Gujarat High Court
Paschim Gujarat Vij Company Limited vs Ashapura Metal on 18 November, 2021
Author: B.N. Karia
Bench: B.N. Karia
C/SCA/16479/2021 ORDER DATED: 18/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16479 of 2021
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PASCHIM GUJARAT VIJ COMPANY LIMITED
Versus
ASHAPURA METAL
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Appearance:
MR CHINMAY M GANDHI(3979) for the Petitioner(s) No. 1
MS NIKITA C GANDHI(11570) for the Petitioner(s) No. 1
MS RUMI M GANDHI(3472) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
Date : 18/11/2021
ORAL ORDER
By preferring present petition under Article 226 and 227 of the Constitution of India, petitioner has prayed to quash and set aside the order dated 19th July 2021 passed by the learned 5th Additional District Judge, Kachchh at Bhuj in CMA No. 45 of 2020 dismissing the application for condonation of delay filed under Section 5 of the Limitation Act 1963 praying to condone to delay of 3 years 6 months and 10 days caused in filing an application under Section 41 Rule 19 of the Code of Civil Procedure (Hereinafter referred to as "the Code") against the order dated 17th March 2017 passed by the learned 2nd Additional District Judge, Bhuj-Kachchh in Regular Civil Appeal No. 48 of 2008.
Considering the issue of dismissing application for Page 1 of 9 Downloaded on : Wed Jan 12 01:48:07 IST 2022 C/SCA/16479/2021 ORDER DATED: 18/11/2021 condonation of delay of 3 years 6 months and 10 days under Section 5 of the Limitation Act 1963 caused in filing an application under Order 41 Rule 19 of the Code, this court deems fit not to issue notice to the respondent.
Heard learned advocate for the petitioner.
It was submitted by learned advocate for the petitioner that Special Civil Suit No. 86 of 2003 was filed by the petitioner before the court of learned Principal Senior Civil Judge, Kachchh for recovery of an amount as prayed in the suit, which was dismissed vide judgment and order dated 26.09.2007. It was further submitted that against the said order, Regular Civil Appeal No. 48 of 2008 was preferred before the learned District Court, Kachchh, which was also dismissed for default under Order 41 Rule 17 of the Code vide order dated 17th March 2017 by learned 2nd Additional District Judge, Bhuj-Kachchh . That, the petitioner came to know on 9 th December 2019 when respondent herein addressed a letter to the petitioner stating that Regular Civil Appeal No. 48 of 2008 was dismissed for default, and therefore, petitioner made an inquiry and preferred Civil Misc. Application No. 45 of 2020 before the court of learned Principal District Judge, Bhuj at Kachchh on 26th October 2020 and prayed to condone the delay in filing the restoration application for restoring Regular Civil Application No. 48 of 2008. That, the said application ie.
Page 2 of 9 Downloaded on : Wed Jan 12 01:48:07 IST 2022C/SCA/16479/2021 ORDER DATED: 18/11/2021 CMA No. 45 of 2020 was dismissed learned District Judge vide order dated 24th August 2021 illegally and erroneously. That, the petitioner was never informed by the advocate, who was engaged before the District Court, and therefore, the petitioner could not remain present. That, the party should not suffer due to mistake on the part of the learned advocate. It was further submitted that when the petitioner made an inquiry, he came to know that the said advocate was not keeping well at the relevant point of time and he was passed away in the year 2019. It was further submitted that petitioner being a public company, dues of the petitioner cannot be frustrated by dismissing the appeal preferred by the petitioner. It was further submitted that the cost may be awarded to the respondent. In support of his arguments, learned advocate for the petitioner has placed his reliance in 2007(3) GLH 625 and 2009JX(Guj.)692 and requested to allow present petition.
Having heard learned advocate for the petitioner and considering the documents produced on record, it appears that as against the judgment and decree passed in Regular Civil Suit No. 86 of 2003, Regular Civil Appeal No. 48 of 2008 was filed by the petitioner before the learned District Court, Kachchh at Bhuj. As none was appeared before the District Court, Kachchh in Regular Civil Appeal No. 48 of 2008, learned 2nd Additional District Judge, Kachchh vide order dated 17.03.2017, Page 3 of 9 Downloaded on : Wed Jan 12 01:48:07 IST 2022 C/SCA/16479/2021 ORDER DATED: 18/11/2021 dismissed the appeal for default and disposed of. It appears that respondent herein wrote a letter on 9 th December 2019 addressing to DE, PGVCL, Sub Division, Ravapar to refund the amount deposited by him. It is also disclosed in the letter that the appeal preferred by the petitioner ie., Regular Civil Appeal No. 48 of 2008 was dismissed. It is not in dispute that petitioner was represented by its advocate before the District Court in appeal preferred by the petitioner. The said appeal was preferred in the year 2008. Ground raised by the petitioner that advocate did not inform the present petitioner to appear before the court or in the proceedings of the appeal preferred by the petitioner cannot be considered by this Court and rightly not considered by the District Court in Civil Misc. Application No. 45t of 2020 preferred by the petitioner.
