court, referred to the judgment in the case of N. Balakrishnan vs. M. Krishnamurthy (supra).
4.4 Reliance is also placed on the judgment of the Apex Court in the case of Maniben Devraj Shah vs. Municipal Corporation of Brihan Mumbai reported in (2012) 5 SCC 157. It is submitted that the Apex Court, inter alia, has held and observed that the expression Page 10 of 25 Downloaded on : Sun Sep 17 00:44:37 IST 2023 NEUTRAL CITATION C/CRA/205/2013 JUDGMENT DATED: 08/08/2023 undefined "sufficient cause" used in Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to enable the Courts to apply the law in a meaningful manner which serve the ends of justice. No hard-and-fast rule has been or can be laid down for deciding the applications for condonation of delay but over the years, a liberal approach should be adopted in such matters so that substantive rights of the parties are not defeated merely because of delay.
4.5 Reliance is also placed on the judgment of the Apex Court in the case of Improvement Trust, Ludhiana vs. Ujagar Singh reported in (2010) 6 SCC 786. It has been held and observed that unless mala fides are writ large on the conduct of the party, generally as a normal rule, delay should be condoned. It has been held and observed that in the legal arena, an attempt should always be made to allow the matter to be contested on merits rather than to throw it on such technicalities. It is therefore, urged that in absence of any malice or dilatory strategy on the part of the respondent attributed, the delay, was rightly condoned by the learned Judge and therefore, no indulgence is required in the captioned Civil Revision Application.
4.6 Reliance is also placed on the judgment of the Apex Court in the case of Ram Nath Sao @ Ram Nath Sahu vs. Gorbardhan Sao reported in (2002) 3 SCC 195. While explaining the expression "sufficient cause", it has been, inter alia, held and observed that acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bona fide can be imputed to the defaulting party. It has also been held and observed that on the other hand, while considering the matter the Courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner. It is therefore, submitted that the Apex Page 11 of 25 Downloaded on : Sun Sep 17 00:44:37 IST 2023 NEUTRAL CITATION C/CRA/205/2013 JUDGMENT DATED: 08/08/2023 undefined Court, has consistently held and observed that liberal approach be adopted, especially, when the appeal has been decreed in favour of the respondent and if the delay is not condoned, the right which otherwise had accrued in favour of the respondent, would be foreclosed.
5. Mr Mrugen K. Purohit, learned advocate in a brief rejoinder submitted that after the decree was passed, the respondent, availed of the remedy of restitution which, came to be rejected vide order dated 17.05.2001 and which was challenged after almost 10 years. It is submitted that a contention is raised that since the petitioner no.2, filed suit in the year 1999 and because of the injunction granted that the respondent remained silent. It is submitted that the suit came to be withdrawn in the year 2006 whereas; the application seeking condonation of delay together with the appeal, has been filed in the year 2011, i.e. close to five years. Therefore, the respondent remained silent for all these years, initially, for the years from 2001 to 2006 and then from 2006 to 2011. It is therefore, urged that the said defence taken by the respondent, is of no avail more particularly, when there is no sufficient explanation coming forth, explaining such a huge delay.
6. Heard Mr Mrugen Purohit, learned advocate for the petitioners and Mr Jenil M. Shah, learned advocate for the respondent. This Court, has perused and considered the documents, made available by the learned advocates appearing for the respective parties.
7. Tersely stated are the facts. Sukhlalbhai Lajibhai Vadgama, was owner of the disputed property who, filed a Regular Civil Suit no.204 of 1980 against Chetankumar Mehta and respondent - Natvarlal Mavjibhai, seeking recovery of the suit property, inter alia, on the ground that the respondent is a trespasser and has no right, Page 12 of 25 Downloaded on : Sun Sep 17 00:44:37 IST 2023 NEUTRAL CITATION C/CRA/205/2013 JUDGMENT DATED: 08/08/2023 undefined title or interest. On 11.05.1988, the suit was partly decreed, but the possession was not ordered.
8. It is thereafter, that the original owner Sukhlalbhai Laljibhai Vadgama sold the property to Rameshbhai N. Rathod and Kantibhai Narshibhai Rathod, i.e. the petitioner no.1 vide registered sale deed dated 04.10.1990. Small Suit no.128 of 1993 was filed before the Small Causes Court, Rajkot against Chetankumar Mehta and the respondent for recovery and possession of the suit property. The learned Additional Judge, Small Causes Court, Rajkot vide judgment dated 02.09.1996 decreed the suit and the defendants therein were directed to vacate and handover the possession, followed by Execution Petition no.27 of 1996 and in the said execution proceeding, the possession of the suit property was handed over to the petitioners on 15.03.1997.
