M/S S R Ashok And Associates Pvt. ... vs M/S Dhorajiya Construction ...
2021 Latest Caselaw 18108 Guj

    C/SCA/1136/2020                           ORDER DATED: 06/12/2021




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 1136 of 2020

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               M/S S R ASHOK AND ASSOCIATES PVT. LTD.
                               Versus
               M/S DHORAJIYA CONSTRUCTION COMPANY
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Appearance:
MR RAGHUNANDAN SHARMA FOR MR. JIT P PATEL(6994) for the
Petitioner(s) No. 1
MR PREMAL R JOSHI(1327) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                          Date : 06/12/2021

                            ORAL ORDER

By way of present petition, the petitioner has requested to quash and set aside reversing the order passed below application Exh. 16 on 10.10.2019 by the learned 5th Additional District Judge, Ahmedabad (Rural), Mirzapur Ahmedabad in CMA No. 237 of 2018 and direct the respondent to deposit appropriate court fee of Rs. 75,000/-.

Brief facts of the present case are as under:

That the respondent herein has filed a suit for recovery of amount against the petitioner and other persons namely M/s C.S. Construction Company Pvt. Ltd. And Mr. Rahul Bhuchar, originally joined as defendants No3 & 4 for recovery of Rs.9,59,86,503/-(Rupees Nine Crore Fifty Nine Lacs Eighty Six Thousand Five Hundred Three only), being Summary Suit No.

C/SCA/1136/2020 ORDER DATED: 06/12/2021

148/15, under Order XXXVII of CPC, which was later on converted into Special Civil Suit No. 79/2017 as leave to defend the suit of the petitioner was allowed by the said court i.e. the Court of Senior Civil! Judge, Mirzapur (Rural) Ahmedabad, Gujarat. That later on objections were taken by the petitioner under Order 30 Rules 1 & 2 of CPC saying therein that the respondent is a partnership firm, which is not registered and the person, who has instituted the suit, was not the registered partner and as such, learned court below, vide order dt.01.10.2018, dismissed the said suit under Order 11 Rule 7 (d) of CPC also. That thereafter the respondent preferred an Appeal against the said order vide CMA No. 237/2018 before the learned Additional District Judge, Mirzapur (Rural), Ahmedabad, Gujarat along with application under Section 5 of Limitation Act. According to the respondent, delay of 60 days was caused in filing the said appeal. That thereafter learned Additional District Judge, Ahmedabad (Rural) allowed the said application under Section 5 of Limitation Act for condonation of delay vide order dt.10.10.2019, despite the fact that there was no sufficient cause, incorporated or arose in favour of the respondent.

Heard learned advocates for the respective parties. It was submitted by learned advocate for the petitioner that an application under Section 5 of Limitation Act filed by

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the respondent is a casual application and it does not indicate any sufficient ground for allowing the said application. It is submitted that the said application is drafted by the respondent in a hurry and hasty manner, without even looking to the facts and circumstances of the case, as the respondent preferred this application against the defendants No.3 & 4 also (in the main suit) whose names have been deleted by the court beliow, however, they are impleaded as respondents No. 3 and 4 again. That, Court below has allowed to delete the names of the said respondents from the Memo of Parties vide impugned composite order dated 10.10.2019. That the respondent has stated in the said application that the order passed by the Court below is in the absence of the Advocate engaged by the respondent and that the court has also not considered the reply of the applicant. That, the respondent has stated that after applying for copy of the impugned order dated 01.10.2018, he has taken advice from different Advocates and as such, Ld. 5 th Additional District Judge has not considered the very important fact that vide Notification dt.14.10.2014, Hon'ble High Court of Gujarat has issued a notification in respect of jurisdiction to try and entertain the appeal. As the subject matter of the appeal exceeds to Rs.10,00,000/-i.e. Rs.9,59,86,503/-(Rupees Nine Crore Fifty Nine Lacs Eighty Six Thousand Five Hundred Three only), while as per the provisions of Gujarat Civil Courts

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Act, 2005, under Section 15(2)(b), such type of appeal would lie only before this Court. This very objection was taken by the petitioner, however, Ld. 5th Additional District Judge has not considered this factum of law also and allowed the said application without having any jurisdiction. That, it is not described by the respondent, on which date the copy was readily available, he has not stated from whom he has taken the advice from different Advocates. So there is no sufficient cause.

