Rakesh Trilokchand Agrawal vs Satyanarayan Rajnarayan Dube
2021 Latest Caselaw 18428 Guj

     C/CRA/129/2021                                    JUDGMENT DATED: 15/12/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/CIVIL REVISION APPLICATION NO. 129 of 2021


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
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1    Whether Reporters of Local Papers may be allowed                         No
     to see the judgment ?

2    To be referred to the Reporter or not ?                                  No

3    Whether their Lordships wish to see the fair copy                        No
     of the judgment ?

4    Whether this case involves a substantial question                        No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                        RAKESH TRILOKCHAND AGRAWAL
                                   Versus
                       SATYANARAYAN RAJNARAYAN DUBE
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Appearance:
MR HB CHMPAVAT FOR MR YUNUS U MALEK(5343) for the Applicant(s)
No. 1,2
NOTICE SERVED BY DS(5) for the Opponent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
                     Date : 15/12/2021
                     ORAL JUDGMENT

1. This Civil Revision Application is filed under Section 115 of the Code of Civil Procedure, 1908 ('CPC' for short), in which, the applicants have challenged the order dated 14.12.2020 passed by the 14th Additional District Court, Surat, in Civil Misc. Application No.197 of 2019.

2. Heard learned advocate Mr.H.B. Champavat for

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learned advocate Mr.Yunus U. Malek for the applicants. Though served, none appears for the respondents.

3. Learned advocate for the applicants mainly contended that the present applicants filed Regular Civil Suit No.276 of 2013 before the learned Principal Senior Civil Judge, Surat, against the present respondents - defendants for declaration and permanent injunction. It is further submitted that the concerned Civil Court by an order dated 02.04.2018 dismissed the said suit. It is pointed out that thereafter, the present applicants filed an appeal before the District Court. However, there was a delay of 368 days caused in filing the said appeal and, therefore, the present applicants filed a separate application being Civil Misc. Application No.197 of 2019 under Section 5 of the Limitation Act, 1963 ("the Act" for short) for condonation of delay.

3.1 It is submitted that by way of the impugned order dated 14.12.2020, the concerned District Court rejected the said application and, therefore, the present Revision Application has been filed under Section 115 of CPC.

3.2 Learned advocate Mr.Champavat has referred the averments made in the application filed under Section 5 of the Act before the District Court. After referring to the same, it is contended that the applicants have shown sufficient cause for not filing

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the appeal within the limitation period and, therefore, the concerned District Court ought to have condoned the delay and, thereafter, ought to have decided the appeal filed by the applicants on its own merits. It is also submitted that there is no inaction or negligence on the part of the applicants in pursuing the remedy and, therefore, the impugned order passed by the District Court be quashed and set aside.

3.3 Learned advocate for the applicants has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Sirdevi Datla Vs. Union of India and others reported in (2021) 5 SCC 321.

4. I have considered the submissions canvassed by the learned advocate for the applicants. I have also perused the material placed on record. It has emerged from the record that the present applicants filed Regular Civil Suit before the concerned Civil Court for declaration and permanent injunction. The said suit came to be dismissed by the concerned Civil Court vide order dated 02.04.2018. Thereafter, the present applicants filed appeal before the District Court. However, there was a delay of 368 days in filing the said appeal and, therefore, separate application was filed by the present applicants under Section 5 of the Act. I have perused the averments made in the said application. I have also perused the impugned order passed by the concerned District Court. This Court is of the view that the applicants

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have shown sufficient cause for not filing the appeal within limitation period. It appears that there is no negligence or inaction on the part of the applicants in filing the appeal and, therefore, the applicants have shown sufficient cause for not filing the appeal within the period of limitation.

5. At this State, this Court would like to refer the decision rendered by the Hon'ble Supreme Court in the case of Sirdevi Datla Vs. Union of India and others (supra), wherein the Hon'ble Supreme Court has observed in Paragraphs-23, 24 and 28 as under:

"23. What constitutes "sufficient cause" in terms of Section 16 of the NGT Act? While it is unexceptionable for the Project Applicant to argue that the Limitation Act is per se inapplicable to proceedings under the NGT Act, given that the basic, and outer period of limitation for filing an appeal have been enacted, nevertheless, what constitutes sufficient cause, is left to the discretion of the tribunal. Here, the court discerns a surfeit of authority on what the term denotes, and the general approach of the court, in dealing with delay.

24. In G. Ramegowds v. Land Acquisition Officer, speaking for this court, Venkatachaliah, J summarized the position in the following terms:

"14. The contours of the area of discretion of the courts in the matter of condonation of delays in filing appeals are set out in a number of pronouncements of this Court. See Ramlal v. Rewa Coalfields Ltd., Shakuntala Devi Jain v. Kuntal Kumari, Concord of India Insurance CO. Ltd. v.

Nirmala Devi, Mata Din v. Narayanan and LAO

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v. Katiji, etc. There is, it is true, no general principle saving the party from all mistakes of its counsel. If there is negligence, deliberate or gross inaction or lack of bona fides on the part of the party or its counsel there is no reason why the opposite side should be exposed to a time- barred appeal. Each case will have to be considered on the particularities of its own special facts. However, the expression 'sufficient cause' in Section 5 must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay."

xxx xxx xxx

28. It is evident that the term sufficient cause is relative, fact dependant, and has many hues, largely deriving colour from the facts of each case, and the behaviour of the litigant who seeks condonation of delay (in approaching the court). However, what can broadly be said to be universally accepted is that in principle, the applicant must display bona fides, should not have been negligent, and the delay occasioned should not be such that condoning it would seriously prejudice the other party."

6. Keeping in view the aforesaid decision, if the facts of the present case are carefully seen, this Court is of the view that the applicants have shown their bonafides. They were not negligent and the delay occasioned will not seriously prejudice the

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case of the other party. Thus, in the facts of the present case, I am inclined to consider the application of the present applicants.

7. Accordingly, this Revision Application is allowed. The impugned order dated 14.12.2020 passed by the 14th Additional District Court, Surat, in Civil Misc. Application No.197 of 2019 is quashed and set aside. Delay of 368 days caused in filing the appeal before the District Court is condoned. The concerned District Court shall decide the appeal filed by the present applicants on its own merits. Rule is made absolute, accordingly.

(VIPUL M. PANCHOLI, J) piyush