9. The petitioner no.1, after getting the possession of the suit property, let it to the petitioner no.2 on 17.03.1997 and since then, the petitioner no.2, is in occupation and possession of the suit property. The respondent, being aggrieved by the judgment dated 02.09.1996, filed a Regular Civil Appeal no.108 of 1997 under the provisions of the Rent Act and the Small Causes Court, partly allowed it vide judgment dated 15.09.1998 which was challenged by the petitioner no.1 before this Court by way of Civil Revision Application no.1503 of 1998 which came to be disposed of as withdrawn vide order dated 08.04.1999 as the premises, was let out to the petitioner no.2 who was in possession.
10. On 17.06.1999, the respondent, had filed Civil Misc. Application no.44 of 1999 before the Small Causes Court under the provisions of Section 144 of the Code for restitution of the possession which came to be rejected by the learned Additional Page 13 of 25 Downloaded on : Sun Sep 17 00:44:37 IST 2023 NEUTRAL CITATION C/CRA/205/2013 JUDGMENT DATED: 08/08/2023 undefined Judge, Small Causes Court, Rajkot on 17.05.2001. Simultaneously, the petitioner no.2 filed a Civil Suit no.225 of 1999, seeking declaration and permanent injunction that the defendant be permanently restrained from interfering with his possession and should not be evicted without due process of law. An application, Exh.5 was also filed which came to be allowed vide order dated 30.03.2000. It is thereafter, that the petitioner no.2 on 24.02.2003 purchased the suit property from the petitioner no.1 by registered sale deed followed by withdrawal of the suit on 02.10.2006.
11. The above-referred Civil Misc. Application no.44 of 1999 came to be rejected and after a span of 10 years the respondent preferred a Civil Misc. Application no.84 of 2011, seeking condonation of delay of 3382 days, challenging the order dated 17.05.2001 which, came to be allowed vide order dated 19.02.2013 and hence, being aggrieved, the present Civil Revision Application.
12. Discernibly, Regular Civil Suit no.204 of 1980 was filed by the original owner against one Chetankumar Mehta and the respondent which, came to be partly allowed in the year 1988; however, possession was not granted. Proceeding in the nature of Small Suit no.128 of 1993, was initiated which, culminated into passing of the judgment dated 02.09.1996 and vide order dated 15.09.1998 the appeal of the respondent came to be allowed. Respondent had also initiated the proceedings under the provisions of Section 144 of the Code by filing Civil Misc. Application no.44 of 1999, seeking restitution of possession.
13. The case of the respondent in the application was that the judgment and order dated 02.09.1996 passed in Small Suit no.128 of 1993 having been reversed in the appeal and the judgment in appeal having been confirmed after the withdrawal of the Civil Page 14 of 25 Downloaded on : Sun Sep 17 00:44:37 IST 2023 NEUTRAL CITATION C/CRA/205/2013 JUDGMENT DATED: 08/08/2023 undefined Revision Application, the possession taken on 15.03.1997 be handed over to the respondent. The said application, came to be decided on 17.05.2001. The Small Causes Court, formulated the issue as to "whether the petitioner has proved the remedy u/s. 144 of the C.P.C. for restitution of possession against the petitioner no.2?", which was replied in negative, as the Court below, was of the opinion that the burden lies upon the party applying to prove the case. The learned Judge, considering the provisions of Section 144 of the Code and the evidence, rejected the application, observing in paragraph 12 thus:-
"12. Now looking to the submissions of the party's advocates and the provisions of Sec.144 of C.P.C. and the authorities cited by the party's advocates, I come to the conclusion that there were proceedings between the petitioners in Small Causes Court and the Appellate Court. It is crystal clear from the judgment of the Appellate Court that the Appellate Court has reversed the judgement & decree passed by the trial Court in R.C.S. No. 128/93 and set aside the decree. Before that, execution petition No.27/96 is already filed and handed over the possession through the bailiff from the petitioner as per order passed in the said matter, and opponent No.1 is in actual possession of the premises and subsequently, opponent No.1 and let out the premises to opponent No.2 as a tenant. Opponent No.2 has personal knowledge so far earlier proceeding made between petitioner & opponent No.1 and therefore, has filed Regular Civil Suit No.225/99 and asked the ad-interim injunction through Ex.5 and after hearing the party's advocates, the main Court has pleased to grant ad-interim injunction at initial stage and thereafter, Small Causes Court (Main) has confirmed Ex. 5 at the time of hearing of Ex. 5. No doubt, it transpires from the judgment that the petitioner was not a party. The summons was served against Shri Kantilal Narshibhai Rathod (opponent No.1) in that suit i.e. R.C.S. No.225/99. Now looking to the factual aspect is concerned, it is bounden duty of the present petitioner to approach main court so far the ad-interim injunction is concerned. The main court has passed an order below Ex.5 and ordered that without due process of laws, opponent No.1 has no right to transfer rented premises to anybody. If the petitioner is vigilant, then, he ought to have joined necessary party in earlier proceedings because separate proceedings of R.C.S. No.225/99 is pending and the Hon'ble Main Court has passed the ad-interim injunction, which is confirmed and continued till disposal of the suit. Under these circumstances, if any order passed by this court, then subsequently, same court is passing a different view in this matter. Under these circumstances, I am of the opinion that Sec.144 of C.P.C. is only applicable when there is no other litigation pending in the court. The provisions of Sec.144 is as under.
