Hanumant Developers Through ... vs Pankajbhai M Kanabar
2022 Latest Caselaw 4296 Guj

      C/CA/1061/2021                           JUDGMENT DATED: 21/04/2022




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CIVIL APPLICATION NO. 1061 of 2021
                            In
     F/CIVIL REVISION APPLICATION NO. 11674 of 2021


FOR APPROVAL AND SIGNATURE:                                      Sd/-


HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

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1    Whether Reporters of Local Papers may be                       No
     allowed to see the judgment ?

2    To be referred to the Reporter or not ?                        No

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

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

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         HANUMANT DEVELOPERS THROUGH PARTNER
                            Versus
                   PANKAJBHAI M KANABAR
=======================================
Appearance:
JENIL M SHAH(7840) for the Applicant(s) No. 1,1.1,1.2,1.3
MR ASHISH M DAGLI(2203) for the Respondent(s) No. 2
MR CHINTAN S POPAT(5004) for the Respondent(s) No. 5
RULE SERVED for the Respondent(s) No. 1,3,6,7,8,9
SERVED BY PUBLICATION IN NEWS for the Respondent(s) No.
10,4
=======================================
     CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                        Date : 21/04/2022
                         ORAL JUDGMENT

1. This Civil Application is filed under Section 5 and 14 of the

C/CA/1061/2021 JUDGMENT DATED: 21/04/2022

Limitation Act, 1963 (hereinafter referred to as "the Act") praying for condoning delay of 48 days in preferring aforesaid Civil Revision Application, with a further prayer to exclude the delay of 1309 days as per Section 14 of "the Act". By way of aforesaid revision application, the applicants - original defendants challenged the order passed by Principal Senior Civil Judge, Gir Somnath - Veravel dated 12.05.2017 below Exhibit-106 in Regular Civil Suit No. 45 of 2013, whereby the application preferred by the present applicants - defendants to dismiss the suit or reject the plaint under Order VII Rule 11 or return the plaint to the plaintiffs as on the ground mentioned in the application Exhibit-106, came to be rejected by the trial Court. The applicants - defendants preferred Civil Miscellaneous Appeal challenging that very order which was beyond limitation, and therefore, an application was filed for condonation of delay in preferring an appeal before the Court of Principal District Judge, Gir Somnath - Veravel. However, as pointed out by the learned advocate for present respondent No. 5 that the said application praying for condonation of 80 days delay is filed without joining him as party respondent in the said application. However, original plaintiffs - respondent Nos. 1 and 2 herein along with Chief Officer, Veravel-Patan Joint Nagarpalika, Veravel and District Collector, Gir Somnath were already party in the said application. As submitted by the learned advocates for the appearing parties, after hearing all of them, who were party before the Court in that application, delay of 80 days came to be condoned without any objection, either non-joinder of other co-plaintiffs or on the ground of maintainability of appeal itself.

2. Thereafter, the appeal preferred by the applicants before the district Court came to be numbered and process came to be issued in the said appeal, as mentioned in the xerox copy of

C/CA/1061/2021 JUDGMENT DATED: 21/04/2022

appeal memo, preferred before the district Court as per order below Exhibit-13, respondent Nos. 5 to 10 came to be added in the said appeal as party respondents, who were co-plaintiffs along with the respondent Nos. 1 and 2 herein. However, as recorded by the Principal District Judge, Gir Somnath - Veraval below Exhibit-1 that though process is duly served to opponent Nos. 4 to 10 in the said appeal, which includes present respondent Nos. 3 to 7, 9 and 10 vide Exhibit-18 to 23 and 25, where neither of the opponent Nos. 4 to 10 as aforesaid, appeared before the appellate Court personally or through an advocate to contest the appeal. Therefore, the Court was constrained to pass an order dated 02.07.2018 to proceed ex- parte against present respondent Nos. 3 to 7, 9 and 10.

3. During the pendency of the aforesaid appeal before the district Court, withdrawal purshis at Exhibit-34 came to be filed on behalf of the applicants herein, which was objected to by respondent No. 1 herein on the ground that since the applicants whiled away time either in proceeding delay condonation application or even appeal before the prayer for withdrawal of appeal, maximum cost should be awarded and further to order special cost to be paid to the respondents. The said objection also reflects that even withdrawal purshis was also objected to during the course of personal hearing. However, vide order dated 30.03.2021, the Principal District Judge, Gir Somnath - Veraval, passed order below Exhibit-34 after hearing the parties, permitting withdrawal of the appeal and disposed of the same. Pursuant thereto, by passing order below Exhibit-1 in the said appeal, the appeal was treated to be disposed of by the order dated 30.03.2021. After withdrawal of the said appeal from the district Court, the applicants presented aforesaid Civil Revision Application before this Court on 01.05.2021 along with present

C/CA/1061/2021 JUDGMENT DATED: 21/04/2022

Civil Application praying for condonation of delay as also the exclusion of a period consumed while preferring the appeal in a wrong forum along with an affidavit affirmed on that very date.