It was further submitted by learned advocate for the petitioner that moreover, on the same point, petitioner has cited authorities, however, learned 5th Additional District Judge has not considered them. That reasoning of the Ld. 5 th Additional District Judge that the suit amount is huge and therefore, it can be justified that the respondent's need in proper legal advice are not proper. The finding of the Ld. 5 th Additional District Judge that "it becomes clear that the applicant was not so negligent regarding valuable statutory right for filing an appeal" and that "the said delay has been caused due to inadequate legal knowledge of the applicant", are not judicious finding. That the finding of the Ld. 5 th Additional District Judge that "the said delay has been caused due to inadequate legal knowledge of the applicant cannot be said sufficient cause. That the findings of the learned 5 th

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Additional District Judge that the application cannot be rejected on technical grounds of limitation because limitation is not a technical ground are not correct. In support of his arguments, learned advocate for the petitioner has placed his reliance on the judgment passed by this Court in Civil Application No. 2725 of 2019 in First Appeal No. 27632 of 2019. Hence, it was requested by learned advocate for the petitioner to allow present petition.

Per contra, learned advocate for the respondent has objected the submissions made by learned advocate for the petitioner and submitted that the respondent has sufficiently explained the delay caused in filing appeal before the court below and while considering such explanation, learned court below has rightly allowed the application for condoning the delay, therefore, no error has been committed by the court below in allowing application for condoning the delay. It was further submitted that the respondent is ready and willing to deposit the amount of cost as directed by the court below as well as court fees, if not paid. Ultimately, it was submitted by learned advocate for the respondent to dismiss present petition.

Having heard learned advocates for the respective parties, it appears that it is undisputed fact that the respondent has filed a suit for recovery of amount as averred in the plaint against the respondent and other persons, being Summary Suit

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No. 148/15, under Order XXXVII of CPC, which was later on converted into Special Civil Suit No. 79/2017 as leave to defend application of the petitioner was allowed by the said court i.e. the Court of Senior Civil! Judge, Mirzapur (Rural) Ahmedabad, Gujarat. That later on the objections were taken by the petitioner and the Trial court vide order dt.01.10.2018 dismissed the said suit under Order 11 Rule 7 (d) CPC. Thereafter, respondent has preferred Appeal against the said order vide CMA No. 237/2018 before the court of learned Additional District Judge, Mirzapur (Rural), Ahmedabad along with application under Section 5 of Limitation Act for condoning the delay of 60 days for filing the said appeal. Thereafter, the Additional District Judge, Mirzapur (Rural), Ahmedabad allowed the said application under Section 5 of Limitation Act for condonation of delay vide order dt.10.10.2019.

In case of Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai, reported in (2012) 5 SCC 157, in para 18, Hon'ble Supreme Court held as under:

"What needs to be emphasised is that even though a liberal and justice oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the Courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at

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various stages of litigation apart from the cost. What colour the expression 'sufficient cause' would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay. In cases involving the State and its agencies/instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and / or its agencies / instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest."

In case of Improvement Trust, Ludhiana versus Ujagar Singh and Others, reported in (2010) 6 SCC 786, Hon'ble Apex Court has held that "While considering the application for condonation of delay no straight jacket formula is prescribed to come to the conclusion if sufficient and good grounds have been made out or not. Each case has to be weighed from its facts and the circumstances in which the party acts and behaves. From the conduct behaviour and attitude of the appellant it cannot be said that it had been

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absolutely callous and negligent in prosecuting the matter. Also delay was also not that huge, which could not have been condoned, without putting the respondents to harm or prejudice. It is the duty of the Court to see to it that justice should be done between the parties. unless malafides are writ large on the conduct of the party, generally as a normal rule, delay should be condoned. In the legal arena, an attempt should always be made to allow the matter to be contested on merits rather than to throw it on such technalities:

It appears from the record that after coming to know about dismissal of the suit, the plaintiff, immediately, made application for getting certified copy on 04.10.2018 and such certified copy was prepared on 26.10.2018 which was received to the petitioner on the very same day. It further appears that with a view to file appeal before the appellate court, the petitioner got advice from the lawyers, and thus only 60 days delay was occurred in filling an appeal against the order of dismissal of the suit. It further appears that the delay in filing appeal against the order of dismissal of the suit was caused due to his unawareness of legal knowledge.

It further appears that while deciding an application for condonation of delay in filing an appeal, the merits of the case could not be gone into and such observation has been made by Hon'ble Apex Court in the case of State of Jharkhand v Ashok Kumar Chokhani reported in (2009) 2 SCC 667.

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Considering the aforesaid discussion, the present petition stands dismissed. Cost awarded by the District Court shall be paid by the respondent forthwith as well as court fees, if not paid. The order passed by the learned Additional District Judge concerned allowing the application under Section 5 of Limitation Act for condonation of delay vide order dt.10.10.2019 stands confirmed.

Whatever contentions/arguments raised by the petitioner may be considered by the concerned District Court in Appeal.

Interim relief in form of staying the proceedings before the lower court stands vacated.

(B.N. KARIA, J) K. S. DARJI