Gujarat High Court

Bhathiji Nenaji Makwana vs Bhikhaji Nenaji Makwana on 17 November, 2021

Bench: B.N. Karia

     C/SCA/4487/2019                             JUDGMENT DATED: 17/11/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 4487 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE B.N. KARIA

==========================================================

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 ?

==========================================================
                        BHATHIJI NENAJI MAKWANA
                                  Versus
                        BHIKHAJI NENAJI MAKWANA
==========================================================
Appearance:
TORAL M RATHOD(7935) for the Petitioner(s) No. 1
KARAN Y VYAS(8539) for the Respondent(s) No. 1
MR DA SANKHESARA(5955) for the Respondent(s) No. 2,3
==========================================================

    CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                             Date : 17/11/2021

                            ORAL JUDGMENT

1. Rule returnable forthwith. Learned advocate Mr. Karan

Vyas waives service of notice of rule for and on behalf of

respondent No.1 and learned advocate Mr. D.A. Sankhesara

C/SCA/4487/2019 JUDGMENT DATED: 17/11/2021

waives service of notice of rule for and on behalf of respondent

Nos.2 and 3.

2. By way of present petition, petitioner, who is the original

plaintiff before the trial court in Special Civil Suit No.32 of

2014, has challenged the order dated 26.12.2018 passed by

learned Principal Senior Civil Judge, Sabarkantha at Prantij in

Civil Misc. Application No.20 of 2017 dismissing the

application for condonation of delay of 15 months.

3. Heard learned advocate for the petitioner, learned advocate

for the respondent No.1 and learned advocate for the respondent

Nos.2 and 3.

4. Learned advocate for the petitioner submits that Special

Civil Suit No.32 of 2014 was filed by the present petitioner

against the respondents seeking decree for cancellation of

registered sale deed and permanent injunction in respect of the

suit properties. That, in the suit, an application Exh.6 for interim

injunction was also filed, which was rejected by the trial court

on 17.01.2015, and thereafter, petitioner preferred Misc. Civil

Appeal No.35 of 2015 on 26.10.2015 before the District and

C/SCA/4487/2019 JUDGMENT DATED: 17/11/2021

Sessions Court, Sabarkantha at Himmatnagar. It is further

submitted that as the suit was pending for framing the issues,

learned advocate appearing for the petitioner in the suit had

informed that as Misc. Civil Appeal No.35 of 2015 was

preferred before the District and Sessions Court, Sabarkantha at

Himmatnagar against the order passed below Exh.6, there was

no need for the petitioner to attend the court in the proceedings

Special Civil Suit No.32 of 2014. Thereafter, no information

was received by the petitioner from his advocate and the trial

court dismissed the suit for default in absence of the plaintiff on

03.11.2015. It is further submitted that when the petitioner came

to know about dismissal of the suit, he immediately applied for

certified copies of the relevant documents on 05.01.2017, which

were received on 27.01.2017 and filed an application for

restoration under Order 9 Rule 9 of C.P.C. That there was a

delay in filing restoration application, separate application i.e.

Civil Misc. Application No.23 of 2017 was filed by the

petitioner on 17.02.2017. It is further submitted that order of the

trial court rejecting the application for condonation of delay is

C/SCA/4487/2019 JUDGMENT DATED: 17/11/2021

hyper technical order saying that no sufficient ground or

explanation was made by the petitioner. It is further submitted

that advocate engaged by the petitioner never informed the

petitioner to attend the suit proceedings filed by the petitioner

before the trial court as the appeal was preferred before the

District Court against the order passed below Exh.6. That the

petitioner was illiterate and his legal rights cannot be waved for

the default of his advocate. That petitioner himself was under

the impression, as per the instructions of his advocate that when

the appeal is pending, civil suit will not be heard, and therefore,

as per the instructions issued to him not to remain present, he

could not remain present before the trial court, which is not

considered by the trial court by dismissing an application. That

sufficient explanation was given by the petitioner for

condonation of delay, however, trial court has committed a

grave error by dismissing the application for condoning the

delay. Hence, it was requested by learned advocate for the

petitioner to quash and set aside the impugned order dated

26.12.2018 passed by learned trial court in Civil Misc.

C/SCA/4487/2019 JUDGMENT DATED: 17/11/2021

Application No.20 of 2017 by allowing this petition and

condone the delay as prayed for.

5. From the other side, learned advocate appearing for the

respondent Nos.2 and 3 has strongly objected the submissions

made by learned advocate for the petitioner and argued that

there was no sufficient ground available with the petitioner to

accept the prayer of condoning the delay of 15 months. It is

further submitted that illiteracy can never be a ground for

condoning the delay. That proceedings before the Deputy

Collector was also initiated by the petitioner and appeal was

filed before the Deputy Collector. It is further submitted that

upon dismissal of application Exh.6 for temporary injunction, an

appeal was also preferred before the District and Sessions Court,

Sabarkantha at Himmatnagar. The petitioner was aware with the

dismissal of the suit in the year-2015, however, he applied for

certified copies in the year-2017. That for 15 months, petitioner

was silent and no action was taken by him for restoration of the

suit or filing of application for condonation of the delay. That

petitioner himself is negligent in preferring the application for

C/SCA/4487/2019 JUDGMENT DATED: 17/11/2021

restoration of the suit. In Criminal Miscellaneous Application

No. 20 of 2017, trial court has rightly dismissed the prayer for

condoning the huge delay of 15 months as prayed by the present

petitioner and no interference is warranted by this Court.

