Gujarat High Court
Ramsangbhai Samjibhai Chunara vs Hansrajbhai Ravjibhai Kadiwar on 30 September, 2021
Author: B.N. Karia
Bench: B.N. Karia
C/SCA/16776/2014 ORDER DATED: 30/09/2021
16692IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16776 of 2014
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RAMSANGBHAI SAMJIBHAI CHUNARA
Versus
HANSRAJBHAI RAVJIBHAI KADIWAR
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Appearance:
JAIVIK UDAY BHATT(7319) for the Petitioner(s) No. 1
MILAN R MARUTI(7338) for the Petitioner(s) No. 1
MR PM LAKHANI(1326) for the Petitioner(s) No. 1
MRS R P LAKHANI(3811) for the Petitioner(s) No. 1
MR.JAMSHED KAVINA, LD.ADVOCATE FOR MR SP MAJMUDAR(3456) for
the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
Date : 30/09/2021
ORAL ORDER
1. Present petitioner has challenged the judgement and order dated 1st October, 2014 passed by the learned 4 th Additional District Judge, Khambhalia, Dist. Jamnagar in Civil Misc. Application No. 45 of 2011 whereby, the application for condonation of delay of 6 years 5 months and 20 days in filing of Regular Appeal against the judgment and decree on 29th January, 2005 passed by the learned Civil Judge (J.D.), Jam-Jodhpur in Regular Civil Suit No. 11 of 2003 was dismissed.
2. Heard learned advocates for the respective parties. Page 1 of 10 Downloaded on : Mon Oct 11 04:21:44 IST 2021
C/SCA/16776/2014 ORDER DATED: 30/09/2021
3. Learned advocate for the petitioner submits that the petitioner had filed Civil Suit against the respondent i.e. Regular Civil Suit No. 120 of 2001 before the Court of learned Civil Judge, Jam-Jodhpur wherein, an application for interim injunction filed below exh.5, which was granted in favour of the petitioner. It is further submitted that after two years of filing the suit by the petitioner, another Regular Civil Suit No. 11 of 2003 was filed by the respondent praying for cancellation of the Sale Agreement dated 20 th April, 2000 and also recovery of possession of the subject land from the petitioner. Both the suits were consolidated by the Court below vide exh. 32. That, Civil Suit No. 120 of 2001 filed by petitioner was dismissed for want of prosecution and Regular Civil Suit No. 11 of 2003 filed by the respondent was proceeded by the Court below. That, the respondent, who is practicing advocate, malafidely engaged an advocate who represented the present petitioner in the suit. That, present petitioner never engaged some another advocate to appear in Regular Civil Suit No. 11 of 2003 . That, decree was passed by the Court below in favour of the respondent. However, the petitioner was not aware of the judgement and decree passed by the Court below on 29th January, 2005. That, for the first time the Page 2 of 10 Downloaded on : Mon Oct 11 04:21:44 IST 2021 C/SCA/16776/2014 ORDER DATED: 30/09/2021 petitioner came to know on 22nd July, 2011 in respect of ex-parte decree passed in favour of the respondent when execution petition was filed by him. That, delay condonation application was preferred by the present petitioner against the judgment and decree dated 29 th January, 2005 passed in Regular Civil Suit No. 11 of 2003. On 29th August, 2011, Learned Judge, without considering the reasons, erroneously dismissed the application praying for condonation of delay vide order dated 1st October, 2014. That, sufficient explanation was made by the petitioner in respect of unaware with the proceedings i.e. judgement and decree passed against the petitioner by the Court below in Regular Civil Suit No. 11 of 2003. That, the petitioner cannot be suffered for want of challenging the impugned judgement and decree by refusing to condone the delay. That, the petitioner has prima facie case and is likely to be succeeded if permission for challenging the judgment and decree is given to him. That, sufficient cause is made out by the petitioner before the Court below to condone the delay in challenging the judgement and decree passed against him. That, an order passed by the trial Court is required to be quashed and set aside. Hence, it was requested by learned advocate for the petitioner to allow this petition and quash Page 3 of 10 Downloaded on : Mon Oct 11 04:21:44 IST 2021 C/SCA/16776/2014 ORDER DATED: 30/09/2021 and set aside the judgement and order dated 1.10.2014 passed by learned 4th Additional Dist. Judge, Khambhalia in Civil Misc. Application No. 45 of 2011.
