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Gujarat High Court

Hasmukhlal Ishwarlal Kansara vs Bhupendrakumar Ishwarlal Kansara on 26 March, 2020

Author: Harsha Devani

Bench: Harsha Devani

        C/SCA/9590/2011                                        IA JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


    CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 2 of 2016
            In R/SPECIAL CIVIL APPLICATION NO. 9590 of 2011
                                 With
          MISC. CIVIL APPLICATION (FOR REVIEW) NO. 1 of 2016
            In R/SPECIAL CIVIL APPLICATION NO. 9590 of 2011

FOR APPROVAL AND SIGNATURE:


HONOURABLE MS.JUSTICE HARSHA DEVANI

==========================================================

1 Whether Reporters of Local Papers may be allowed to No see the judgment ?

2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the No judgment ?

4 Whether this case involves a substantial question of law No as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== HASMUKHLAL ISHWARLAL KANSARA Versus BHUPENDRAKUMAR ISHWARLAL KANSARA ========================================================== Appearance:

MR SJ GAEKWAD for the PETITIONER(s) No. MS KJ BRAHMBHATT for the RESPONDENT(s) No. ========================================================== CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI Date : 26/03/2020 IA JUDGMENT
1. By this application under section 5 of the Limitation Act, Page 1 of 28 Downloaded on : Thu Mar 26 21:03:06 IST 2020 C/SCA/9590/2011 IA JUDGMENT 1963, the applicants (original petitioners) seek condonation of delay of 1772 days caused in filing miscellaneous civil application for review/recall of the order dated 6.9.2011 passed by this court in Special Civil Application No.9590 of 2011, whereby the petition was disposed of as not pressed.
2. The facts, as averred in the memorandum of application, are that in view of the categorical admissions made by the contesting respondent No.1, the earlier petition being Special Civil Application No.9590 of 2011 was withdrawn on 6.9.2011.

Relying on the said admissions, an application Exhibit-1306 was given in the trial court requesting the court to give exhibit number to the Will which was brought on record by giving tentative Exhibit No.1233. However, by an order dated 22.12.2014, the application Exhibit-1306 was rejected by the trial court. The order dated 22.12.2014 is under challenge in Special Civil Application No.2680 of 2015 which is pending before this court. In the said matter also, the contesting respondents filed another affidavit-in-reply denying the fact of admission of execution of Will. It is in these circumstances that the applicants have filed a review application in the present case.

2.1 It is further averred that both the attesting witnesses have expired prior to the commencement of the cross- examination under the amended provisions of Order XVIII, rules 4 and 5 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code"). Under the circumstances, the requirement of law is that a Will can be proved by leading any other evidence as the other documents. The Will in question complied with all the requirements of section 63 of the Indian Page 2 of 28 Downloaded on : Thu Mar 26 21:03:06 IST 2020 C/SCA/9590/2011 IA JUDGMENT Succession Act. In view of the change of stand taken by the respondent No.1, it has become necessary for the applicants to seek review of the order passed in the earlier proceedings being Special Civil Application No.9590 of 2011. It is, accordingly, urged that the delay caused in filing the review application be condoned.

3. In response to the averments made in the memorandum of application, the respondent No.1 has filed affidavit-in-reply stating that he has filed Special Civil Suit No.192 of 1986 which came to be renumbered as Regular Civil Suit No.845 of 2005 in the Court of the learned Civil Judge, Surat for partition of the property being Ward No.11, Nondh No.13 situated at Lal Gate, Kanpith, Surat and Nondh No.2608 situated at Lal Gate, Khand Bazar, Surat and various other properties mentioned in the suit being HUF properties of Kansara family, seeking share in the said suit properties, etc. The said suit was resisted by the applicants by filing their written statement on 3.10.1986. Thereafter, the applicant No.1 filed an affidavit dated 6.1.1987 at Exhibit-34. On the said date only, that is, 6.1.1987 the applicants filed affidavits of attesting witnesses to the alleged Will, namely, Shri Hasmukhlal Gordhandas Engineer at Exhibit- 35 and Shri Gangaram Bhikhubhai Antrolia at Exhibit-36. On the said date, the applicants vide Exhibit-38 produced a list of documents along with the documents and in that at Serial No.1, produced only a photocopy of the alleged Will dated 29.12.1980 of their father Ishwarbhai Kansara. The Will was registered on 7.3.1981 by the applicant No.1 herein after the death of their father Ishwarbhai Kansara on 11.2.1981. It is further submitted that Shri Gangaram Bhikhubhai Antrolia, a witness to the said Will, expired on 17.4.1992, whereafter the Page 3 of 28 Downloaded on : Thu Mar 26 21:03:06 IST 2020 C/SCA/9590/2011 IA JUDGMENT applicants filed another affidavit dated 22.7.1996 of Hasmukhbhai Gordhandas Engineer a witness to the said Will, who expired on 11.11.2008. That after a long period of about more than eleven years from the death of Gangaram Antrolia - the said witness to the Will, an affidavit dated 24.6.2003 of his son Rajubhai alias Naresh, son of Gangaram Antrolia, came to be filed. Thereafter, vide application dated 7.4.2011 at Exhibit- 632, the applicants produced before the court the alleged original Will dated 29.12.1980 registered by the applicant No.1 on 7.3.198, after the death of their father on 11.2.1981 and also both the witnesses to the said Will, for reasons best known to them. Attention is invited to the fact that vide Exhibit-38 dated 6.1.1987, with the list of documents, only the photocopy was produced, though the applicants were having the original Will.

