Gujarat High Court
Bharatbhai Pranlal Rajdev & 3 vs Ansuyaben Ramjibhai Vasava & 3 on 15 September, 2017
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/7714/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7714 of 2017
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BHARATBHAI PRANLAL RAJDEV & 3
Versus
ANSUYABEN RAMJIBHAI VASAVA & 3
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Appearance:
MR UTPAL M PANCHAL, ADVOCATE for the Petitioners
MR CHETAN K PANDYA, ADVOCATE for the Respondents No. 1 - 3
NOTICE SERVED for the Respondent No. 4
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 15/09/2017
ORAL ORDER
1. Considering the nature of controversy involved, the petition is taken up for final disposal with the consent of learned advocate Mr.Chetan Pandya appearing for contesting parties - respondent nos.1 to 3. The respondent no.4 has not appeared though served with the noticed. Even otherwise, respondent no.4 is a formal party for deciding the controversy involved in the present petition.
2. The petition is filed under Articles 226 and 227 of the Constitution of India challenging the order dated 14.03.2017 passed by the learned Principal Senior Civil Judge, Bardoli below application Exhibit 105 in Special Civil Application No.25 of 2004. The suit is filed by respondents no.1 to 3 seeking compensation of Rs.50,00,000/- from petitioners for unnatural death of the husband of the plaintiff no.1 - respondent no.1 on account of alleged negligent on the part of the petitioners.
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3. It appears that on behalf of the plaintiffs, affidavit of examination-in-chief at Exhibit 37 was tendered on 08.01.2007 and, thereafter, the stage was for the cross-examination by the defendants. It further appears that respondent no.4 - Dakshin Gujarat Vij Company Limited was later on joined as party - defendant no.5 and, thereafter, some additional issues were framed on 25.08.2011 and again the suit was posted for cross-examination of the defendants. However, since, there was no cross taken on behalf of the petitioners, on 23.01.2015, the right of the petitioners to take cross- examination of the plaintiffs was closed and then in the month of December 2016, the notice was issued to the petitioners to remain present as learned advocate representing the petitioners was ill and the petitioners were also not present before the Court. The petitioners made an application Exhibit 105 on 14.03.2017 to reopen their right to take cross- examination of the plaintiffs. Such application came to be rejected by the impugned order.
4. Learned advocate Mr.Utpal Panchal appearing for the petitioners submitted that the advocate Shri Anantrai Pandya, who was representing the petitioners in the suit was not keeping good health right from the year 2013 and he has been continuously under medical surveillance and treatment, till date the petitioners were issued notice by the Court below to remain present in the proceedings of the suit. Mr.Panchal submitted that the copies of the medical papers placed with the petition would show that learned advocate Mr.Anantrai Pandya representing the petitioners had been taking treatment for multiple diseases and it was not possible for him to attend the Court work. Mr. Panchal submitted that it is Page 2 of 10 HC-NIC Page 2 of 10 Created On Sun Sep 24 09:04:51 IST 2017 C/SCA/7714/2017 ORDER under such circumstances, the proceedings of the suit remained unattended by and on behalf of the petitioners which led to passing of the order in the year 2015 to close the right of the petitioners to take cross-examination of the plaintiffs, in respect of which the petitioners had no knowledge and they came to know about the same when they received the notice from the Court. Mr.Panchal submitted that considering such circumstances, when the petitioners could not avail an opportunity to take cross-examination of the plaintiffs, the petitioners could have been granted one opportunity to cross-examine the plaintiffs by opening their right of cross-examination.
5. Learned advocate Mr.Chetan Pandya appearing for the respondents no.1 to 3 submitted that the affidavit of chief- examination was filed by the plaintiffs in the month of January 2007 and, thereafter, it was for the petitioners - defendants to take cross-examination of the plaintiffs but for about more than five years though the petitioners were given many opportunities, they did not take cross-examination of the plaintiffs. Mr.Pandya submitted that the advocate who represented the petitioners had started suffering from ailment only from the year 2013, however, the petitioners who were otherwise required to remain in touch with the suit proceedings have never been vigilant as regards their right to cross-examine the plaintiffs. Mr.Pandya submitted that even if the advocate of the petitioners had been suffering from ailment, there is no explanation from the side of the petitioners as to why for long period before 2013 they had shown no interest to take cross-examination of the plaintiffs. Mr.Pandya submitted that only intention of the petitioners is Page 3 of 10 HC-NIC Page 3 of 10 Created On Sun Sep 24 09:04:51 IST 2017 C/SCA/7714/2017 ORDER just to delay the proceedings of the suit and since, the petitioners have shown negligence and lethargy as regards their right to take cross-examination of the plaintiffs, learned Judge has committed no error in refusing to reopen their right to take cross-examination of the plaintiffs and such being an order in exercise of discretionary jurisdiction of the learned Judge, this Court may not interfere with the impugned order in exercise of powers under Articles 226 and 227 of the Constitution of India. Mr.Pandya has relied on the following judgments in support of his submissions.
