Gujarat High Court

Ramsangbhai Samjibhai Chunara vs Hansrajbhai Ravjibhai Kadiwar on 30 September, 2021

Bench: B.N. Karia

     C/SCA/16776/2014                               ORDER DATED: 30/09/2021



        16692IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 16776 of 2014
==========================================================
                        RAMSANGBHAI SAMJIBHAI CHUNARA
                                    Versus
                         HANSRAJBHAI RAVJIBHAI KADIWAR
==========================================================
Appearance:
JAIVIK UDAY BHATT(7319) for the Petitioner(s) No. 1
MILAN R MARUTI(7338) for the Petitioner(s) No. 1
MR PM LAKHANI(1326) for the Petitioner(s) No. 1
MRS R P LAKHANI(3811) for the Petitioner(s) No. 1
MR.JAMSHED KAVINA, LD.ADVOCATE FOR MR SP MAJMUDAR(3456) for
the Respondent(s) No. 1
==========================================================
 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                                Date : 30/09/2021

                                 ORAL ORDER

1. Present petitioner has challenged the judgement and order

dated 1st October, 2014 passed by the learned 4 th Additional District

Judge, Khambhalia, Dist. Jamnagar in Civil Misc. Application No.

45 of 2011 whereby, the application for condonation of delay of 6

years 5 months and 20 days in filing of Regular Appeal against the

judgment and decree on 29th January, 2005 passed by the learned

Civil Judge (J.D.), Jam-Jodhpur in Regular Civil Suit No. 11 of

2003 was dismissed.

2. Heard learned advocates for the respective parties.

C/SCA/16776/2014 ORDER DATED: 30/09/2021

3. Learned advocate for the petitioner submits that the petitioner

had filed Civil Suit against the respondent i.e. Regular Civil Suit No.

120 of 2001 before the Court of learned Civil Judge, Jam-Jodhpur

wherein, an application for interim injunction filed below exh.5,

which was granted in favour of the petitioner. It is further submitted

that after two years of filing the suit by the petitioner, another

Regular Civil Suit No. 11 of 2003 was filed by the respondent

praying for cancellation of the Sale Agreement dated 20 th April,

2000 and also recovery of possession of the subject land from the

petitioner. Both the suits were consolidated by the Court below vide

exh. 32. That, Civil Suit No. 120 of 2001 filed by petitioner was

dismissed for want of prosecution and Regular Civil Suit No. 11 of

2003 filed by the respondent was proceeded by the Court below.

That, the respondent, who is practicing advocate, malafidely

engaged an advocate who represented the present petitioner in the

suit. That, present petitioner never engaged some another advocate

to appear in Regular Civil Suit No. 11 of 2003 . That, decree was

passed by the Court below in favour of the respondent. However, the

petitioner was not aware of the judgement and decree passed by the

Court below on 29th January, 2005. That, for the first time the

C/SCA/16776/2014 ORDER DATED: 30/09/2021

petitioner came to know on 22nd July, 2011 in respect of ex-parte

decree passed in favour of the respondent when execution petition

was filed by him. That, delay condonation application was preferred

by the present petitioner against the judgment and decree dated 29 th

January, 2005 passed in Regular Civil Suit No. 11 of 2003. On

29th August, 2011, Learned Judge, without considering the reasons,

erroneously dismissed the application praying for condonation of

delay vide order dated 1st October, 2014. That, sufficient

explanation was made by the petitioner in respect of unaware with

the proceedings i.e. judgement and decree passed against the

petitioner by the Court below in Regular Civil Suit No. 11 of 2003.

That, the petitioner cannot be suffered for want of challenging the

impugned judgement and decree by refusing to condone the delay.

That, the petitioner has prima facie case and is likely to be succeeded

if permission for challenging the judgment and decree is given to

him. That, sufficient cause is made out by the petitioner before the

Court below to condone the delay in challenging the judgement and

decree passed against him. That, an order passed by the trial Court

is required to be quashed and set aside. Hence, it was requested by

learned advocate for the petitioner to allow this petition and quash

C/SCA/16776/2014 ORDER DATED: 30/09/2021

and set aside the judgement and order dated 1.10.2014 passed by

learned 4th Additional Dist. Judge, Khambhalia in Civil Misc.

