Gujarat High Court
Husainbhai Taherali Amlani vs Ramjanbhai Maganlal Dani on 16 December, 2015
Author: S.G.Shah
Bench: S.G.Shah
C/SCA/4763/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4763 of 2015
With
SPECIAL CIVIL APPLICATION NO. 4764 of 2015
TO
SPECIAL CIVIL APPLICATION NO. 4766 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH
==========================================================
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 ?
==========================================================
HUSAINBHAI TAHERALI AMLANI....Petitioner(s)
Versus
RAMJANBHAI MAGANLAL DANI....Respondent(s)
==========================================================
Appearance:
MR SP MAJMUDAR, ADVOCATE for the Petitioner(s) No. 1
MR. NISHIT P GANDHI, ADVOCATE for the Petitioner(s) No. 1
MR MEHUL S SHAH, ADVOCATE for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 16/12/2015
CAV JUDGMENT
Page 1 of 13
HC-NIC Page 1 of 13 Created On Thu Dec 17 03:06:08 IST 2015 C/SCA/4763/2015 CAV JUDGMENT
1. The petitioner in all these petitions are original plaintiff before the trial Court and First Appellate Court, whereas respondent in all these petitions are original defendant and opponent. Since all these petitions are on same facts and circumstances and for common issue regarding non-condonation of delay by impugned judgment in filing the Regular Civil Appeal before the District Court, they are heard together and disposed of by this common judgment.
2. The petitioner in all such petitions have filed R.C.S. Nos.469 of 2005, 470 of 2005, 471 of 2005 and 472 of 2005 before the Civil Court at Rajkot to get the possession of the suit property, contending that he has purchased all the suit property, but, thereafter, since has to leave the City of Rajkot for staying at his hometown in Surendranagar District, in his absence, defendant has trespassed in the suit property and occupied it illegally. Such suits were dismissed by order dated 30.6.2012 by the 5th Addl.Sr.Civil Judge, Rajkot mainly on the ground that though sufficient opportunity was given, the plaintiff has failed to adduce oral or documentary evidence and also failed to examine any witness and even on the date of argument, learned advocate for the plaintiff has remained absent. Therefore, though suit is dismissed by final order after framing the issue, prima facie, it becomes clear that the dismissal of the suit is purely on technical ground. i.e. absence of the plaintiff and his advocate and thereby, practically, the suits were dismissed for want of prosecution - ex-parte.
3. Thereafter, the petitioners have filed Civil Misc.Applications Nos.49 of 2015, 47 of 2014, 50 of 2014 and 48 of 2014. before the District Court at Rajkot on 29.1.2014 to condone the delay of more than 500 days in filing Regular Civil Appeal against the dismissal of their suits. Such applications u/s.5 of the Limitation Act has also been dismissed by the 4th Addl.District Judge of Rajkot by Page 2 of 13 HC-NIC Page 2 of 13 Created On Thu Dec 17 03:06:08 IST 2015 C/SCA/4763/2015 CAV JUDGMENT impugned judgment dated 31.12.2014 and hence, the present petition.
4. So far as present dispute is concerned, it is within a narrow compass of consideration of condonation of delay and therefore, details of suit property and dispute are not much material and therefore, they are not reproduced herein since it is very well disclosed in the pleading before the Courts.
5. If we peruse the impugned judgment, it transpires that Addl.District Judge has considered that even while residing out of Rajkot, plaintiffs could certainly contact their advocate and could have taken follow-up action in the suit by remaining in contact with the advocate on mobile phone and other available mode of communication and therefore, if it is not done, when the subject matter is of the year 2005, and when petitioners have not clarified that in which year they have shifted their residence, such ground cannot be considered as a sufficient ground to condone inordinate delay time of more than 500 days. It is further observed that a reasonably prudent man would not remain silent without contacting his advocate when they have filed suit. Unfortunately, the trial Court has also considered that all four suits were dismissed on the same day and when applications to condone the delay are filed by all such plaintiffs with similar pleadings, then, it is obvious that they are aware about the dismissal of suit, but they are taking chance. Thereby, the Addl.District Judge has considered that lack of communication is not sufficient ground to condone the delay.
