Gujarat High Court
Late Jivanji Shankarji Thakore Through ... vs Lhs Of Dineshbhai Keshavlal Patel on 3 May, 2024
NEUTRAL CITATION
C/SCA/10358/2023 ORDER DATED: 03/05/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10358 of 2023
With
CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 10358 of 2023
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LATE JIVANJI SHANKARJI THAKORE THROUGH LHS & ORS.
Versus
LHS OF DINESHBHAI KESHAVLAL PATEL & ORS.
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Appearance:
DECEASED LITIGANT for the Petitioner(s) No. 1
MR UDAY M JOSHI(380) for the Petitioner(s) No.
1.1,1.2,1.3,1.4,1.5,2,3,4,5,6,7.1,7.2
for the Respondent(s) No. 1
MR DIVYESH SEJPAL(1322) for the Respondent(s) No. 1.1,1.2,1.3,1.4
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 03/05/2024
ORAL ORDER
1. The present petition is filed by present petitioners - original appellants, by challenging the order dated 19.03.2022 passed below Exh.1 application in Civil Misc. Application No.15 of 2021 by the learned Addl. District Judge, Kalol, whereby the same was rejected, which was filed for condonation of delay in preferring the appeal before the lower appellate court.
2. Brief facts of the case as per the case of the petitioners in this petition are as such that the present Page 1 of 27 Downloaded on : Thu May 09 20:34:29 IST 2024 NEUTRAL CITATION C/SCA/10358/2023 ORDER DATED: 03/05/2024 undefined petitioners along with other co-parceners own a property which is an old tenure property situated in village Adhana at revenue block/ survey no. 114 khata number- 63 which came to be renumbered as new block no. 141, khata number - 163 after resurvey. According to respondents, the said property was purchased through a registered sale deed no.3977 on 26.07.2006 from petitioners and their co-parceners. According to respondents, the said property used to be administered by Late Shri Dineshbhai Keshavlal Patel which was given for cultivation to petitioners and their other co- parceners. Petitioners along with other coparceners used to cultivate the said property. It is further the case of the petitioners in this petition that Late Shri Dineshbhai Keshavlal Patel submitted application for entry of sale for said property in revenue records when entry no. 1761 dated 07.06.2007 was entered in revenue records which came to be rejected by Revenue Authority on 11.01.2008. According to the respondents, no objection was raised by petitioners and their co-parceners upon recording of entry even after service of notice u/s 135 (d) of the Code. It is further the case of the petitioners in this petition that Late Shri Dineshbhai Keshavlal Patel, on coming to Page 2 of 27 Downloaded on : Thu May 09 20:34:29 IST 2024 NEUTRAL CITATION C/SCA/10358/2023 ORDER DATED: 03/05/2024 undefined know the rejection of entry, got entry no. 1873 recorded again in the revenue records on 08.05.2008 with regard to which the petitioners along with co-parceners raised an objection on recording of entry on the ground that the same was rejected earlier. According to respondents, the dispute case no.466 of 2008 came to be registered before the Mamlatdar wherein, no notice was served on them and entry came to be rejected. According to respondents, names of petitioners and their co-parceners were recorded in revenue records through entry No.1672 on 16.12.2006 without knowledge of Late Shri Dineshbhai Keshavlal Patel even after, sale of the said property on 26.07.2006. That with regard to rejection of entry no. 1873, according to the respondents, an appeal has been filed in that regard before the Dy. Collector. According to the respondents, they met the petitioners and their co- parceners for handing over possession of the said property which was not agreed upon and therefore, according to the respondents, petitioners and their coparceners had denied to perform their part of contract. In view of the aforesaid background, respondents filed R.C.S. No. 219 of 2015 in the court of Additional Civil Judge. Kalol for specific performance of contract, Page 3 of 27 Downloaded on : Thu May 09 20:34:29 IST 2024 NEUTRAL CITATION C/SCA/10358/2023 ORDER DATED: 03/05/2024 undefined possession, declaration and permanent injunction of the said property.