4. Per contra, learned advocate appearing for the respondent vehemently opposed the submissions made by the petitioner and submitted that both the suits were consolidated by the learned Civil Court by passing an order below Exh. 32. That, Regular Civil Suit No.120 of 2001 came to be dismissed for default vide order dated 21st August, 2004. That, Regular Civil Suit No. 11 of 2003 preferred by the respondent was proceeded and vide judgement and decree dated 29th January, 2005 it was partly allowed by the Civil Court. That, even at the time of pronouncement of the judgment, an advocate of the petitioner was present and he had put an endorsement of 'seen' behind the copy of the judgement. That, the petitioner was appeared in Regular Civil Suit No. 11 of 2003 and also filed written his statement below Exh. 19. That, petitioner has also engaged his advocate. That, the grounds of engaging an advocate by respondent, such contents were never raised in the application preferred by the petitioner for condonation of delay. Page 4 of 10 Downloaded on : Mon Oct 11 04:21:44 IST 2021
C/SCA/16776/2014 ORDER DATED: 30/09/2021 That, there was no sufficient explanation given by the petitioner to condone the delay. That, the petitioner has not explained the details about when, the petitioner has contacted the advocate and as to when, the petitioner came to know about the outcome of the suit proceedings. That, trial Court has considered all the evidences on record and rightly dismissed the application filed by the petitioner for condonation of delay on 1st October, 2014 . That, the order passed by the trial Court is just and proper and this Court may not interfere in the impugned order. In support of his arguments, he has relied upon the decision rendered in case of Samusunisha Begaum and Ors. Vs. Vishnukumar Ambelal Patel & Ors. reported in (2012) 2 GLH 725. Hence, it was requested by learned advocate for the respondent to dismiss the petition.
5. Having heard learned advocates for the respective parties and documents produced on record, indisputedly, the plaintiff filed Regular Civil Suit No. 120 of 2001 before the Court of learned Civil Judge, Jam-Jodhpur. He also applied for interim injunction vide Exh.5. Initially at the first instance, Show-Cause urgent Notice was issued upon the defendants, and thereafter, hearing of the parties , Page 5 of 10 Downloaded on : Mon Oct 11 04:21:44 IST 2021 C/SCA/16776/2014 ORDER DATED: 30/09/2021 interim relief was granted in favour of the petitioner by allowing application below Exh.5 in Regular Civil Suit No. 120 of 2001 vide order dated 25th January, 2002. It also appears that thereafter, about two years, respondent also filed Civil Suit No. 11 of 2003 with a prayer for cancellation of Sale Agreement dated 20 th April, 2000 and also for recovery of possession of the subject land from the petitioner and others. In the said suit filed by the respondent, the petitioner had engaged his advocate and filed his written statement at Exh. 19. Both the suits were consolidated by the Civil Court as per order passed below Exh. 32. Thereafter, learned advocate appearing for the petitioner in Regular Civil Suit No. 120 of 2001 did not remain present and remain silent in the proceedings and thereby suit was dismissed for default vide order dated 21st August, 2004. It appears that suit being Regular Civil Suit No. 11 of 2003 filed by the respondent was proceeded and allowed vide order dated 29 th January, 2005. The petitioner as per his submission for the first time came into knowledge on 22.07.2011 that the suit was allowed against him and decree was passed. Execution Petition was filed upon judgement and decree against present petitioner by new purchaser of the subject land in favour of original plaintiff of Page 6 of 10 Downloaded on : Mon Oct 11 04:21:44 IST 2021 C/SCA/16776/2014 ORDER DATED: 30/09/2021 Regular Civil Suit No.11 of 2003. The petitioner approached the trial Court by filing delay condonation application on 29th August, 2011 for considering delay caused in filing an appeal against the judgement and decree passed in Regular Civil Suit No. 11 of 2003 on 29th January, 2005. Indisputedly, the petitioner was represented by his advocate in Regular Civil Suit No. 11 of 2003 before the Civil Court. If we refer the application preferred by the present petitioner for condonation of delay i.e. Civil Misc. Application No. 45 of 2011, no ground was raised by the petitioner that the advocate was engaged by respondent of his selection to represent in Regular Civil Suit No. 11 of 2003. No averments was made by the petitioner in his application i.e. Civil Misc. Application No. 45 of 2011 that advocate engaged had no instruction to appear as an Advocate on his behalf in Regular Civil Suit No. 11 of 2003. As separate affidavit is filed before this Court, raising the dispute that he had never engaged his advocate Shri D.C.Doshi for Shri K.J.Fidoria. Separate affidavit was executed before the Executive Magistrate, Jam-jodhpur on 23rd January, 2017. Civil Misc. Application No. 45 of 2011 preferred by the petitioner was filed on 29 th August, 2011. For the first time, contention was raised by the petitioner in his Page 7 of 10 Downloaded on : Mon Oct 11 04:21:44 IST 2021 C/SCA/16776/2014 ORDER DATED: 30/09/2021 affidavit executed before the Executive Magistrate, Jam-Jodhpur on 23rd January, 2017 which cannot be considered for accepting the prayer made by the petitioner. Ignorance of law or uneducation on the part of the petitioner as well as no proper guidance was provided to him in respect of the suit cannot be considered for ground of condonation of delay of more than 6 years 5 months as prayed in the application by the petitioner. The similar issue was dealt with by this Court [Coram: Hon'ble Mr. J.B.Pardiawala, J] reported in (2012) 2 GLH 725 in para 40, the Court has observed as under:-
