NEUTRAL CITATION
C/SCA/7044/2022 ORDER DATED: 24/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7044 of 2022
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MANGALBHAI PRABHATBHAI AGRWAL
Versus
SUNILBHAI JAMANDAS BAJAJ MINABEN SUNILBHAI BAJAJ
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Appearance:
DECEASED LITIGANT for the Petitioner(s) No. 1
MR NK MAJMUDAR(430) for the Petitioner(s) No. 1.1,1.2
NOTICE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 24/08/2023
ORAL ORDER
1. Heard learned advocate Mr. N.K.Majmudar for the petitioner and learned advocate Mr. Umang Chokshi for the respondent.
2. By way of present petition under Article 227 of the Constitution of India, the petitioner challenges judgment and order passed in CMA No.24 of 2019 by the learned Additional Small Causes Court, Vadodara dated 07.07.2021 where-under the petition of the petitioner seeking condonation of delay for filing application under Order 9 Rule 13 of the CPC has been denied.
3. Learned advocate Mr. N.K.Majmudar for the petitioner having read the impugned order as well as application filed before the Court below would submit that service of the process of Rent Suit No.40 of 2015 was not effected upon the Page 1 of 7 Downloaded on : Sun Sep 17 02:21:54 IST 2023 NEUTRAL CITATION C/SCA/7044/2022 ORDER DATED: 24/08/2023 undefined petitioner but the petitioner was served through his nephew which is not effective service within provision of Code of Procedure Code. He would further submit that petitioner was paralyzed and was suffering from paralysis and therefore, he could not approach the Court below for calling back ex-parte decree within time. He would further submit that though the petitioner has explained passage of delay by sufficient cause stated in the petition, learned Trial Court without paying heed and consideration to such cause on hyper-technical approach denied relief. This submission is canvassed to say that impugned order is erroneous and required to be set aside. Upon such submissions, learned advocate Mr. Majmudar would submit to allow this petition.
4. On the other hand learned advocate Mr. Umang Choksi submits that in Rent Suit's summons was duly served to the petitioner which is recorded by the Court below in the judgment of Rent Suit, more particularly, in para 2 which indicates that summons was duly served to defendant at Exh.5. He would further submit that the petitioner at that time missed the chance to appear and contest Rent Suit. He would further submit that not only at that time but even when respondent has filed execution petition being Rent Execution No.22 of 2018 before the Court below whereupon the possession warrant was also issued and possession of the disputed premises was taken pursuant to the judgment and decree, the petitioner did not come forward and resist the procedure nor has filed any proceedings challenging judgment passed in Rent Suit calling it as ex-parte decree. Further drawing attention to the Court at Page 2 of 7 Downloaded on : Sun Sep 17 02:21:54 IST 2023 NEUTRAL CITATION C/SCA/7044/2022 ORDER DATED: 24/08/2023 undefined page no.36, he would submit that on 14.11.2018, learned has disposed of the petition by passing order below Exh.1, even at that time petitioner did not approach the Court, but approached the Court only 02.04.2019 and sought condonation of delay. Reading para 4 of the petition, he would submit that no sufficient cause has been explained by the petitioner to condone delay of 6 years which is quite long. He would submit that learned Trial Court has rightly appreciated this aspect and therefore, no interference is called. Upon such submission, he would submit to dismiss the petition.
5. Having heard learned advocate for the parties, let refer para 5 of the impugned order whereby the learned Trial Court upon reply of the respondent has categorically noted sequences and events which took place between the parties. Para 5 reads as under :-
"5. Opponent has filed his replay vide Exh. 09 and has contended that application is not bonafide maintainable. Applicant has tried to mislead the court. There are not any differences with original owner of the shop. It is not true that opponent had files suit No.40/2015. Opponent has become the owner of property bases on register sale deed no.2860 dated 05/06/2009, thereafter it was rectified on date 31/03/2010. Summons of the suit was duly served to nephew Jitendra Yogeshbhai Agarwal who had accepted the suit summons Thereafter the suit was allowed ex parte on 13-09-2017. Thereafter opponent had filed execution petition no.22/2018 and process of execution petition was also served at his house on 18-04-2018. Thereafter possession was handed over to opponent on 19- 09-2018. Applicant has made this false application inspite of having all the fact in his knowledge Applicant is residing on the address which is mention in execution petition he has not Page 3 of 7 Downloaded on : Sun Sep 17 02:21:54 IST 2023 NEUTRAL CITATION C/SCA/7044/2022 ORDER DATED: 24/08/2023 undefined file any appeal or revision before the appellate authority. Applicant has given this application after more then years 2 of delay wheres as in application 6 days delay has been stated Therefore this application is unbelievable hence it should be rejected with the cost ."
