Gujarat High Court
Vaghri Dhirubhai Kantibhai ... vs Charity Commissioner, Gujarat ... on 19 April, 2023
Bench: Sandeep N. Bhatt
C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1418 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2214 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2216 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2218 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2221 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2225 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2226 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2229 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2234 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2236 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2238 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2240 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2243 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2244 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2245 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2246 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2247 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2248 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2249 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2250 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2252 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2254 of 2022
With
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C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023
R/SPECIAL CIVIL APPLICATION NO. 2255 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2257 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2258 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2259 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2262 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 2365 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
VAGHRI DHIRUBHAI KANTIBHAI THROUGH POA HOLDER SHANTILAL
RAYJIBHAI PATEL
Versus
CHARITY COMMISSIONER, GUJARAT STATE, AHMEDABAD
==========================================================
Appearance:
MR PUSHPADATTA VYAS(1296) for the Petitioner(s) No. 1
MS TANUSHREE SHRIMAL, AGP for the Respondent(s) No. 1 IN SPECIAL
CIVIL APPLICATION NO.1418 OF 2022
MS SUMAN MOTLA, AGP for the Respondent(s) No. 1 IN SPECIAL CIVIL
APPLICATION NOS.2214 OF 2022 TO 2365 OF 2022
MR SACHIN D VASAVADA(3342) for the Respondent(s) No. 2,3,4,5,6
MR UDAYAN P VYAS(1302) for the Respondent(s) No. 7
==========================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023
Date : 19/04/2023
COMMON ORAL JUDGMENT
1. At the outset, learned advocates for the parties
jointly pointed out that the notice for final disposal was
issued by coordinate Bench of this Court vide order
dated 10.2.2022 and as all these petitions involve
common question of facts and law, they requested that
they may be heard together. Therefore, they are being
heard together and disposed of by this common
judgment.
2. Rule. Learned AGP Ms.Tanushree Shrimal for
respondent nos.1 in Special Civil Application No.1418 of
2022 and learned AGP Ms.Suman Motla in Special Civil
Application Nos.2214 of 2022 to 2365 of 2022, learned
advocate Mr.Sachin Vasavada for respondent nos.2 to 6
and learned advocate Mr.Udayan Vyas for respondent
no.7 waive service of notice of rule.
3. The present petitions are filed under Article
227 of the Constitution of India challenging the action of
the learned Principal District Judge, Lunavada of
entertaining and registering Regular Civil Appeals under
C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023
Section 96 of the Civil Procedure Code, 1908 (`CPC' for
short) which are filed after delay of about five years
without any application for condonation of delay as
mentioned in the statement below in respective suits as
well as the order passed below Exh.5 dated 28.12.2021
in respective appeals.
4. The Regular Civil Appeals filed against the
Regular Civil Suits are mentioned in the table below for
ready reference.
SCA. NO. DIST COURT R.C.S. NO Sq. Mtr.
APPEAL NO.
1418/22 38/21 54/16 18.80
2214/22 52/21` 73/16 20.61
2216/22 42/21 62/16 19.43
2218/22 51/21 66/16 33.60
2221/22 30/21 76/16 18.20
2225/22 46/21 59/16 16.50
2226/22 47/21 75/16 17.00
2229/22 26/21 57/16 26.39
C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023
2234/22 50/21 70/16 16.50
2236/22 35/21 55/16 12.25
2238/22 37/21 67/16 29.25
2240/22 39/21 64/16 25.30
2243/22 45/21 60/16 9.21
2244/22 48/21 63/16 17.00
2245/22 29/21 68/16 19.60
2246/22 33/21 61/16 52.25
2247/22 31/21 58/16 19.40
2248/22 49/21 56/16 20.60
2249/22 34/21 53/16 9.21
2250/22 40/21 80/16 17.00
2252/22 36/21 65/16 19.26
2254/22 44/21 71/16 25.30
2255/22 43/21 72/16 25.22
2257/22 25/21 77/16 9.50
2258/22 28/21 78/16 19.20
2259/22 27/25 79/16 9.12
C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023
2262/22 41/21 69/16 38.50
2365/22 32/21 74/16 29.40
5. For the sake of convenience, the facts of
Special Civil Application No.1418 of 2022 are considered,
which are as under:
6. The brief facts which are stated in the petition
are such that the respondent no.1/Charity Commissioner
who is non-party in the suit filed Regular Civil Appeal
No.38 of 2021 challenging the judgment and decree dated
7.10.2016 passed by the learned Senior Civil Judge,
Lunavada, District Mahisagar in Regular Civil Suit No.54
of 2016. The appeal before the learned District Judge is
required to be filed within a period of limitation and if
not filed, application for condonation of delay is required
to be filed as per the mandatory requirement of Rule 3A
of Order XXXXI of CPC.
