Keshaji Kalaji Thakor Since Decd. ... vs Arjunbhai Alias Arjanji Lalluji ...
2023 Latest Caselaw 2779 Guj

      C/SCA/19398/2022                                 ORDER DATED: 05/04/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 19398 of 2022

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     KESHAJI KALAJI THAKOR SINCE DECD. THROUGH LHRS
                            Versus
ARJUNBHAI ALIAS ARJANJI LALLUJI VAGHELA SINCE DECD. THROUGH
                            LHRS
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Appearance:
MR ASHOK M. PAREKH, ADVOCATE for MS. BHAVIKA P RATHOD(6228) for
the Petitioner(s) No. 1,1.1,1.2
 for the Respondent(s) No.
1,1.1,1.2,1.2.1,1.2.2,1.2.3,1.2.4,1.2.5,2,3,4,4.1,4.2,4.3,5
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     CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                             Date : 05/04/2023

                              ORAL ORDER

1. The present petition is filed by the petitioners

challenging the order impugned dated 28.02.2022 passed in

Civil Misc. Application No.166 of 2018 (for condonation of

delay) by the trial Court i.e. the 4 th Additional Senior Civil

Judge, Ahmedabad (Rural) at Ahmedabad, whereby the trial

Court has rejected the application for condonation of delay in

preferring the application for setting aside the judgment and

decree passed in Special Civil Suit No.53 of 2003 dated

26.10.2007.

2. Learned advocate Mr.Ashok M. Parekh for learned

advocate Ms.Bhavika P. Rathod the petitioners has submitted

C/SCA/19398/2022 ORDER DATED: 05/04/2023

that the petitioners were not aware about the suit

proceedings and they came to know about the same first

time in the year 2017 when the notice from the revenue

authorities is served to them. He has submitted that

fraudulently, the power of attorney as well as vakalatnama is

used by the respondents in the suit proceedings, which is

disputed by the petitioners. He has further submitted that

the trial Court has rejecting the delay condonation application

by showing hyper-technical view. He has submitted that the

delay could have been condoned by the trial Court by

imposing appropriate cost upon the petitioners. He has

submitted that the revenue proceeding is initiated after the

father of the petitioners has expired. He has submitted that

this petition may be allowed.

3. I have considered the submissions made by the

learned advocate for the petitioners. I have also perused the

application filed by the petitioners for condonation of delay.

The submission made by the petitioners at this stage that

the respondents have committed fraud while obtaining the

decree in the year 2007, which is a consent decree, has not

been pleaded by the petitioner in the proceedings specifically.

4. Moreover, the trial Court has dealt with all these

aspects and considered that since the year 2007 to 2018, the

C/SCA/19398/2022 ORDER DATED: 05/04/2023

petitioners have not taken any action for challenging the said

decree, if at all obtained by committing fraud by the

respondents. Further, the trial Court has considered the

aspect that even sale deed is also executed pursuant to the

order passed by the Court below in the concerned

proceedings. The trial Court has also observed that neither

any police complaint is lodged regarding the alleged

fraudulent act against the respondents nor any complaint is

made before the appropriate authority for the same.

5. It is also relevant to note that even assuming for

the sake of argument that even when the petitioners came to

know about the consent decree passed in the year 2007 for

in the year 2017 when they have received the notice of

revenue proceedings under Section 135D of the Act, which is

as per his own say in the year September, 2017, the

application for condonation of delay is filed in the month of

October, 2018 before the trial Court, which is almost after a

period of one year. Considering the totality of the facts and

circumstances of the case and considering the fact that no

sufficient cause has been made out by the petitioners and

the petitioners have remained negligent for such a long

period and as the petitioners are trying to abuse the process

of law, this is not a fit case to exercise the discretion in

favour of the petitioners by condoning the delay, in view of

C/SCA/19398/2022 ORDER DATED: 05/04/2023

the decisiond of Hon'ble Apex Court in the case of :- (i)

Maniben Devraj Shah versus Municipal Corporation of Brihan Mumbai reported in AIR 2012 SC 1629, (ii) Balvantsing versus Jagdish reported in (2012) 8 SCC 685 and (iii) Office of the Chief Post Master General Versus Living Media India Limited reported in (2012) 3 SCC 563, this Court is not inclined to exercise the powers under Article 227 of the

Constitution of India in view of the decision of Hon'ble Apex

Court in the case of M/s. Garment Craft versus Prakash

Chand Goel reported in (2022) 4 SCC 181.

6. Further, in view of the subsequent development

that since the purchaser has paid huge amount towards

premium of the land, the attempt is made by the petitioners

to extract more money and therefore, such conduct of the

petitioners is required to be deprecated. This is a fit case to

impose heavy cost upon the petitioners, but since learned

advocate for the petitioners has submitted that some leniency

may be shown, this Court is restrained itself from imposing

the cost upon the petitioners.

7. In view of above, the present petition is dismissed

in limine.

(SANDEEP N. BHATT,J) M.H. DAVE