Jashbhai Bhailalbhai Patel vs Babubhai Savjibhai Bajariya on 22 April, 2022

[Cites 15, Cited by 1]

Gujarat High Court

Jashbhai Bhailalbhai Patel vs Babubhai Savjibhai Bajariya on 22 April, 2022

2. This petition under Articles 226/227 of the Constitution of India is filed by the petitioners - original plaintiffs against an Page 1 of 11 Downloaded on : Fri Apr 22 21:42:25 IST 2022 C/SCA/22702/2017 JUDGMENT DATED: 22/04/2022 order dated 12.10.2017 passed in Delay Application No. 142/2017 by the learned 6th Additional Senior Civil Judge, Vadodara. By the said application, the petitioners - plaintiffs had prayed for to condone the delay of 2 years and 29 days caused in preferring the restoration application to restore the suit being Regular Civil Suit No. 1093 of 1998, which came to be dismissed for default for want of prosecution by an order dated 12.03.2015.

3. Facts in nutshell of the case on hand are that the petitioners - plaintiffs filed the aforesaid Regular Civil Suit No. 1093 of 1998 for declaration and permanent injunction qua the suit property against the respondents - defendants. The said suit came to be dismissed for default, for want of prosecution vide order dated 12.03.2015. Since there was delay of about 2 years and 29 days in preferring an application for restoration of the suit, the petitioners - plaintiffs filed an application for condonation of delay, which came to be rejected vide impugned order dated 12.10.2017 and hence, this petition.

4. Heard, learned advocate Mr. S. P. Majmudar for the petitioners and learned Senior Advocate Shri D. C. Dave with learned advocate Mr. Abhishek Mehta for the respondent Nos. 1, 2 and 4.

4.1 The crux of the submissions of the learned advocate for the petitioners is that the petitioners - plaintiffs were genuinely pursuing the suit till 2014, however, due to inadvertent mistake on the part of the learned advocate representing the petitioners - plaintiffs before the learned Court below, neither the learned advocate nor the petitioners - plaintiffs could remain present on the appointed dates, because of which, the suit came to be Page 2 of 11 Downloaded on : Fri Apr 22 21:42:25 IST 2022 C/SCA/22702/2017 JUDGMENT DATED: 22/04/2022 dismissed for default for want of prosecution. It is the case of the petitioners - plaintiffs that they did not know about such dismissal of the suit uptil the said fact came to the fore during their pursuit to revenue proceedings. The learned advocate for the petitioners - plaintiffs submitted that immediately on coming to know about the same, they acted upon and filed necessary applications. It is submitted that since the petitioners - plaintiffs came to know about the dismissal of the suit only on 07.03.2017, they could not file the restoration application in time, however, the learned Court below has failed to consider such an important aspect of the matter and thereby, has materially erred in rejecting the application for restoration, taking hyper technical view of the matter. He submitted that otherwise the petitioners have a good case on merits. Accordingly, it is urged that this petition may be allowed by setting aside the impugned order and to condone the delay in filing the restoration application.

4.2 In support, the learned advocate for the petitioners has relied upon following decisions:

i) M. S. University, Through Registrar v. Arvindbhai Purshottam Shah Kelkar's Wada, 2016 SCC OnLine Guj 6618;

ii) Achutananda Baidya v. Prafullya Kumar Gayen and Others, (1997) 5 SCC 76;

iii) Civil Application (For Condonation of Delay) No. 2 of 2020 in First Appeal No. 34 of 1987 dated 09.02.2022;

iv) Rafiq and Another v. Munshilal and Another, (1981) 2 SCC 788;

v) Hiren Singha Roy v. Howrah Improvement Trust and Others, (2000) 9 SCC 309;

vi) S. K. Sayyed s/o. SK. Mohammad and Another v. State Page 3 of 11 Downloaded on : Fri Apr 22 21:42:25 IST 2022 C/SCA/22702/2017 JUDGMENT DATED: 22/04/2022 of Maharashtra and Others, 2009 (6) Mh. L.J.;

vii) Special Civil Application No. 7112 of 2021 dated 24.11.2021;

viii) Civil Revision Application No. 154 to 157 of 2011 dated 26.07.20211;

ix) Special Civil Application No. 527 of 2010 dated 04.01.2016;

x) Special Civil Application No. 8405 of 2047 dated 17.08.2021.

5. Per contra, learned senior advocate for the respondents, while heavily resisting the petition, submitted that the learned trial Judge has rightly passed the order, which is just and proper and accordingly, may not be interfered with in this petition under Article 227 of the Constitution of India. He submitted that the suit was adjourned from time to time, however, neither the petitioners - plaintiffs nor their advocate remained present and accordingly, the Court has rightly dismissed the suit for default, for want of prosecution. He further submitted that law helps to the vigilant and apparently, in the instant case, the application is preferred after a huge delay of more than two years, that too, without any justifiable reasons and accordingly, it is urged that no interference called for at the hands of this Court and the petition is required to be dismissed.