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(1) Where and in so far as a decree (Or an order) is (varied or reversed in any appeal, revision or other proceedings or is set aside or modified the decree or order) shall on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree (or order) (such part thereof as has been varied, reversed, set aside or modified); and for this purpose, the Court may make any orders including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are property (consequential) on such variation, reversal, setting aside or modification of the decree or order).
(2) No suit: shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub-sec. (1) And above plain reading of Sec. 144, it is crystal clear that no suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub-sec. (1). Under these circumstances, I am of the opinion that the authorities cited by learned advocate for opponent No.2, are applicable in the facts of the present case. Under these circumstances, I am of the view that the petitioner has miserably failed to prove his case and hence I pass following final order."
14. After the rejection of the application, no steps were taken in the interregnum, i.e. for the period from 17.05.2001 to 29.12.2010. Close to 10 years, the respondent preferred Civil Misc. Application no.84 of 2011 (condonation of delay), seeking condonation of delay of 3382 days. Paragraph 1 indicated the facts, viz. making a reference of Civil Suit no.204 of 1980; the aspect of judgment and decree dated 11.05.1988 and the purchase of the suit property by the petitioner no.2. Paragraph 2 contained the details of the Small Suit no.128 of 1993 and the judgment and order dated 02.09.1996, so also the appeal and the judgment in appeal dated 15.09.1998; aspect of Civil Revision Application filed against the order dated 15.09.1998, was also forming part of the said paragraph and the order passed disposing of the revision application. Paragraph 3, Page 16 of 25 Downloaded on : Sun Sep 17 00:44:37 IST 2023 NEUTRAL CITATION C/CRA/205/2013 JUDGMENT DATED: 08/08/2023 undefined inter alia, states the factum of application under Section 144 of the Code and so also the details of the Small Suit no.225 of 1999 and the allegation that the said suit, was a collusive suit. Further allegation has been made that the petitioner no.2 has been inducted as a tenant only with a view to depriving the respondent of his rights. Aspect of the order dated 17.05.2001, has also been referred to. In the last line of the said paragraph, it is stated that the respondent was not aware about the said rejection.
15. Further, in paragraph 4, the respondent, inter alia, states that upon inquiry from the learned advocate, and getting the papers, so also the status of the application under Section 144 of the Code, that the certified copy was applied for, and upon receipt of the same, that the respondent came to know about the order dated 17.05.2001 for the first time; however, since there was some confusion that Shri Bharatbhai Buddhdev was approached and advise was taken in the month of March. Issue also arose as to where to file the appeal and therefore, for confirmed opinion that an advocate was approached of Ahmedabad. As a result of the discussion, it was opined that appeal is to be filed before the District Court. It is stated that necessary steps were taken and the appeal, has been filed with a delay of 3382 days. With these averments, the respondent, has prayed for condonation of delay of 3382 days, which as aforesaid, came to be condoned by the Court below.
16. Apt would be the judgment of the Apex Court in the case of Basawaraj vs. Special Land Acquisition Officer (supra). The Apex Court, held and observed that sufficient cause is the cause for which 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. The Apex Court, has also held and observed that the party should not have acted in a Page 17 of 25 Downloaded on : Sun Sep 17 00:44:37 IST 2023 NEUTRAL CITATION C/CRA/205/2013 JUDGMENT DATED: 08/08/2023 undefined 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 Apex Court, has held and observed that the petitioner must satisfy the Court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay. Paragraphs 9 to 15 of the judgment of the Apex Court read thus:-
"9. Sufficient cause is the cause for which 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 view point 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 petitioner must satisfy the Court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation 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 Corporation Ltd. v. Bhootnath Banerjee & Ors., AIR 1964 SC 1336; Lala Matadin v. A. Narayanan, AIR 1970 SC 1953; Parimal v.Veena @ Bharti AIR 2011 SC 1150; and Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai AIR 2012 SC 1629.)
