Kantaben @ Kajalben Bhimandas Jagyasi vs Manjuben Shyamlal Shah

Gujarat High Court

Kantaben @ Kajalben Bhimandas Jagyasi vs Manjuben Shyamlal Shah on 6 May, 2025

                                                                                                           NEUTRAL CITATION




                              C/SCA/6175/2025                               ORDER DATED: 06/05/2025

                                                                                                           undefined




                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                       R/SPECIAL CIVIL APPLICATION NO. 6175 of 2025

                       ==========================================================
                                        KANTABEN @ KAJALBEN BHIMANDAS JAGYASI
                                                        Versus
                                            MANJUBEN SHYAMLAL SHAH & ANR.
                       ==========================================================
                       Appearance:
                       MR BRIJ V SHETH(10594) for the Petitioner(s) No. 1
                       VASIMRAJA A KURESHI(8609) for the Petitioner(s) No. 1
                       ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                       Date : 06/05/2025

                                                        ORAL ORDER

1. The present writ application is filed under Article 227 of the Constitution of India seeking following relief :

"8.1 YOUR LORDSHIP may be pleased to admit this application.

8.2 YOUR LORDSHIP may be pleased to quash and set aside the judgement dated 18/01/2025 passed by Civil Misc. Appl. (For Condonation of Delay) No. 237 /2023 and thereby be pleased to condone the delay of 412 days caused in filing the appeal; Anna! "A! 8.3 YOUR LORDSHIP may be pleased to grant any other and further reliefs as YOUR LORDSHIP deems fit and proper in the circumstances of the case."

2. The parties will be referred asfar as possible as per their original position in the suit.

Short facts of the case Page 1 of 16 Uploaded by SALIM(HC01108) on Wed May 14 2025 Downloaded on : Sat May 17 09:49:31 IST 2025 NEUTRAL CITATION C/SCA/6175/2025 ORDER DATED: 06/05/2025 undefined 3.0 The petitioner herein is the original defendant, happens to be tenant of the suit premises owned by the respondents, happen to be landlord who instituted suit for eviction before the Small Cause Court, Vododara being Small Cause Suit No. 86 of 2019 on various grounds.

3.1 It appears that the defendant was not using suit rent premises which appears to be commercial property situated in city of Vadodara, thereby, a summon of suit through normal mode of service was not served upon her. Bailiff endorsement shown defendant left and suit premises closed. So, summon of suit came to be served upon the defendant by way of paper publication as per Order 5 rule 20 (1-A) of Civil Procedure Code, 1908 (hereinafter referred to as 'CPC').

3.2 It further appears that for long time none appeared for the defendant, thereafter, necessary issues have been framed by the trial Court which germane from the plaint wherein one of the issue as regards non-use of suit property by defendant for more than six months before filing of the suit was also framed.

3.3 It further appears that defendant had earlier filed Regular Suit No. 144 of 2010 against plaintiffs which was dismissed for non-prosecution on 24.04.2013 and never got Page 2 of 16 Uploaded by SALIM(HC01108) on Wed May 14 2025 Downloaded on : Sat May 17 09:49:31 IST 2025 NEUTRAL CITATION C/SCA/6175/2025 ORDER DATED: 06/05/2025 undefined restored backed by the defendant.

3.4 The plaintiffs have submitted documentary evidence in regards to nonuse of suit premises whereby it appears that neither municipal tax has been cleared by the defendant nor any consumption of electricity for quite long period have on record. To save tenanted suit premises, the plaintiffs being landlord have paid municipal taxes to Vadodara Municipal Corporation who applied sealed on suit premises.

3.5 After appreciating oral and documentary evidence, the trial Court vide its judgement and decree dated 11/14.06.2021 passed decree of eviction in favour of plaintiffs- landlord.

3.6 After passing of decree of eviction, to get actual and physical possession, the plaintiffs had filed execution petition No. 102 of 2021 which appears to have been contested by the defendant, albeit, through her power of attorney but ultimately possession of the suit premises came to be handed over to the plaintiffs-landlord.

3.7 The defendant through her power of attorney had filed a Regular Appeal wherein there was delay of around 412 days in filing such appeal whereby, a delay condonation Page 3 of 16 Uploaded by SALIM(HC01108) on Wed May 14 2025 Downloaded on : Sat May 17 09:49:31 IST 2025 NEUTRAL CITATION C/SCA/6175/2025 ORDER DATED: 06/05/2025 undefined application came to be filed being CMA No. 237 of 2023. The plaintiffs have objected such delay application by filing their detailed reply.