6.1 It is submitted that in view of the same, the
above mentioned Regular Civil Appeal of the year 2021
is apparently filed after huge delay of five years from
the year 2016 and mandatory procedure and requirement
C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023
therein including of application, reasons, affidavit, notice
to the petitioner and other respondents, opportunity and
hearing is required, before registration and entertainment
of appeal itself including any relief granted in the
proceeding arising from that appeal. It is also further
case of the petitioner that the petitioner with an utter
shock and surprise received straightaway notice of
hearing of already registered and numbered Regular Civil
Appeal from the Court of learned Principal Senior Civil
Judge, Lunawada District Mahisagar mentioning the date
of hearing i.e. 22.12.2012. It is also averred in the
petition that appeal memo reveals that the challenge in
appeal, in substance is challenging the judgment and
decree dated 7.10.2016 passed by the learned Senior Civil
Judge, Lunawada, District Mahisagar in Regular Civil
Suit No.54 of 2016 filed by the petitioner as well as sale
deed dated 13.12.2017 which was not the subject matter
of the suit of the petitioner and purchaser was also not
party to the suit. The other reliefs were also claimed
after delay of five years by suppressing material facts
and complete change of suit property and further sales
of newly and legally constructed property in different
units. The same was even on or before year 2019 itself
C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023
and there are rights of ultimate purchasers of different
units and became owners of subsequent registered sale
deed and the public record of sub registrar and local
authority was clear and known to all since the year
2017 and for more than three years, non-party to the
suit i.e. respondent no.7 is also made party straightaway
without any procedure.
6.2 It is the case of the petitioner that Regular
Civil Suit No.54 of 2016 is filed by some of the
occupants of the land under the impression that the
property is a trust property and thereafter since the
trust has no connection with the suit property and trust
is having the some different property nearby the suit
property, the consensus was arrived at between the
plaintiff and defendant in the said suit and accordingly
consent decree is passed in the year 2016. In view of
this background, it is the case of the petitioner that the
appellant below is the authority i.e. Charity
Commissioner and aware regarding the fact that the
adjoining land in question (portion of land in question),
the respondent trust is not having title or document of
title and there is no gift deed, sale deed, Will or any
C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023
other document qua the title of the land in question
with the trust. The respondent trust tried to obstruct the
peaceful settled position of the petitioner and similarly
situated persons which is from the time of forefathers
and is more than 60 years. The petitioner and similarly
situated persons from downtrodden class of the society
having their kachha/pakka construction in the portion of
the land in question on total area of 828.89 sq.mtrs.
(9500 sq.ft.). The respondent trust tried to resist the suit
but when the actual title, document qua lan in question
came on surface for adjudication of the civil suit, the
trust having no document of actual title except bare
ambiguous entry and there is no claim or resistance in
the settled position for more than 50 years in knowledge.
The learned trial Court was pleased to consider the
consent terms as well as the clear resolution of the trust
itself and passed the judgment and decree dated
7.10.2016 collectively.