"40. Under such circumstances, the Trial Court committed a serious error in condoning delay on the ground that the advocate Shri Upadhyay did not inform the original plaintiff as well the respondents about the dismissal of the suit for non-prosecution. Even if I assume for a moment that the same is true by itself would be no ground to condone such a long and inordinate delay as the litigant owes a duty to be vigilant of his own rights and is expected to be equally vigilant about the judicial proceedings pending in the Court initiated at his instance. The litigant, therefore, should not be permitted to throw the entire blame on the head of the advocate and thereby disown him at any time and seek relief. I regret to state that in the present case, learned advocate of the plaintiff Shri Upadhyay for some reasons has taken up the entire blame on his head and it appears that the same has been done only with a view to get the delay condoned. Over a period of time there is a growing tendency on the part of an advocate to file affidavit trying to explain the circumstances, under which, delay has occurred be it in preferring an appeal or filing an application for restoration of suit like in the present case etc. I am of the view that the practice of an advocate filing his affidavit in an application filed under Order 9 Rule 9 of Civil Procedure Code is totally wrong and deserves to be deprecated. I have noticed in many cases that even though an advocate is not at fault, he would file an affidavit taking the entire blame upon himself only because the lethargic and negligent litigant wants him to file such an affidavit so that the Court concerned in the name of substantial justice Page 8 of 10 Downloaded on : Mon Oct 11 04:21:44 IST 2021 C/SCA/16776/2014 ORDER DATED: 30/09/2021 would condone the delay.
After filing a civil suit a litigant can not go off to sleep and wake up from a deep slumber after 5 years as if the Court is a storage of suits filed by such negligent litigants. If that be so, then Court would be quite justified in dismissing the suit for non-prosecution and should be loathe enough to restore the suit unless strong grounds are made out by the party concerned.
60. I may only say that Law Courts never tolerate an indolent litigant since delay defeats equity - the Latin maxim vigilantibus et non dormentibus jura subveniunt (the law assists those who are vigilant and not those who are indolent). As a matter of fact, lapse of time is a species for forfeiture of right. Wood, V. C. in Manby v. Bweicke (1857) 3 K & J 342 : 69 E.R. 1140 . The litigant does not stand to benefit by approaching the Court of law with an appropriate application at a belated stage. The legislature has in this, as in every civilized country that has ever existed, though fit to prescribe certain limitations of time after which persons may suppose themselves to be in peaceful possession of their property, and capable of transmitting the estates of which they are in possession, without any apprehension of the title being impugned by litigation in respect of transactions which occurred at a distant period, when evidence in support of their own title may be most difficult to obtain.
6. Here the facts of the present case, assuming the correct facts that the petitioner was agriculturist and was unaware about the dismissal of the suit as well as judgement and decree passed in favour of the respondent in Regular Civil Suit No. 11 of 2003, cannot be believed that he was totally ignorant and unexperienced litigants, in view of the fact that he has also filed Regular Civil Suit No. 120 of 2001 prior in point of time through his advocate. He was also appeared in Regular Civil Suit No. 11 of 2003 preferred by the respondent before the Court below. He had also engaged his Page 9 of 10 Downloaded on : Mon Oct 11 04:21:44 IST 2021 C/SCA/16776/2014 ORDER DATED: 30/09/2021 advocate to represent him in the suit as well as had also filed written statement objecting the suit. He has practically participated in Regular Civil Suit No. 11 of 2003. No sufficient explanation is given by the petitioner to condone the delay of 6 years and 5 months Considering the facts of the case, this petition is hereby dismissed.
The order passed in Civil Misc. Application 45 of 2011 for condonation of delay on 29th January, 2005 by the learned Civil Judge (J.D), Jam-Jodhpur is hereby confirmed. Hence, this petition stands dismissed. Notice is discharged.
(B.N. KARIA, J) BEENA SHAH Page 10 of 10 Downloaded on : Mon Oct 11 04:21:44 IST 2021