C/CA/975/2022 ORDER DATED: 17/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 975 of 2022
In F/FIRST APPEAL NO. 11830 of 2022
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ABHISHEK ENGINEERING PVT LTD
Versus
SUMIBEN ALIAS SUNITABEN SHAMSU BHURIYA
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Appearance:
MR.VARUN K.PATEL(3802) for the Applicant(s) No. 1
MR AMAN A SAMA(11691) for the Respondent(s) No. 1
MR MEET D KAKADIA(11896) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 17/02/2023
ORAL ORDER
[1] This application is filed by the applicant for condonation of delay of 2198 days caused in filing the First Appeal against the judgment and order dated 19.02.2014 by the Commissioner under the Workmen's Compensation Act in W.C. (Non-Fatal) Application No.17 of 2008.
[2] At the outset, learned advocate for the applicant submitted that there is in fact no delay as the applicant had filed an application for setting aside the ex-parte judgment and order under Order IX Rule 13 of the Code of Civil Procedure Code (for sort "CPC") which was pending and it was decided only on 18.01.2022 and the appeal was filed before this Court on 12.04.2022 which is within the prescribed limit of 90 days. However, by considering the date of judgment and order of 19.02.2014, from which the delay is to be calculated the application is filed for condoning the delay. Learned advocate for the applicant submitted that the application for setting aside the ex-parte order was in terms of the provisions of law and the applicant was within his right to agitate the issue.
Page 1 of 4 Downloaded on : Fri Feb 17 21:17:16 IST 2023C/CA/975/2022 ORDER DATED: 17/02/2023 [2.1] Learned advocate has further submitted that the entire amount of Rs.4,07,304/- has been deposited before the Labour Court and in support of such fact, a certificate is produced in the application.
[3] As against this, learned advocate appearing for the opponent has vehemently submitted that the delay is inordinate and the application made for setting aside ex-parte order is not a bonafide, but is a delay tactic to avoid the payment. It is submitted that the opponent had to file an application for recovery pursuant to the impugned judgment and order and the recovery application is also decided in favour of the opponent- employee and therefore, now by challenging the delay, the applicants wants to further delay the payment. It is submitted that as on date despite there being judgment and order in favour of the opponent, the opponent has not received any amount. Learned advocate for the opponent has submitted that the application for setting aside the ex-parte order cannot be treated as bonafide as the advocate himself was present in the proceedings before the Labour Court and it is the duty of the applicant himself to be vigilant about the ongoing proceedings.
[3.1] For that reason, learned advocate has relied upon decision in case of Patel Shankarbhai Viarabhai v/s. Patel Narayanbhai Ambalal, reported in, 2012 (30) GHJ 190, particularly para-10. Learned advocate has also relied upon the decision of the Apex Court in case of Basawaraj and Another v/s. Special Land Acquisition Officer, reported in (2013) 14 SCC 81, particularly to para 15. It is further argued that even if the delay condonation application is considered, still the applicant has failed to make out the sufficient cause to show why the delay is to be condoned, particularity when the delay is inordinate to the extent of 2198 days .
[4] The Court has heard learned advocates for the parties and perused the documents placed on record. During the course of hearing, learned advocate for the applicant has placed for perusal Misc. Civil Page 2 of 4 Downloaded on : Fri Feb 17 21:17:16 IST 2023 C/CA/975/2022 ORDER DATED: 17/02/2023 Application No. 06 of 2014 in W.C. (Non-Fatal) Application No.17 of 2008, which was filed under the provisions of CPC, more particularly Order IX Rule 13 of the CPC. Rule 41 of the Workmen's Compensation Rules provides for application of certain provisions of the CPC, wherein it is categorically mentioned that Order IX will apply to the proceedings under the Workmen's Compensation Act.
[5] In view of the aforesaid, the Court is of the view that the applicant was justified and within his right to file an application being Misc. Civil Application No.06 of 2014 for setting aside the ex-parte order of the Labour Court. It is a different issue as to whether the application is actually an application to be treated as an application for setting aside the ex-parte order which of course, will be a subject matter when the main appeal which challenges the impugned order is taken up for consideration. However, for the time being when the application is in confirmatory with the provisions of law, it cannot be said that applicant was litigating malafide.
[6] The decisions relied upon the learned advocate for the opponent are in the realm of showing of sufficient cause to condone the delay. In the facts of the present case, the chronology indicates that the judgment and order impugned is dated 19.02.2014, wherein the application No.06 of 2014 was filed on 29.03.2014 which is an application within the period of limitation for filing an application under Order IX of the CPC for setting aside the ex-parte order. This application was pending and ultimately came to be dismissed by an order dated 18.01.2022. It is at that stage that in the opinion of the Court, the cause of action for the applicant to challenge the judgment and order dated 19.02.2014 arose before this Court. The chronology again indicates that after the rejection of the application under Order IX of the CPC on 18.01.2022, the present appeal alongwith the application is filed on 12.04.2022 and therefore, has Page 3 of 4 Downloaded on : Fri Feb 17 21:17:16 IST 2023 C/CA/975/2022 ORDER DATED: 17/02/2023 to be treated within the period of limitation by considering the date on which the limitation would start as 18.01.2022.
[7] In view of the aforesaid, the Court is of the view that the application is required to be allowed and the appeal is now required to be heard alongwith the Civil Application on merits. Hence, the application is allowed. The delay of 2198 days caused in filing the First Appeal against the judgment and order dated 19.02.2014 by the Commissioner under the Workmen's Compensation Act in W.C. (Non- Fatal) Application No.17 of 2008 is condoned.
[8] At this stage, considering the fact that the opponent has been litigating for long and that the application also mentions about the delay of 2198 days, the Court deems it fit that the opponent would be entitled to the cost of litigation to the extent of Rs.10,000/-(Rupees Ten Thousand Only). The amount of cost will be deposited by the applicant with the registry of this Court and the opponent would be entitled to withdraw the same after due verification by the Registry. The main First Appeal alongwith Civil Application to be listed on 27.02.2023. Direct service is permitted.
(A.Y. KOGJE, J) SIDDHARTH Page 4 of 4 Downloaded on : Fri Feb 17 21:17:16 IST 2023