Oriental Insurance Co. Ltd vs Vitthalbhai M Patel
2023 Latest Caselaw 2857 Guj

       C/SCA/13555/2021                                     ORDER DATED: 11/04/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 13555 of 2021
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                          ORIENTAL INSURANCE CO. LTD.
                                     Versus
                              VITTHALBHAI M PATEL
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Appearance:
MR VC THOMAS(5476) for the Petitioner(s) No. 1
MR JINESH H KAPADIA(5601) for the Respondent(s) No. 1,2,3,4,5,6
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                   Date : 11/04/2023

                                    ORAL ORDER

1. The present petition is filed challenging the

order passed below Exh.21 in CMA No.102 of 2019 dated th 10.3.2021 by which the learned 4 Additional Senior

Civil Judge, Mehsana has rejected the application for

condonation of delay filed in preferring review application

under Section 47 Rule 1 read with Section 152 of the

Code of Civil Procedure (`CPC' for short).

2. The brief facts which are set out are that the

present respondents have filed the RCS No.346 of 2014 nd

Additional Civil Judge, Mahesana has passed the

judgment and decree dated 29.2.2016 by directing the

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petitioner to pay the amount of mesne profit from

14.6.1997 and also if the present petitioner-defendant in

the suit has filed to pay the said amount within six

months from the date of the judgment, then thereafter

the said amount will carry interest of 9% p.m., which is

not challenged. Thereafter, in the year 2017, on 6.2.2017,

the execution proceeding is preferred by the judgment

creditor and executing Court passed the order on

23.1.2018 wherein the present petitioner is a party.

3. Thereafter, on 21.6.2019, the present

application i.e. CMA No.102 of 2019 is preferred by the

present petitioner-insurance company by praying for

condonation of delay of more than 1207 days in filing review application preferred under Order 47 Rule 1 read

with Section 152 of CPC which application was opposed

by the respondent and the learned trial Court, by

impugned order dated 10.3.2021, rejected the application

for condonation of delay. Therefore, the present petition

is preferred.

4. Heard learned advocate Mr.Thomas for the

petitioner and learned advocate Mr.Kapadia for the

C/SCA/13555/2021 ORDER DATED: 11/04/2023

respondents.

5. Learned advocate Mr.Thomas for the petitioner

has drawn my attention to the impugned order and

submitted that the trial Court has committed error by

taking a hypertechnical view and by not condoning the

delay; that the application for review is filed in view of

Section 152 of the CPC and therefore the question of

delay will not arise as such correction can be sought at

any point of time as indicated in the language of Section

152 of CPC; that the Court should decide the review

application on merits as on the bare reading of the

impugned direction passed in the said suit by the trial

Court, it clearly indicates that the petitioner has to pay 9% interest every month if the entire amount is not paid

within six weeks from the date of the decree which is

on the higher side and in should be in fact 9% p.a.

instead of per month; that even in view of Section 34 of

the CPC, the amount which is awarded towards the

interest per month is apparently erroneous and required

to be set aside and therefore the application for

condonation of delay is required to be considered by

taking liberal view.

C/SCA/13555/2021 ORDER DATED: 11/04/2023

6. He has heavily relied on the judgment of 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 and submitted that the

Court should take liberal view while considering the

delay condonation application and more particularly when

Section 152 of CPC itself permits to file such application

at any point of time.

7. Learned advocate Mr.Thomas has also relied on

the judgment of the Madras High Court in the case of

M.Muthukrishnan V/s Ethirajulu decided on 5.2.2009 in C.R.P.(NPD)(MD) No.268 of 2007 by indicating that in paragraph 9 of that judgment, the Madras High Court

has considered that Section 152 of the CPC empowers

the Court to amend the decree and same can be

corrected by the Court either on its own motion or on

application of any of the party to the suit at any time.

Therefore, he prays to allow this petition by quashing

and setting aside the impugned order.

8. Learned advocate Mr.Kapadia strongly opposed

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the same by submitting that the petitioner has not

preferred any appeal against the impugned judgment and

decree. Moreover, in the year 2017, the execution

proceeding is already filed where the petitioner has

participated. Even from the bare reading of the

application, no sufficient cause is made out for the delay

caused and therefore the Court has rightly dealt with

the application by considering that there is no sufficient

cause made out for condonation of delay.