10. In Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993 this Court explained the difference between a "good cause" and a "sufficient cause" and observed that every "sufficient cause" is Page 18 of 25 Downloaded on : Sun Sep 17 00:44:37 IST 2023 NEUTRAL CITATION C/CRA/205/2013 JUDGMENT DATED: 08/08/2023 undefined 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 that 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, AIR 2002 SC 100; and Ram Nath Sao @ Ram Nath Sahu & Ors. v. Gobardhan Sao & Ors., AIR 2002 SC 1201.)
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 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. 24, p. 266:
"605. Policy of 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. State Bank of India Staff Assn. (2005) 7 SCC 510; Rajendar Singh & Ors. v. Santa Singh & Ors., AIR 1973 SC 2537; and Pundlik Jalam Patil v. Executive Engineer, Jalgaon Medium Project, (2008) 17 SCC 448).
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14. In P. Ramachandra Rao v. State of Karnataka, AIR 2002 SC 1856, this Court held that judicially engrafting principles of limitation amounts to legislating and would fly in the face of law laid down by the Constitution Bench in A. R. Antulay v. R.S. Nayak, AIR 1992 SC 1701.
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 petitioner 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 bonafide 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."
17. Yet in another decision of the Apex Court in the case of Majji Sannemma @ Sanyasirao vs. Reddy Sridevi (supra), while considering various judgments and applying the principle, allowed the appeal by quashing and setting aside the order of the High Court whereby, delay of 1011 days caused in preferring the Second Appeal, was condoned. The Apex Court, noted that the High Court was not at all justified in exercising its discretion while condoning such a huge delay, as the reasoning given were not germane. The Apex Court has referred the judgment in the case of Pundlik Jalam Patil vs. Executive Engineer, Jalgaon Medium Project (supra) wherein, it has been held and observed that the laws of limitation are founded on public policy. It has also been held and observed that the object for fixing time-limit for litigation is based on public policy, fixing a lifespan for legal remedy for the purpose of general welfare and are meant to see that the parties do not resort to dilatory tactics, but avail their legal remedies promptly. While Page 20 of 25 Downloaded on : Sun Sep 17 00:44:37 IST 2023 NEUTRAL CITATION C/CRA/205/2013 JUDGMENT DATED: 08/08/2023 undefined referring to the Salmond Jurisprudence, it has been pointed out that the laws come to the assistance of the vigilant and not of the sleepy. Paragraphs 16 to 21 of the judgment read thus:-
"16. At this stage, a few decisions of this Court on delay in filing the appeal are referred to and considered as under:-
17. In the case of Ramlal, Motilal and Chhotelal (supra), it is observed and held as under:-
In construing s. 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be lightheartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v.
Chattappan, (1890) J.L.R. 13 Mad. 269, "s. 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant."
18. In the case of P.K. Ramachandran (supra), while refusing to condone the delay of 565 days, it is observed that in the absence of reasonable, satisfactory or even appropriate explanation for seeking condonation of delay, the same is not to be condoned lightly. It is further observed that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. It is further observed that while exercising discretion for condoning the delay, the court has to exercise discretion judiciously.
19. In the case of Pundlik Jalam Patil (supra), it is observed as under:-
"The laws of limitation are founded on public policy. Statutes of limitation are sometimes described as "statutes of peace". An unlimited and perpetual threat of Page 21 of 25 Downloaded on : Sun Sep 17 00:44:37 IST 2023 NEUTRAL CITATION C/CRA/205/2013 JUDGMENT DATED: 08/08/2023 undefined limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. The principle is based on the maxim "interest reipublicae ut sit finis litium", that is, the interest of the State requires that there should be end to litigation but at the same time laws of limitation are a means to ensure private justice suppressing fraud and perjury, quickening diligence and preventing oppression. The object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy."
20. In the case of Basawaraj (supra), it is observed and held by this Court that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case. It is further observed that the expression "sufficient cause" cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party. It is further observed that even though limitation may harshly affect rights of a party but it has to be applied with all its rigour when prescribed by statute. It is further observed that in case a party has acted with negligence, lack of bona fides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. It is observed that each application for condonation of delay has to be decided within the framework laid down by this Court. It is further observed that if courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to legislature.
