Anandiben Wd/O. Prabhatsinh @ ... vs Trustee / Secretary Of Basil Trust
2021 Latest Caselaw 15907 Guj

      C/SCA/16977/2018                             ORDER DATED: 08/10/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 16977 of 2018
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     ANANDIBEN WD/O. PRABHATSINH @ PRABHATBHAI CHAUHAN & 3
                             other(s)
                             Versus
               TRUSTEE / SECRETARY OF BASIL TRUST
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Appearance:
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1,2,3,4
MR. HJ KARATHIYA(7012) for the Petitioner(s) No. 1,2,3,4
ABHISST K THAKER(7010) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                             Date : 08/10/2021

                              ORAL ORDER

1. By way of preferring this petition, petitioners have challenged the order dated 31.8.2018 passed in Civil Misc. (Delay Condone) Application No. 143 of 2018 by the learned Principal District Judge, Vadodara under Section 5 of the Limitation Act, 1963 seeking condonation of delay of 23 days caused in preferring the First Appeal / Regular Civil Appeal filed under Section 96 as well as Order 41 of the Code of Civil Procedure, 1908 before the learned District Judge, Vadodara.

2. The brief facts leading to the present case are as under:- 2.1 The petitioners are the original plaintiffs of Regular Civil Suit No. 1539, which was instituted before the learned 9 th Additional Senior Civil Judge, Vadodara. As per the contentions, the petitioners are entitled to have rights over the land in question i.e. land situated at Revenue Survey No. 48 of Mouje Tandalja, Tal-Dist. Vadodara, admeasuring 1-18 Acre- gunthas and the respondent-Trust has no right over the land in question. That, by the judgment and decree

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dated 22.03.2018, learned 9th Additional Senior Civil Judge, Vadodara dismissed the suit. That, being aggrieved by the said order, the petitioners preferred First Appeal / Regular Civil Appeal under the provisions of Section 96 as well as Order 41 of the Code of Civil Procedure, 1908 before the learned District Judge, Vadodara. That, in the said First Appeal, there was a delay of 23 days and, therefore, an application i.e. Civil Misc. (Delay Condone) Application No. 143 of 2018 was filed by the petitioners under section 5 of the Limitation Act, 1963 seeking condonation of delay caused in preferring the First Appeal / Regular Civil Appeal. That, by the impugned order dated 31.08.2018 the learned Principal District Judge, Vadodara, rejected the said application. Being aggrieved by the said order, the petitioners have preferred this petition.

3. Heard learned advocates appearing for the respective parties.

4. Learned advocate appearing for the petitioners submits that the impugned order is contrary to law and evidence on record. That, the impugned order is contrary to the provisions of Section 5 of the Limitation Act, 1963. That, the delay of 23 days was required to be condoned considering the facts of the case. That, the petitioners have remained vigilant for their rights and therefore also the delay was required to be condoned. That, the petitioners were under impression that considering the facts that two suits instituted by the respondent were rejected under Order VII, Rule 11 of the Code of Civil Procedure, 1908 and their suit would be allowed. However, later on, by making online search, the petitioners realized that their suit was dismissed. That, the ratio of decisions cited at the bar has not been properly considered while passing the impugned order. That, the

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learned District Court has said that there is a delay of 53 days, even in that case the delay was required to be condoned That, even otherwise the impugned orders are contrary to law and evidence on record and therefore, deserve to be quashed and set aside. In support of his arguments, he has relied upon the decision rendered in case of Improvement Trust, Ludhiana, Vs. Ujagar Singh and Others reported in (2010) 6 SCC 786 and also rendered in case of Collector, Land Acquisition, Anantnag and another Vs. Mst. Katiji and Others reported in (1987) 2 SCC 107. Ultimately It was requested by the Learned advocate for the petitioners to allow this petition.

5. Learned advocate appearing for the respondent submits that in fact there is a delay of 53 days and not 23 days as calculated by the petitioners in their application i.e. Civil Misc. (Delay Condone ) Application No. 143 of 2018 preferred under Section 5 of Limitation Act because the suit was dismissed on 22 nd March, 2018 and therefore, limitation for preferring appeal would start from the next date up to 30 days. The petitioners were required to file appeal against the dismissal of the suit within one month from the date of passing of the judgement which would be expired on 23 rd April, 2018. But appeal was preferred by the petitioners on 14 th May, 2018 and therefore, there was delay of nearly 53 days. It is further submitted that conduct of the petitioners in preferring an appeal has been careless and negligent. The impression of the petitioners that two suits preferred by the respondent were dismissed and suit preferred by them would be allowed by the Court below without taking any responsibilities on their shoulders was not proper and