9. He has relied on the judgment of the Apex

Court in the case of University of Delhi V/s Union of

India and others reported in (2020)13 SCC 745, whereby the Court has said that in the case of insufficiency of routine explanation, sufficient cause should be indicated

to justify delay, every day's delay need not be explained

but reasonable and acceptable explanation is very much

necessary, however, in the present case there is no

explanation and the application is filed in totally

mechanical manner. He has further submitted that even

on merits also, considering the entire judgment passed by

the learned trial Court while allowing the suit, the Court

has consciously granted interest on the monthly basis

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considering the fact that the petitioner has not paid any

amount though they have used the premises for such a

long period and therefore he has submitted that

considering the provision of Section 5 of the Limitation

Act, no sufficient cause is made out and no interference

is required and hence, this petition be dismissed.

10. I have considered the rival submissions, the

impugned order, the provisions of law and the citations

cited at the bar.

11. Firstly, Section 152 of CPC is required to be

considered which reads as under:

"152. Amendment of judgments, decrees or orders. - Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties."

12. Order XLVII Rule 1 reads as under:

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"1. APPLICATION FOR REVIEW OF JUDGMENT.

(1)Any person considering himself aggrieved-

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(b)by a decree or order from which no appeal is allowed, or

(c)by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record of for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order."

13. Now, in view of the above provisions, if we

peruse the delay condonation application, it transpires

that the insurance company has not given any

explanation about such long delay of 1207 days.

Moreover, insurance company has not preferred any

appeal against the judgment and decree passed in the

suit and in the execution proceedings which are initiated

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in the year 2017, the insurance company has participated

in the proceeding, and then at a belated stage, the

application for review with delay condonation application

is filed in the year 2019, which factors go against the

present petitioner.

14. In the judgment of the Apex Court which is

cited at the bar for learned advocate for the respondent

in the case of University of Delhi, wherein in

paragraphs 23 and 30, it is held as under:

"23.From a consideration of the view taken by this Court through the decisions cited supra the position is clear that, by and large, a liberal approach is to be taken in the matter of condonation of delay. The consideration for condonation of delay would not depend on the status of the party namely the Government or the public bodies so as to apply a different yardstick but the ultimate consideration should be to render even handed justice to the parties. Even in such case the condonation of long delay should not be automatic since the accrued right or the adverse consequence to the opposite party is also to be kept in perspective. In that background while considering condonation of delay, the routine explanation would not be enough but it should be in the nature of indicating "sufficient cause" to justify the delay

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which will depend on the backdrop of each case and will have to be weighed carefully by the Courts based on the fact situation. In the case of Katiji (Supra) the entire conspectus relating to condonation of delay has been kept in focus. However, what cannot also be lost sight is that the consideration therein was in the background of dismissal of the application seeking condonation of delay in a case where there was delay of four days pitted against the consideration that was required to be made on merits regarding the upward revision of compensation amounting to 800 per cent."

30. Despite the writ petition having been filed belatedly in respect of certain actions which had commenced in the year 2005 and even though the writ petition was filed after obtaining approval of the Executive Council, no steps were taken to file the writ appeal for 916 days after disposal of the writ petition. In such circumstance, the cumulative effect of the delay and laches cannot be ignored. The decisions referred by the learned Senior Counsel for the appellant noted Supra cannot, therefore, be applied in the present facts and circumstance inasmuch as the consideration hereunder was not merely the explanation for the delay of few days in filing the appeal. Though contention is put forth that the delay is required to be condoned since public interest is involved, the nature of the proceedings that have taken place thus far would indicate that the matter has been examined at different stages in the earlier litigations

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and if the grounds on which the appellant was assailing the action of the respondents were to be examined on merits, they ought to have been more diligent in prosecuting the matter before the Court."