It is further the case of the petitioners in this petition that on service of summons, petitioners along with coparceners appeared before the Trial Court through their advocate. However, two legal heirs of co-parcener late Dahyaji Lakshmanji Thakore viz. Thakore Sahilji Dahyaji and Thakore Rajuji Dahyaji did not remain present whereby, the suit was ordered to be proceeded ex-parte against said two persons. It appears that in the proceedings of aforesaid suit, the petitioners along with other coparceners were not represented properly in as much as no written statement or reply to the said suit was filed. Petitioners being uneducated as well as having no knowledge of the procedures were not aware of the stages and the proceedings of the suit. This resulted in the suit being allowed with costs as well as that the respondents had become owners of the said property along with other reliefs.
It is further the case of the petitioners in this petition that the original decree of the said judgment Page 4 of 27 Downloaded on : Thu May 09 20:34:29 IST 2024 NEUTRAL CITATION C/SCA/10358/2023 ORDER DATED: 03/05/2024 undefined dated 30.08.2019 was drawn on 07.09.2019 wherein it was ordered to implement the directions in the said judgment. Petitioners were not aware of the said judgment dated 30.08.2019 in as much as, though represented before the Trial Court, the petitioners were never intimated/informed regarding the same. In view of the aforesaid judgment dated 30.08.2019, the respondents approached Mamlatdar Kalol for making a new entry in the revenue records in which proceedings an application raising objection was filed by petitioners and their coparceners which was allowed by the Mamlatdar. Against order allowing aforesaid application of petitioners, an appeal has been preferred by the respondents before Appellate Authority. On coming to know about the said development in view of aforesaid proceedings having been initiated by respondents before Mamlatdar Kalol and issuance of notice in that regard, an application for certified copy of the judgment dated 30.08.2019 of Trial Court was made on 03.02.2021 and a copy, thereof, was received on 17.02.2021 whereafter, petitioners had handed over papers of the said proceedings to their advocates. Subsequently, petitioners filed an appeal in the court of District Judge Kalol challenging the said judgment dated Page 5 of 27 Downloaded on : Thu May 09 20:34:29 IST 2024 NEUTRAL CITATION C/SCA/10358/2023 ORDER DATED: 03/05/2024 undefined 30.08.2019 delivered in R.C.S. No. 219/2015 along with an application for stay as well as an application for condonation of delay. In the said application for condonation of delay, petitioners, in terms, narrated reasons for the delay caused and the grounds on which the same ought to have been condoned. It was also contended that limitation for filing appeal would start running from the date of knowledge of judgment, under challenge.
It is further the case of the petitioners in this petition that thereafter, the petitioners also filed written arguments justifying their stands as well as substantiating their claim for condonation of delay as well as relied on various judgments in that regard. In the said written submissions, it was also specifically contended that petitioners are poor people who cultivate land and do not have knowledge of law. That, this apart, due to the pandemic, even the Hon'ble Apex Court had excluded period as specified in its order for the purpose of calculating period of limitation. Generally, due to the situation prevalent in view of the pandemic also the delay caused was required to be condoned. Page 6 of 27 Downloaded on : Thu May 09 20:34:29 IST 2024
NEUTRAL CITATION C/SCA/10358/2023 ORDER DATED: 03/05/2024 undefined Respondents also filed written submissions in the said proceedings. However, without considering the contentions raised by petitioners as well as the case law relied upon, the Appellate Court passed order below Exhibit 1 in CMA No. 15 of 2021 filed by petitioners rejecting application for condonation of delay vide order dated 19.03.2022. It is further the case of the petitioners in this petition that respondents have also initiated execution proceedings regarding aforesaid judgment dated 30.08.2019 in the court of learned 2nd Additional Civil Judge, Kalol, which has been registered as Darkhast Number 40 of 2022 and has been fixed for hearing on 20.06.2022. Being aggrieved with the said order dated 19.03.2022 made by Additional District Judge, Kalol on Exhibit 1 in CMA No. 15/2021, the present petition has been preferred.