In 2007, coordinate Bench of this Court, took a view that for failure, mistake or error on the part of the lawyer, litigant ought not to suffer. In the cited case, delay of more than 4 years was not condoned by the trial court in preferring restoration application but it was condoned by this court with appropriate directions and imposing costs.
In another case of "Bhikhabhai Rasulbhai Chotiya versus Decd. Gandhi Gulabchand Chandulal" reported in 2009 JX(Guj.)692, there was a delay of 3 years and 10 days. As per contention of the petitioners, they were never informed by Page 4 of 9 Downloaded on : Wed Jan 12 01:48:07 IST 2022 C/SCA/16479/2021 ORDER DATED: 18/11/2021 their advocate. Before dismissal of the suit for want of prosecution, petitioners did not lead their evidence for about 2 years and 30 adjournments were granted. However, it was observed that there was nothing on record despite such information of said dismissal of suit for want of prosecution, the petitioner has not taken any steps for restoration. It was held that it is the duty of the advocate to inform the petitioner about progress in the matter as petitioners were never informed by their advocates and only when they inquired with the progress in the suit, they came to know that suit was dismissed for default, and therefore, delay was condoned and suit was directed to be restored.
Thereafter, in another judgment, this Court has taken contrary view in case of Samusunisha Begaum & Ors v. Vishnukumar Ambelal Patel & Ors, reported in (2012) 53 (3) GLR 2565 and held as under:
"But one thing is clear they chose to non-cooperate with the court. Having adopted such a stand towards the court, the defendant has no right to ask its indulgence. Putting the entire blame upon the advocate and trying to make it out as if they were totally unaware of the nature or significance of the proceedings is a theory which cannot be accepted and ought not to have been accepted."
"In the Scheme of the Code of Civil Procedure, the appearance of an advocate is treated as the appearance of the party who Page 5 of 9 Downloaded on : Wed Jan 12 01:48:07 IST 2022 C/SCA/16479/2021 ORDER DATED: 18/11/2021 has engaged the advocate. Thus, the party gets all the benefits and advantages of its appearance through an advocate. In a given case, a party may be enjoying the fruits of an interim order and delay in the final disposal of a litigation. Then, conversely, when a party has to suffer an ex parte or adverse order due to a deliberate default on the part of his advocate, it can hardly be allowed to detach itself from its advocate and say that the default was on the part of his advocate for which it ought not to be made to suffer. It is not always true that a party which is aggrieved by an ex parte order is bound to be suffering injustice. The party on the other side who might be languishing in the court for years or decades can be the party who was suffering injustice. The discretion of the court, even in the exercise of its inherent powers, to restore a case by setting aside an ex parte order ought not to be exercised to undo justice."
In another case Basawaraj and Another v. Special Land Acquisition Officer, reported in (2013) 14 SCC 81, Hon'ble Apex Court has held that:
"It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/ benefit inadvertently or by mistake, such an order Page 6 of 9 Downloaded on : Wed Jan 12 01:48:07 IST 2022 C/SCA/16479/2021 ORDER DATED: 18/11/2021 does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a Judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible. (Vide: Chandigarh Administration & Anr. v. Jagjit Singh & Anr., AIR 1995 SC 705, M/s. Anand Button Ltd. v. State of Haryana & Ors., AIR 2005 SC 565; K.K. Bhalla v. State of M.P. & Ors., AIR 2006 SC 898; and Fuljit Kaur v. State of Punjab, AIR 2010 SC 1937).
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 Page 7 of 9 Downloaded on : Wed Jan 12 01:48:07 IST 2022 C/SCA/16479/2021 ORDER DATED: 18/11/2021 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. Bhootnath Banerjee & Ors., AIR 1964 SC 1336; Lala Matadin v. A. Narayanan, AIR 1970 SC 1953; Parimal v.Veena @ Bharti AIR 2011 SC 1150; and Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai AIR 2012 SC 1629.)"
Considering the recent view taken by this Court as well as Hon'ble Apex Court, the submissions made by learned advocate for the petitioner to impose the cost and condone the delay cannot not be accepted otherwise it would amount to violation of statutory principles and showing utter disregard to legislature.
In view of the above, no interference is required with the judgment and order dated 19th July 2021 passed by the learned Page 8 of 9 Downloaded on : Wed Jan 12 01:48:07 IST 2022 C/SCA/16479/2021 ORDER DATED: 18/11/2021 5th Additional District Judge, Kachchh at Bhuj in CMA No. 45 of 2020. The present petition lacks merit and is accordingly, dismissed.
(B.N. KARIA, J) K. S. DARJI Page 9 of 9 Downloaded on : Wed Jan 12 01:48:07 IST 2022