21. In the case of Pundlik Jalam Patil (supra), it is observed by this Court that the court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The Courts help those who are vigilant and "do not slumber over their rights".
18. So is the view taken by the Division Bench of this Court in the cases of State of Gujarat through Deputy Secretary vs. Kasiben Ratanjibhai Gamit (supra) and Samusunisha Begaum w/o. Dr. Nasarullahkhan Dhaniani vs. Vishnukumar Ambelal Patel (supra).
19. Therefore, common thread running through all these judgments is that the law of limitation, is based on public policy and statutes of limitation are sometimes described as statutes of peace. An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order.
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finis litium", that is, the interest of the State requires that there should be end to litigation but at the same time laws of limitation are a means to ensure private justice suppressing fraud and perjury, quickening diligence and preventing oppression. It is well settled that expression "sufficient cause", should be given a liberal interpretation to ensure that the substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned.
20. Therefore, what is required to be seen in the present case is as to whether the respondent, has offered sufficient cause and that he has acted diligently and not in a negligent manner. If the answer to the said question, is in negative, this Court may not like to exercise the discretion for, the Court has to exercise the discretion judiciously. Considering the explanation offered, the answer to the question has necessarily to be in negative, for the reasons and facts discussed herein below.
21. Perceptibly, negligence and inaction is writ large as, the respondent had sought to challenge the judgment dated 17.05.2001 almost after a period of 10 years. As discussed herein above, in the application seeking condonation of delay, the only explanation which can be culled out, is the last line in paragraph 3, that is, the respondent having no knowledge of the rejection of the application.
22. It is quite unacceptable that the respondent had no knowledge about the order dated 17.05.2001. The respondent, though dispossessed, did not take any steps and one fine morning, waking up from the slumber, in the year 2011, that inquiry was made and after the inquiry, that an application was filed together with the condonation of delay of 3382 days. It is difficult to fathom Page 23 of 25 Downloaded on : Sun Sep 17 00:44:37 IST 2023 NEUTRAL CITATION C/CRA/205/2013 JUDGMENT DATED: 08/08/2023 undefined that when a person is dispossessed, he would not pursue the remedy vigorously or with all sensitivity. Mr Mrugen K. Purohit, learned advocate, is right in raising the contention that the respondent, though was dispossessed, remained indolent and failed to take any steps and in absence of any explanation offered, has dis-entitled himself from the discretion to the exercised by the Court for condoning the delay. The principles laid down in the judgments cited by the learned counsel for the respondent, would apply provided there is an explanation and sufficient cause offered by the respondent, but there is none. In absence of the same, neither the judgments nor further consideration can be accorded to the respondent.
23. Explanation offered in one line, cannot be construed to be sufficient explanation, seeking condonation of delay of almost 10 years more particularly, when in the interregnum, various proceedings were initiated and filed amongst the parties. May be the respondent was not party to some of the proceedings; however, that does not absolve the respondent from making an inquiry about the status of his own application or the order more particularly, when the respondent, was seeking restitution of the possession. The learned Judge, while accepting the application, has not considered the said aspect and in paragraph 8, made a reference of the Limitation Act and the expression "sufficient cause" and in paragraph 9, making reference of the proceedings starting from the year 1993, 1997 and 1998, allowed the application on the ground that the justice demands that the delay must be condoned and opportunity should be given to the respondent. Such reasoning, is not the underlying object for condoning the delay, as the discretion by the Court, has to be exercised judiciously and not only on the ground that the justice demands condonation of delay.
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24. The respondent, all throughout, has remained inactive and did not take any steps. Apt would be the principle of Salmond Jurisprudence which says that the laws help the vigilant and not the sleepy. Therefore, in the opinion of this Court, the learned Judge, committed an error in condoning the delay of 3382 days more particularly, when the application, seeking condonation of delay, was bereft of any reasons. The judgment therefore, is illegal and bad. Accordingly, the judgment and order dated 19.02.2013 passed by the learned 8th Additional District Judge, Rajkot in Civil Misc. Application no.84 of 2011, deserves to be quashed and set aside and is hereby quashed and set aside.
25. The Civil Revision Application, stands allowed. No order as to costs.
26. Rule is made absolute accordingly.
27. In view of the disposal of the Civil Revision Application, the Civil Application (for stay) no.2 of 2021, does not survive and stands disposed of.
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