3.1 Thereafter, at the ongoing final hearing stage on 16.7.2011, the applicant No.1 filed application at Exhibit-1236 seeking examination of two witnesses stated in the said application, which was resisted by the deponent. The said application came to be rejected by an order dated 16.7.2011. Thereafter, on 16.7.2011, the applicant No.1 gave another application at Exhibit-1240 seeking recall of the five witnesses stated therein. The respondent No.1 filed reply dated 18.7.2011 at Exhibit-1241 opposing the said application. After hearing the learned advocates, the trial court, vide order dated 18.7.2011, rejected the application of the applicant No.1. Against both the above orders dated 16.7.2011 below Exhibit- 1236 and 18.7.2011 below Exhibit-1240, the applicants preferred Special Civil Application No.9590 of 2011 before this court. By an order dated 1.8.2011, the court recorded that the Page 4 of 28 Downloaded on : Thu Mar 26 21:03:06 IST 2020 C/SCA/9590/2011 IA JUDGMENT learned advocate for the petitioner does not challenge the order passed below Exhibit-1236 dated 16.7.2011. It is further averred that the respondent appeared and filed affidavit-in- reply dated 26.8.2011 in the said writ petition and after hearing the parties, by an order dated 6.9.2011, this court disposed of the petition as not pressed.

3.2 It is further averred that after a long period of more than three years of the order dated 6.9.2011 made in the captioned writ petition, the applicants at the ongoing final hearing stage filed an application at Exhibit-1306 on 11.11.2014 in the Civil Suit at Surat and prayed to give pucca number to the alleged Will. That the respondent No.1 opposed the said application by filing reply dated 18.11.2014. The trial court, after hearing both the sides, by an order dated 22.12.2014, rejected the application Exhibit-1306. Against the order dated 22.12.2014, the applicants preferred Special Civil Application No.2680 of 2015 before this court, which was heard at length for admission hearing and was thereafter adjourned. Meanwhile, the applicants have filed the present application seeking condonation of delay of long period of 1772 days.

3.3 It is submitted that the civil application seeking condonation of delay of 1772 days is required to be dismissed as no sufficient and cogent ground is stated in the application for condonation of the said inordinate delay in filing the application for review/recall of the order dated 6.9.2011. It is averred that for preferring the review of the order dated 6.9.2011, the applicants have stated only one reason, that is, in view of the change of stand of the respondent No.1 it has become necessary for the applicant to seek review of the order Page 5 of 28 Downloaded on : Thu Mar 26 21:03:06 IST 2020 C/SCA/9590/2011 IA JUDGMENT dated 6.9.2011 whereby Special Civil Application No.9590 of 2011 was disposed of as withdrawn. It is stated that this reason is not true, just, proper and legal and the same is corroborated by the facts from the record of the entire case itself and also from the conduct of the applicants. It is denied that the respondent No.1 has change his stand as alleged by the applicants and that no circumstances have arisen as alleged by the applicant for seeking review of the order dated 6.9.2011. It is categorically stated that no admissions were made by the respondent No.1 in the earlier petition being Special Civil Application No.9590 of 2011. It is submitted that Special Civil Application No.9590 of 2011 was filed against the order below Exhibit-1240 denying to call sons of the witnesses to alleged Will and other three witnesses and in reply to the same, the said affidavit dated 26.8.2011 was filed categorically stating that they are not required to be examined to prove any issue to the suit but contents of paragraph 9 of the affidavit-in- reply filed by the first respondent reproduced.