5.1 In support, the learned senior advocate for the respondents has relied upon following decisions:

i) Garment Craft v. Prakash Chand Goel, rendered by the Apex Court in Civil Appeal No. of 2022 (Arising out of SLP (C) No. 13941 of 2021) dated 11.01.2022;

ii) Mohd. Yunus v. Mohd. Mustaqim and Others, (1983) 4 SCC 566;

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iii) Special Civil Application No. 16440 of 2020 dated 27.04.2021;

iv) Special Civil Application No. 9407 of 2019;

v) Civil Revision Application No. 264 of 2018;

vi) Lingeswaran v. Thirunagalingam, passed in SLP (C) No. 2054-2055/2022 dated 25.02.2022;

vii) Basawaraj and Another v. Special Land Acquisition Officer, (2013) 14 SCC 81.

6. Regard being had to the submissions canvassed and considering the material placed on record vis-a-vis the impugned order as well as the decisions relied upon by the learned advocates for the respective parties, it appears that the suit filed by the petitioners - plaintiffs came to be dismissed for default, for want of prosecution on 12.03.2015 against which, for preferring an application for restoration, delay of about 2 years and 29 days had occurred, which the learned trial Court declined to condone and hence, the grieved petitioners are before this Court.

6.1 It is the case of the petitioners that they were pursuing the suit genuinely till 2014, however, since the learned advocate representing their case before the trial Court could not remain present on scheduled dates, the suit came to be dismissed in 2015, to be precise on 12.03.2015. It is the case of the petitioners that they could know about such dismissal only on 07.03.2017 during revenue proceedings, and immediately, they acted upon.

6.2 In this regard, following aspects have weighed with the Court:

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i) if rojkam of the suit, a copy of which is produced on record, is perused, the learned advocate representing the petitioners - plaintiffs before the learned Court below lastly appeared on 18.02.2015 and thereafter, the suit was adjourned to 03.03.2015, 09.03.2015, 11.03.2015 and on 12.03.2015, the suit came to be dismissed for default for want of prosecution. Thus, the suit, which was otherwise pending since 1998, came to be adjourned to four times, within a period of 10 days only;

ii) the petitioners - plaintiffs were not informed by the learned advocate representing them before the learned Court below about dismissal of the suit;

iii) the petitioners - plaintiffs came to know about such dismissal only on 07.03.2017, during their pursuit to the revenue proceedings;

iv) immediately on coming to know, the petitioners - plaintiff acted upon and filed necessary application/s;

v) as per the catena of decisions of the Apex Court, "sufficient cause" in Section 5 of the Limitation Act must receive a liberal construction so as to advance the substantial justice and generally, delay in preferring the appeals are required to be condoned in the interest of justice.

6.3 Thus, it is not the case that even after coming to know on 07.03.2017 about the impugned order dismissing the suit for default on 12.03.2015, the petitioners went into the deep slumber and then suddenly woke up with an idea to get restored the suit and filed the appropriate applications. The above chronology is suggestive of the fact that immediately on coming to know, the petitioners acted upon, without any further delay.

6.4 It is trite that in a delay application, sufficient cause is the paramount consideration and if sufficient cause is shown, the Court should generally condone the delay. However, if the sufficient cause is imbibed with the laxity on the part of the Page 6 of 11 Downloaded on : Fri Apr 22 21:42:25 IST 2022 C/SCA/22702/2017 JUDGMENT DATED: 22/04/2022 delayer despite due knowledge, then Court should restrain itself from encouraging such practice and condone the delay.

6.5 The Apex Court, in Indian Oil Corporation Ltd. and Ors. vs. Subrata Borah Chowlek and Ors. (12.11.2010 - SC) :

MANU/SC/1252/2010 has observed as under:

"7. Having heard the Learned Counsel, we are of the opinion that in the instant case a sufficient cause had been made out for condonation of delay in filing the appeal and therefore, the High Court erred in declining to condone the same. It is true that even upon showing a sufficient cause, a party is not entitled to the condonation of delay as a matter of right, yet it is trite that in construing sufficient cause, the Courts generally follow a liberal approach particularly when no negligence, inaction or mala fides can be imputed to the party. (See: Shakuntala Devi Jain v. Kuntal Kumari and Ors. MANU/SC/0335/1968 : (1969) 1 SCR 1006; The State of West Bengal v. The Administrator, Howrah Municipality and Ors. MANU/SC/0534/1971 : (1972) 1 SCC 366; N. Balakrishnan v. M. Krishnamurthy MANU/SC/0573/1998 :

(1998) 7 SCC 123; Sital Prasad Saxena v. Union of India and Ors. MANU/SC/0294/1984 : (1985) 1 SCC 163).