3.8 After hearing the parties, having not found any sufficient cause made out by the defendant in her delay application but found that defendant was negligent in pursuing and contesting suit proceeding as there was an inordinate delay and lack of due diligence on the part of the defendant, delay of 412 days in filing regular appeal was not condoned.

3.9 The defendant having dissatisfied with aforesaid order passed by the Appellate Court thereby not condoned the delay in filing appeal, challenged it by way of filing the present writ application.

Submission of the petitioner-defendant 4.0 Learned advocate Mr. Brij V. Sheth for the petitioner would submit that the appellate Court has taken hyper technical approach while adjudicating delay application whereby committed gross error of law and wrongly rejected delay application.

NEUTRAL CITATION C/SCA/6175/2025 ORDER DATED: 06/05/2025 undefined 4.1 Learned advocate Mr. Sheth would further submit that when it has come on record that defendant was not served through normal mode of service as she was/is residing outside India, having came to know about the judgment and decree, filed the appeal and in such factual situation, the delay ought to have been condoned.

4.2 Learned advocate Mr. Sheth would further submit that as such there was no long and inordinate delay in filing appeal inasmuch as no negligence could have been attributed by the defendant in pursing her legal remedy but due to situation not within her control she could not attend the proceeding at relevant point of time.

4.3 Learned advocate Mr. Sheth for the petitioner would further submit that as per legal position of law, liberal and pragmatic approach could have been taken by the appellate Court while adjudicating the delay application and it could have condoned the delay to subserve justice.

4.4 Lastly, learned advocate Mr. Sheth would submit that one opportunity requires to be given to the defendant to defend the suit filed by the her landlord, for which the defendant is ready and willing to pay reasonable cost to landlord in a case where matter is remanded back to the trial Page 5 of 16 Uploaded by SALIM(HC01108) on Wed May 14 2025 Downloaded on : Sat May 17 09:49:31 IST 2025 NEUTRAL CITATION C/SCA/6175/2025 ORDER DATED: 06/05/2025 undefined Court for fresh adjudication of the suit.

4.5 No other and further submissions made by the learned advocate for the petitioner.

5. Heard learned advocate Mr. Brij V. Sheth for the petitioner at length.

ANALYSIS

6. The short question falls for consideration as to whether any gross error of law and or jurisdiction error committed by the appellate Court while not condoning the delay in filing regular appeal filed at the instance of defendant - tenant?

6.1 The facts which are observed hereinabove is not in dispute. The defendant was undisputedly not residing in India when suit came to be filed by the plaintiff-landlord in the year 2019 which can be confirmed from bare reading of Para-8 of the delay application filed by defendant before the appellate Court in the appeal.

6.2 It has been so stated in para-8 of delay application that since last 8 years the petitioner -defendant is staying overseas. The delay application was filed on 29.08.2022, Page 6 of 16 Uploaded by SALIM(HC01108) on Wed May 14 2025 Downloaded on : Sat May 17 09:49:31 IST 2025 NEUTRAL CITATION C/SCA/6175/2025 ORDER DATED: 06/05/2025 undefined whereas the suit in question was filed on 03.09.2019. The defendant could not be served through normal mode of service as bailiff endorsement came on record "left". So, through notice of suit came to be served through mode of paper publication as per Order 5 rule 20(1-A) of CPC.

6.3 The suit was proceeded ex-parte as defendant never contested the suit. The suit decreed in favour of the landlord on the ground of non-use of by tenant, which is ground available to the landlord for seeking eviction of the tenant as per Section 13(1)(k) of the Gujarat Rents Hotel and Lodging House Rent Act, 1947 (hereafter referred to Rent Act, 1947).

6.4 The trial Court after satisfying itself and after examining issues answered in favour of plaintiffs thereby ordered eviction of defendant from suit premises.

6.5 The plaintiffs having filed execution and after deciding objection of defendant, Executing Court appears to have handed over possession of suit premises in favour of the landlord - plaintiffs which has been observed by the appellate Court in para-6 of the order which is impugned in the present writ application.

NEUTRAL CITATION C/SCA/6175/2025 ORDER DATED: 06/05/2025 undefined

7. Once, in execution proceeding, possession of suit premises is handed over to the landlord, nothing further remains to be done. At this stage, it would apt to refer the decision of Hon'ble Apex Court in the case of Hameed Kunju Vs. Nazim reported in 2017 SCC 611, wherein it has held thus:

"33. In our considered view, once the possession had been delivered and decree was recorded as satisfied in accordance with law, the litigation had come to an end leaving no lis pending. ............."

