Gujarat High Court
Lalitaben Wd/O Mohanbhai Jivabhai ... vs Bharat Sanchar Nigam Ltd on 7 July, 2025
NEUTRAL CITATION
C/SCA/8889/2018 ORDER DATED: 07/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8889 of 2018
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LALITABEN WD/O MOHANBHAI JIVABHAI PARMAR & ORS.
Versus
BHARAT SANCHAR NIGAM LTD & ORS.
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Appearance:
MR ASHISH M DAGLI(2203) for the Petitioner(s) No. 1,2,3
DEV D PATEL(8264) for the Respondent(s) No. 2,3,4
RC JANI & ASSOCIATE(6436) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 07/07/2025
ORAL ORDER
1. Rule returnable forthwith. Learned advocate Mr. Dev D. Patel and learned advocate Mr. R. C. Jani waive service of notice of rule on behalf of their respective respondents.
2. With the consent of the parties, the matter is taken up for final hearing.
3. The present writ application is filed under Article 227 of the Constitution of India seeking following relief :-
"A) That the Hon'ble Court may be pleased to admit this petition;
B) That the Hon'ble Court may be pleased to allow this Special Civil Application by quashing and setting aside the order passed by Hon'ble Judge, Court No.26 City Civil Court, Ahmedabad dated 6.4.2018 in Civil Misc. Appln. No.65 of 2014 in the interest of justice;Page 1 of 16 Uploaded by SALIM(HC01108) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:51:29 IST 2025
NEUTRAL CITATION C/SCA/8889/2018 ORDER DATED: 07/07/2025 undefined C) Pending admission hearing and final disposal of this petition, this Hon'ble court may be pleased to restrain respondent No.1 herein not to disburse any after-death benefits like Provident Fund, Gratuity, Group Insurance benefits, etc. to the Respondents No.2 to 4 and also restrain respondent No.1 herein not to give compassionate job to the respondents No.2 to 4 in the interest of justice;
D) Grant such other and further relief(s) as deemed just and proper by this Hon'ble Court in the interest of justice."
Short facts of the case.
4. The petitioners herein are original plaintiffs, whereas respondents are original defendants of Regular Civil Suit No. 1192 of 2006 claiming benefit of post death of one deceased Mohanbhai Jivabhai Parmar, who died on 01.05.2005. According to the plaintiffs, the deceased was husband of plaintiff No.1 and farther of plaintiffs No. 2 and 3 respectively.
4.1 The deceased was working with defendant No.1 (Bharat Sanchar Nigam Ltd. (BSNL) and on his demise, the death benefit like Gratuity, Provident Fund, Group Insurance, Pension and compassionate appointment etc. requires to be paid to plaintiffs and having not paid, its claimed by way of filing the suit.
4.2 It is further claimed in the suit that mother of Page 2 of 16 Uploaded by SALIM(HC01108) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:51:29 IST 2025 NEUTRAL CITATION C/SCA/8889/2018 ORDER DATED: 07/07/2025 undefined defendants No. 2 to 4 have illicit relationship with the deceased who tried to illegally take death benefit from the defendant No.1, suit came to be filed. The suit has been contested by defendants by filing their written statement.
4.3 It appears as averred in the writ application that the suit came to be dismissed for default on 04.01.2010 and its restoration application being CMA No. 838 of 2010 was also dismissed for default on 28.12.2011. The plaintiffs have filed its restoration application being CMA No. 128 of 2012 which also came to be dismissed for default on 25.11.2013. Thereafter, the plaintiffs have filed another restoration application being CMA No. 65 of 2014 in the aforesaid restoration application, which was heard on its merits but rejected by the trial Court vide its order dated 06.04.2018, which came to be challenged by way of the present writ application.
Submission of the petitioners- plaintiffs.
5.0 Learned advocate Mr. Kaushal Modi for learned advocate Mr. Ashish M. Dagli for the petitioners would submit that the trial Court has committed serious error by rejecting the impugned restoration application without appreciating facts mentioned in it. Learned advocate Mr. Page 3 of 16 Uploaded by SALIM(HC01108) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:51:29 IST 2025 NEUTRAL CITATION C/SCA/8889/2018 ORDER DATED: 07/07/2025 undefined Modi would further submit that while deciding the impugned restoration application, grounds set out in the application and sufficient cause narrated, which requires to be taken into by the trial Court rather than previous rejection/ dismissal of restoration application or suit as the case may be.