6.3 It is further the case of the petitioners that
thereafter, in the year 2020, the respondent no.1 Charity
Commissioner has filed independent civil suit. The same
was also beyond limitation and apparently not
C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023
maintainable as per the settled legal position and the
petitioner as well as other similarly situated persons
challenged the same by filing application under Order
VII Rule 11 of the CPC and that application was
rejected by the learned trial Court. Against that, the
Civil Revision Applications were preferred before this
Court being Civil Revision Application Nos.228 of 2021
and allied matters by the petitioners as well as similarly
situated persons which was allowed by common judgment
dated 6.10.2021. Thereafter, the Regular Civil Appeals
were registered before the learned District Court,
Mahisagar and on a very short notice, the petitioners
appeared through advocate on 22.12.2021 and requested
for documents and adjournment. The matter was
adjourned to 27.12.2021 and without providing any
document as prayed by the petitioner nor considering the
application filed by the petitioners, the learned lower
appellate Court has passed the order below Exh.5 on
28.12.2021 and as the present petitioners were aggrieved
and dissatisfied the same, the present petitions are filed.
7. Heard learned senior advocate Mr.Dhaval Dave
assisted by learned advocate Mr.Pushpadatta Vyas for
C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023
the petitioners, learned AGP for respondent no.1 and
learned advocate Mr.Udayan Vyas for resopndent no.7.
Learned advocate Mr.Udayan Vyas has submitted that he
is supporting the submissions made on behalf of the
petitioners.
7.1 Learned senior advocate Mr.Dave has raised
the basic contention that in view of the provisions of
Order XXXXI Rule 3A of CPC where there is no
application for condonation of delay, then the appeal
which is preferred by the present respondent no.1 is not
maintainable in eye of law. When the appeal itself is not
tenable in eye of law, the consequential order passed
below Exh.5 also cannot be considered as legal and valid.
He has drawn my attention towards the earlier order
passed by this Court in Civil Revision Application No.
228 of 2021 and allied matters, more particularly,
paragraphs 13 and 14 of the same and submitted that
the Court has only observed that it is open for the
respondent no.1-Charity Commissioner to file appeal
under Section 96(1) of the CPC with leave of Court or
to file review application before the same Court which
has passed consent decree dated 7.10.2016 and also the
C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023
Court has clarified that contentions of the parties are
kept open. He has drawn my attention towards the
application filed by the present petitioner dated
27.12.2021 whereby the present petitioner has prayed for
time of four weeks as he has received notice of the
appeal which is filed after delay of five years. He has
also pointed out therein that there is no application for
condonation of delay, no copy of the application for
condonation of delay is served along with the appeal. He
has further submitted that inspite of the said application,
the matter was kept for orders on very next date i.e. on
28.12.2021 and the learned lower Court has decided
Exh.5 application by granting interim order which reads
as under:
"The application of the applicant is hereby partly allowed
and the prayer in terms of Para 37(b) is allowed and the
opponents are restrained from transferring the suit property
in anyway like sale, gift, mortgage, lease, licence etc. and
also restrained the opponents to make any constructions or
to change it in any manner till final disposal of the appeal.
xxxxx"
7.2 He has, therefore, submitted that as such no
proper opportunity of hearing is given to the present
C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023
petitioner to point out that the appeal itself is not
competent in view of the provisions of Order XXXXI Rule
3A. Learned senior advocate Mr.Dave has further drawn
my attention towards the proceedings of the appeal dated
17.12.2021 where there is no reference about the filing of
application for condonation of delay and straightaway the
appeal is registered.