3.4 It is averred that sufficient cause implies presence of legal and adequate reasons and proof of sufficient cause is a condition precedent for exercising discretion vested in the court. However, the applicants have failed to give sufficient cause for such delay as well as for reviewing the said order. It is averred that the concepts such as the liberal approach, justice oriented approach and substantial justice cannot be employed to jettison the substantial law of limitation. That it is well settled cannon of interpretative jurisprudence that the court should not give such an interpretation to provision which would render the provisions ineffective or odious. Not only that but liberal construction cannot be equated with doing injustice Page 6 of 28 Downloaded on : Thu Mar 26 21:03:06 IST 2020 C/SCA/9590/2011 IA JUDGMENT to the other party. Moreover, it has been held in a number of reported decisions that delay defeats equity and that the court helps those who are vigilant.

3.5 It is submitted that by giving the present application, the applicants are seeking rehearing of Special Civil Application No.9590 of 2011 which they have not pressed after hearing which is not permissible in law. It is submitted that review is not rehearing of an original matter and that review proceedings cannot be equated with the original hearing of the case and have to be strictly confined to the ambit and scope of Order 47 rule 1 of the Code.

3.6 The applicant No.1 has filed an affidavit-in-rejoinder stating that the contesting respondent No.1 Bhupendrakumar I Kansara filed affidavit dated 26.11.2012 in Special Civil Application No.9590 of 2011 wherein in paragraph 9, the said respondent has admitted the fact that there is ample material on record of the suit to prove the alleged Will even in terms of sections 68 and 69 of the Indian Evidence Act, 1872. That the witnesses sought to be called by the contesting respondents are not required to be examined to prove any issue to the suit. That relying of this categorical admission, the learned advocate appearing for the contesting respondents withdrew the suit which was disposed of as withdrawn by order dated 6.9.2011. It is further averred that in Special Civil Application No.9590 of 2011 the order dated 18.7.2011 passed by the trial court on the application below Exhibit-1240 was under

challenge. The said application came to be dismissed by the trial court. It is averred that requirement of law is that Will is required to be attested by two witnesses as per the provisions Page 7 of 28 Downloaded on : Thu Mar 26 21:03:06 IST 2020 C/SCA/9590/2011 IA JUDGMENT of section 63 of the Indian Succession Act and the same is required to be proved as per sections 68 and 69 of the Evident Act. The Will in question was executed by the deceased father of the deponent and was attested by two attesting witnesses, viz. Hasmukhbhai Gordhanbhai and Gangaram Bhikhubhai Antrolia. Their affidavits are produced on the record of the suit vide Exhibits-35 and 36 respectively. They have clearly stated in their affidavits that they signed the Will in the presence of each other, and the executant executed the Will in their presence. It is the case of the deponent that these facts are sufficient to establish that the requirements of a valid Will as per the provisions of Indian Succession Act. The Will was registered on 7.3.1981. The Will in question is a registered Will and coming from proper custody. The execution of Will is required to be proved and established as per the provisions of sections 68 and 69 of the Evidence Act. The affidavits filed by both the attesting witnesses are on record. Both the attesting witnesses expired prior to the commencement of recording of cross-examination and, therefore, the Will could not be exhibited. It is further averred that the law is settled that if the attesting witnesses have expired, the Will can be proved as any other document. Section 71 of the Evidence Act comes into play and Will can be proved by leading any other necessary evidence.
3.7 It is further averred that under the procedural law, if the party admits the documents produced by the adversary party, in that eventuality, strict proof as per the provisions of law is not required. In the affidavit-in-reply dated 26.8.2011 filed by the contesting respondent No.1 in the writ petition, he categorically admitted in paragraph 9 that there is sufficient Page 8 of 28 Downloaded on : Thu Mar 26 21:03:06 IST 2020 C/SCA/9590/2011 IA JUDGMENT evidence on record to prove the execution of the Will and no further evidence is required to be given in this respect. That relying on this categorical admission, the learned advocate for the petitioner withdrew the petition which was disposed of as withdrawn by order dated 6.9.2011. Thus, in view of the categorical admission made by the attesting respondent No.1 in the proceedings before this court, the applicant gave application Exhibit-1306 before the trial court to give pucca exhibit to the Will in question in view of the admissions made to the respondent No.1 in judicial proceedings; however, the said application was rejected by an order dated 22.12.2014.

Hence, the petitioners have challenged the said order by filing a writ petition being Special Civil Application No.2680 of 2015.

3.8 It is further averred that for the reasons mentioned in the application for review/recall and condonation of delay, it became necessary for the applicants to seek clarification or to recall the order dated 6.9.2011 passed by this court in Special Civil Application No.9590 of 2011.

3.9 It is further averred that the provisions of Code are not applicable in proceedings under article 226 of the Constitution in view of the Explanation below section 141 of the Code. That in the interest of justice, the delay considered to have been caused in filing the review application be condoned and the review application be decided on merits.