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legal. That, the petitioners were expected to remain vigilant during the proceedings of their case and their duty does not come to an end by merely entrusting their case to a lawyer. It is further submitted that petitioners were required to keep themselves updated about the proceedings in the case and cannot be expected to take a backseat or adopt lethargic or in different attitude. That, the petitioners have not taken any action in preferring appeal in time. After came into knowledge of the dismissal of the suit, the petitioners have not given any sufficient explanation as to why the appeal was not filed within 30 days from the date of alleged knowledge of passing of decree on 22nd March, 2018. It is further submitted that an application was filed by the petitioners on 14 th May, 2018 before the trial Court and there is no sufficient explanation for condonation of delay in filing an appeal. The trial Court has committed no error in dismissing an application for condonation of delay preferred by the petitioners and no interference is warranted by this Court. In support of his arguments he has relied upon the decision of Delhi High Court rendered in case of Moddus Media Pvt. Ltd. Vs. Scone Exhibition Pvt. Ltd. reported in RFA No. 497/2017 and also relied upon decision of Delhi High Court rendered in case of Vidhi Agencies. Vs. Karnataka Soaps and Detergent Ltd. reported in FAO No. 375/2017 wherein, it is held as under:-

"9. A bare perusal of the record would show that the conduct of the defendant in prosecuting his case since the beginning has been careless and negligent. The defendant cannot shift the entire blame on his previous counsels without taking any responsibilities on his shoulders. A litigant is expected to remain vigilant during the proceedings of his case and his duty does not come to an end by merely entrusting his case to a lawyer. Defendant is required to keep himself updated about the proceedings in the case and cannot be expected to

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take a backseat or adopt lethargic or indifferent attitude.

He has relied upon decision of the Delhi High Court rendered in case of Moddus Media Pvt. Ltd. Vs. Scone Exhibition Pvt. Ltd. in RFA No. 497 of 2017, it is held as under:-

"11. The litigant owes a duty to be vigilant of his rights and is also expected to be equally vigilant about the judicial proceedings pending in the court of law against him or initiated at his instance. The litigant cannot be permitted to cast the entire blame on the Advocate. It appears that the blame is being attributed on the Advocate with a view to get the delay condoned and avoid the decree. After filing the civil suit or written statement, the litigant cannot go off to sleep and wake up from a deep slumber after passing a long time as if the court is storage of the suits filed by such negligent litigants. Putting the entire blame upon the advocate and trying to make it out as if they were totally unaware of the nature or significance of the proceedings is a theory put forth by the appellant/applicant/defendant company, which cannot be accepted and ought not to have been accepted. The appellant is not a simple or rustic illiterate person but a Private Limited Company managed by educated businessmen, who know very well where their interest lies. The litigant is to be vigilant and pursue his case diligently on all the hearings. If the litigant does not appear in the court and leaves the case at the mercy of his counsel without caring as to what different frivolous pleas/defences being taken by his counsel for adjournments is bound to suffer. If the litigant does not turn up to obtain the copies of judgment and orders of the court so as to find out what orders are passed by the court is liable to bear the consequences."

Another decision rendered in case of Office of the Chief Post Master General and Ors. Vs. Living Media India Ltd. and Ors. passed in Civil Appeal No. 2474-2475 of 2012, it is held as under :-

"12) It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us."

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Hence, it is requested by learned advocate for the respondent to dismiss this petition.

6. Having heard learned advocates appearing from respective parties and perused the material placed on record, it appears that present petitioners have preferred Regular Civil Suit No. 1539 of 1991 on the basis of agreement to sell executed by the respondent dated 31st March, 1984. Two other suits were preferred by the original plaintiff before learned Additional Senior Civil Judge at Vadodara which were numbered as Regular Civil Suit No. 331 of 1993 (New No. 3160 of 2015) and Regular Civil Suit No. 768 of 1999 (New No. 2411 of 2015) on the basis of the very same agreement to sell dated 31st March, 1984. The suit preferred by the original plaintiffs were dismissed by the trial Court vide order dated 12th February, 2018 under Order 7 Rule 11(d) of the Civil Procedure Code holding that the plaintiffs -trust i.e. Basil Trust has no right over the suit property as transaction in connection with agreement to sell dated 31st March, 1984 was cancelled by the Agricultural Tribunal and Mamlatdar, Vadodara. A joint order was passed by learned 9th Additional Senior Civil Judge, Vadodara on 12 th February, 2018. Another suit was preferred by the present petitioners i.e. Regular Civil Suit No. 1539 of 1991 as the petitioners were under the impression that two suits filed by the respondent were rejected under Order 7 Rule 11(d) of CPC and their suits would be allowed hence they did not inquire about their suit i.e. Regular Civil Suit No. 1539 of 1991 before the Court below. Later on, when they inquired through online search, they came to know that their suit was dismissed on 12th March, 2018 and decree was drawn on 2nd