5.1 Learned advocate Mr. Modi would further submit that the in the impugned restoration application it has been specifically averred by the plaintiffs that after filing initial restoration application, the advocate was pursuing restoration application, but it came to be transferred to one Court to another Court and as such there is no negligence on the part of the advocate of the plaintiffs for not remaining present when it was dismissed for default on 28.12.2012.
5.2 It is further submitted that after filing another restoration application being CMA No. 128 of 2012, the Advocate of the plaintiffs was present but the Judge concerned was on leave and in fact right of defendants to submit their reply is also closed but due to transfer, the application was sent to misc. branch and thereafter it was again listed post Diwali vacation on 25.11.2013 which was not within the knowledge of the Advocate of the plaintiffs and in that view of the matter, such restoration application Page 4 of 16 Uploaded by SALIM(HC01108) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:51:29 IST 2025 NEUTRAL CITATION C/SCA/8889/2018 ORDER DATED: 07/07/2025 undefined was dismissed for default on 25.11.2013.
5.3 It is respectively submitted by the learned advocate Mr. Modi that all these aspects are not at all considered by the trial Court in proper prospective and in fact which resulted into miscarriage of justice.
5.4 Learned advocate Mr. Modi would submit that by compensated to other side by paying reasonable cost, the restoration application needs to be allowed by this Court in the interest of justice, otherwise, plaintiffs would not be in a position to get justice from the Court.
5.5 Lastly, learned advocate Mr. Modi undertakes to this Court that if this Court will quash and set aside the impugned order and allow the impugned restoration application being CMA No. 65 of 2014, other restoration application being CMA No. 128 of 2012 and CMA No. 838 of 2010 will be attended by the plaintiffs without any default and suitable direction may be issued to decide such restoration applications in accordance with law. He would also request this Court to allow the present writ application.
Submission of respondents No. 2 to 4 - defendants No. 2 to 4. Page 5 of 16 Uploaded by SALIM(HC01108) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:51:29 IST 2025 NEUTRAL CITATION C/SCA/8889/2018 ORDER DATED: 07/07/2025 undefined 6.0 Learned advocate Mr. Dev D. Patel for respondents No. 2 to 4 -original defendants No. 2 to 4 would submit that plaintiffs were all throughout remain negligent in pursuing suit which initially dismissed for default and one after three restoration applications came to be filed seeking its restoration, also dismissed for non prosecution as learned advocate appearing for the plaintiffs could not remain present to attend the proceeding.
6.1 Learned advocate Mr. Patel would further submit that the act of plaintiffs was self sufficient which constitute gross negligence on their part to pursue restoration applications in accordance with law, inasmuch as after filing first restoration application, which came to be dismissed for default, another restoration application was filed in the year 2012 also got dismissed for default and the impugned restoration application was third one in row.
6.2 Learned advocate Mr. Patel would further submit that as such settle legal position of law, no leniency to be shown in favour of the plaintiffs who were totally negligent their remedy rather defendants No. 2 to 4 are unnecessary dragged in the litigation that to upto this Court. He would fuhrer submit that this Court should not exercise its power Page 6 of 16 Uploaded by SALIM(HC01108) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:51:29 IST 2025 NEUTRAL CITATION C/SCA/8889/2018 ORDER DATED: 07/07/2025 undefined under Article 227 of the Constitution of India in favour of plaintiffs, thereby it should not be disturbed well reasoned order passed by the trial Court. Learned advocate Mr. Patel would also request this Court to dismiss the present writ application.
6.3 To buttress his argument, learned advocate Mr. Patel would refer and rely upon the decision of the Hon'ble Apex Court in the case of Vasant Nature Cure Hospital @ Pratibha Maternity Hospital Trust & Ors. Vs. Ukaji Ramaji Since deceased through His Legal Heirs and another passed in Civil Appeal No. 5510 of 2023 dated 13.09.2023.