7.3 He has relied on the judgment of Division
Bench of our High Court in the case of Paschim Gujarat
Vij Company Ltd. V/s Khemchand Nathabhai Gadhavi,
reported in 2011(2) GLH 90, more particularly,
paragraphs 5 to 10 of the same and submitted that in
view of the decision of the Division Bench of this Court,
the said appeal cannot be considered as legally instituted
appeal and the impugned order which is passed under
Exh.5 amounts to nullity and proceedings of appeal
without filing application for condonation of delay is also
null and void. He has further submitted that otherwise
also, the respondent no.1 has preferred the proceeding in
the year 2020 after the delay of almost more than three
years. The equities have also changed and therefore also
the present proceedings deserves to be allowed and order
C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023
passed below Exh.5 is required to be quashed and the
proceedings of appeal is also required to be quashed and
set aside.
8. Per contra, learned AGP Ms.Shrimal for the
respondent no.1 has opposed the said submissions by
drawing attention towards the affidavit-in-reply filed by
the state government which is verified by Charity
Commissioner and has submitted that the Charity
Commissioner has rightly initiated proceedings as the
opportunity is granted in view of the observation made
by this Court in order passed in Civil Revision
Application No.2228 of 2021 and allied matters. She has
further submitted that even the delay condonation
application is also prepared but as the registry of the
Court below has not asked for the same, the same was
not produced on record. She has further submitted that
the Charity Commissioner is not aware about the
proceedings and therefore when it came to the knowledge
of the Charity Commissioner, the proceedings were
initiated for the first time in the year 2020 and
therefore she has submitted that the Charity
Commissioner has rightly availed the remedy and more
C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023
particularly, when this Court, in Civil Revision
Applications, observed to avail remedy available to the
present respondent no.1 to file appeal under Section
96(1) of the CPC or review application before the same
Court and accordingly on the technical ground of delay
condonation application not being filed, the appeal should
not be considered as incompetent and considering the
over all facts, the Court should not exercise any
discretion and not exercise supervisory powers by
interfering with the impugned judgment and order.
9. Having heard the learned advocates for the
parties and having gone through the material placed on
record, it transpires that after the order was passed in
Civil Revision Application by this Court, Regular Civil
Appeals were registered after a delay of five years,
without any application for condonation of delay and the
order was passed in Exh.5 preferred therein.
10. This Court would like to examine the provision
of law, upon which the reliance is placed by learned
advocate for the petitioners, which reads as under:
Order XXXXI Rule 3A of CPC reads as under:
C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023
"Application for condonation of delay:
(1) When an appeal is presented after the expiry of the
period of limitation specified therefore, it shall be
accompanied by an application supported by affidavit setting
forth the facts on which the appellant relies to satisfy the
Court that he had sufficient cause for not preferring the
appeal within such period.
(2) If the Court sees no reason to reject the application
without the issue of a notice to the respondent, notice
thereof shall be issued to the respondent and the matter
shall be finally decided by the Court before it proceeds to
deal with the appeal under rule 11 or rule 13, as the case
may be.
(3) Where an application has been made under sub-rule(1),
the Court shall not make an order for the stay of execution
of the decree against which the appeal is proposed to be
filed so long as the Court does not, after hearing under rule
11, decide to hear the appeal."
11. At this juncture, it is relevant to refer to the
relevant operative portion of the order dated 6.10.2021
passed in Civil Revision Application Nos. 228 of 2021,
which read as under:
C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023
"13. Keeping in view of the aforesaid observations made by
the Full Bench of this Court, if the facts of the present
case as discussed hereinabove are examined, this Court is of
the view that separate civil suit filed by the respondent
no.1-Charity Commissioner, who was not party to Regular
Civil Suit No.61/2016 challenging the consent decree dated
07.10.2016, is barred by law and, therefore, the trial court
ought to have allowed the application filed by the applicant
under Order 7, Rule 11 of the Code. It is always open for
the respondent no.1-Charity Commissioner to file an Appeal
under Section 96(1) of the Code with leave of the Appellate
Court or to file review application before the same Court,
which has passed the consent decree dated 07.10.2016,
however, separate suit challenging the consent decree dated
07.10.2016 is not maintainable.