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April, 2018. As per the impression of the petitioners, they were required to challenge the impugned order, dismissing their suit i.e. Regular Civil Suit No. 1539 of 1991 on 22 nd March, 2018. The appeal was to be preferred on or before 2 nd May, 2018, as they came to know of dismissal of their suit on 25 th April, 2018. They immediately applied for certified copy of the judgement and decree i.e. 25th April 2018 which was supplied to them on 10 th May, 2018. The period of 60 days in getting certified copy of the judgement and decree was required to be exempted. The petitioners were under the impression that they were preferred their appeal within limitation of time. However, contention made in the application, instruction was received from the Court to file an application for condonation of delay in preferring an appeal. They preferred an application i.e. Civil Misc. (Delay Condone) Application No. 143 of 2018 on 14 th May, 2018 to condone the delay to remove the technicality if any delay was there. Learned District Court found that there was a delay of 53 days instead of 23 days as calculated by the petitioners and no sufficient cause was found.

7. Indisputedly, different litigations were instituted by the either- side, out of them, two suits were filed by the respondent No.3 which were dismissed by the Court below by passing common judgement and order dated 12th February, 2018 under Order 7 Rule 11(d) of CPC. Both the suits were based on agreement to sell executed on 31st March, 1984. The petitioners did not inquire about the progress of their suit i.e. RCS No. 1539 of 1991 which was in fact dismissed by the Court below on 22 nd March, 2018 and decree was passed on 2nd April, 2018. The petitioner inquired about their

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suit and came to know on 25 th April 2018. They immediately applied for certified copy on the very same date which was prepared and delivered to them on 12th May, 2018. The period of 16 days in preparation of certified copy of judgment and decree passed by the Civil Court was admittedly required to be exempted to the petitioners. They preferred an application under Section 5 of the Limitation Act before the trial Court on 14 th May, 2018 with a prayer to condone the delay of 23 days only for preferring an appeal. No such huge delay was caused by the present petitioner in their application preferred under Section 5 of the Limitation Act. Prima facie, it appears that there was no negligence on the part of the petitioners in applying judgement and decree on 25 th April, 2018 which was prepared and delivered on 10 th May, 2018 as they came into knowledge of dismissal of their suit on 25 th April, 2018. Impression on the part of the petitioners that the suit filed by them i.e. Regular Civil Suit No. 1539 of 1991 would be allowed, which cannot be doubted or questioned as other two suits filed by the respondent were dismissed as discussed above by the Court below on 12th February, 2018. The ratio laid down by the Hon'ble Apex Court in case of Collector, Land Acquisition Anantnag and Another Vs. Mst. Katiji and others reported in (1987) 2 SCC 107 has held as under :-

"3.The legislature has conferred the power to condone delay by enacting Section 51 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaning- ful manner which subserves the ends of justice--that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been

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making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is con- doned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

8. In another decision of the Hon'ble Apex Court rendered in case of Improvement Trust, Ludhiana Vs. Ujagar Singh and others reported in (2010) 6 SCC 786, it is held as under:-

"16. 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."

9. The judgement relied upon by learned advocate appearing for the respondent would not make applicable to the facts of the present

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case as the petitioners would not have gained in any manner whatsoever, by not filing the appeal within a period of limitation. It is also worth noticing that delay was also not huge, which could not have been condoned, without putting the respondent to harm or prejudice. It is the duty of the Court to see to it that justice should be done between the parties. In my opinion, the ends of justice would be made by setting aside the impugned order dated 31 st August, 2018 passed in Civil Misc. Delay Condone ) Application No. 143 of 2018.

10. For the aforesaid reasons, the impugned order passed by the learned Principal District Judge, Vadodara in in Civil Misc. (Delay Condone) Application No. 143 of 2018 dated 31 st August, 2018 is hereby quashed and set aside. Accordingly, delay application in preferring appeal as prayed by the petitioners would be condoned. In light of this order, present petition is hereby allowed to the aforesaid extent.

(B.N. KARIA, J) BEENA SHAH