6. To avoid any such issue, at present, petitioners have filed specific additional affidavit disclosing the reason for their migration from Rajkot to their hometown in the month of February, 2006, contending that they had been to Rajkot for employment, but Page 3 of 13 HC-NIC Page 3 of 13 Created On Thu Dec 17 03:06:08 IST 2015 C/SCA/4763/2015 CAV JUDGMENT considering the change in circumstances, they have to shift to their native place and their advocates have not conveyed them about the hearing of the suit.
7. I have perused the entire record and considered the rival submissions. The law of limitation is now well settled, which confirms that no case should be disposed of without proper adjudication and that too purely on technical grounds and that though it is the duty of the advocate and litigant to take care of their litigation, it is also clear that because of the fault of the advocate, the litigant should not suffer. So far as the merits of the case is concerned, though it is not material at present, it is clear and obvious that if the petitioners - plaintiffs are bona fide purchasers of the suit property, then, they have no reason to be negligent in protecting their property.
8. Learned advocate for the petitioner is relying upon judgment and order in Civil Revision Applications no.154 of 2011 to 157 of 2011 and several other judgments considered by the Co-ordinate Bench in such decision to confirm that in such cases, delay should be condoned. When Co-ordinate Bench has in such judgment, taken care of all such issues in detail, I do not wish to reproduce the facts again and again in all the matters. However, I rely upon such decision so also following decisions, which confirm that in such cases the law is certainly liberal to condone the delay except when there is a reason to believe that the petitioner is negligent or there is any ulterior motive in not filing the appeal in time.
9. The law relating to such issues is well settled that technicality should not come in the way of regal rights of the litigant and litigant should not suffer for the lacuna and negligence of any other persons including his Advocate.
Page 4 of 13HC-NIC Page 4 of 13 Created On Thu Dec 17 03:06:08 IST 2015 C/SCA/4763/2015 CAV JUDGMENT
10.There is no strait jacket formula to consider the sufficient cause for condoning delay. Therefore, if petitioner could remain present to proceed in the suit and though the Trial Judge refused to condone the delay, the fact remains that in such situation it would be appropriate to allow the petitioner to defend the suit, since the suit was decreed ex-parte against him in his absence. It is well settled position that the term ex-parte is being used for both the situations i.e. when the litigant is not served at all and even when though served, he could not defend the litigation for one or another reason. Therefore, it would not be appropriate to enter into such technicalities in deciding such application. Though the law relating to condonation of delay is now attracting strict view, it cannot be ignored that otherwise it requires liberal consideration which can be referred in the form of following citations:
(i) In the case of Dakshin Gujarat Vij Company Ltd. through Managing Director Vs. Amardeep Association, Navsari and others reported in 2013 (2) GLR 1399. The Division Bench of this Court has observed as under and such observation has been approved by Hon'ble the Apex Court in SLP (Civil) No. 12142 of 2013 between the same parties. Para Nos. 14, 25, 26 & 27 reads as under.
"14. There are catena of judgments, more particularly when 'sufficient cause' and reasonable ground' are not defined under the law, that in general, the dispute shall be resolved on its own merits rather than technicalities and that, therefore, 'sufficient cause' and 'reasonable ground' for condonation of delay cannot be defined in any narrow manner and thereby there cannot be straitjacket formula that what is 'sufficient cause' and what is 'reasonable ground' for condonation of delay, it goes without saying Page 5 of 13 HC-NIC Page 5 of 13 Created On Thu Dec 17 03:06:08 IST 2015 C/SCA/4763/2015 CAV JUDGMENT that 'sufficient cause' and 'reasonable ground' may be different from case to case and though particular cause or ground may not sufficient and reasonable to condone the delay in a particular case, similar ground or cause may be sufficient and reasonable enough to condone the delay in any other given case, if on judicial scrutiny of matter, it is so found by the competent Court to condone such delay. Therefore, without influenced by decision cited during the argument, we have to examine the cause of action for filing the Letters Patent Appeal and cause for delay in filing such Letters Patent Appeal.