3.10 It is further averred that it does not appear from the order dated 6.9.2011 that the said matter was withdrawn by the learned advocate on instructions from the client. That mistake committed by the advocate in respect of question of Page 9 of 28 Downloaded on : Thu Mar 26 21:03:06 IST 2020 C/SCA/9590/2011 IA JUDGMENT law does not bind the party. Under the circumstances, in order to do justice, the review application may be admitted and decided on merits.

4. Mr. S.N. Shelat, senior advocate, learned counsel for the applicant submitted that the first respondent filed an affidavit- in-reply in Special Civil Application No.9590 of 2011, wherein he had stated on oath that there is ample material on record of the suit to prove the alleged Will even in terms of sections 68 and 69 of the Indian Evidence Act, 1872. Thus, they are not required to examine the sons of the attesting witnesses to prove any issue in the suit. It was submitted that relying upon the categorical admissions made in paragraph 9 of the affidavit-in-reply; the learned advocate for the applicant had not pressed the petition and, accordingly, by an order dated 6.9.2011 the petition came to be disposed of as not pressed. It was submitted that in view of the admissions made in the affidavit-in-reply of the first respondent, the applicants gave an application Exhibit 1306 before the trial court to exhibit the Will in question; however, the said application came to be rejected by the trial court. It was submitted that during the course of hearing of the above application Exhibit 1306, the first respondent changed his stand, on account of which the review application has been necessitated.

4.1 Insofar as the delay that has occasioned in making the review application, it was submitted that on 6.9.2011, when the captioned special civil application came to be disposed of, the applicants believed that there was ample evidence to prove the will. Thereafter the matter was pending before the trial court. Thereafter, on 11.5.2012, the suit came to be Page 10 of 28 Downloaded on : Thu Mar 26 21:03:06 IST 2020 C/SCA/9590/2011 IA JUDGMENT transferred to another court. It was submitted that thereafter the applicants gave an application Exhibit 1306 before the trial court to exhibit the Will in question; however, the said application came to be rejected by the trial court by an order dated 22.12.2014 on the ground that since the attesting witnesses have expired, the Will cannot be proved and cannot be give a regular exhibit number. It was submitted that the order dated 22.12.2014 of the trial court has been challenged by the applicants by way of a writ petition before this court being Special Civil Application No.2680 of 2015. It was submitted that it was on a representation made by the first respondent in paragraph 9 of the affidavit-in-reply, that the petition came to be withdrawn. But subsequently, when the applicants made the application Exhibit 1306 for giving a regular exhibit number to the Will, the first respondent changed his stand, and the application came to be rejected. Therefore, the applicants were required to file the present review application and it is on this count that delay has occasioned in filing the said application. It was submitted that it is on account of the order dated 22.12.2014 passed by the trial court that the present review application was required to be filed, and therefore, as such there is no delay in filing the review application.

4.2 It was submitted that the petition came to be withdrawn on account of the mistake on the part of the learned advocate for the applicants, and hence, a liberal view is required to be taken on the question of limitation. In support of such submission, the learned counsel placed reliance upon the decision of the Supreme Court in Perumon Bhagvathy Devaswom v. Bhargavi Amma, 2008 AIR SCW 6025  Page 11 of 28 Downloaded on : Thu Mar 26 21:03:06 IST 2020 C/SCA/9590/2011 IA JUDGMENT (2008) 8 SCC 321, wherein the court held thus:

"6. What should be the approach of the courts while considering applications under Section 5 of the Limitation Act, 1963, has been indicated in several decisions. It may be sufficient to refer to two of them. In Shakuntala Devi Jain v. Kuntal Kumari, AIR 1969 SC 575 this Court reiterated the following classic statement from Krishna v. Chathappan, 1890 ILR 13 Mad 269:
"... Section 5 gives the courts 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 fides is imputable to the appellant."

7. In N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123, this Court held:

"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 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 a want of acceptable explanation whereas in certain other cases, delay of a 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 untrammelled by the conclusion of the lower court.
Page 12 of 28 Downloaded on : Thu Mar 26 21:03:06 IST 2020
C/SCA/9590/2011 IA JUDGMENT
10. ... The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. ...
11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. ...
12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no 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....
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."
"13. The principles applicable in considering applications for setting aside abatement may thus be summarised as follows:
(i) The words "sufficient cause for not making the application within the period of limitation" should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words "sufficient cause" in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant.
(ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of Page 13 of 28 Downloaded on : Thu Mar 26 21:03:06 IST 2020 C/SCA/9590/2011 IA JUDGMENT the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement.
(iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation.
(iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer's lapses more leniently than applications relating to litigant's lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in refiling the appeal after rectification of defects.
(v) Want of "diligence" or "inaction" can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal."

