NEUTRAL CITATION
C/CA/2602/2022 JUDGMENT DATED: 06/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 2602 of
2022
In F/LETTERS PATENT APPEAL NO. 27037 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH ROY
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copyNo
of the judgment ?
4 Whether this case involves a substantial questionNo
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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HIRALAL VAJESANG PATEL
Versus
PRINCIPAL
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Appearance:
MR DIPAK R DAVE(1232) for the Applicant(s) No. 1,2,3,4
MS MAMTA R VYAS(994) for the Respondent(s) No. 3
MR. SANJAY UDHWANI, AGP for the Respondent(s) No. 4
RULE UNSERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
Date : 06/11/2023
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NEUTRAL CITATION
C/CA/2602/2022 JUDGMENT DATED: 06/11/2023
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ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) Learned advocate Mr. Deepak Dave for the applicants at the outset seeks to delete respondent No.2, who is the Principal of Pranav Vidhya Mandir, Tavara, Bharuch, since the said school is now closed.
1.1 The permission to delete the respondent No.2 in this Civil Application is granted and the said respondent shall stand deleted from the array of the parties at the cost and consequences of the applicants.
2. Heard learned advocate Mr. Dipak Dave for the applicants, learned Assistant Government Pleader Mr. Sanjay Udhwani for respondent No.4 and learned advocate Ms. Mamta Vyas for respondent No.3.
2.1 What is prayed in this Civil Application by the applicants is to condone the delay of 1285 days, which has taken place in preferring Letters Patent Appeal. The Letters Patent Appeal is proposed by the applicants-appellants against judgment and order dated 24.1.2017 passed in Special Civil Application No. 1368 of 1991 as also against order dated 15.6.2022 passed in the Misc. Civil Application No. 1 of 2018, which was a Review Application against the said order of learned single Judge.
3. Noticing the relevant dates, judgment and order of learned single Judge was delivered on 24.1.2017. Certified copy was applied on 14.9.2018, which was available on 17.9.2018. Thereafter, Review Application was filed on 27.11.2018 alongwith Misc. Civil Application No. 1 of 2018 seeking condonation of delay of 642 days which had occurred. The delay of 642 came to be condoned by the Court as per order dated 23.12.2019. The Revision Application was entertained which Page 2 of 7 Downloaded on : Fri Nov 10 20:50:30 IST 2023 NEUTRAL CITATION C/CA/2602/2022 JUDGMENT DATED: 06/11/2023 undefined came to be finally dismissed on 15.6.2022. It is, thereafter, that the Letters Patent Appeal was preferred by the applicants, in which delay of 29 days counted form the date of rejection of Review Application has occurred, it was submitted
4. Learned advocate for the applicants submitted that since the Review Application was being pursued, the time taken during the said period is liable to be treated as litigating bona fide to be excluded as such in view of Section 14 the Limitation Act. It was submitted that though the Review Application was delayed, the delay was condoned by the court and thereafter, the Review Application was dismissed.
4.1 Learned advocate for the applicants submitted that the benefit of section 14 of the Limitation Act would be available to the applicants in respect of the period during which the review proceedings remained pending. He further submitted that the delay of 642 days occurred in filling the Review Application was condoned by the Court, therefore, the the review was to be treated as time. Thirdly, it was submitted that after review was decided, the delay is of 29 days, which resulted due to the aspect that the applicants had been staying at scattered places and before they could decide to prefer the appeal, the delay of 29 days elapsed.
4.2 On the other hand, learned advocate Ms. Mamta Vyas for respondent No. 3. vehementaly opposed the prayer for condonation of delay. She heavily relied on the contents and contentions in the affidavit- in-reply filed by respondent No.3, in which it was contended inter alia that the original petition was heard by the court on 12.1.2016 and the respondent trust was directed to pay Rs. 50000/- to each of the applicants towards the total benefits to be extended in view of the judgment of the Tribunal. The applicants had worked fore more than two years in the Page 3 of 7 Downloaded on : Fri Nov 10 20:50:30 IST 2023 NEUTRAL CITATION C/CA/2602/2022 JUDGMENT DATED: 06/11/2023 undefined school and that the school remained closed since 1988. It was stated that the school management tendered the cheque as directed in the judgment, however, the applicants did not accept the same.
4.3 All these averments and contentions of respondent No.3 run in the realm of merits of the case. The court is afraid that the same could be considered while deciding the issue of condonation of delay.
4.4 It was next submitted by learned advocate for the respondent that prayer suffers from defect inasmuch there is no separate prayer for excluding time taken in prosecuting the Review Application. It was submitted that there is no averment in the application in that regard as well to enable the applicants to seek such benefits. Learned advocate for the respondent pressed into service the decision of the Supreme Court in Ketan V. Parekh v. Special Director, Directorate of enforcement and Anr. (AIR 2012 SC 683). On the basis of the said decision, it was submitted that as observed and held therein, the applicants here could not rely on section 14 of the Limitation Act for exclusion of the period during which review was filed and prosecuted on the ground that the applicant was prosecuting remedy before other forum.
