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Gujarat High Court

Surajba Govindsang @ Govubha & vs Ghughubha Nanbha Rayjada on 14 August, 2014

Author: S.H.Vora

Bench: S.H.Vora

          C/CA/4140/2014                                 ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                    CIVIL APPLICATION NO. 4140 of 2014
                                    In
          FIRST APPEAL (STAMP NUMBER) NO. 1128 of 2014

================================================================
        SURAJBA GOVINDSANG @ GOVUBHA & 1....Applicant(s)
                           Versus
          GHUGHUBHA NANBHA RAYJADA....Respondent(s)
================================================================
Appearance:
MR TRILOK J PATEL, ADVOCATE for the Applicant(s) No. 1 - 2
MR GAURAV K MEHTA, ADVOCATE for the Respondent(s) No. 1
================================================================
         CORAM: HONOURABLE MR.JUSTICE S.H.VORA

                             Date : 14/08/2014


                              ORAL ORDER

1. Issue raised for consideration in present application filed under Section 5 of the Limitation Act, 1963, is for condonation of delay of 456 days in filing captioned First Appeal by the State of Gujarat, which occasioned for the sufficient cause or not.

2. Briefly stated the applicants have filed captioned First Appeal u/s.384 of the Indian Succession Act challenging the judgment and order dated 3.10.2012 passed in Civil Misc. Application No.7 of 2011 passed by the learned Civil Judge, Ghogha, Bhavnagar. It is the case of the applicants that under misconception and under the law and bonafide mistake, above order challenged by way of preferring Appeal being Civil Misc. Appeal No.7 of 2013 before the District Court, Bhavnagar, along with application for condonaiton of delay in preferring Page 1 of 5 C/CA/4140/2014 ORDER said appeal, as the applicants were not aware aforesaid probate proceedings initiated by the opponent herein.

3. Heard submission of learned advocate Mr. Trilok Patel for the applicants and learned advocate Mr. Mehta for the opponent.

4. According to the learned advocate Mr. Patel, delay has been caused in preferring captioned first Appeal due to bona fide mistake and inadvertence, the applicants have availed wrong forum for adjudication of their grievance and therefore, applicants in good faith and bonafide prosecuted before the wrong forum and there was no ill-intention behind it. Therefore, it is submitted that the applicants are entitled to the benefits of Section 14 of the Limitation Act.

5. Per contra, learned advocate Mr. Mehta for the opponent vehemently argued that upon service of notice in the proceedings before the Court of learned Principal District Judge, the appellants filed reply to the application for condonation of delay and it is specifically submitted that the appeal would lie before the High Court as the property is valued more than Rs.38 Lacs and therefore, said application and captioned First Appeal before the Court of learned District Judge is not maintainable. In light of specific contentions raised by the opponent, the applicants continued to pursue remedy before the District Court, Bhavnagar and invited reasoned order dated 3.12.2013. Under the circumstances, it is submitted that the applicants have knowledge that the First Appeal is maintainable before the High Court only and thus made wrong submission in the present application and therefore, in view of the judgment passed by the Hon'ble Apex Page 2 of 5 C/CA/4140/2014 ORDER Court in the case of Ramji Pandey Vs. Swaran Kali reported in AIR 2011 SC 489, present application may be rejected.

6. I have heard the submissions of both the sides at length and perused the principles laid in the cases stated at bar.

7. On the aspect of exercising discretion under Section 5 of the Limitation Act for condonation of delay, there is a long delay of 456 days and therefore, it cannot be said to be a delay for short period. In the catena of decisions, it is well settled that there is delay for short period, the Court may take lenient view to condone the delay, but if the delay is for a long period, strict approach is called for in exercise of discretion of power under Section 5 of the Limitation Act.

8. The words "sufficient cause for not making the application within the period of limitation" should be applied in a reasonable and liberal manner depending upon the facts and circumstances of the case and type of the case. The word "sufficient cause" in Section 5 of the Limitation Act needs a liberal construction so as to advance substantial justice when the delay is not on account of any dilatory tactics, want of bonafides or deliberate inaction on the part of the applicant. In nutshell, the decisive factor for condonation of delay is not the length of delay but sufficiency and satisfactory explanation.

9. The liberal construction of expression "sufficient cause"

is indicated to advance substantial justice which itself presupposes no negligence and/or no inaction on the part of the applicant. The expression "sufficient cause" implies the presence of legal and adequate reasons as may be necessary to answer the purpose intended. The sufficient cause should be Page 3 of 5 C/CA/4140/2014 ORDER such as it would be persuade the Court to treat the delay as an excusable one. The applicant invoking discretionary powers of Court under Section 5 of the Limitation Act should show that besides acting bona fide, it had taken all possible steps within its power and control to approach the Court without any unnecessary delay. In other words, in order to give liberal construction to the expression "sufficient cause", it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. Needless to say that the law of Limitation is a substantive law and has definite consequences on the right and obligation of the party to arise. 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 on its own conduct, it will be unreasonable to take away such right on the mere asking of the applicant, particularly, when the delay is directly result of negligence, default or inaction of that party. The Court is required to give or impart justice to both the sides equally. In case, a party throughout remains negligent or careless in persuading the legal remedy/right then it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law.

10. It further appears that the applicant have shown themselves as daughters of deceased Govindsang Harisang, but in fact the applicants are daughters of Hakubha Harisang who is younger brother of deceased Govindsang Harisang. Therefore, the Court failed to understand as to why mischief is played by the applicants by praying for discretionary order. In any case such conduct is not permissible and also tolerable.

11. Now if we examine the averments made in the application then it seems that the opponent took clear objection before the District Court to the effect that it did not have jurisdiction to try and decide the appeal. Not only that, despite such objection, the applicants continued to proceed before the Court of learned Principal District Judge, Bhavnagar and invited reasoned order. Under the circumstances, the order passed by the District Court, Bhavnagar, on 3.12.2013 attained finality as the application for condonation of delay came to be rejected. It also appears that the applicants failed to file appeal in proper forum, which was brought to their notice right at initial stage by the opponents. Despite the said fact, the applicants did not take any step to withdraw the said proceedings and continued to pursue remedy before the leaned Principal District Judge and invited reasoned order against the applicants. In case of Ramji Pande (Supra) it is held that when the appellants found to be negligent, such appellants would not be entitled to have the benefits under Section 5 of the Limitation Act and time spent before the wrong forum cannot be excluded. Identical facts exist in the present case and therefore, considering the decision rendered in Ram Pande (Supra), no case is made out to accept the applicant filed under Section 5 of the Limitation Act. Therefore, present application stands dismissed. Rule is discharged. Consequently dismissal of the Civil Application, First Appeal (Stamp Number) No.1128 of 2014 and Civil Application (Stamp Number) No.3628 of 2014 stand disposed.

(S.H.VORA, J.) YNVYAS Page 5 of 5