Gujarat High Court
Sayed Gulamnabi Hussainmiya vs Rasikbhai Keshavlal Patel Through Lhr on 7 January, 2025
NEUTRAL CITATION
C/CA/5351/2024 ORDER DATED: 07/01/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO.
5351 of 2024
In F/FIRST APPEAL NO. 17614 of 2022
=============================================
SAYED GULAMNABI HUSSAINMIYA
Versus
RASIKBHAI KESHAVLAL PATEL THROUGH LHR & ORS.
=============================================
Appearance:
MR NIRAD D BUCH(4000) for the Applicant(s) No. 1
MRS. BHAVINI N. BUCH(5403) for the Applicant(s) No. 1
MR MEHUL SHARAD SHAH(773) for the Respondent(s) No.
1.2,1.3,1.4
RULE SERVED BY DS for the Respondent(s) No. 1.1,2.1,2.2,2.3,2.4
=============================================
CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 07/01/2025
ORAL ORDER
1. Heard Mr. Nirad Buch, learned advocate for the applicant and Mr. Mehul Sharad Shah, learned advocate for the respondent nos. 1.1 to 1.4.
2. Present application is filed seeking condonation of delay of 352 days caused in preferring the captioned appeal against the judgment dated 12.04.2019 passed by the learned 3 rd Additional Senior Civil Judge, Kheda in Special Civil Suit No.143 of 2011.
3. Mr. Buch, learned advocate for the applicant has referred to the averments made in the application and has submitted that against the impugned judgment and order, the present applicant had initially approached in appeal before the learned 3rd Additional District and Sessions Judge, which was registered as Civil Miscellaneous Application No.278 of Page 1 of 4 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:41:15 IST 2025 NEUTRAL CITATION C/CA/5351/2024 ORDER DATED: 07/01/2025 undefined 2019 along with application seeking condonation of delay of 8 months and 6 days caused in preferring the appeal against the impugned judgment and order. The learned District Judge after considering the averments made in the application and upon hearing the respondent was pleased to condone the delay caused in preferring the appeal, however subsequently at the stage of registration of appeal it was noticed that in light of the amendment in the pecuniary jurisdiction the appeal was not maintainable before the learned District Court. Accordingly, memo of appeal was returned back to the present applicant for presenting the same before this Court. While referring to the aforesaid events, learned advocate has submitted that in the process the delay had crept in. It was also pointed out that because of the Covid pandemic prevailing throughout the country, the application was ultimately preferred and present application was accepted by the Registry on 6.6.2022 and was registered on 22.10.2024. Noticing the aforesaid dates and the interregunm period of lock down, Registry has consdiered the delay of 352 days.
3.1. Learned advocate has submitted that the applicant is facing ex-parte decree inasmuch as the learned trial Court has proceeded in the original suit after recording the fact that summons have been duly served upon the defendant no.2 who has chosen not to appear. By the impugned judgment and order, the registered sale deed in respect of subject land in favour of the defendant no.2 has been cancelled and defendant no.2 has been further directed to execute the sale deed in favour of the plaintiff. By referring to the aforesaid facts, learned advocate has submitted that the applicant was Page 2 of 4 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:41:15 IST 2025 NEUTRAL CITATION C/CA/5351/2024 ORDER DATED: 07/01/2025 undefined under bonafide belief that the lawyer engaged by him would take care of the matter. The aforesaid facts were placed before the learned District Court by making specific averments against the advocate. The learned District Judge after appreciating the aforesaid facts, have condoned the delay of 8 months and 6 days. He has therefore, urged this Court to take liberal view and to decide his case on merits rather than taking away his right to appeal by dismissing the present application on the technical ground of delay.
4. Mr. Mehul Sharad Shah, learned advocate for the respondents - original plaintiffs has vehemently objected to the aforesaid submission made by the learned advocate for the applicant proposed appellant.
5. Considering the submissions made by the learned advocates for the respective parties and the averments made in the application, it transpires that the Registry has considered the period of lock down in light of the judgment of the Hon'ble Supreme Court in Suo Motu Writ Petition (Civil) No.3 of 2020 as well as administrative instructions issued vide Circular No. Judicial 9 of 2021 in light of the order dated 23.09.2021 passed by the Hon'ble Supreme Court in Miscellaneous Civil Application No.665 of 2021 in Suo Motu WP (Civil) No.3 of 2020 thereby treating the period from 15.3.2020 till 28.2.2022 being excluded from the number of days of delay for the purpose of limitation in filing captioned appeal. Considering the fact that the order under challenge is dated 12.04.2019, the period of limitation to prefer an appeal before this Court expired on 12.7.2019. The benefit of Page 3 of 4 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:41:15 IST 2025 NEUTRAL CITATION C/CA/5351/2024 ORDER DATED: 07/01/2025 undefined exclusion of period of limitation in view of lock down as directed by the Hon'ble Supreme Court in Suo Motu Writ Petition (Civil) No.3 of 2020 as well as administrative instructions issued vide Circular No. Judicial 9 of 2021 shall not be available to the applicant. The number of days of delay would therefore, be 1068 days caused in preferring the appeal instead of 352 days as computed by the Registry.
6. Having held so, so far as the submission of the learned advocate for the appellant of having approached the learned District Court bonafidely, in view of the fact that considering the averments made in the application, learned District Court had condoned the delay, in view of Section 14 of the Limitation Act, the said period is required to be excluded. On overall consideration, this Court finds that the explanation tendered by the applicant is sufficient to consider the case for condonation of delay. Looking to the explanation offered, it cannot be said that the applicant had remained negligent all throughout or the applicant had acted malafidely to avoid court proceedings. On the contrary, it transpires that the applicant was pursuing the remedy though before a wrong forum.
7. Hence, delay caused in preferring appeal is hereby condoned. Rule is made absolute to the aforesaid extent.
(NISHA M. THAKORE,J) RATHOD KAUSHIKSINH Page 4 of 4 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:41:15 IST 2025