4.3 The decision of the Bombay High Court in Saibai Govind Lavlekar v. Balkrishna Pandurang Bane, AIR 1925 Bombay 368, was cited wherein the applicant applied that summonses should be issued to the persons mentioned in the list of witnesses filed in the court. The application came to be rejected on the ground that it was filed at too late a stage in the suit. The court placed reliance upon its earlier decision in Page 14 of 28 Downloaded on : Thu Mar 26 21:03:06 IST 2020 C/SCA/9590/2011 IA JUDGMENT the case of Bai Kalika Alarakh Pirbhai, [1890] 15 Bom 86, wherein it was held that under section 159 of the Civil Procedure Code, 1882 (now Order XVI, rule 1 of the Code of 1908) a party to a suit is entitled, as of right, to obtain summonses any time before the date fixed for the disposal of the suit.

4.4 Reliance was placed upon the decision of the Karnataka High Court in Smt. Yasodamma v. Inderchand Vimalchand Jain, AIR 1974 Karnataka 100, wherein the court held that the salutary principle behind Order 16 rule 1 of the Code is that the court ordinarily should not shut out relevant documents and deny opportunity to any party to summon witnesses.

4.5 Reliance was also placed upon the decision of the Bombay High Court in Trustees Co. Ltd. v. Ashok Raju Shetty, 2014 (1) MHLJ 323, for the proposition that under section 151 of the Code of Civil Procedure, 1908, the court can recall any witness for further evidence, however, the same shall be subject to witness being cross-examined thereafter. In the facts of the said case defendants No.4 and 5 who were the beneficiaries of the Will and were supporting the plaintiffs filed chamber summons for permission to examine the doctor who was alleged to have examined the deceased. The court held that merely because the plaintiffs had not examined the doctor, the defendants No.4 and 5 who were the beneficiaries under the said will and were ultimately going to be affected by any order passed by the court cannot be refused an opportunity to lead oral evidence even at that stage to prove that the deceased testator was in sound and disposing mind at the time of executing the will.

Page 15 of 28 Downloaded on : Thu Mar 26 21:03:06 IST 2020

C/SCA/9590/2011 IA JUDGMENT 4.6 It was submitted that on merits, the applicants have a strong case, and hence, the delay caused in filing the review application deserves to be condoned and the application should be heard on merits.

5. Vehemently opposing the application, Ms. Kalpana Brahmbhatt, learned advocate for the respondents reiterated the averments made in the affidavit-in-reply filed by the first respondent and submitted that the applicants have failed to explain the inordinate delay and laches in filing the review application. It was submitted that the captioned special civil application came to be disposed of as not pressed on 6.9.2011. However, no review application was filed at the relevant time. It was submitted that the applicants are merely trying to linger the trial on one pretext or the other.

5.1 It was submitted that while the order disposing the captioned petition came to be passed on 6.9.2011, the applicants made the application Exhibit 1306 for giving a regular exhibit number to the Will only on 11.11.2014, that is, after more than three years of the said order, at the on-going final hearing stage. The attention of the court was invited to the application Exhibit 1306 to submit that false facts were stated therein by the applicants to the effect that earlier they had given an application Exhibit 652 for giving regular exhibit number to the will, whereas the trial court had given it a tentative exhibit number and hence they had challenged the same before the High Court in Special Civil Application No.9590 of 2011, in which, the first respondent had filed an affidavit-in-reply, wherein in paragraph 9 he had taken the Page 16 of 28 Downloaded on : Thu Mar 26 21:03:06 IST 2020 C/SCA/9590/2011 IA JUDGMENT defence that the affidavits of the witnesses to the Will were already on record and hence the witnesses to the Will and other witnesses were not required to be examined, and that the first respondent has established that there is no legal need to prove the Will and, therefore, their advocate had withdrawn the special civil application from the High Court. Now the first respondent cannot retract from his affidavit and on that basis the Will which has been given tentative Exhibit No.1233 be given a regular exhibit number. It was submitted that the said application came to be rejected by an order dated 22.12.2014, against which the applicants filed a writ petition being Special Civil Application No.2680 of 2015 on or about 14th April, 2015 and after a period of more than a year thereafter, the present application for review came to be filed on or about 12th August, 2016.

5.2 It was submitted that the review application itself is misconceived, inasmuch as there is no change of stand on the part of the first respondent, and therefore, this ground is false. The attention of the court was invited to the provisions of Order XVII rule 1 of the First Schedule to the Code, to submit that the present case does not fall under any categories mentioned therein.