Submission of respondent No.1 - defendant No.1
7. Learned advocate Mr. R.C. Jani for respondent No.1 would adopt the argument of learned advocate Mr. Patel and also would submit that as such due to dispute between plaintiffs and defendants No. 2 to 4, defendant No.1 to drag itself in the litigation and as such considering the conduct of the plaintiffs, no leniency requires to be shown to the plaintiffs. Nonetheless, he would request this Court not to entertain the present writ application. Learned advocate Mr. Jani would also request this Court to dismiss the present writ application.
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8. No other and further submissions have been made by the learned advocates for the respective parties.
Analysis
9. The short controversy arises in the matter about non consideration of restoration application filed by the original plaintiffs in restoration application having filed in the suit which was dismissed for non prosecution by the trial Court.
9.1 The facts which are narrated hereinabove are not in dispute. The suit was dismissed for default and then-after consecutively two restoration applications so filed by the plaintiffs were also dismissed for non prosecution. Nonetheless, the impugned restoration application being CMA No. 65 of 2014 as narrated entire set of facts and events which according to the plaintiffs caused for dismissal of their earlier restoration application. It is true that the defendants have opposed the impugned restoration application by filing their reply. Nonetheless, the facts which are narrated in the impugned application with dates and events happened prior to actual dismissal of such restoration applications are not able to be disputed being part of record of the suit.
Page 8 of 16 Uploaded by SALIM(HC01108) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:51:29 IST 2025NEUTRAL CITATION C/SCA/8889/2018 ORDER DATED: 07/07/2025 undefined 9.2 What is deduced from plain reading of the impugned application, would suggest that previous restoration applications though dismissed for non prosecution but reasons so assigned for not attending those restoration applications would indicate that due to transfer of restoration application from one Court to another from time to time and learned Advocate engaged by the plaintiffs could not able to locate first restoration application and in between it got dismissed for non prosecution. So, the plaintiffs have filed subsequent restoration application being CMA No. 128 of 2012 which was in fact heard and as stated in Para-3 of the impugned application that right of defendants was closed down to file its reply and then after, two or three dates were granted, but thereafter suddenly, the matter went to misc. branch.
9.3 It further stated that post Diwali vacation in the year 2013, the matter suddenly listed before the Principal Judge, City Civil Court, Ahmedabad on 25.11.2013, which was not within the personal knowledge of the advocate of the plaintiffs and due to none appearance of the Advocate concerned, restoration application being CMA No. 128 of 2012 was dismissed for non-prosecution.
10. I have gone through such orders passed by the Principal Page 9 of 16 Uploaded by SALIM(HC01108) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:51:29 IST 2025 NEUTRAL CITATION C/SCA/8889/2018 ORDER DATED: 07/07/2025 undefined Judge, City Civil Court, Ahmedabad, nowhere in the order would suggest any reference of merit of the application discussed by trial court while rejecting impugned application, inasmuch as after filing of restoration application being CMA No. 128 of 2012, how many dates were given by the Court, right of opponents to object such application was closed down or not and as such restoration application being CMA No. 128 of 2012 was sent back to misc. branch and there- after it was listed before the Principal Judge, City Civil Court, Ahmedabad post Diwali vacation in the year 2013 as no intimation about listing of the matter was given to the parties and or to the Lawyer. All these factors appear have not been noticed by the trial Court while rejecting the restoration application being CMA. No. 128 of 2012 on 25.11.2013.
11. Be that as it may, the impugned order instead, deciding merit of the impugned application, inasmuch as to find out cause of not remaining present on 25.11.2013 when CMA No. 128 of 2012 was dismissed for default was just and proper or not, it went on to say that conduct of the plaintiffs in not pursuing their previous restoration applications which got dismissed for default like dismissal of suit for default, would become ground of rejection of impugned application.
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12. According to me, there is a wrong approach on the part of the trial Court while deciding and adjudicating the impugned restoration application having placed reliance upon dismissal of previous applications, which should not have been taken note of, except one fact ought to have been considered i.e. reasons which have been assigned by the plaintiffs not to remain present on date of dismissal of their CMA No. 838 of 2010, was sufficient cause or not.
13. When the trial Court has lost sight such crucial fact and rejected the impugned restoration application only on counts that despite given sufficient several opportunities to the plaintiffs, no relief can be granted in their favour, is not a correct approach especially when the trial Court has not considered and thought it fit to satisfy itself as to whether sufficient cause made out by the plaintiffs for not remained present on 25.11.2013, the date on which restoration application being CMA No. 128 of 2012 was dismissed for default.
