Gujarat High Court
Banaskantha District Panchayat vs Kanti Construction Company on 30 September, 2022
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
C/SCA/8714/2014 ORDER DATED: 30/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8714 of 2014
==================================================
BANASKANTHA DISTRICT PANCHAYAT
Versus
KANTI CONSTRUCTION COMPANY
==================================================
Appearance:
MR HS MUNSHAW(495) for the Petitioner(s) No. 1
MR KUNTAL A JOSHI(6269) for the Respondent(s) No. 1
==================================================
CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 30/09/2022
ORAL ORDER
[1.0.] This petition is filed under Articles 226 & 227 of the Constitution of India, challenging the order passed by the Principal Senior Civil Judge, Palanpur dated 15.03.2014 rendered in Civil Misc. Application No.4 of 2012 praying for condonation of 04 years, 1 month and 25 days delay caused in preferring the restoration application, which came to be rejected.
[2.0.] Mr. H.S.Munshaw, learned advocate for the petitioner submitted that since the respondent - Contractor could not complete the work assigned to him within the time and he abandoned the same and therefore, for getting that work done through other Contractor, the petitioner - Banaskantha District Panchayat had to spend Rs.1,53,450.30 more and to recover the same from the respondent - Contractor, Special Civil Suit No.21 of 2003 came to be filed. He has Page 1 of 7 Downloaded on : Mon Oct 03 21:04:40 IST 2022 C/SCA/8714/2014 ORDER DATED: 30/09/2022 further submitted that initially one advocate was engaged by the Panchayat to proceed with the case. However thereafter, as claimed in the application, it was entrusted to some other advocate. He has further submitted that despite repeated request were made for knowing the progress of the case, the petitioner Panchayat was being informed about pendency of the same, despite suit came to be dismissed for default on 28.11.2007. He has further submitted that subsequently the advocate, who was engaged by the petitioner, was selected in the Judicial Service but he did not return the file and the case papers. Therefore, the employee of the Panchayat had to go to the Court and they came to know that suit has already been dismissed for default on 28.11.2007. He has submitted that as soon as it is known, immediately on 27.01.2012 the certified copy of the order was applied for and which was received on 31.01.2012. Thereafter, Civil Misc. Application No.4 of 2012 came to be filed praying for condonation of delay in preferring the restoration application.
[2.1.] Mr. Munshaw, has further submitted that the petitioner - Institution is a semi government institution and it being impersonal machinery, certain amount of latitude may be permitted, even if no proper explanation to the prolonged delay is offered. Drawing attention of the Court to the correspondence between the advocate, Page 2 of 7 Downloaded on : Mon Oct 03 21:04:40 IST 2022 C/SCA/8714/2014 ORDER DATED: 30/09/2022 who was entrusted with the case, he has submitted that despite suit being dismissed in the year 2007, in the year 2009 to be precise on 12.09.2009, the learned advocate through a communication informed the petitioner in writing that the suit in question is pending in the Court, which is not correct. Drawing attention of the Court to the further communication with the advocate concerned, it is submitted that as the concerned advocate was selected in a Judicial Service, though he informed through his letter dated 26.11.2010 about the same, he did not return back the papers and therefore, the petitioner was constrained to write a letter dated 18.03.2011 requesting him to provide the case papers and file, so that other advocate can be entrusted with the same. Despite that, no current status of the case was informed to the petitioner - Institution and therefore, an employee of the institution went to the Court to obtain current status of the case, there he came to know about the dismissal of the suit for default on 28.11.2007 and on 27.01.2012, immediately certified copy was asked for, which was obtained on 31.01.2012 and on 22.02.2012, the application praying for condonation of delay is preferred. [2.2.] According to his submission, delay is to be counted from the date of the dismissal of the suit and therefore, it appears to be huge delay but if it is considered from the date of the real knowledge about the same, it is too short a span. When relying on an Page 3 of 7 Downloaded on : Mon Oct 03 21:04:40 IST 2022 C/SCA/8714/2014 ORDER DATED: 30/09/2022 information supplied by an advocate about the pendency of the case in September, 2009, there was nothing to inquire about the case. However, after his selection and posted as Judicial Officer, the employee of the institution had to inquire and on inquiry when it is found that the suit is already dismissed for default, prompt actions have been taken. He has further submitted that though there is a certain amount of delay, which could have been properly explained, but it being impersonal machinery, certain amount of latitude be permissible in the large interest of the institution, delay as prayed for be condoned with suitable order of cost, if Court is not inclined to condone the delay without cost.