4. Heard Mr. Mehul S. Shah, Senior Advocate, learned Counsel assisted by Mr. Jenil M. Shah, learned advocate for the applicants. He has submitted that the appeal preferred by the applicants was under a mistake and ill-advise and the said appeal, as such, could not have been filed in the district Court, and therefore, in view of Section 14 of "the Act" time spent in it requires to be excluded, as the proceedings initiated by way of appeal were bona fide in the Court, which had no jurisdiction to entertain the appeal against the impugned order. Not only that, as submitted by him, even that appeal which was filed in delay and the original plaintiffs i.e. present respondent Nos. 1 and 2, appeared in that application and they did not object to the maintainability of the appeal itself and participated in the delay condonation application, which was ultimately condoned by the Court and then appeal came to be registered. It is further submitted that even subsequent to the process issued in the appeal, there was no such objection raised by other side that the appeal was not competent to be presented before the district Court. However, while it came to the notice of the applicants through their advocate that in view of the law, since the rejection of an application praying for rejection of plaint is not a decree, no appeal could have been filed under Section 96 of the Civil Procedure Code, 1908 (hereinafter referred to as "the Code"), they realized that the appellate Court is not having jurisdiction to entertain the same, and therefore, they applied for withdrawal of the same. Therefore, it is submitted that the applicants were bona fide litigating before a Court, having no jurisdiction to entertain an appeal and it was never pointed out by any of the

C/CA/1061/2021 JUDGMENT DATED: 21/04/2022

respondents and as soon as it came to the notice, on advice, the withdrawal purshis is filed. Therefore, he has prayed that delay of 1309 days, spent in litigating in a wrong forum, having no jurisdiction to entertain appeal, is required to be excluded under Section 14 of "the Act". He has further submitted that provisions of Section 14 of "the Act" is required to be construed liberally and once it is shown that the appeal came to be prosecuted with due diligence before the district Court, which had no jurisdiction, there being no mala fide intention on the part of the applicants and if that time is excluded from delay, the revision application preferred is 48 days beyond the period of limitation, which is explained in the memo of application itself, required to be condoned.

5. In support of his submission, learned Counsel relied on a decision in the case of Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department and others reported in (2008) 7 SCC 169, more particularly, para 18, 21 and 22 thereof, to submit that underlying policy of Section 14 of "the Act" is to afford protection to a litigant against the bar of limitation when he institutes a proceedings which by reason of some technical defect, cannot be decided by merits and is dismissed. He has further submitted that as held in that decision, all the conditions as enumerated in Section 14 are satisfied, as narrated in Para 21 of this decision.

"(1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party; (2) The prior proceeeding had been prosecuted with due diligence and in good faith;

(3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature;

      (4)     The earlier proceeding and the later proceeding




      C/CA/1061/2021                               JUDGMENT DATED: 21/04/2022



               must relate to the same matter in issue and;
        (5)    Both the proceeding are in a court. "

        He has further relied on a decision in the case of

J. Kumaradasan Nair and another v. Iric Sohan and others, reported in (2009) 12 SCC 175, more particularly para 15 to 20 thereof, to submit that in a good faith, the applicants were prosecuting appeal before the district Court, which had no jurisdiction, as elaborated by the Supreme Court in para 20 of the aforesaid decision.

6. As against that, Mr. Ashish M. Dagli, learned advocate appearing for respondent Nos. 1 and 2 submitted that the filing of an appeal against the impugned judgment and award challenged by way of this revision, lacks bona fides, and therefore, time spent on it prayed to be excluded should not be granted. He has further submitted that the appeal with delay condonation application preferred, was not prosecuted with due diligence, and therefore, exclusion of a period spent on litigating before the district Court should not be permitted. Therefore, if considered from that angle, this appeal is barred by delay of nearly 1350 days and which is not explained, and therefore, this Civil Application is required to be rejected.

7. Mr. Chintan S. Popat, learned advocate for the respondent No. 5, drawing attention of the Court to the affidavit-in-reply, filed objecting to the exclusion as also the condonation of delay, submitted that with a view to buy time for getting the illegal construction regularized, deliberately an appeal was preferred before the district Court, which had no jurisdiction, and therefore, no exclusion of time, as prayed for or delay caused in preferring this revision application be condoned. Drawing attention of the Court to the Annexure-R/1, page 19, titled as "written

C/CA/1061/2021 JUDGMENT DATED: 21/04/2022

submissions", he submitted that in the written submissions, the objection as regards to maintainability of it before the appellate Court is already raised, and therefore, the applicant should have filed aforesaid revision application before this Court instead of litigating it or dragging it before the district Court. Referring to the other annexures, he has submitted that at each stage of the suit, several proceedings are filed by the applicants and the order at Annexure-R/2, page 23, reflects that after obtaining the permission from the Court to move the trial Judge for appropriate modification in the impugned order below Exhibit-5 or for a early disposal of a suit, after decision is rendered by the competent Court in the appeal preferred by the applicants under provisions of Gujarat Regularisation of Unauthorised Development Act, 2011 (GRUDA Act), the said Special Civil Application came to be withdrawn. Therefore, intention of the applicants is clear to prolong the proceedings, maybe in the wrong forum until illegal construction is regularized, so as to frustrate the suit.