14. Therefore, in view of the above, all these Civil Revision
Applications allowed. The impugned orders in all Civil
Revision Applications passed in applications filed by the
applicant under Order 7, Rule 11 of the Code are hereby
quashed and set aside. Accordingly, the respective plaints
filed by the respondent no.1-Charity Commissioner are
rejected. However, liberty is reserved to the respondent no.1-
Charity Commissioner to file an Appeal challenging the
consent decree dated 07.10.2016 with leave of the Court and/
or to file review application as observed hereinabove before
the same Court. It is clarified that this Court has not
C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023
examined the merits of the case of the applicant and,
therefore, as and when the respondent no.1-Charity
Commissioner files an Appeal under Section 96(1) of the
Code or Review Application, same shall be decided on its
own merits. It is also clarified that all contentions of the
parties are kept open. Rule is made absolute."
12. With the above background, on perusal of the
record available with this Court i.e. the pleadings of the
party, memo of petition, documents and affidavit-in-reply
filed by respondent no.1, it transpires that the suit is
compromised between the present petitioners and trust
way back on 7.10.2016 by way of consent decree passed
by the learned trial Court and on the basis of the
consent decree, the trust has no say in the suit land as
trust has no document regarding right, title of the suit
land and the trust is having ownership of adjoining land
which is not the subject matter of the suit land and
therefore, after passing necessary resolution by the trust
on 5.7.2016, the consent decree was passed by the
learned Additional Senior Civil Judge, Lunawada in the
respective suits filed by the present petitioners. It
transpires from the record that till 2020, no one has
C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023
challenged the said consent decree and in the year 2020,
the Charity Commissioner who is respondent no.1 herein
has preferred independent suit which is registered as
Regular Civil Suit No.71 of 2020 where the present
petitioners and similarly situated other petitioners have
filed application under Order VII Rule 11 of the CPC to
reject the plaint, which application is rejected by the
learned trial Court and aggrieved by that order, the
present petitioner and other similarly situated persons
have preferred Civil Revision Application No.228 of 2021
and allied matters, wherein this Court, by order dated
6.10.2021, has allowed the revision application with some
observations as mentioned hereinabove. It also transpires
that relying on that observation, the respondent no.1
Charity Commissioner has preferred appeal before the
learned Court at Lunawada at Mahisagar, but without
filing application for condonation of delay challenging the
consent judgment and decree passed in the above
respective suits by the learned Civil Court in the year
2016. From the perusal of the rojkam of the appeal
produced along with this petition, nowhere it is reflected
that the application for condonation of delay along with
the appeal is filed but it transpires that the appeal is
C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023
straightaway registered on 17.12.2021 and thereafter the
Court has issued summons by keeping the returnable
date on 22.12.2021. On returnable date, the learned
advocate for the petitioners has appeared and filed
vakalatnama and has also filed application for
adjournment which was adjourned to 27.12.2021 and
thereafter on 27.12.2021, the learned advocate for the
respondent has filed application praying time for four
weeks as the learned advocate for the petitioners has
appeared on 22.12.2021 only and needed some papers
regarding the subject matter. It further transpires that
by way of this application, the learned advocate for the
present petitioners has categorically raised objection about
non-filing of the application for condonation of delay by
pointing out that there is huge delay of about five years
in filing of such proceedings. It seems that the learned
trial Court, without recording any reasons, has rejected
the said application and has proceeded further and on
very next day i.e. on 28.12.2021, allowed Exh.5
application. It also transpires that present petitioners
were never heard by learned lower appellate Court and
it further transpires that new parties are added in
Appeal without following necessary procedure under
C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023
Order I Rule 10 of CPC or any other provisions of CPC,
which is also ex-facie erroneous and improper. This chain
of events clearly show that though it is required under
the provisions of Order XXXXI Rule 3A of CPC to file
appeal along with the delay condonation application
whenever the appeal is preferred after expiry of period of
limitation, the same is not admittedly done, as
transpired from the record available with this Court.