15. At this stage, the judgments of the Apex Court

in the case of Mohd.Sahid and others v/s Raziya Khanam (D) Thr.Lrs and another reported in AIR 2018 SC 4724 and in the case of Estate Officer, Haryana Urban Development Authority and another V/s Gopi Chand Atreja, reported in AIR 2019 SC 1423 are also

required to be kept in mind.

16. In view of the above, I find that the learned

trial Court has rightly considered that no cause is made out, more particularly, sufficient cause is made out for

condonation of delay in preferring the application and

even the application under Section 152 of CPC has to be

filed within a reasonable time period and it cannot be

filed after the execution proceedings are over and the the

petitioner has participated in the execution proceedings

and the petitioner has knowledge about the decree

passed. Therefore, in my opinion, considering the totality

of the facts of the present case, the learned trial Court

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has not committed any error which requires interference

by this Court.

17. The judgment which is relied on by learned

advocate Mr.Thomas in the case of M.Muthukrishnan

(supra), though is otherwise helpful on the issue of Section 152 of CPC, it is required to be adjudicated after

considering the judgment in totality passed by the

learned trial Court.

18. This Court, while examining the matter by

exercising jurisdiction under Article 227 of the

Constitution of India, has taken judicial notice about the

gross negligence shown by the concerned officers of the petitioner-insurance company to protect any unnecessary

loss to public money. It clearly transpires from the

record of the case that suit is filed in the year 2000

and suit is decreed in the year 2016. Execution

proceedings no.3 of 2017 is also filed in the year 2017

for execution of such decree. The petitioner has not

challenged the decree by way of filing appeal provided

under the law nor has cared to deposit such amount

within six months period as directed by the learned civil

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Court and has preferred such CMA No.102 of 2019 on

21.6.2019 under the provisions of Section 152 read with

Order XLVII Rule 1 of CPC, though the petitioner-

insurance company has panel of good lawyers and having

regional officers as well as separate law officers to look

after the legal mattes. When the insurance companies

are hurriedly filing numbers of first appeals by

challenging petty amount of claims in accident cases, it

is strange that in the present case, no such attempt was

made nor the decree is satisfied. This requires attention

of higher authorities of petitioner company to rule out

any possibilities of connivance or collusion of any officers,

which caused great loss to the public exchequer and

thereafter to fix the responsibility for such inaction.

19. Further, as regards the limited jurisdiction of

this Court under Article 227 of the Constitution of India,

the Apex Court has held in paragraphs 15 to 17 of the

judgment in the case of Garment Craft V/s Prakash

Chand Goel reported in (2022) 4 SCC 181, which read as under:

"15. Having heard the counsel for the parties, we are

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clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.

16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. has observed:-

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"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."

17. The factum that the counsel for the appellant had

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applied for the certified copy would show that the counsel for the appellant was aware that the ex-parte decree had been passed on the account of failure to lead defence evidence. This would not, however, be a good ground and reason to set aside and substitute the opinion formed by the trial court that the appellant being incarcerated was unable to lead evidence and another chance should be given to the appellant to lead defence evidence. The discretion exercised by the trial court in granting relief, did not suffer from an error apparent on the face of the record or was not a finding so perverse that it was unsupported by evidence to justify it. There could be some justification for the respondent to argue that the appellant was possibly aware of the ex-parte decree and therefore the submission that the appellant came to know of the ex-parte decree only on release from jail on 6th May 2017 is incorrect, but this would not affect the factually correct explanation of the appellant that he was incarcerated and could not attend the civil suit proceedings from 6th October 2015 to 6th May 2017. If it was felt that the application for setting aside the exparte decree was filed belatedly, the court could have given an opportunity to the appellant to file an application for condonation of delay and costs could have been imposed. The facts as known, equally apply as grounds for condonation of delay. It is always important to take a holistic and overall view and not get influenced by aspects which can be explained. Thus, the reasoned decision of the

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trial court on elaborate consideration of the relevant facts did not warrant interference in exercise of the supervisory jurisdiction under Article 227 of the Constitution."

20. In view of the above discussion, this petition

deserves to be dismissed and accordingly dismissed.

Notice is discharged. Interim relief, if any, stands

vacated.

(SANDEEP N. BHATT,J) SRILATHA