8. He has further submitted that respondent No. 5 herein, who has filed the affidavit-in-reply, was never joined as party respondent in delay condonation application preferred in appeal before the appellate Court and without joining the present respondent No. 5, delay was condoned and appeal came to be entertained. Therefore, he has submitted that the intention of the applicants herein is to see that anyhow proceedings be prolonged and it may not be brought to its logical end, and with that purpose only, appeal came to be filed by the applicants before a forum, which had no jurisdiction.

9. On the aforesaid submission, learned advocates for the respective respondents submitted that not only exclusion of time cannot be granted under Section 14 of "the Act", even delay of such a period could never be condoned in absence of any

C/CA/1061/2021 JUDGMENT DATED: 21/04/2022

reasonable explanation offered by the applicants. Therefore, they have requested that this application be rejected.

10. Having heard the learned advocates for the appearing parties and perusing the papers annexed with the application, it emerges that the Annexure-R/1 appended to the affidavit objecting exclusion and condonation of delay by respondent No. 5, which is titled as "written arguments" in Civil Miscellaneous Appeal No. 1 of 2018, which doesn't bear any date over it and as such, as submitted by learned Counsel for the applicants, on perusal of the record, by his counterpart of the aforesaid Civil Miscellaneous Appeal, no such written arguments are found in the record. Therefore, the submission made by the learned advocates for the respondents that maintainability of an appeal was objected to by way of the aforesaid written arguments, is incorrect.

11. As such, respondent No. 1 herein, who is by profession an advocate, though served in a delay condonation application filed in appeal preferred before the district Court, never objected to the delay on the ground that appeal against the said order is not maintainable. Not only that, at any stage till the appeal came to be withdrawn by the applicants, realizing it to be not maintainable, it was not objected to on the ground that appeal itself is not maintainable. On the contrary, the legal professional, as a plaintiff in the suit objected to the withdrawal, since the applicants were whiling away time, to award cost over them and with a special cost to the plaintiffs. Nothing further is required to be stated with regard to the filing of the suit, the same relief could have been prayed for and effectively granted, in a different proceedings before different forum. However, the plaintiffs have chosen to prefer the suit before the local Court.

C/CA/1061/2021 JUDGMENT DATED: 21/04/2022

12. If legal professional as a plaintiff, is either not knowing maintainability of an appeal before the district Court against the order impugned and even if he is knowing and deliberately not objecting to it before the appellate Court, the applicants, who are layman and supposed to abide by the advice given by the learned advocate representing them, cannot be condemned to know the legal provisions whether appeal is maintainable or not. Therefore, it can safely be concluded that in an good faith, as advised, they were prosecuting the remedy before a wrong forum. Therefore, considering the pronouncement of the Supreme Court, relied on by the learned Counsel for the applicants as also on facts, exclusion from the limitation of 1309 days prayed for on the ground of availing wrong remedy before a Court having no jurisdiction, is required to be granted.

13. Respondent No. 5, who has filed his affidavit objecting to the exclusion as also condonation of delay, despite he being not joined as party in the delay condonation application before the appellate forum, after he being joined as party respondent in the appeal, has not objected to the same on the said ground. Not only Annexure-R/1, which is filed along with the reply in this proceedings in the form of written arguments in Civil Misc. Appeal No. 1 of 2018 before the district Court, which is not there on record of it and the said attempt on the part of the respondent No. 5 is required to be taken special note of. Over and above that, it is clear that the said written arguments appears to have been prepared on behalf of respondent Nos. 1 and 2, who were the original plaintiffs, and therefore, the respondent Nos. 1 and 2 herein, have not filed their reply to the application praying for exclusion of time as also condonation of delay and it has not come from their custody, evidencing that it was ever submitted to the district Court. If at all, it is prepared by respondent Nos. 1

C/CA/1061/2021 JUDGMENT DATED: 21/04/2022

and 2 herein, objecting to the maintainability of the appeal itself, it should have been filed immediately before the appellate Court, which is not been done. Therefore, even the existence of the same is doubtful.

14. Further, the respondent No. 5 herein, who has filed his affidavit objecting to this application, though joined and served in the appeal before the district Court, he never appeared before it objecting to even maintainability of appeal. Therefore, his attempts to object to this application based on even non-existent document on the record of the district Court, should be viewed seriously. However, I refrain from doing so, for the simple reason that a case is made out to exclude 1309 days from computing the period of limitation in preferring the aforesaid Civil Revision Application under Section 14 of "the Act".

15. Considering the explanation offered in the application as also length of delay after exclusion of the period as aforesaid, along with the objections submitted by the respondents, I deem it fit to condone the delay of 48 days caused in preferring the aforesaid Civil Revision Application.

Hence, delay of 48 days caused in preferring the aforesaid Civil Revision Application is hereby condoned.

In view thereof, this Civil Application stands disposed of. Rule made absolute to the aforesaid extent.

Sd/-

(UMESH A. TRIVEDI, J.) Raj