5.3 Reliance was placed upon the decision of the Supreme Court in Balwant Singh v. Jagdish Singh, (2010) 8 SCC 685:

"25. We may state that even if the term "sufficient cause" has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce Page 17 of 28 Downloaded on : Thu Mar 26 21:03:06 IST 2020 C/SCA/9590/2011 IA JUDGMENT the concept of "reasonableness" as it is understood in its general connotation.
26. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly.
27. The application filed by the applicants lacks in details. Even the averments made are not correct and ex facie lack bona fide. The explanation has to be reasonable or plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. If it does not specify any of the enunciated ingredients of judicial pronouncements, then the application should be dismissed. On the other hand, if the application is bona fide and based upon true and plausible explanations, as well as reflects normal behaviour of a common prudent person on the part of the applicant, the Court would normally tilt the judicial discretion in favour of such an applicant. Liberal construction cannot be equated with doing injustice to the other party."
"32. It must be kept in mind that whenever a law is enacted by the legislature, it is intended to be enforced in its proper perspective. It is an equally settled principle of law that the provisions of a statute, including every word, have to be given full effect, keeping the legislative intent in mind, in order to ensure that the projected object is achieved. In other words, no provisions can be treated to have been enacted purposelessly.
33. Furthermore, it is also a well-settled canon of interpretative jurisprudence that the Court should not give Page 18 of 28 Downloaded on : Thu Mar 26 21:03:06 IST 2020 C/SCA/9590/2011 IA JUDGMENT such an interpretation to the provisions which would render the provision ineffective or odious. Once the legislature has enacted the provisions of Order 22, with particular reference to Rule 9, and the provisions of the Limitation Act are applied to the entertainment of such an application, all these provisions have to be given their true and correct meaning and must be applied wherever called for. If we accept the contention of the learned counsel appearing for the applicant that the Court should take a very liberal approach and interpret these provisions (Order 22 Rule 9 CPC and Section 5 of the Limitation Act) in such a manner and so liberally, irrespective of the period of delay, it would amount to practically rendering all these provisions redundant and inoperative. Such approach or interpretation would hardly be permissible in law.
34. Liberal construction of the expression "sufficient cause" is intended to advance substantial justice which itself presupposes no negligence or inaction on the part of the applicant, to whom want of bona fide is imputable. There can be instances where the court should condone the delay; equally there would be cases where the court must exercise its discretion against the applicant for want of any of these ingredients or where it does not reflect "sufficient cause" as understood in law. (Advanced Law Lexicon, P. Ramanatha Aiyar, 2nd Edn., 1997)
35. The expression "sufficient cause" implies the presence of legal and adequate reasons. The word "sufficient" means adequate enough, as much as may be necessary to answer the purpose intended. It embraces no more than that which provides a plentitude which, when done, suffices to accomplish the purpose intended in the light of existing circumstances and when viewed from the reasonable standard of practical and cautious men. The sufficient cause should be such as it would persuade the court, in exercise of its judicial discretion, to treat the delay as an excusable one. These provisions give the courts enough power and discretion to apply a law in a meaningful manner, while assuring that the purpose of enacting such a law does not stand frustrated."
"38. Above are the principles which should control the exercise of judicial discretion vested in the court under these provisions. The explained delay should be clearly understood in contradistinction to inordinate unexplained delay. Delay is just one of the ingredients which has to be Page 19 of 28 Downloaded on : Thu Mar 26 21:03:06 IST 2020 C/SCA/9590/2011 IA JUDGMENT considered by the court. In addition to this, the court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. The statutory provisions mandate that applications for condonation of delay and applications belatedly filed beyond the prescribed period of limitation for bringing the legal representatives on record, should be rejected unless sufficient cause is shown for condonation of delay. The larger Benches as well as equi-Benches of this Court have consistently followed these principles and have either allowed or declined to condone the delay in filing such applications. Thus, it is the requirement of law that these applications cannot be allowed as a matter of right and even in a routine manner. An applicant must essentially satisfy the abovestated ingredients; then alone the court would be inclined to condone the delay in the filing of such applications."

5.4 It was submitted that as held by the Supreme Court in the above decision, the court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. It was submitted that the conduct of the applicants shows that they were wholly negligent in filing the review application and no explanation worth the name, much less, a reasonable or plausible one has been put forth in the application or in the rejoinder filed in response to the affidavit-in-reply filed by the first respondent, which could persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. It was submitted that the applicants merely want to while away time so as to linger the case. It was, accordingly, urged that no case is made out for condoning such a huge delay, and hence the application deserves to be rejected.