13. Even in the affidavit-in-reply filed by the
respondent, it is recorded in paragraph 12 as under:
"12. It is respectfully submitted that as per the mandatory
requirements of rule 3(A) of the Order 41 of CPC is as
follows:- Sub-rule(1) of Rule 3A of Order 41 of Civil
Procedure Code provides that, when a time barred appeal is
filed, it has to be accompanied by an application and
affidavit for condonation of delay. In compliance to the
mandatory provision, the office of charity commissioner
forwarded to the DGP Office memo of appeal, accompanied
by an application supported by affidavit for condoning delay
in filing the appeal. However, neither registry nor the
learned court deemed it fit to ask for the delay application
as there was no delay and therefore, the appeal was
admitted and injunction application was heard and decided."
C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023
14. In view of the above admission in the
affidavit-in-reply, it is clear that though the application
is prepared, the same was not filed as the registry has
not asked for the same and therefore it is admitted
position that the application under Order XXXXI Rule 3A
of CPC is not filed. It is a moot question which has
remained unanswered as to how the registry has
accepted such defective appeal and thereafter registered
the said appeal. Moreover, assuming for the sake of
argument that such application is filed, then also the
petitioners and other affected parties are required to be
heard before considering the aspect of condonation of
delay in filing the appeal which was not admittedly done
in the present proceedings. Further, the judgment of the
Division Bench of this Court in the case of Paschim
Gujarat Vij Company Ltd. (supra), clearly supports the
case of the present petitioners that in absence of any
application for condonation of delay such appeal itself is
not maintainable. Paragraphs nos.5 to 10 of the said
judgment 5 to 10 read as under :
"5. Order 41 Rule 3A of The Code of Civil Procedure, 1908
reads as under:
C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023
"3A. Application for condonation of delay-(1) When an appeal
is presented after the expiry of the period of limitation
specified therefor, it shall be accompanied by an application
supported by affidavit setting forth the facts on which the
appellant relies to satisfy the Court that he had sufficient
cause for not preferring the appeal within such period.
(2) If the Court sees no reason to reject the application
without the issue of a notice to the respondent, notice
thereof shall be issued to the respondent and the matter
shall be finally decided by the Court before it proceeds to
deal with the appeal under rule 11 or rule 13, as the case
may be.
(3) Where an application has been made under sub-rule (1),
the Court shall not make an order for the stay of execution
of the decree against which the appeal is proposed to be
filed so long as the Court does not, after hearing under rule
11, decide to hear the appeal."
Sub-rule (1) of Rule 3A of Order 41 of Civil Procedure Code
provides that when an appeal is presented after expiry of
the period of limitation, it shall be accompanied by an
application supported by an affidavit giving all the detailed
facts on which the appellant wants to satisfy the Court that
he was prevented by sufficient cause in not filing the appeal
within the prescribed period of limitation. Therefore, this
C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023
Rule mandates that if a time barred appeal is filed, it has
to be accompanied by an application and affidavit for
condonation of delay. In absence, the appeal is rendered
incompetent and is liable to be dismissed. The Rule is
mandatory in nature and its non-compliance is fatal.
6. Chapter-V, Rule 67(i) of the Gujarat High Court Rules
reads as under:
"67(i) When an appeal, application or memorandum of cross-
objection is presented after the expiry of the period of
limitation specified therefore, shall be accompanied by
separate application for condonation of delay."
This Rule has been framed in consonance with Order 41
Rule 3A(1) of the CPC and makes it incumbent for the
appellant to file a separate application for condonation of
delay at the time of presentation of the appeal, if the
appeal has been preferred beyond the period of limitation.
Since the limitation for filing the appeal expired on 30th
August, 2008, the appeal was filed on 16th May, 2009, it
was mandatory for the appellant to file an application for
condoning the delay supported by an affidavit. In absence of
non-compliance of Rule 67(i), the appeal is liable to be
dismissed.