14. According to my opinion, the order impugned is erroneous, perverse and arbitrary, inasmuch as not in accordance with law, which requires to be interfered by this Court while exercising its power under Article 227 of the Constitution of India.
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15. So far as the decision referred and relied by the learned advocate Mr. Dev D. Patel for respondents No. 2 to 4 in the case of Vasant Nature Cure Hospital @ Pratibha Maternity Hospital Trust (supra) after going through such decision, it appears that the High Court has not assigned any reasons and in casual manner allowed the restoration application, and in these facts and peculiar circumstances of that case, the Hon'ble Apex Court has quashed the order.
16. There would no cavil on the issue that the litigant if remain lethargy and tried to misuse the process of law, no indulgence can be shown by the Court, but at the same time, if sufficient cause is made out by the litigant, as per settle legal position of law while considering sufficient cause, the Court should always have liberal approach towards it, thereby it can advance justice to the party and matter can be adjudicated on its merit.
17. It would be apposite to refer and rely upon decision of Honourable Supreme Court of India in a case of N. Balakrishnan V/s M. Krishnamuthy reported in AIR 1998 SC 3222, wherein held thus:
"9. It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such Page 12 of 16 Uploaded by SALIM(HC01108) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:51:29 IST 2025 NEUTRAL CITATION C/SCA/8889/2018 ORDER DATED: 07/07/2025 undefined discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammeled by the conclusion of the lower Court.
10. The reason for such a different stance is thus : The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause.
11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no Page 13 of 16 Uploaded by SALIM(HC01108) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:51:29 IST 2025 NEUTRAL CITATION C/SCA/8889/2018 ORDER DATED: 07/07/2025 undefined presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari, AIR 1969 SC 575 and State of West Bengal v. The Administrator, Howrah Muni-cipality, AIR 1972 SC 749.
13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put-forth as part of a dilatory strategy the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the Court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite a large litigation expenses. It would be a salutary guideline that when Courts condone the delay due to laches on the part of the applicant the Court shall compensate the opposite party for his loss."
(emphasis supplied)
18. Thus, the judgment referred and relied by the learned advocate Mr. Patel in the case of Vasant Nature Cure Hospital @ Pratibha Maternity Hospital Trust would not be applicable to the facts of the present case as this Court has already assigned the aforesaid reasons, thereby reaching to a conclusion that the impugned order is erroneous and perverse.
19. At the same time, for any reasons, original defendants No. 2 to 4 are requirec to defend the litigation upto this Court, thereby the impugned restoration application being Page 14 of 16 Uploaded by SALIM(HC01108) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:51:29 IST 2025 NEUTRAL CITATION C/SCA/8889/2018 ORDER DATED: 07/07/2025 undefined CMA No. 65 of 2014 though requires to be allowed by this Court while quashing and setting aside the impugned order in the present writ application but at the same time, the plaintiffs are require to pay reasonable cost to defendants No. 2 to 4.
Conclusion
20. In the light of the aforesaid discussion, observations and reasons, I am of the view that the impugned order passed by Principal Judge, City Civil Court No. 26, Ahmedabad dated 06.04.2018 in Civil Misc. Application No. 65 of 2014 in Restoration Application being CMA No. 128 of 2012 in Special Civil Suit No. 1192 of 2006 is hereby quashed and set aside. Consequently the impugned restoration application being CMA No. 65 of 2014 is hereby allowed subject to plaintiffs pay the cost of Rs. 5,000/- to the defendants No. 2 to 4 which shall be deposited by them in trial court within a period of four weeks from today. It is made clear that if plaintiffs will fail to deposit such cost, CMA No. 65 of 2014 stands automatically dismissed/rejected.
21. The trial Court is hereby directed allow withdrawal of such cost of Rs. 5,000/ in favour of the defendants No. 2 to 4 on proper verification.
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22. The trial Court is hereby requested to decide restoration application being CMA No. 128 of 2012 and also restoration application being CMA No. 838 of 2010 filed in Special Civil Suit No. 1192 of 2006 in accordance with law on its merit.
23. In view of the above, the present writ application is partly allowed. Rule is made absolute to the aforesaid extent.
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