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6. In rejoinder, Mr. Shelat submitted that submitted that sufficient cause has been shown by the applicants for condoning the delay caused in filing the review application. To bolster his submission, the learned counsel placed reliance upon the decision of the Supreme Court in Board of Control for Cricket in India v. Netaji Cricket Club, (2005) 4 SCC 741, wherein the court held thus:

"89. Order 47 Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason.
90. Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words "sufficient reason" in Order 47 Rule 1 of the Code are wide enough to include a misconception of fact or law by a court or even an advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravabit"."

6.1 It was submitted that as held by the Supreme Court in the above decision, misconception of fact or law even by an advocate would also fall within the scope of the expression "sufficient cause" necessitating an application for review. It was submitted that the applicants had never given up the cause and a bona fide attempt had been made to get the will proved. It was, accordingly, urged that the application be allowed by condoning the delay.

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7. The facts are not in dispute. Against the order passed by the trial court below Exhibit 1240, the applicants filed the captioned writ petition, which came to be disposed of by the following order dated 06.09.2011:

"Oral Order:
1. By this petition, the petitioners have challenged the Order dated 18.7.2011 passed by the learned Sixth Additional Senior Civil Judge, Surat below Exhibit
-1240 in Regular Civil Suit No.845 of 2005, whereby the learned Judge has reject the application filed by the petitioner.
2. Heard Ms. Kruti Shah, learned advocate for the petitioner and Ms. K.J. Brahmbhatt, learned advocate for the respondent No.1.
3. Ms. Kruti Shah, learned advocate for the petitioners states that in view of what is stated in the affidavit-in-

reply filed by the respondent No.1 Bhupendrakumar Ishwarlal Kansara and more particularly in paragraph 9 thereof, she does not press the present petition.

4. The petition is, accordingly, disposed of as not pressed. Notice is discharged, with no order as to costs."

8. It appears that the applicants had accepted the said order and, therefore, had no filed any review application at the relevant time. After a period of more than three years of the passing of the above order, the applicants moved an application Exhibit 1306, before the trial court for giving an exhibit number to the Will. Such application came to be rejected by an order dated 22.12.2014. It is the case of the applicants that at that stage, the first respondent took a stand contrary to the stand taken by him in paragraph 9 of the affidavit-in-reply filed in the captioned writ petition. However, even at that stage, the applicants did not deem it fit to file a Page 22 of 28 Downloaded on : Thu Mar 26 21:03:06 IST 2020 C/SCA/9590/2011 IA JUDGMENT review application. The applicants challenged the order dated 22.12.2014 passed by the trial court below Exhibit 1306 by way of a writ petition on or about 14th April, 2015. Subsequently, after a period of more than one year, the applicants filed the present review application on or about 12.08.2016. In the process there has been a delay of 1772 days.

9. The Supreme Court in Balwant Singh v. Jagdish Singh (supra) has held that:

- The explanation put forth has to be reasonable or plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant.
- Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly.
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           C/SCA/9590/2011                                          IA JUDGMENT




      -      Delay is just one of the ingredients which has to be
considered by the court. In addition to this, the court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution.
- The sufficient cause should be such as it would persuade the court, in exercise of its judicial discretion, to treat the delay as an excusable one.

10. Examining the facts of the present case in the light of the above principles, this court is of the considered opinion that no explanation worth the name, much less, a plausible explanation has been put forth in the memorandum of application or even in the affidavit in rejoinder filed on behalf of the applicants.

11. If it is the case of the applicants that the petitioner had been not pressed on account of mistake of fact or law on the part of the learned advocate, the applicants should have immediately approached this court seeking review of the order. However, the applicants waited for a considerable time and at the ongoing final hearing stage, after more than three years of passing the order under review filed an application Exhibit 1306 for giving a regular exhibit number to the Will. Such application came to be rejected on 12.12. 2014. While it is the case of the applicants that it is in view of the changed stand of the first respondent which is contrary to the stand taken by him in paragraph 9 of the affidavit-in-reply filed in the Page 24 of 28 Downloaded on : Thu Mar 26 21:03:06 IST 2020 C/SCA/9590/2011 IA JUDGMENT captioned petition that the present review application has occasioned, even at that stage the applicants did not deem it fit to file the review application. At that stage that applicants filed a writ petition challenging the order dated 22.12.2014, and it is only more than one year thereafter that the applicants filed the present review application. In the opinion of this court, the applicants had acted with normal care and caution, they could have could easily have avoided the delay. As held by the Supreme Court in the above decision, the sufficient cause should be such as it would persuade the court, in exercise of its judicial discretion, to treat the delay as an excusable one. In the facts of the present case, no sufficient cause has been shown so as to persuade the court to treat the delay as an excusable one.