C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023
7. There is another aspect of the matter for which it is
necessary to extract Section 3(1) of The Limitation Act, 1963
which reads as under:
"3. Bar of limitation-(1) Subject to the provisions contained
in sections 4 to 24 (inclusive), every suit instituted, appeal
preferred, and application made after the prescribed period
shall be dismissed, although limitation has not been set up
as a defence.
(2) xxx xxx xxx"
8. From the bare reading of the aforesaid provision, it is
clear that if the appeal is filed beyond the period of
limitation, then it has to be accompanied by an application
supported by affidavit for condoning delay in filing the
appeal. In absence of any application supported by an
affidavit for condoning of delay, the appeal is rendered time
barred and is liable to be dismissed even in absence of plea
of limitation having been set up as a defence. The appeal
was time barred when it was filed. The defect could not be
cured by filing a delay condonation application subsequently.
9. The view taken by us finds support in paragraphs 32
and 33 of the decision of the Apex Court in Noharlal Verma
vs. District Cooperative Central Bank Ltd., Jagdalpur, (2008)
14 Supreme Court Cases 45, wherein the Apex Court held
as under:
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"32. Now, limitation goes to the root of the matter. If a
suit, appeal or application is barred by limitation, a court or
an adjudicating authority has no jurisdiction, power or
authority to entertain such suit, appeal or application and to
decide it on merits.
33. Sub-section (1) of Section 3 of the Limitation Act, 1963
reads as under:
"3. Bar of limitation- (1) Subject to the provisions contained
in Sections 4 to 24 (inclusive), every suit instituted, appeal
preferred, and application made after the prescribed period
shall be dismissed although limitation has not been set up
as a defence." (emphasis supplied).
Bare reading of the aforesaid provisions leaves no room for
doubt that if a suit is instituted, appeal preferred or
application is made after the prescribed period, it has to be
dismissed even though no such plea has been raised or
defence has been set up. In other words, even in absence of
such plea by the defence, respondent or opponent, the court
or authority must dismiss such suit, appeal or application, if
it is satisfied that the suit, appeal or application is barred
by limitation."
10. In view of the legal position as explained by the Apex
Court and in view of the fact that when the appellant had
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filed the appeal beyond limitation and it did not accompany
any application for condonation of delay supported by any
affidavit, the appeal was not entertainable. We have
therefore, no hesitation in holding that a time barred appeal
filed without delay condonation application supported by an
affidavit is not maintainable. The appeal deserves to be
dismissed as time barred."
15. It is very clear from the above where the
Division Bench of this Court has held that from the
bare reading of the provisions of Order XXXXI Rule 3A
of CPC, it is clear that if the appeal is filed beyond
period of limitation then it has to be accompanied by an
application supported by affidavit for condonation of delay
in filing appeal and in absence of any application
supported by affidavit for condonation of delay, the
appeal is rendered time barred and is liable to be
dismissed even in absence of plea of limitation having
been set up as defence. If the appeal was time barred
when it was filed, the defect could be cured by filing
delay condonation application subsequently.
16. At this stage, it is required to refere to the
judgment of the Apex Court in the case of Noharlal
Verma V/s District Cooperative Central Bank Ltd.,
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Jagdalpur, reported in 2008(14) SCC 45, wherein in
paragraphs 32 and 33, it is held that the appeal which
is instituted after prescribed period of limitation without
filing application for condonation of delay is incompetent
and the Court or authority must dismiss such appeal if
it is barred by limitation.