3. Heard Mr. Uday M. Joshi, learned advocate for the petitioners and Mr. Divyesh Sejpal, learned advocate for the respondents.
4. Mr. Uday M. Joshi, learned advocate for the petitioners that the present petition is filed by Page 7 of 27 Downloaded on : Thu May 09 20:34:29 IST 2024 NEUTRAL CITATION C/SCA/10358/2023 ORDER DATED: 03/05/2024 undefined challenging the order dated 19.03.2022 passed below Exh.1 application in Civil Misc. Application No.15 of 2021 by the learned Addl. District Judge, Kalol, whereby the learned Judge has not condoned the delay in filing appeal before the Collector. He has drawn my attention towards various grounds made in the memo of present petition, more particularly, paragraph Nos.4.10, 4.11 and 4.12 and has submitted that on service of summons, the petitioners along with co-parceners appeared before the Trial Court through their advocate. However, two legal heirs of co-parcener late Dahyaji Lakshmanji Thakore viz. Thakore Sahilji Dahyaji and Thakore Rajuji Dahyaji did not remain present and, therefore, the suit was ordered to be proceeded ex-parte against said two persons. Furthermore, he has submitted that the petitioners along with other coparceners were not represented properly in as much as no written statement or reply to the said suit was filed. Furthermore, he has submitted that the petitioners being uneducated as well as having no knowledge of the procedures were not aware of the stages and the proceedings of the suit. This resulted in the suit being allowed with costs as well as that the respondents had become owners of the said property Page 8 of 27 Downloaded on : Thu May 09 20:34:29 IST 2024 NEUTRAL CITATION C/SCA/10358/2023 ORDER DATED: 03/05/2024 undefined along with other reliefs. Furthermore, he has submitted that original decree of the said judgment dated 30.08.2019 was drawn on 07.09.2019 and petitioners were not aware of the said judgment dated 30.08.2019 in as much as, though represented before the Trial Court, the petitioners were never intimated/informed regarding the same by the advocate concerned. When the petitioners came to know about the same, he has made an application certified copy on 03.02.2021 and was received on 17.02.2021 and, therefore, there is a delay in filing appeal. While considering the same, the trial court has not considered this aspect and rejected the application on erroneous ground. Hence, he has submitted that the lower appellate court has taken hyper-technical view and if the appeal is proceeded on merits, no prejudice would be caused. In support of his submissions, he has relied upon the decision of this Court in the case of Babubhai Bhagwanji Mehta vs. State of Gujarat and Others reported in (2004) 1 GLR 532. Furthermore, he has submitted that the period of limitation would start running from the date of knowledge of the judgment, which was not appreciated by the trial court and, therefore, he has prayed that the present petition is Page 9 of 27 Downloaded on : Thu May 09 20:34:29 IST 2024 NEUTRAL CITATION C/SCA/10358/2023 ORDER DATED: 03/05/2024 undefined required to be allowed even by imposing some reasonable cost, so that the appeal can be proceeded further on merits.
5. Per contra, Mr. Divyesh Sejpal, learned advocate for the respondents has strongly opposed the submissions made at the bar by learned advocate for the petitioners. He has submitted that the trial court has rightly dealt with all the issues and has rejected the application by giving cogent and convincing reasons. Furthermore, he has submitted that in fact, the petitioners has never remained vigilant, neither filed any written statement nor cross-examined any witness even assuming for the sake of argument, that delay is condoned and appeal is proceed on merits, then also, the petitioners have no case to argue in the appeal as the petitioners have never defended before the trial court. In support of his submissions, he has relied upon the decision of this Court rendered on 05.09.2023 in Special Civil Application No.7962 of 2017. In view of the above, he has prayed to dismiss the present petition.