6. At this stage, this Court reproduces para 6 and 7 of impugned order being reasons assigned by the Court below to decline relief of condoning delay. Para 6 and 7 reads as under :-
"6. It is well settled principal that while deciding application for condonation of delay under section 5 of limitation act, court should consider that whether applicant has made out 'sufficient cause' or not ? In addition to this the Court must also take into account the conduct of the parties bona fide reasons of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution Considering above said principal Applicant has contended in his application that summons in suit no. 41/2015 filed by the opponent was not served upon him as he was not residing on the address which was mentioned in the suit. Moreover stated that he is suffering from paralysis, therefore he could not remain present before the court and as a result of this opponent got ex party decree in the suit .
7. Furthermore records itself reveals that the Rent suit no.40/2015 was filed on 03/04/2015 and was decreed on 13/09/2017 in which ex party order was passed on 31/07/2015 in absence of applicant. Upon the decree passed in Rent suit no.40/2015 opponent had filed execution petition no.22/2018 in which process was served through bailiff and in the execution proceedings also applicant didn't take care to remain present before the court therefore possession was handed over to opponent in the presence of panch witnesses on 10/09/2018. Further looking to the medical certificate mark 4/7 it reveals that applicant is suffering from Hemiparesis in a k/ c/.o. and Convulsions and not from paralysis. Thus it can be Page 4 of 7 Downloaded on : Sun Sep 17 02:21:54 IST 2023 NEUTRAL CITATION C/SCA/7044/2022 ORDER DATED: 24/08/2023 undefined presumed that applicant was well aware of all the fact of institution of suit execution petition and handing over of the possession to opponent It is clear form the record that applicant thoroughly remain negligent in implementing his right. Further it has been argued by applicant that while deciding and dealing with condonation of delay court should adopt liberal approach but liberal approach should be adopt if there is no deliberate delay on the part of applicant In this application applicant has totally failed to established sufficient cause for delay. The explanation from applicant are not reasonable and plausible to persuade the court to exercise judicial discretion in favour of the applicant and because of negligence of applicant opponent should not be deprived his valuable rights therefore in view of the aforesaid reasons in the interest of justice I pass the following order.
ORDER
-The present Misc Application (Delay) No.24/2019 is rejected.
- No order as to cost.
Signed and pronounced in open Court today this 07th day of July 2021. "
7. Perusal of the above reasons, this Court is of the opinion that learned Trial Court has not committed any error in passing impugned order and denying delay condonation application. There are no sufficient reasons explaining huge delay of 6 years.
8. Bare reading of application by which delay has been sought indicates no reasons to explain inordinate delay of 6 years caused in preferring application seeking setting aside ex- pare decree. Present petitioner did not remain vigilant about his right which has protracted away right in favour of the respondent. At this stage, this Court may refer observation of the Page 5 of 7 Downloaded on : Sun Sep 17 02:21:54 IST 2023 NEUTRAL CITATION C/SCA/7044/2022 ORDER DATED: 24/08/2023 undefined Apex Court emphasizing scope of section 5 of the Limitation Act, in the case of Mahant Bikram Das Chela v/s. Financial Commissioner [(1977) 4 SCC 69], wherein, it was held in para 21 that 'section 5 of the Limitation Act is a hard task-matter and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around section 5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigant who is not vigilant about his rights must explain every day's delay."
9. It is worth to note decision of the Apex Court in the case of Basawaraj and Anr. v/s. Special Land Acquisition Officer [(2013) 14 SCC 81], wherein, while rejecting application filed for condonation of delay under section 5, in the Apex Court has held in para 15 as under :-
"15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bonafide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in Page 6 of 7 Downloaded on : Sun Sep 17 02:21:54 IST 2023 NEUTRAL CITATION C/SCA/7044/2022 ORDER DATED: 24/08/2023 undefined violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature."
10. Worth to note that judgment and decree in Rent Suit which is sought to be challenged by calling it as ex-parte decree has already been executed and possession of the rent premises has been handed over to the land lord - respondent way back in the year 2018 and therefore, this Court does not see any reason to interfere with the impugned order.
11. Even otherwise scope of interference under Article 227 of the Constitution of India is very limited and it has to be exercised sparingly that is what observed by the Hon'ble Apex Court in the case of Garment Craft Vs. Prakash Chand Goel reported in (2022) 4 SCC 181, in the case of Compack Enterprise India Pvt. Ltd. Vs. Beant Sing reported in (2021) 3 SCC 702 and in the case of Ajanta LLP Vs. Casio Keisanki Kabushiki Kaisha DB/A Casio Computer Company Ltd and another reported in (2022) 5 SCC 449.
12. For the foregoing reasons, this Court is not inclined to entertain present petition. The petition is rejected.
(J. C. DOSHI,J) SATISH Page 7 of 7 Downloaded on : Sun Sep 17 02:21:54 IST 2023