8. In Ramlal, Motilal and Chhotelal v. Rewa Coalfields Ltd. MANU/SC/0042/1961 : (1962) 2 SCR 762, this Court held that:

In construing Section 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 favor 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 light-heartedly 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 Page 7 of 11 Downloaded on : Fri Apr 22 21:42:25 IST 2022 C/SCA/22702/2017 JUDGMENT DATED: 22/04/2022 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. Chathappan ILR (1890) 13 Mad 269 "Section 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.

(2002) 3 SCC 195, this Court observed that:

But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over-jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. 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. However, by taking a pedantic and hyper technical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lies terminates, either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way."

6.6 Thus, the consideration which cannot be ignored is that if Page 8 of 11 Downloaded on : Fri Apr 22 21:42:25 IST 2022 C/SCA/22702/2017 JUDGMENT DATED: 22/04/2022 sufficient cause for excusing delay is shown, discretion is given to the Court to condone delay. 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.

6.7 The learned advocate for the petitioners has relied upon several decisions as listed herein above. The Court deems it appropriate to refer to a decision of the Coordinate Bench wherein, for the sufficient cause, the Court condoned the delay of 7816 days vide order dated 09.02.2022 passed in Civil Application (For Condonation of Delay) No. 2 of 2020 in First Appeal No. 34 of 1987.

6.8 Further, as held in catena of decisions of the Apex Court, some of which are placed on record by the learned advocate for the petitioners, a party should not suffer for the lapses on the part of the learned advocate. In the instant case, the petitioners

- plaintiffs stated to have not been informed by the learned advocate about such dismissal of the suit.

6.9 So far as the decisions relied upon by the learned advocate for the respondents are concerned, in the decision in Garment Craft (supra), the Court opined that, "the reasoned decision of the trial Court on elaborate consideration of the relevant facts did not warrant interference in exercise of the supervisory jurisdiction under Article 227 of the Constitution". Further in the decision in Mohd. Yunus (supra), the Court held that where there is mere error of law and alternative remedies also available, jurisdiction under Article 227 not attracted. Yet in another decision rendered in Special Civil Application No. 16440 of 2020, the Court has observed as aforesaid. It is shop-soiled Page 9 of 11 Downloaded on : Fri Apr 22 21:42:25 IST 2022 C/SCA/22702/2017 JUDGMENT DATED: 22/04/2022 that exercise of power under Article 227 of the Constitution of India should be with a view to keep the tribunals/Courts within the bounds of their authority; to ensure that law is followed by tribunals/Courts by exercising jurisdiction which is vested in them; and/or when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. Nonetheless, exercise of discretion in appropriate case is not barred, more particularly, with a view to advance substantial justice and/or to avoid the failure of justice.

6.10 So far as the decisions in Special Civil Application No. 9407 of 2019; Civil Revision Application No. 264 of 2018, Lingeswaran; and Basawaraj and Another (supra), as relied upon by the respondents are concerned, they are on the aspects of delay and sufficient cause. It is also a trite law that each case rests upon its own facts and should be decided as such, more particularly, when discretionary relief is sought for. Accordingly, in the facts and circumstances of the case on hand, the aforesaid decisions would be of no avail to the respondents, more particularly, when in the opinion of the Court sufficient cause is shown.

6.11 At this juncture, it would not be out of place to mention that every case should be decided on merits rather than on mere technicalities. Ours, which is an adversarial system in which each party gets the right to have audience (put forward its case) before the Court, and thence, decision on merits should not only be always expected but it is desirable also with a view to fend off multiplicity of proceedings.

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C/SCA/22702/2017 JUDGMENT DATED: 22/04/2022 6.12 Thus, in the totality of the facts and circumstances of the case on hand, this Court is of the opinion that the petition merits favourable consideration, however, with some exemplary cost.

7. In the backdrop as aforesaid, the petition succeeds and is allowed accordingly. The impugned order dated 12.10.2017 passed in Delay Application No. 142/2017 by the learned 6 th Additional Senior Civil Judge, Vadodara is set aside and delay of 2 years and 29 days caused in preferring restoration application is hereby condoned, subject to the petitioners depositing the cost of Rs.15,000/- (Rupees Fifteen Thousand Only), before the trial Court concerned, within a period of 15 days, which the respondents - defendants are at liberty to withdraw the same. Rule is made absolute accordingly.

[ A. C. Joshi, J. ] hiren Page 11 of 11 Downloaded on : Fri Apr 22 21:42:25 IST 2022

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Gujarat High Court