6.1 I have considered the rival submissions made at the Page 10 of 27 Downloaded on : Thu May 09 20:34:29 IST 2024 NEUTRAL CITATION C/SCA/10358/2023 ORDER DATED: 03/05/2024 undefined bar by the respective parties. I have also considered the fact that in the present case, the petitioners have never contested the suit. It transpiers that he has neither filed written statement nor cross-examined any witness though he was represented before the trial court by engaging the advocate. The trial court has passed detailed order. The lower appellate court has also considered the delay condonation application in filing the appeal and given the cogent and convincing reaosns. It transpires that the suit is already decreed and no contest is made. On this ground, the say of the petitioners is that they were not aware about the passing of judgment and decree though they have participated or they have filed their appearance in the civil suit. The court has not believed this fact and has exercised its discretion in appropriate manner. Now, I found that the court has rightly rejected the application for condonation of delay as no sufficient cause is made out. The lower appellate court has considered this aspect as well as the judgments cited at the bar, and has come to the conclusion that the applicants have miserably failed to show sufficient cause for condonation of delay in filing of appeal. Page 11 of 27 Downloaded on : Thu May 09 20:34:29 IST 2024
NEUTRAL CITATION C/SCA/10358/2023 ORDER DATED: 03/05/2024 undefined 6.2 In the identical situation, the Co-ordinate Bench of this Court has considered in Special Civil Application No.7962 of 2017 on 05.09.2023, more particularly, paragraph Nos.5 to 11 are relevant, as under:
"5. Though the petitioner pleaded the ground of negligence of learned Advocate representing him; he did not plead that why he has not come to the Court for inquiring about the proceeding. Affidavit of learned Counsel qua, is also not filed. To be noted that, the civil suit was filed in the year 2010 and it was decided on 15/02/2013, the petitioner did not utter a word that when he went to know about the progress of the suit. He has pleaded general allegation that his Advocate did not care to defend about the stage of the suit. The conduct of the petitioner itself shows that he was not at all serious in the proceeding of the suit. At this juncture, it is apt to refer to the observations of this Court in the case of Samusunisha Begaum W/O Dr Nasarullahkhan Dhaniani & Ors., (supra); where in paragraph 24 and 25 held as under:
"24. In the present case, it is undisputed that the suit was preferred in the year 1987. The issues in the suit were framed by the Court on 30/9/1995 and the first date of hearing after framing of issues was 29/11/1995. From the year 1995 to 1999, there was no progress in the suit. On 20/9/1999, the Civil Court in the absence of the plaintiff as well as his advocate, dismissed the suit for non prosecution.Page 12 of 27 Downloaded on : Thu May 09 20:34:29 IST 2024
NEUTRAL CITATION C/SCA/10358/2023 ORDER DATED: 03/05/2024 undefined From 20/9/1999 the original plaintiff did not do anything till he passed away on 9/6/2004. I am at a loss to fathom that not even once in six years the original plaintiff thought fit to inquire with his advocate as regards the status of the civil suit and its progress even assuming that the original plaintiff and his family was not in India and had migrated to U.S.A. If the original plaintiff was so much keen to pursue the suit with seriousness then probably before leaving for U.S.A. he could have even executed a power of attorney in favour of any person, who could have proceeded with the suit but even that was not done. The fact that till 9/6/2004 i.e. till the date the original plaintiff passed away, he did not even bother to inquire once with his advocate about the progress and status of the suit, itself goes to show that he was not at all serious to go ahead with the suit. Not only this but even thereafter the respondents as legal heirs of the original plaintiff preferred an application almost after a period of ten months from the date of demise of the original plaintiff.