Application No. 45 of 2011.

4. Per contra, learned advocate appearing for the respondent

vehemently opposed the submissions made by the petitioner and

submitted that both the suits were consolidated by the learned Civil

Court by passing an order below Exh. 32. That, Regular Civil Suit

No.120 of 2001 came to be dismissed for default vide order dated

21st August, 2004. That, Regular Civil Suit No. 11 of 2003 preferred

by the respondent was proceeded and vide judgement and decree

dated 29th January, 2005 it was partly allowed by the Civil Court.

That, even at the time of pronouncement of the judgment, an

advocate of the petitioner was present and he had put an

endorsement of 'seen' behind the copy of the judgement. That, the

petitioner was appeared in Regular Civil Suit No. 11 of 2003 and

also filed written his statement below Exh. 19. That, petitioner has

also engaged his advocate. That, the grounds of engaging an

advocate by respondent, such contents were never raised in the

application preferred by the petitioner for condonation of delay.

C/SCA/16776/2014 ORDER DATED: 30/09/2021

That, there was no sufficient explanation given by the petitioner to

condone the delay. That, the petitioner has not explained the details

about when, the petitioner has contacted the advocate and as to

when, the petitioner came to know about the outcome of the suit

proceedings. That, trial Court has considered all the evidences on

record and rightly dismissed the application filed by the petitioner

for condonation of delay on 1st October, 2014 . That, the order

passed by the trial Court is just and proper and this Court may not

interfere in the impugned order. In support of his arguments, he has

relied upon the decision rendered in case of Samusunisha Begaum

and Ors. Vs. Vishnukumar Ambelal Patel & Ors. reported in

(2012) 2 GLH 725. Hence, it was requested by learned advocate for

the respondent to dismiss the petition.

5. Having heard learned advocates for the respective parties and

documents produced on record, indisputedly, the plaintiff filed

Regular Civil Suit No. 120 of 2001 before the Court of learned Civil

Judge, Jam-Jodhpur. He also applied for interim injunction vide

Exh.5. Initially at the first instance, Show-Cause urgent Notice was

issued upon the defendants, and thereafter, hearing of the parties ,

C/SCA/16776/2014 ORDER DATED: 30/09/2021

interim relief was granted in favour of the petitioner by allowing

application below Exh.5 in Regular Civil Suit No. 120 of 2001 vide

order dated 25th January, 2002. It also appears that thereafter, about

two years, respondent also filed Civil Suit No. 11 of 2003 with a

prayer for cancellation of Sale Agreement dated 20 th April, 2000

and also for recovery of possession of the subject land from the

petitioner and others. In the said suit filed by the respondent, the

petitioner had engaged his advocate and filed his written statement at

Exh. 19. Both the suits were consolidated by the Civil Court as per

order passed below Exh. 32. Thereafter, learned advocate appearing

for the petitioner in Regular Civil Suit No. 120 of 2001 did not

remain present and remain silent in the proceedings and thereby suit

was dismissed for default vide order dated 21st August, 2004. It

appears that suit being Regular Civil Suit No. 11 of 2003 filed by the

respondent was proceeded and allowed vide order dated 29 th

January, 2005. The petitioner as per his submission for the first time

came into knowledge on 22.07.2011 that the suit was allowed

against him and decree was passed. Execution Petition was filed

upon judgement and decree against present petitioner by new

purchaser of the subject land in favour of original plaintiff of

C/SCA/16776/2014 ORDER DATED: 30/09/2021

Regular Civil Suit No.11 of 2003. The petitioner approached the trial

Court by filing delay condonation application on 29th August, 2011

for considering delay caused in filing an appeal against the

judgement and decree passed in Regular Civil Suit No. 11 of 2003

on 29th January, 2005. Indisputedly, the petitioner was represented

by his advocate in Regular Civil Suit No. 11 of 2003 before the

Civil Court. If we refer the application preferred by the present

petitioner for condonation of delay i.e. Civil Misc. Application No.