Learned advocate appearing for the respondent No.1 has

supported the arguments advanced by learned advocate

appearing for the respondent Nos.2 and 3 and adopted his

arguments. In support of his arguments, learned advocate for

the respondent Nos.2 and 3 has relied upon the judgment

reported in (1993) 2 SCC Page 185. Ultimately, it was requested

by them to dismiss the present petition.

6. Having heard the submissions made by learned advocates

for the respective parties and perusing the record placed before

the court, it is not in dispute that Special Civil Suit No.32 of

2014 was filed by the present petitioner before the trial court

against the defendants for passing decree of cancellation of

registered sale deed, declaration and permanent injunction in

respect of the suit property. An application for temporary

injunction under Order 39 Rules 1 and 2 of the C.P.C., 1908 was

C/SCA/4487/2019 JUDGMENT DATED: 17/11/2021

also preferred by the petitioner, which was dismissed after

hearing the parties vide order dated 17.01.2015. Thereafter, trial

court framed the issues in the suit on 23.03.2015. The plaintiff

challenged the order passed below Exh.6 dated 17.01.2015

before the District and Sessions Court, Sabarkantha at

Himmatnagar by filing Misc. Civil Appeal No.35 of 2015,

which was later on withdrawn on 23.12.2017 as the suit itself

was dismissed for default. The learned trial court dismissed the

suit filed by the present petitioner under Order 9 Rule 3 of the

C.P.C. on 03.11.2015 i.e. within 6 months approximately after

framing the issues in the suit. While dismissing the suit, it was

observed that however order of cost was imposed below the

application Exh.44, no compliance was made by the present

petitioner as the amount of the cost was not deposited and an

application for adjournment was also dismissed, no action was

taken by the plaintiff. Notice was also issued to the plaintiff but

he did not remain present. As the order passed by the trial courts

were not complied with by the plaintiff and has shown grave

negligence, suit was dismissed on 03.11.2015 under Order 9

C/SCA/4487/2019 JUDGMENT DATED: 17/11/2021

Rule 3 of the C.P.C. It appears from the record and contents in

the suit, service of advocate was secured by the petitioner in the

suit. After dismissal of the application Exh.6 for temporary

injunction on 17.01.2015, Civil Misc. Appeal No.35 of 2015

was preferred by the petitioner before the District and Sessions

Court, Sabarkantha at Himmatnagar. As per the submissions

made by learned advocate appearing for the petitioner, he was

instructed by his learned advocate that his presence was not

needed to come to the court for attending the suit proceedings

before the trial court and he would be informed by him when to

came to the court. It was also impression of the petitioner that as

Civil Misc. Appeal No.35 of 2015 was preferred by him before

the District and Sessions Court, Sabarkantha at Himmatnagar

against the order passed below Exh.6 dated 17.01.2015, trial

court will not proceed in the suit till final disposal of his appeal

but however, after framing the issues trial court proceeded and

dismissed the suit in absence of the present petitioner on

03.11.2015. As and when, petitioner came to know about

dismissal of his suit in January-2017, he immediately applied for

C/SCA/4487/2019 JUDGMENT DATED: 17/11/2021

certified copies of the order on 27.01.2017 and preferred the

application for condonation of delay for preferring restoration

application in Special Civil Suit No.32 of 2014 on 17.02.2017.

7. In case of Improvement Trust, Ludhiana versus Ujagar

Singh and others reported in (2010) 6 SCC 786, the Hon'ble

Apex Court has observed as under:

"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 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 technicalities."

8. In case of Salil Dutta versus T.M. and M.C. Private Ltd.

reported in (1993) 2 SCC Page 185, the Hon'ble Apex Court

has observed as under:

"The question is whether the principle of the said decision comes to the rescue of the defendant respondent herein. Firstly, in the case before us it

C/SCA/4487/2019 JUDGMENT DATED: 17/11/2021

was not an appeal preferred by an outstation litigant but a suit which was posted for final hearing seven years after the institution of the suit. The defendant is a private limited company having its registered office at Calcutta itself. The persons incharge of the defendant-company are not rustic villagers nor they are innocent illiterates unaware of Court procedures. Prior to the suit coming up for final hearing on 9th June, 1988 the defendant had filed two applications whereupon the Court ordered that they will be considered at the time of the final hearing of the suit. The plaintiff's case no doubt is that the said applications were part of delaying tactics being adopted by the defendant- tenants with a view to protract the suit."

9. The facts of the cited case would not be applied to the

present case as the defendant was a private limited company

having its registered office at Calcutta itself. The persons in

charge of the defendant company was not rustic villagers nor

they were innocent on illiterate and unaware about court

procedures. Here, it appears that petitioner is rustic villager and

was under bona fide impression that his appeal was pending

before the District and Sessions Court, Sabarkantha at

Himmatnagar, his presence would not require before the trial

court in Special Civil Suit No.32 of 2014.

10. Considering the facts and reasons as discussed above,

present petition is hereby allowed. The order dated 26.12.2018