12. Since it is the case of the applicants that it is on account of the averments made by the first respondent in paragraph 9 of the affidavit-in-reply filed by him that the learned advocate for the applicants had not pressed the petition and that it was in view of the changed stand of the first respondent that the review was necessitated, which is also a ground put forth for explaining the delay caused in filing the review application, it may be germane to refer to the contents thereof, which are extracted hereunder:

"I say and submit that the petitioners had requested to call on Raju alia Naresh Gangaram Antrolia and one Anil Hasmukhbhai Engineer as witnesses to give evidence in the Suit stating that the original witnesses to the alleged Will have expired during the pendency of the Suit and that they have also filed affidavits and therefore to prove the signatures of the Original Witnesses, their sons are required to be called in the witness box. I submit that the Page 25 of 28 Downloaded on : Thu Mar 26 21:03:06 IST 2020 C/SCA/9590/2011 IA JUDGMENT Trial Court had rejected the said prayer of the petitioners with proper reasoning that only person present at the time of execution of the Will can only depose about the mental and physical health of the person executing the Will and that the said two witnesses are neither Original Witnesses to the alleged Will nor they were present at the time of its execution and therefore in no case they will be able to prove the alleged Will. That the affidavits of the Original Witnesses to the alleged Will are already on record of the Suit (please refer annexures C and D to the present petition). It requires to be noted that said Rajubhai alias Naresh s/o Gangaram Antrolia has also filed another affidavit dated 24-6-2003 to that effect in the Suit. Even another affidavit dated 22-7-1996 to that effect by Hasmukhbhai Gordhanbhai Engineer himself (Original Witness to the alleged Will) is on record of the Suit. This is sufficient. The law provides that the Will can be proved by showing that the executor was in sound disposing state of mind. That there is ample material on the record of the Suit to prove the alleged Will even in terms of Section 68 and 69 of the Evidence Act, 1872. Thus, they are not required to be examined to prove any issue to the suit. The copies of the said other affidavits dated 24-6-2003 and 22-7-1996 by Rajubhai and Hasmukhbhai respectively are annexed hereto and marked as Annexure - R2 and R3."

On a plain reading of the contents of paragraph 9 of the affidavit-in-reply, it is evident that no admission has been made by the first respondent admitting the genuineness of the Will in question. All that is stated is that there is ample material on record of the Suit to prove the alleged Will even in terms of section 68 and 69 of the Evidence Act. The first respondent has nowhere admitted the execution as well as the contents of the Will. Therefore, the contention that it is in view of the changed stand of the respondent that the review application was required to be filed, and hence, there was a delay in filing the review application does not merit acceptance, inasmuch as the contention that the first Page 26 of 28 Downloaded on : Thu Mar 26 21:03:06 IST 2020 C/SCA/9590/2011 IA JUDGMENT respondent has subsequently changed his stand is itself fallacious.

13. On behalf of the respondents, it has been contended that the present case does not fall under any of the categories envisaged under Order XLVII rule 1 of the Code, whereas on behalf of the applicants the learned counsel has placed reliance upon the decision of the Supreme Court in Board of Control for Cricket in India v. Netaji Cricket Club (supra), for the proposition that the words "sufficient reason" in Order XLVII rule 1 of the Code are wide enough to include a misconception of fact or law by a court or even an advocate.

14. In the opinion of this court, had it been the case of the applicants that the order under review has been occasioned on account of misconception of fact or law by the learned advocate for the applicants in not pressing the special civil application, the applicants would have immediately approached this court seeking review of the order. But the applicants did no such thing, and much belatedly, after a period of more than three years of the passing of the order under review filed an application Exhibit 1306 for giving the will an exhibit number. While it is the case of the applicants that it is in view of the changed stand of the applicant that the review application was required to be filed, they did not file the application even immediately after the order dated 22.12.2014 came to be passed by the trial court, but filed it on or about 12.08.2016, after a delay of more than one and a half years. Thus, at every stage the applicants have remained negligent and indolent. Hence, no case has been made out for condoning the huge and inordinate delay of 1772 days.

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15. As can be seen from the submissions made by the learned counsel for the respective parties, various submissions have been made on the merits of the review application. However, since the no case has been made out for condoning the delay caused in filing the review application, the court has not deemed it fit to enter into the merits of such contentions.

16. In the light of the above discussion, the application fails and is accordingly, rejected. Rule is discharged with no order as to costs.

17. Having regard to the fact that the delay in filing the review application has not been condoned, the review application does not survive and stands disposed of accordingly.

(HARSHA DEVANI, J) Z.G. SHAIKH Page 28 of 28 Downloaded on : Thu Mar 26 21:03:06 IST 2020