5. Since the review applicant was filed as above, the total period of 1285 days prayed to be condoned, could be viewed in three time slots. The first is the time period from the date of deliverance of judgment and order of learned single Judge till the time Review Application was filed. The second would be the period during which the Review Application remained pending till it was decided on 15.6.2022. The third part of the period will be from the date of order in the Review Application till the Letters Patent Appeal was filed.
Page 4 of 7 Downloaded on : Fri Nov 10 20:50:30 IST 2023 NEUTRAL CITATION C/CA/2602/2022 JUDGMENT DATED: 06/11/2023 undefined 5.1 It was held by the Supreme Court in Ketan V. Parekh (supra),
that since prayer in application was for condonation of delay and not for exclusion of time in prosecuting writ petition, benefit of section 14 cannot be given. The premise for holding so was that no averments was made in the application by the appellants before the Supreme Court in that regard.
5.2 Upon a closer look and attentive examination of the facts and decision of the Supreme Court in Ketan V. Parekh (supra), it has to be observed that the averments made by learned advocate for the respondent on the basis of the said judgment, are not well conceived. Firstly, the court finds that there are specific averments in the application about the prosecuting the Review Application.
5.3 The said averments read as under, "The applicants were all throughout engaged in prosecuting bona fide with review/restoration application and the substantial time has been consumed in pursing the said application for review/restoration which has been ultimately rejected by order dated 15.6.2022, the applicants could prefer appeal thereafter."
5.4 The aforesaid avermetns clearly attract the beneficial principles contained in section 14 of the Limitation Act. In the case before the Supreme Court, the Supreme Court observed that the appellant before it had not made any such averments and the application was bereft of essential averments. It was in that light, the court held that the prayer was for condoning the total delay and not for the purpose of seeking benefit of section 14 of the Limitation Act.
5.5 Prayer in any proceedings before the court has to be viewed and appreciated for the purpose of granting or rejecting it in the context of the Page 5 of 7 Downloaded on : Fri Nov 10 20:50:30 IST 2023 NEUTRAL CITATION C/CA/2602/2022 JUDGMENT DATED: 06/11/2023 undefined averments made in the application or petition. This is the exact principle emanating from the Apex Court decision in Ketan V. Parekh (supra).
5.6 When the necessary avermetns are made in this application about the applicant prosecuting the review/restoration proceedings bona fide, the prayer for condoning the delay made by the applicant has to be considered as inclusive of seeking benefit on the count of such bona fide litigation. The period of 285 days prayed to be condoned includes the prayer to get the benefit of section 14 of the Limitation Act when specific averments are made in the application.
5.7 The contention was advanced in vain on behalf of the respondent that the review application itself was delayed by 642 days, therefore, the applicant was lethargic from the beginning. Delay in filling the Review Application came to be condoned by the court and the Review Application was entertained. Once delay was condoned, the court cannot fall back upon the said delay part treating the petitioner guilty of indolence. The review has to be treated in time.
6. In DSR Steel (Private) Limited vs. State of Rajasthan and Others [(2012) 6 SCC 782], the Supreme Court while considering the different situation which may arise in relation to review petition, though in different context as to whether order would merge in the original order or not, it observed "The third situation with which we are concerned in the instant case is where the revision petition is filed before the Tribunal but the Tribunal refuses to interfere with the decree or order earlier made. It simply dismisses the review petition. The decree in such a case suffers neither any reversal nor an alteration or modification. It is an order by which the review petition is dismissed thereby affirming the decree or order. In such a contingency there is no question of any merger and anyone Page 6 of 7 Downloaded on : Fri Nov 10 20:50:30 IST 2023 NEUTRAL CITATION C/CA/2602/2022 JUDGMENT DATED: 06/11/2023 undefined aggrieved by the decree or order of the Tribunal or Court shall have to challenge within the time stipulated by law, the original decree and not the order dismissing the review petition. Time taken by a party in diligently pursing the remedy by way of review may in appropriate cases be excluded from consideration while condoning the delay in the filing of the appeal, but such exclusion or condonation would not imply that there is a merger of the original decree and the order dismissing the review petition." (para 25.3) (emphasis supplied) 6.1 In view of the above, as the delay in preferring the Review Application was condoned, the applicant could not be treated to be indolent litigant in respect of the said period. The applicant would be entitled to benefit of section 14 of the Limitation Act qua the period during which the Review Application remained pending.
6.2 This leaves the third time leg, which is the period from the date of decision in the Review Application till the filling of the present Letters Patent Appealm where there is delay of 29 days. The court is satisfied with the explanation offered for the said part of the delay.
6.3 The passage of time in all the legs as indicated in para 5 hereinabove, have been explained in terms of acceptable facts and applicable legal principles.
7. In all respects therefore, sufficient cause is made out. Delay deserves to be condoned. Delay is condoned. The application is allowed. Rule is made absolute.
(N.V.ANJARIA, J) (CHEEKATI MANAVENDRANATH ROY, J) C.M. JOSHI Page 7 of 7 Downloaded on : Fri Nov 10 20:50:30 IST 2023