25. Under such circumstances, the Trial Court committed a serious error in condoning delay on the ground that the advocate Shri Upadhyay did not inform the original plaintiff as well the respondents about the dismissal of the suit for non prosecution. Even if I assume for a moment that the same is true by itself would be no ground to condone such a long and inordinate delay as 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. The litigant, therefore, should not Page 13 of 27 Downloaded on : Thu May 09 20:34:29 IST 2024 NEUTRAL CITATION C/SCA/10358/2023 ORDER DATED: 03/05/2024 undefined be permitted to throw the entire blame on the head of the advocate and thereby disown him at any time and seek relief. I regret to state that in the present case, learned advocate of the plaintiff Shri Upadhyay for some reasons has taken up the entire blame on his head and it appears that the same has been done only with a view to get the delay condoned. Over a period of time there is a growing tendency on the part of an advocate to file affidavit trying to explain the circumstances, under which, delay has occurred be it in preferring an appeal or filing an application for restoration of suit like in the present case etc. I am of the view that the practice of an advocate filing his affidavit in an application filed under Order 9 Rule 9 of Civil Procedure Code is totally wrong and deserves to be deprecated. I have noticed in many cases that even though an advocate is not at fault, he would file an affidavit taking the entire blame upon himself only because the lethargic and negligent litigant wants him to file such an affidavit so that the Court concerned in the name of substantial justice would condone the delay. Affidavit of an advocate may come on record in the rarest of rare circumstances and not as a matter of course. Let me assume for a moment that in the present case, concerned advocate of the original plaintiff could not remain present on 20/9/1999 the day on which the Trial Court dismissed the suit for non prosecution and thereafter he was not able to keep a track of the suit but was it not the duty of the original plaintiff to keep watch on the proceedings and inquire once atleast with his advocate as regards the status of the suit? This could have been done even if the original plaintiff and his family was Page 14 of 27 Downloaded on : Thu May 09 20:34:29 IST 2024 NEUTRAL CITATION C/SCA/10358/2023 ORDER DATED: 03/05/2024 undefined in U.S.A. I do not blame the original plaintiff in going to U.S.A. but being a litigant in the Court of Law he is expected to keep a close watch on the proceedings as well as on the status of such proceedings. After filing a civil suit a litigant can not go off to sleep and wake up from a deep slumber after 5 years as if the Court is a storage of suits filed by such negligent litigants. If that be so, then Court would be quite justified in dismissing the suit for non prosecution and should be loathe enough to restore the suit unless strong grounds are made out by the party concerned. There is one more reason why I am very serious in commenting on the practice of advocates filing affidavit. There is a general impression in the mind of the litigants that if a lawyer would file an affidavit saying that he was unable to attend the Court or because of his negligence the suit or appeal came to be dismissed then the Court would very willingly accept such explanation and condone the delay. This impression needs to be eradicated. Advocates at time forget that in the zeal to help the client by filing such affidavit they would land up in difficulty if a litigant would file proceedings for compensation on the ground of deficiency in service."
5.1 In the case on hand, the petitioner seeks to condone the delay of two years; tow months and 28 days (880 days) which is a quite huge delay. This Court in the above case law discussed the issue of condonation of delay in identical fact. The ratio and finding therein is squarely applied to the facts of the present case.
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6. At this juncture, let refer to the decision in case of Lanka Venkateswarlu (Dead) By Lrs., (supra) where in paragraph 28 the Hon'ble Apex Court has held as under:
"28. We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as "liberal approach", "justice oriented approach", "substantial justice" can not be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms."
6.1 The finding herein above that on the concepts such as "liberal approach", "justice oriented approach", "substantial justice" the Court can not stratify the substantial law of limitation. Such expression can be given due importance in background of facts governing the reasons for condonation of delay.