[3.0.] As against that, Mr. Dharma Raval, learned advocate for Mr. Kuntal Joshi, learned advocate for the respondent submitted that there is a huge delay caused in preferring restoration application after the suit is dismissed for default. However, it appears to be inordinate delay as none bothered to even follow the suit including the petitioner - Institution as also the learned advocate for the petitioner. He has further submitted that no sufficient cause is shown by the petitioner praying for condonation of delay of more than 04 years. He has further submitted that the Office of the petitioner - Institution is situated just opposite the Court house or at a close distance, and therefore, it could have been followed and inquired into Page 4 of 7 Downloaded on : Mon Oct 03 21:04:40 IST 2022 C/SCA/8714/2014 ORDER DATED: 30/09/2022 personally by the Staff of the petitioner - Institution. Therefore, entering into unnecessary communications with the advocate and pleading that time spent in it as a reasonable explanation, it should not be accepted and therefore, according to his submission, the delay caused in preferring the application should not be condoned. He has further submitted that if Court is inclined to condone the delay, an exemplary cost be awarded to the respondent herein. [3.1.] Mr. Raval, further submitted that if at all delay is condoned and suit is restored, at-least an order be passed that if ultimate suit is decreed against the respondent, petitioner may be held not entitled any interest thereon, at-least from the date of dismissal of the suit till the actual date of restoration of the suit. [4.0.] Having heard the learned advocates for the appearing parties as also going through the impugned order and the documents annexed with the petition, it is not in dispute that at-least for 2 years from the date of the dismissal of the suit, the petitioner - Institution was informed about the pendency of the suit by the concerned advocate, who was engaged by the petitioner. Though that fact may be incorrect, the petitioner - Institution cannot be held responsible for the same as they did not know about suit is already dismissed for default and there was nothing to doubt about the statement made in the written communication of the advocate representing them. Page 5 of 7 Downloaded on : Mon Oct 03 21:04:40 IST 2022
C/SCA/8714/2014 ORDER DATED: 30/09/2022 However, since the petitioner - Institution is impersonal machinery, they may not follow the case, like individual litigants, but at the same time, they have no license to pray for condonation of delay on that ground. However, considering the stake involved and keeping in mind the public interest in it, certain amount of latitude is not impermissible. Though there may not be full proof reasonable explanation offered for the condonation of delay, the fact remains that as soon as information with regard to dismissal of a suit for default is known, immediately they had applied for a certified copy and filed the same within less than 2 to 3 months. Though the date on which the concerned employee of the institution inquired from the Court about the status of the case is not mentioned in the application and never attempted to be explained. For 2 years after the case dismissed for default, they were informed that it is pending and thereafter, it was never disclosed to the petitioner - Institution, despite several communications inter se with the advocate of the petitioner, it is only when it was informed that the concerned advocate is selected and joining the Judicial Service, they started collecting the papers from the advocate and trying to ascertain the status of the case the moment they came to know about it. [4.1.] Taking pragmatic view of the matter, the delay caused in preferring the restoration application though may appear to be long Page 6 of 7 Downloaded on : Mon Oct 03 21:04:40 IST 2022 C/SCA/8714/2014 ORDER DATED: 30/09/2022 but as explained hereinabove, it is required to be condoned but with the cost. Though delay is required to be condoned, as stated hereinabove, but with a further condition that if at all suit filed by the petitioner is ultimately decreed against the respondent herein, the petitioner shall not be entitled to any interest from the date of the dismissal of the suit till the actual date of the restoration of the suit. Hence, the impugned order passed by the Principal Senior Civil Judge, Palanpur dated 15.03.2014 below Exhibit -1 in Civil Misc. Application No.4 of 2012 is hereby quashed and set aside but with a cost to be quantified hereunder, and Special Civil Suit No.21 of 2003 is hereby ordered to be restored to its original file. However, the petitioner is hereby directed to pay the cost of Rs.25,000/- to the respondent herein within a period of 4 week from today. If petitioner institution fails to pay the aforesaid cost amount within a period of 4 weeks from today, this order is to be treated as recalled. It is condoned with a further condition that if at all a decree is passed in their favour, petitioner - plaintiff will not be entitled to interest on the decretal amount from the date suit dismissed for default till the date it is actually restored to the file.
[5.0.] Accordingly, the present petition is allowed to the aforesaid extent.
(UMESH A. TRIVEDI, J) Lalji Desai Page 7 of 7 Downloaded on : Mon Oct 03 21:04:40 IST 2022