(1) Municipal Council, Ahmednagar and another Vs. Shah Hyder Beig and others reported in (2000) 2 SCC 48; (2) Hameed Joharan and others Vs. Abdul Salam and others reported in (2001) 7 SCC 573; (3) Sarah Mathew Vs. Institute of Cardio Vascular Diseases and others reported in (2014) 2 SCC 62; and (4) H. Dohil Constructions Company Private Limited Vs. Nahar Exports Limited and another reported in (2015) 1 SCC 680;
6. The Court having heard learned advocates for both the sides finds that as observed in the impugned order by the learned Judge on 08.01.2007, affidavit of chief-examination Exhibit 37 was tendered on behalf of the plaintiffs and, thereafter, the suit was posted for the purpose of cross-examination of the plaintiffs, but as further observed, there was an application given for amendment in the suit and, thereafter, on 25.08.2011, some issues were framed and again the suit was posted for cross-examination by the defendants. It is observed in the impugned order that the sufficient opportunities were given to the petitioners, however, since the petitioners did not Page 4 of 10 HC-NIC Page 4 of 10 Created On Sun Sep 24 09:04:51 IST 2017 C/SCA/7714/2017 ORDER take cross-examination of the plaintiffs, the right of the petitioners to take cross-examination of the plaintiffs was closed. As further observed in the impugned order, till February 2017, the petitioners did not come forward to get their right open for cross-examination and they made application Exhibit 105 to open their right to take cross- examination after they were served with the notice as their advocate was suffering from paralysis and could not remain present in the proceedings of the suit. From the above facts stated in the impugned order, it appears that though after 2007, till August 2011, there was no cross-examination taken on behalf of the petitioners, but at the same time as observed in the impugned order, there was amendment in the suit and some issues were framed in the month of August 2011. Though the petitioners were represented by advocate Mr.Anantrai Pandya, however, he had not been keeping well and was found suffering from paralysis. The copies of the medical papers produced with the petition would show that the right from the month of November 2013 till February 2017, advocate Mr.Anantrai Pandya was under the treatment of the Neurology and had undergone various investigations like MRI, CT Scan, angiography of brain and neck etc. During this period from 2013 to 2017, it would not have been possible for the advocate for the petitioners to remain present in the proceedings of the suit. Though it could be said that the petitioners should have been vigilant, however, may be on account of continuous illness of their advocate they either lost touch of the proceedings or could not know about the order passed in the year 2015 for closing their right to take cross- examination of the plaintiffs. It is required to note that it was since advocate for the petitioners had not been attended the Page 5 of 10 HC-NIC Page 5 of 10 Created On Sun Sep 24 09:04:51 IST 2017 C/SCA/7714/2017 ORDER Court proceedings on account of his ill-health, the petitioners were issued notice by the Court in the month of December 2016 to remain present in the Court. On receipt of the notice of the Court, the petitioner changed their advocate and after changing the advocate, through new advocate they preferred application at Exhibit 105 to reopen their right to take the cross-examination of the plaintiffs. In view of the above circumstances, the question arises as to whether the petitioners could be said to be not vigilant about their rights to take cross-examination of the plaintiffs.
7. In the case of Municipal Council, Ahmednagar and another (supra), relied on by Mr.Pandya, the Hon'ble Supreme Court has held and observed in para-14 as under.
14. The High Court has thus misplaced the factual details and misread the same. It is now a well settled principle of law and we need not dilate on this score to the effect that while no period of limitation is fixed but in the normal course of events, the period, the party is required for filing a civil proceeding ought to be the guiding factor. While it is true that this extraordinary jurisdiction is available to mitigate the sufferings of the people in general but it is not out of place to mention that this extraordinary jurisdiction has been conferred on to the law Courts under Art. 226 of the Constitution on a very sound equitable principle. Hence, the equitable doctrine, namely, 'delay defects equity' has its fullest application in the matter of grant of relief under Art. 226 of the Constitution. The discretionary relief can be had provided one has not by his act or conduct given a go-bye to his rights. Equity favours a vigilant rather than an indolent litigant and this being the basic tenet of law, the question of grant of an order as has been passed in the matter as regards restoration of possession upon cancellation of the notification does not and cannot arise. The High Court as a matter of fact lost sight of the fact that since the year 1952, the land was specifically reserved for public purposes of school playground and roads in the development plan and by reason therefor, the notification to acquire the land has, therefore, been issued under the provisions of the Act as stated above.
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8. The judgments in the case of Hameed Joharan and others (supra) and in the case of Sarah Mathew (supra), are not required to be referred as they will have no relevance in the facts of the case.
9. In the case of H. Dohil Constructions Company Private Limited (supra), the Hon'ble Supreme Court has held and observed in para-24 as under.