25. As against that, if we look into the judgments cited by the applicant, it becomes clear that generally Courts should be reluctant to shut out a consideration of the case on merits on the grounds of limitation or any other similar technicality (AIR 2012 SC 640 - Abdul Gafoor Vs. State of Bihar); if there is delay in filing petition, due to opinion of the advocate on record and the Solicitor General etc., such delay deserves to be condoned (AIR 2011 SC 428 - Delhi Development Authority Vs.Bhola Nath Sharma); there is a strong arguable case on behalf of the appellant and, therefore, the Court should decide the matter on merit by giving the expression 'sufficient cause' a pragmatic justice-oriented approach (AIR 2011 SC 977 - Union of India Vs.Giani); the meaning of the word 'sufficient' is 'adequate' or 'enough', inasmuch as may be necessary to answer the purpose intended and, therefore, word 'sufficient' embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose. Sufficient cause is a question of fact and the Court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straitjacket formula of universal application (AIR 2011 SC 1150 - Parimal Vs.Veena); if case file has to be Page 6 of 13 HC-NIC Page 6 of 13 Created On Thu Dec 17 03:06:08 IST 2015 C/SCA/4763/2015 CAV JUDGMENT routed from various departments before decision to file appeal, it is sufficient cause for condonation of delay (AIR 2010 SC 1445 - State of J & K Vs.Mohmad Maqbool Sofi); while deciding application for condonation of delay, Court cannot go into the merits of the case, if averments made in the application is sufficient to condone the delay, there is no hesitation to condone such delay (AIR 2009 SC 1927 - State of Jharkhand Vs.Ashok Kumar Chokhani); the expression 'sufficient cause' must receive liberal construction to advance substantial justice even condoning delay of more than 6500 when question of law involved (AIR 2009 SC 2577 - State of Karnataka Vs.Y.Moideen Kunhi); and what counts is not length of delay, but sufficiency of cause and that what constitutes 'sufficient cause' cannot be laid down by hard and fast rules [AIR 2009 SC (Supp.) 695 - State (NCT of Delhi) Vs.Ahmed Jaan]; delay of more than six years can also be condoned to avoid miscarriage of justice (AIR 1984 SC 1744 -
O.P. Kathpalia Vs. Lakhmir Singh (Dead) - by 3 Judges bench of Apex Court).
26. Moreover, atleast in AIR 2008 SC 1688 -
Sinik Security Vs.Sheel Bai, AIR 2009 SC 2170
- D.D. Vaishnav Vs.State of M.P. and AIR 2009 SC (Supp.) 195 - Commissioner, Nagar Parishad, Bhilwara Vs.Labour Court, Bhilwara, the Apex Court has condoned inordinate delay (769 days, 589 days and 178 days respectively) even by imposing some costs upon the applicant.
27. In AIR 1987 SC 1353 - Collector, Land Acquisition, Anantnag & Anr. Vs. Mst.Katiji & Ors., the Apex Court has held as under -
" The legislature has conferred the power to condone delay by enacting Section 51 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The Page 7 of 13 HC-NIC Page 7 of 13 Created On Thu Dec 17 03:06:08 IST 2015 C/SCA/4763/2015 CAV JUDGMENT expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the life purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court.
But the message does not appear to
have percolated down to all the other
Courts in the hierarchy. And such a
liberal approach is adopted on principle as it is realized that:-
[1 "Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 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."]
