Nirmaladevi Shyamlal Sagar vs Sunil Bajaj Infrastructure ...
2023 Latest Caselaw 2770 Guj

Citation : 2023 Latest Caselaw 2770 Guj
Judgement Date : 5 April, 2023

Gujarat High Court

Nirmaladevi Shyamlal Sagar vs Sunil Bajaj Infrastructure ... on 5 April, 2023

Bench: Sandeep N. Bhatt

     C/SCA/2538/2023                                     ORDER DATED: 05/04/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
             R/SPECIAL CIVIL APPLICATION NO. 2538 of 2023
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                  NIRMALADEVI SHYAMLAL SAGAR
                             Versus
        SUNIL BAJAJ INFRASTRUCTURE BUILDERS PVT. LTD. CO.
==========================================================
Appearance:
MR DHRUV K DAVE(6928) for the Petitioner(s) No. 1,2,3,4,5
DS AFF.NOT FILED (N) for the Respondent(s) No. 4
MR PRAVINKUMAR N BAROT(13566) for the Respondent(s) No. 1.1
MR UMANG K CHOKSI(2587) for the Respondent(s) No. 1.2
NOTICE SERVED BY DS for the Respondent(s) No. 1,2
SERVED BY RPAD (N) for the Respondent(s) No. 3
==========================================================

 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                  Date : 05/04/2023

                                   ORAL ORDER

1. The present petition is filed challenging the th

Additional District Judge, Vadodara in Civil

Miscellaneous Application No.127 of 2021, by which the

delay of 4 months and 26 days caused in preferring the

appeal was not condoned.

2. Heard learned advocate Mr.DAve for the

petitioners and learned advocate Mr.Barot for respondent

no.1.1 and learned advocate Mr.Chokshi for respondent

no.1.2.

C/SCA/2538/2023 ORDER DATED: 05/04/2023

3. Learned advocate Mr.Dave submitted that the

small causes suit was allowed by directing the petitioners

to hand over vacant and peaceful possession of the

rented premises in 30 days of the judgment and further

directed to pay arrears of rent of monthly rent of

Rs.165/- from dated 21.7.2012 per month till the

realization of the same and further to pay the rent of

Rs.3000/- from dated 6.10.2019 till the handing over of

vacant and peaceful possession of the rented premises.

He submitted that being aggrieved by the same, the

petitioners preferred Civil Miscellaneous Application

No.127 of 2021 in First Appeal for condoning the delay

caused in preferring the First Appeal. However, the said

application was rejected, against which this petition is preferred with the following prayers:

"7(A) Your Lordships be pleased to issue a writ of certiorari to quash and set aside the order dated 13.05.2022 being CMA No.127 of 2021 passed by the learned 6 th Addl.District Judge, Vadodara and thereby to allow the statutory appeal of the appellants;

(B) Your Lordships be pleased to issue a writ of mandamus with appropriate directions by to quash and set aside the order dated 13.05.2022 being CMA No.127 of 2021 passed by the learned 6th Addl.District Judge, Vadodara and thereby

C/SCA/2538/2023 ORDER DATED: 05/04/2023

allow the statutory appeal of the appellants; (C) Pending admission, notice and final hearing of the present SCA, Your Lordships be pleased to stay the implementation and execution of order dated 13.05.2022 passed in CMA No.127 of 2021 and stay the decree passed in Small Causes Suit being SMCST No.2543 of 2015; (D) Your Lordships be pleased to grant Ex-parte ad-interim relief in terms of Para-7(c);

(E) xxxx"

He submits that the judgment was delivered on 6.9.2019

and after applying for the certified copies, the appeal

was to be preferred on or before 19.10.2019. However,

the delay is caused because of unavoidable circumstances

and the learned lower appellate Court ought to have

considered the same. Thereafter, due to the outbreak of pandemic of covid-19, further delay was caused. He has

drawn the attention of this Court to the recent judgment

of Hon'ble Apex Court and submitted that the Hon'ble

Apex Court has taken suo motu cognizance of the same

and vide order dated 10.1.2022 passed in Miscellaneous

Application No.21 of 2022 in Miscellaneous Application

No.665 of 2021 in Suo Motu Writ Petition (C) No.3 of

2020, has directed to exclude the period from 15.3.2020

to 28.2.2022 for the purpose of limitation and the actual

C/SCA/2538/2023 ORDER DATED: 05/04/2023

delay caused is of 4 months and 26 days, which ought

to have been considered. He further submitted that the

lower appellate Court has taken a hypertechnical

approach while considering the application for

condonation of delay, more particularly, in the peculiar

circumstances of pandemic. He, therefore, prayed to allow

this petition.

4. Per contra, learned advocate Mr.Chokshi for the respondents no.1.1 and 1.2 submitted that the

impugned judgment and decree is passed on 6.9.2019 and

30 days appeal period will be over in October, 2019,

however, the present petitioner has filed the appeal with

delay condonation application in June, 2021 and there is no cause, much less sufficient cause, shown for the

delay. He has filed an affidavit opposing this petition,

which is ordered to be taken on record. He has

vehemently opposed this application and submitted that

the learned lower appellate Court has given cogent and

convincing reasons while rejecting the application for

condonation of delay. He therefore submitted that since

the petitioner is not vigilant in pursuing his remedy, the

order of the learned lower appellate court is just and

C/SCA/2538/2023 ORDER DATED: 05/04/2023

proper and therefore this petition be dismissed.

5. Considered the rival submissions and heard the

learned advocates for the parties. Though the judgment

and order is passed by the trial Court on 6.9.2019 and

the appeal is required to be filed within 30 days

thereafter, it happens that many times the petitioners

may have many constraints like money, not proper

advice by advocate etc. and could not adhere to the

period of limitation. The Apex Court in the case of

Collector, Land Acquisition, Anantnag and another V/s Mst.Katiji and Others reported in AIR 1987 SC 1353 has held that the Court should not take pedantic approach

in the matter and not take high technical approach on the condonation of delay and the parties should be given

reasonable opportunity to proceed with the matter on

merits unless there is gross negligence or unexplained

delay which may cause prejudice to the rights of the

other parties.

6. Even considering the latest judgment of the

Apex Court in the case of suo motu proceedings

mentioned above, the period from 15.3.2020 to 28.2.2022

C/SCA/2538/2023 ORDER DATED: 05/04/2023

is to be excluded for the purpose of delay and therefore

also the learned lower appellate Court has committed

error in dismissing the delay condonation application.