7. In Basawaraj & Anr. vs. Special Land Acquisition Officer [(2013) 14 SCC 81], the Hon'ble Apex Court explained the word 'sufficient cause' used within Section 5 of the Limitation Act and in paragraph 9 and 11 to 15 has held Page 16 of 27 Downloaded on : Thu May 09 20:34:29 IST 2024 NEUTRAL CITATION C/SCA/10358/2023 ORDER DATED: 03/05/2024 undefined as under:
"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 applicant 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/ s. Bhootnath Banerjee & Ors., AIR 1964 SC 1336; Lala Matadin V/s. A. Narayanan, AIR 1970 SC 1953; Parimal v.Veena @ Bharti AIR 2011 SC 1150; and Maniben Devraj Shah V/s. Municipal Corporation of Brihan Page 17 of 27 Downloaded on : Thu May 09 20:34:29 IST 2024 NEUTRAL CITATION C/SCA/10358/2023 ORDER DATED: 03/05/2024 undefined Mumbai AIR 2012 SC 1629.) xxx xxx xxx xxx
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/s. Shyamlal, AIR 2002 SC 100; and Ram Nath Sao @ Ram Nath Sahu & Ors. V/s. 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 Licenced to : Honble Mr.Justice Jitendra Champaklal Doshi Page 6 of 6 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.Page 18 of 27 Downloaded on : Thu May 09 20:34:29 IST 2024
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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. 181: ["330. 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/s. State Bank of India Staff Assn. (2005) 7 SCC 510; Rajendar Singh & Ors. V/s. Santa Singh & Ors., AIR 1973 SC 2537; and Pundlik Jalam Patil V/s. Executive Engineer, Jalgaon Medium Project, (2008) 17 SCC 448).] xxx xxx xxx
15. The law on the issue can be summarised to the effect that where a case has been presented in the Court beyond limitation, the applicant has to explain the Court as to what was the "sufficient cause" which means an adequate Page 19 of 27 Downloaded on : Thu May 09 20:34:29 IST 2024 NEUTRAL CITATION C/SCA/10358/2023 ORDER DATED: 03/05/2024 undefined 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."
8. Thus, what emerges that word 'sufficient cause' is always attached with the facts of the particular case and no straitjacket formula can be possible to apply. The explanation for sufficient cause must be satisfactory and it should be bona-fide; without any negligence. Inaction or lack of bona-fide on the part of the litigating party cannot be considered as cause for delay sufficiently explained. The petitioner has to display that he acted diligently to espouse his cause, but yet could not come to the Court for sufficient reason. Justifiability and proper explanation are basic and vital ingredient to condonation of delay.
9. Switching on the another ground canvassed by the learned Advocate for the petitioner that he is suffering from Page 20 of 27 Downloaded on : Thu May 09 20:34:29 IST 2024 NEUTRAL CITATION C/SCA/10358/2023 ORDER DATED: 03/05/2024 undefined the serious ailment of malignancy which has prevented him from filing appeal within stipulated time and to find justifiability but refer to the document upon which learned Advocate has relied upon they indicates that the petitioner is suffering from the ailment of malignancy; but this ailment is from year 2007 i.e. even prior to filing of the suit and at nowhere in the medical case papers, it is stated that the petitioner is advised not to move and to remain bedridden. In view of that, the second ground canvassed by the petitioner does not stand.
10. The decision in case of Darbara Singh (supra) on which the petitioner has relied upon is on peculiar facts where by the petitioner therein was advised not to move by the concerned Doctor and the Hon'ble Apex Court believed that it was sufficient cause for condonation of delay. In absence of any such written advise on record in the present case, the said decision would not be helpful to the petitioner.
11. The perusal of the impugned judgment indicates that the learned Court below has taken into consideration all the aspect including the ground of medical condition of the petitioner (see paragraph 7 of the impugned order). The learned trial Court has passed well reasoned order holding that it was not a fit case to condone the delay where the petitioner has failed to explain the sufficient reason with rationality for condonation of delay. No patent illegality is found rather committed by the learned Court below which would call for interference at the hands of this Court under the supervisory jurisdiction."
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NEUTRAL CITATION C/SCA/10358/2023 ORDER DATED: 03/05/2024 undefined 6.3 It is fruitful to refer the provisions of Section 5 of the Limitation Act, as under:
"5. Extension of prescribed period in certain cases.-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.
Explanation.--
The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section."