24. When we apply those principles of Bhattacharjee case to the case on hand, it has to be stated that the failure of the respondents in not showing due diligence in filing of the appeals and the enormous time taken in the refiling can only be construed, in the absence of any valid explanation, as gross negligence and lacks in bona fides as displayed on the part of the respondents. Further, when the respondents have not come forward with proper details as regards the date when the papers were returned for refiling, the non-furnishing of satisfactory reasons for not refiling of papers in time and the failure to pay the court fee at the time of the filing of appeal papers on 6-9-2007, the reasons which prevented the respondents from not paying the court fee along with the appeal papers and the failure to furnish the details as to who was their counsel who was previously entrusted with the filing of the appeals cumulatively considered, disclose that there was total lack of bona fides in its approach. It also requires to be stated that in the case on hand, not refiling the appeal papers within the time prescribed and by allowing the delay to the extent of nearly 1727 days, definitely calls for a stringent scrutiny and cannot be accepted as having been explained without proper reasons. As has been laid down by this Court, courts are required to weigh the scale of balance of justice in respect of both the parties and the same principle cannot be given a go-by under the guise of liberal approach even if it pertains to refiling. The filing of an application for condoning the delay of 1727 days in the matter of refiling without disclosing reasons, much less satisfactory reasons only results in the respondents not deserving any indulgence by the court in the matter of condonation of delay. The respondents had filed the suit for specific performance and when the trial court found that the claim for specific performance based on the agreement was correct but exercised its discretion not to grant the relief for specific Page 7 of 10 HC-NIC Page 7 of 10 Created On Sun Sep 24 09:04:51 IST 2017 C/SCA/7714/2017 ORDER performance but grant only a payment of damages and the respondents were really keen to get the decree for specific performance by filing the appeals, they should have shown utmost diligence and come forward with justifiable reasons when an enormous delay of five years was involved in getting its appeals registered.
10. As observed by the Hon'ble Supreme Court, a litigant who is negligent or not in vigilant towards his right, the equity cannot favour him. But just because there is a delay on the part of the litigant he is not to be denied his right ignoring the circumstances under which no immediate action could be taken by him. Here is the case where after the affidavit of chief-examination was presented by and on behalf of the plaintiffs there was amendment in the suit and then some issues were framed in the month of August 2011 and then from 2013 till February 2017 the advocate of the petitioners remained ill and on account of his illness, since, he could not attend the Court proceedings, the right of the petitioners to take cross-examination was closed in the year 2015. If the petitioners had no knowledge about such closer of their right to cross-examination of the plaintiffs and on receipt from the Court, they could know and change their advocate and make application for reopening their right to take cross-examination, it could not be said that the petitioners were totally negligent for their right though there was delay on the part of the petitioners to exercise their right to take cross-examination of the plaintiffs. The Court, in the facts and circumstances of the case is of the opinion that the judgments cited by learned advocate Mr.Pandya shall have no application and based on such judgments, the petitioners could not be denied their right to cross-examination simply on the ground of delay. In the facts and circumstances of the case, the Court finds that when Page 8 of 10 HC-NIC Page 8 of 10 Created On Sun Sep 24 09:04:51 IST 2017 C/SCA/7714/2017 ORDER the right of cross-examination is an important right in the proceedings of the suit, the learned Judge was required to accept application Exhibit 105. The Court, therefore, deem it proper to interfere with the impugned order in exercise of powers under Articles 226 and 227 of the Constitution of India.
12. In view of the above, the impugned order is quashed and set aside. Consequentially, the application Exhibit 105 filed by the petitioners is allowed and the petitioners are permitted to take cross-examination of the plaintiffs and other witnesses.
13. The Court finds that since the suit is of the year 2004 and since there is already delay in taking cross-examination of the plaintiffs, it would be appropriate if the petitioners are asked to take cross-examination of the plaintiffs and other witnesses within a period of three weeks from the date of receipt of this order by the Court below. The Court also finds that since the petitioners are responsible to drag the respondents to this Court and since the petitioners are being restored the right to take cross-examination of the plaintiffs in the suit of the year 2004, the petitioners could be imposed with the cost of Rs.25,000/-. Such cost shall be deposited by the petitioners to be paid to the respondents no.1 to 3 within a period of four weeks from today with the trial Court. On such deposit being made by the petitioners, the respondent nos.1 to 3 shall be permitted to withdraw such amount. The Court finds that now since the petitioners are to take cross-examination of the plaintiffs and other witnesses within a period of three weeks, the suit could be ordered to be disposed of as early as possible. Learned Judge may make endeavour to preferably decide the suit within a period of three months. It is observed Page 9 of 10 HC-NIC Page 9 of 10 Created On Sun Sep 24 09:04:51 IST 2017 C/SCA/7714/2017 ORDER that for early disposal of the suit within a period of three months, the petitioners shall cooperate with the hearing of the suit. If the Court below finds that the petitioners are not cooperating with the hearing of the suit then it will be open to the Court below to make appropriate orders in the proceedings of the suit.
14. The petition stands disposed of finally at notice stage. Direct service is permitted.
(C.L.SONI, J.) vijay Page 10 of 10 HC-NIC Page 10 of 10 Created On Sun Sep 24 09:04:51 IST 2017