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be Page 8 of 13 HC-NIC Page 8 of 13 Created On Thu Dec 17 03:06:08 IST 2015 C/SCA/4763/2015 CAV JUDGMENT preferred for the other side cannot claim to have vested right in injustice being done because of a non- deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a stepmotherly treatment when the 'State' is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-
making, file pushing, and passing- on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve Page 9 of 13 HC-NIC Page 9 of 13 Created On Thu Dec 17 03:06:08 IST 2015 C/SCA/4763/2015 CAV JUDGMENT a litigant-non-grata status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even handed justice on merits in preference to the approach which scuttles a decision on merits"
(ii) The recent judgment of Hon'ble the Supreme Court of India in the case of Banwari Lal and another Vs. Balbir Singh in Civil Appeal No. 6567 of 2015 also confirms that procedural law is not meant to defeat the cause of justice. The relevant portion of para Nos. 10 and 11 reads as under:
"10. Provisions of Order XXII CPC are not penal in nature. It is a rule of procedure and substantial rights of the parties cannot be defeated by pedantic approach by observing strict adherence to the procedural aspects of law. In Sardar Amarjit Singh Kalra Vs. Pramod Gupta (2003) 3 SCC 272, a Five Judge Bench of this Court held as under:-
26. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the provisions contained in Order 22 CPC as well as the subsequent amendments thereto Page 10 of 13 HC-NIC Page 10 of 13 Created On Thu Dec 17 03:06:08 IST 2015 C/SCA/4763/2015 CAV JUDGMENT would lend credit and support to the view that they were devised to ensure their continuation and culmination in an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice. The fact that the khata was said to be joint is of no relevance, as long as each one of them had their own independent, distinct and separate shares in the property as found separately indicated in the jamabandi itself of the shares of each of them distinctly. We are also of the view that the High Court should have, on the very perception it had on the question of abatement, allowed the applications for impleadment even dehors the cause for the delay in filing the applications keeping in view the serious manner in which it would otherwise jeopardize an effective adjudication on merits, the rights of the other remaining appellants for no fault of theirs. Interests of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttled the whole process to foreclose an adjudication of the claims of others on merits. The rejection by the High Court of the applications to set aside abatement, condonation and bringing on record the legal representatives does not appear, on the peculiar nature of the case, to be a just or reasonable exercise of the Page 11 of 13 HC-NIC Page 11 of 13 Created On Thu Dec 17 03:06:08 IST 2015 C/SCA/4763/2015 CAV JUDGMENT Court's power or in conformity with the avowed object of the Court to do real, effective and substantial justice....
(Underlining added)
11. In Sital Prasad Saxena(D) by Lrs. V. Union of India and Ors., (1985) 1 SCC 163, it was observed that the rules of procedure under Order XXII CPC are designed to advance justice and should be so interpreted as not to make them penal statutes for punishing erring parties. On sufficient cause, delay in bringing the legal representatives of the deceased party on record should be condoned.
Procedure is meant only to facilitate the administration of justice and not to defeat the same. The dismissal of the second appeal by the High Court does not constitute a sound and reasonable exercise of its powers and the impugned order cannot be sustained."
11.In view of above facts and circumstances, the petitions are allowed. Thereby, the delay in filing the appeals against the judgment dated 30.6.2012 in R.C.S Nos.469 of 2005, 470 of 2005, 471 of 2005 and 472 of 2005 is condoned resulting into allowing the Civil Misc.Application Nos.49 of 2015, 47 of 2014, 50 of 2014 and 48 of 2014 as prayed for and now the appellate Court has to decide the appeals at the earliest, wherein, practically, the suits may require to be remanded back to the trial Court for deciding it afresh in accordance with law after providing reasonable opportunity to both the sides to prove their case. For the purpose, petitioners shall appear before the trial Court without fail whenever called.
12.For the foregoing reasons, the petitions are allowed.
13.Registry shall place copy of this judgment in each matter.
Page 12 of 13HC-NIC Page 12 of 13 Created On Thu Dec 17 03:06:08 IST 2015 C/SCA/4763/2015 CAV JUDGMENT (S.G.SHAH, J.) binoy Page 13 of 13 HC-NIC Page 13 of 13 Created On Thu Dec 17 03:06:08 IST 2015