6.4 In view of the above, it is needless to say that such application for condonation of delay is required to be considered on the test of sufficient cause. In the present case, sufficient cause is not made out and the Court has rightly found that the present petitioners have miserably failed to establish any sufficient cause. In the facts of the case, it transpires that it cannot be believed that the petitioners are not aware about the passing of judgment and decree though they have appeared in the Page 22 of 27 Downloaded on : Thu May 09 20:34:29 IST 2024 NEUTRAL CITATION C/SCA/10358/2023 ORDER DATED: 03/05/2024 undefined suit by engaging the advocate. Hence, the trial court has rightly exercised its discretion by considering the facts of the case. I found that there is no perversity, infirmity or illegality in the findings of the Court. Hence, there is no reason to exercise my jurisdiction under Article 227 of the Constitution of India, more particularly, considering the judgment of the Hon'ble Apex Court in the case of Garments Craft vs. Prakash Chand Goel reported in (2022) 4 SCC 181, more particularly, paragraph Nos.15 to 17 are relevant, wherein it was held that High Courts while exercising powers under Article 227 does not act as an appellate authority and cannot re-appreciate evidence and the jurisdiction exercised under Article 227 is in nature of correctional jurisdiction to set aside grave dereliction of duty or flagrant abuse of process of law and High Court cannot substitute its own view on merits. The aforesaid relevant paragraphs are as follows:
"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 Page 23 of 27 Downloaded on : Thu May 09 20:34:29 IST 2024 NEUTRAL CITATION C/SCA/10358/2023 ORDER DATED: 03/05/2024 undefined 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. The jurisdiction exercised is in the nature of correctional 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.2 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 Page 24 of 27 Downloaded on : Thu May 09 20:34:29 IST 2024 NEUTRAL CITATION C/SCA/10358/2023 ORDER DATED: 03/05/2024 undefined 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 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." 2(2001) 8 SCC 97
17. The factum that the counsel for the appellant had applied for the certified copy would show that the counsel for the appellant was aware that the ex- parte decree had been passed on the account of Page 25 of 27 Downloaded on : Thu May 09 20:34:29 IST 2024 NEUTRAL CITATION C/SCA/10358/2023 ORDER DATED: 03/05/2024 undefined failure to lead defence evidence. This would not, however, be a good ground and reason to set aside and substitute the opinion formed by the trial court that the appellant being incarcerated was unable to lead evidence and another chance should be given to the appellant to lead defence evidence. The discretion exercised by the trial court in granting relief, did not suffer from an error apparent on the face of the record or was not a finding so perverse that it was unsupported by evidence to justify it. There could be some justification for the respondent to argue that the appellant was possibly aware of the ex-parte decree and therefore the submission that the appellant came to know of the ex-parte decree only on release from jail on 6th May 2017 is incorrect, but this would not affect the factually correct explanation of the appellant that he was incarcerated and could not attend the civil suit proceedings from 6th October 2015 to 6th May 2017. If it was felt that the application for setting aside the exparte decree was filed belatedly, the court could have given an opportunity to the appellant to file an application for condonation of delay and costs could have been imposed. The facts as known, equally apply as grounds for condonation of delay. It is always important to take a holistic and overall view and not get influenced by aspects which can be explained. Thus, the reasoned decision of the trial court on elaborate consideration of the relevant facts did not warrant interference in exercise of the supervisory Page 26 of 27 Downloaded on : Thu May 09 20:34:29 IST 2024 NEUTRAL CITATION C/SCA/10358/2023 ORDER DATED: 03/05/2024 undefined jurisdiction under Article 227 of the Constitution."
6.5 In view of overall, and in totality, I am of the opinion that there is no infirmity or illegality in the findings of the lower appellant court and the present petition does not warrant any interference by this Court. Hence, the present petition is found meritless and is required to be dismissed.
7. As a result, the present petition is dismissed with no order as to costs. Civil Application is disposed of accordingly.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 27 of 27 Downloaded on : Thu May 09 20:34:29 IST 2024