45 of 2011, no ground was raised by the petitioner that the advocate

was engaged by respondent of his selection to represent in Regular

Civil Suit No. 11 of 2003. No averments was made by the petitioner

in his application i.e. Civil Misc. Application No. 45 of 2011 that

advocate engaged had no instruction to appear as an Advocate on

his behalf in Regular Civil Suit No. 11 of 2003. As separate

affidavit is filed before this Court, raising the dispute that he had

never engaged his advocate Shri D.C.Doshi for Shri K.J.Fidoria.

Separate affidavit was executed before the Executive Magistrate,

Jam-jodhpur on 23rd January, 2017. Civil Misc. Application No. 45

of 2011 preferred by the petitioner was filed on 29 th August, 2011.

For the first time, contention was raised by the petitioner in his

C/SCA/16776/2014 ORDER DATED: 30/09/2021

affidavit executed before the Executive Magistrate, Jam-Jodhpur on

23rd January, 2017 which cannot be considered for accepting the

prayer made by the petitioner. Ignorance of law or uneducation on

the part of the petitioner as well as no proper guidance was provided

to him in respect of the suit cannot be considered for ground of

condonation of delay of more than 6 years 5 months as prayed in the

application by the petitioner. The similar issue was dealt with by

this Court [Coram: Hon'ble Mr. J.B.Pardiawala, J] reported in

(2012) 2 GLH 725 in para 40, the Court has observed as under:-

"40. Under such circumstances, the Trial Court committed a serious error in condoning delay on the ground that the advocate Shri Upadhyay did not inform the original plaintiff as well the respondents about the dismissal of the suit for non-prosecution. Even if I assume for a moment that the same is true by itself would be no ground to condone such a 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 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. I regret to state that in the present case, learned advocate of the plaintiff Shri Upadhyay for some reasons has taken up the entire blame on his head and it appears that the same has been done only with a view to get the delay condoned. Over a period of time there is a growing tendency on the part of an advocate to file affidavit trying to explain the circumstances, under which, delay has occurred be it in preferring an appeal or filing an application for restoration of suit like in the present case etc. I am of the view that the practice of an advocate filing his affidavit in an application filed under Order 9 Rule 9 of Civil Procedure Code is totally wrong and deserves to be deprecated. I have noticed in many cases that even though an advocate is not at fault, he would file an affidavit taking the entire blame upon himself only because the lethargic and negligent litigant wants him to file such an affidavit so that the Court concerned in the name of substantial justice

C/SCA/16776/2014 ORDER DATED: 30/09/2021

would condone the delay.

After filing a civil suit a litigant can not go off to sleep and wake up from a deep slumber after 5 years as if the Court is a storage of suits filed by such negligent litigants. If that be so, then Court would be quite justified in dismissing the suit for non-prosecution and should be loathe enough to restore the suit unless strong grounds are made out by the party concerned.

60. I may only say that Law Courts never tolerate an indolent litigant since delay defeats equity - the Latin maxim vigilantibus et non dormentibus jura subveniunt (the law assists those who are vigilant and not those who are indolent). As a matter of fact, lapse of time is a species for forfeiture of right. Wood, V. C. in Manby v. Bweicke (1857) 3 K & J 342 : 69 E.R. 1140 . The litigant does not stand to benefit by approaching the Court of law with an appropriate application at a belated stage. The legislature has in this, as in every civilized country that has ever existed, though fit to prescribe certain limitations of time after which persons may suppose themselves to be in peaceful possession of their property, and capable of transmitting the estates of which they are in possession, without any apprehension of the title being impugned by litigation in respect of transactions which occurred at a distant period, when evidence in support of their own title may be most difficult to obtain.

6. Here the facts of the present case, assuming the correct facts

that the petitioner was agriculturist and was unaware about the

dismissal of the suit as well as judgement and decree passed in

favour of the respondent in Regular Civil Suit No. 11 of 2003,

cannot be believed that he was totally ignorant and unexperienced

litigants, in view of the fact that he has also filed Regular Civil Suit

No. 120 of 2001 prior in point of time through his advocate. He was

also appeared in Regular Civil Suit No. 11 of 2003 preferred by the

respondent before the Court below. He had also engaged his

C/SCA/16776/2014 ORDER DATED: 30/09/2021

advocate to represent him in the suit as well as had also filed

written statement objecting the suit. He has practically participated