8. Be that as it may, once regular appeal was filed, albeit with delay by defendant, reason of delay in filing appeal requires to be considered and if sufficient cause made out, the appellate Court was required to condone such delay in filing appeal.

9. The appellate Court has after going through explanation and pleading of the parties and having noticed that defendant is having permanent residence visa and settled abroad and so in her application no specific date of going out of India has been mentioned, not found explanation of delay is satisfactory, rather it has been observed by the appellate Court that there is an ordinate delay and lack of due diligence on the part of the defendant.

NEUTRAL CITATION C/SCA/6175/2025 ORDER DATED: 06/05/2025 undefined To avoid more repetition, observations and reasons given by the appellate Court in Para Nos. 6 to 9 are taken note by this Court. This Court is also in complete agreement with such reasons so assigned by the appellate Court. So, none of the submissions so made by the learned advocate Mr. Sheth for the petitioner would appeal to this Court thus, requires to be turned down.

10. The law on issue of condonation of delay is now fairly well settled, as in the recent past, the Hon'ble Apex in its various judgments have propounded that in a case where there is an inordinate delay, negligence and explanation is not well founded, even if there is sufficient cause, such delay cannot be condoned.

11. It is apt to first refer and rely upon the decision of Honourable Supreme Court of India in a case of Rajneesh Kumar & Anr Vs. Ved Prakash reported in 2024 (14) SCALE 406 wherein held as under:-

"[10] It appears that the entire blame has been thrown on the head of the advocate who was appearing for the petitioners in the trial court. We have noticed over a period of time a tendency on the part of the litigants to blame their lawyers of negligence and carelessness in attending the proceedings before the court. Even if we assume for a moment that the concerned lawyer was careless or negligent, this, by itself, cannot be a ground to condone long and inordinate delay as the litigant owes a duty to be vigilant of his own rights and is expected to be equally vigilant about the judicial proceedings pending in the court initiated at his instance.The Page 9 of 16 Uploaded by SALIM(HC01108) on Wed May 14 2025 Downloaded on : Sat May 17 09:49:31 IST 2025 NEUTRAL CITATION C/SCA/6175/2025 ORDER DATED: 06/05/2025 undefined litigant, therefore, should not be permitted to throw the entire blame on the head of the advocate and thereby disown him at any time and seek relief.

[12] As regards the law of limitation, we may refer to the decision of this Court in Bharat Barrel & Drum MFG Go. v. The Employees State Insurance Corporation, 1971 2 SCC 860, wherein this Court held as under:-

"The necessity for enacting periods of limitation is to ensure that actions are commenced within a particular period, firstly to assure the availability of evidence documentary as well as oral to enable the defendant to contest the claim against him; secondly to give effect to the principle that law does not assist a person who is inactive and sleeps over his rights by allowing them when challenged or disputed to remain dormant without asserting them in a Court of law. The principle which forms the basis of this rule is expressed in the maximum vigilantibus, non dermientibus, jura subveniunt (the laws give help to those who are watchful and not to those who sleep). Therefore, the object of the statutes of limitations is to compel a person to exercise his right of action within a reasonable time as also to discourage and suppress stale, fake or fraudulent claims."

(emphasis supplied) 11.1 In the case of K.B. Lal (Krishna Bahadur Lal) v. Gyanendra Pratap & Ors. reported in 2024 (4) Scale 759, wherein, after revisiting the law on the subject of condonation of delay, the Hon'ble Apex Court has held as under:-

"10. There is no gainsaying the fact that the discretionary power of a court to condone delay must be exercised judiciously and it is not to be exercised in cases where there is gross negligence and/or want of due diligence on part of the litigant (See Majji Sannemma @ Sanyasirao v. Reddy Sridevi & Ors. (2021) 18 SCC 384). The Page 10 of 16 Uploaded by SALIM(HC01108) on Wed May 14 2025 Downloaded on : Sat May 17 09:49:31 IST 2025 NEUTRAL CITATION C/SCA/6175/2025 ORDER DATED: 06/05/2025 undefined discretion is also not supposed to be exercised in the absence of any reasonable, satisfactory or appropriate explanation for the delay (See P.K. Ramachandran v. State of Kerala and Anr., (1997) 7 SCC 556). Thus, it is apparent that the words 'sufficient cause' in Section 5 of the Limitation Act can only be given a liberal construction, when no negligence, nor inaction, nor want of bona fide is imputable to the litigant (See Basawaraj and Anr. v. Special Land Acquisition Officer., (2013) 14 SCC 81). The principles which are to be kept in mind for condonation of delay were succinctly summarised by this Court in Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy & Ors., (2013) 12 SCC 649, and are reproduced as under:

"21.1. (i) There should be a liberal, pragmatic, justice- oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

21.2. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. 21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. 21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.

NEUTRAL CITATION C/SCA/6175/2025 ORDER DATED: 06/05/2025 undefined 21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

21.10. (x) If the explanation offered is concocted, or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation."

(emphasis supplied) 11.2 It is also profitable to refer to and rely upon ratio laid down by recent past decision of Honourable Supreme Court of India in a case of Pathapati Subba Reddy (Died) BY L RS & ORS Vs. Special Deputy Collector (LA) reported in 2024 INSC 286 : 2024 (4) SCR 241 : 2024 (4) Scale 846 wherein after referring to its previous decisions, summarized the case law on the issue of limitation vis-a-vis condonation of delay in context of "sufficient cause". It has been so observed and held as under :

"[26] On a harmonious consideration of the provisions of the law, as aforesaid, and the law laid down by this Court, it is evident that:

(i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself;

NEUTRAL CITATION C/SCA/6175/2025 ORDER DATED: 06/05/2025 undefined

(ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time;

(iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally;

(iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act;

(v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence;

(vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal;

(vii) Merits of the case are not required to be considered in condoning the delay; and

(viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamounts to disregarding the statutory provision." (emphasis supplied) 11.3 Lastly, it is also profitable to rely upon the decision of the Hon'ble Supeme Court of India in the case of case of Basawaraj and Another v. Special Land Acquisition Officer reported in 2013 (14) SCC 81 wherein it is held 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 Page 13 of 16 Uploaded by SALIM(HC01108) on Wed May 14 2025 Downloaded on : Sat May 17 09:49:31 IST 2025 NEUTRAL CITATION C/SCA/6175/2025 ORDER DATED: 06/05/2025 undefined 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 violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature."

(emphasis supplied)

12. Thus, facts which are pleaded in the delay application examined in the light of the aforesaid decisions of the Hon'ble Apex, it would lead to only conclusion that there was gross negligence on the part of the defendant. First, having chosen not to appear in the suit, secondly not used premises having not paid municipal taxes then after passing of eviction decree waited till execution came to be filed by the plaintiffs- landlord to get possession of suit premises which caused delay in filing appeal and Thirdly, when possession of rented premises delivered to landlord, nothing further remains in the matter to be done at instance of tenant by filing appeal, albeit with gross delay. In such factual situation, this Court is not in a position to disturb the order impugned passed by the appellate Court rather concurring Page 14 of 16 Uploaded by SALIM(HC01108) on Wed May 14 2025 Downloaded on : Sat May 17 09:49:31 IST 2025 NEUTRAL CITATION C/SCA/6175/2025 ORDER DATED: 06/05/2025 undefined with view taken by the Appellate Court.

13. As such, in view of the aforesaid facts, reasons and position of law stands as on date, there is no merit in the submission of the learned advocate Mr. Sheth for the petitioner.

14. At last, I would like to observe that this Court while exercising its power under Article 227 of the Constitution of India having limited scope of interference in the order passed by the Courts below which is succinctly discussed in following two decisions of the Hon'ble Apex Court in the case of (i) Sameer Suresh Gupta TR PA Holder vs. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374 (ii) Garment Craft v. Prakash Chand Goel, reported in (2022) 4 SCC 181.

Conclusion

15. So, in view of the aforesaid facts and circumstances of the case and position of law stands as on date, I am of the view that there is no gross error and or any jurisdictional error committed by the appellate Court while rejecting the impugned delay application. No interference of this Court requires while exercising its power under Article 227 of Constitution of India.

NEUTRAL CITATION C/SCA/6175/2025 ORDER DATED: 06/05/2025 undefined

16. In view of the aforesaid facts and ratio of various decisions of Hon'ble Supreme Court so referred herein- above, I am of the view that writ application lacks merit.

17. Thus, due to foregoing reasons, the order impugned passed by the appellate Court whereby rejecting the impugned delay condonation application is just and proper, consequently the writ application deserves to be dismissed and the same is hereby dismissed. No order as to costs.

(MAULIK J.SHELAT,J) SALIM/ Page 16 of 16 Uploaded by SALIM(HC01108) on Wed May 14 2025 Downloaded on : Sat May 17 09:49:31 IST 2025