17. At this stage, it is fruitful to refer the
judgment reported in AIR Online 2020 SC 731, in the
case of Sagufa Ahmed V/s Upper Assam Plywood
Products Pvt.Ltd., more particularly, paragraphs 22 and
23, which read as under:
"22. The words "prescribed period" appear in several Sections
of the Limitation Act, 1963. Though these words "prescribed
period" are not defined in Section 2 of the Limitation Act,
1963, the expression is used throughout, only to denote the
period of limitation. We may see a few examples:(i) Section
3(1) makes every proceeding filed after the prescribed period,
liable to be dismissed, subject however to the provisions in
Sections 4 to 24.(ii) Section 5 enables the admission of any
appeal or application after the prescribed period.(iii) Section
6 uses the expression prescribed period in relation to
proceedings to be initiated by persons under legal disability.
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23.Therefore, the expression "prescribed period" appearing in
Section 4 cannot be construed to mean anything other than
the period of limitation. Any period beyond the prescribed
period, during which the Court or Tribunal has the
discretion to allow a person to institute the proceedings,
cannot be taken to be "prescribed period".
18. It is also relevant to refer to the decision
reported in AIR 1962 SC 361 in the case of Ramlal and
others V/s Rewa Coalfields Ltd. , more particularly,
paragraphs 6 to 8, which read as under:
"6.Section 5 of the Limitation Act provides for extension of
period in certain cases. It lays down, inter alia, that any
appeal may be admitted after the period of limitation
prescribed therefor when the appellant satisfies the Court
that he had suffi cient cause for not preferring the appeal
within such period. This section raises two questions for
consideration. First is, what is sufficient cause; and the
second, what is the meaning of the clause "within such
period'? With the first question we are not concerned in the
present appeal. It is the second question which has been
decided by the Judicial Commissioner against the appellant.
He has held that "within such period" in substance means
during the period prescribed for making the appeal. In other
words, according to him, when an appellant prefers an
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appeal beyond the period of limitation prescribed he must
show that he acted diligently and that there was some
reason which prevented him from preferring the appeal
during the period of limitation prescribed. If the Judicial
Commissioner had held that "within such period" means "the
period of the delay between the last day for filing the
appeal and the date on which the appeal was actually filed"
he would undoubtedly have come to the conclusion that the
illness of Ramlal on February 16 was a sufficient cause.
That clearly appears to be the effect of his judgment. That
is why it is unnecessary for us to consider what is "a
sufficient cause" in the present appeal. It has been urged
before us by Mr. Andley, for the appellant that the
construction placed by the judicial Commissioner on the
words "within such period" is erroneous.
7.In construing S. 5 it is relevant to bear in mind two
important considerations. The first consideration is that the
expiration of the period of limitation prescribed for making
an appeal gives rise to a right in favour of the decree-
holder to treat the decree as binding between the parties. In
other words, when the period of limitation prescribed has
expired the decree-holder has obtained a benefit under the
law of limitation to treat the decree as beyond challenge,
and this legal right which has accrued to the decree-holder
by lapse of time should not be light-heartedly disturbed. The
other consideration which cannot be ignored is that if
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sufficient cause for excusing delay is shown discretion is
given to the Court to condone delay and admit the appeal.
This discretion has been deliberately conferred on the Court
in order that judicial power and discretion in trial behalf
should be exercised to advance substantial justice. As has
been observed by the Madras High Court in Krishna v.
Chathappan, ILR 13 Mad 269,
"Section 5 gives the Court a discretion which in respect of
jurisdiction is to be exercised in the way in which judicial
power and discretion ought to be exercised upon principles
which are well understood; the words 'sufficient cause'
receiving a liberal construction so as to advance substantial
justice when no negligence nor inaction nor want of bona
fide is imputable in the appellant."
8.Now, what do the words "within such period" denote? it is
possible that the expression "within such period" may
sometimes mean during such period. But the question is :
Does the context in which the expression occurs in S. 5
justify, the said interpretation? If the Limitation Act or any
other appropriate statute prescribes different periods of
limitation either for appeals or applications to which S. 5
applies that normally means that liberty is given to the
party intending to make the appeal or to file an application
to act within the period prescribed in that behalf. It would
not be reasonable to require a party to take the necessary
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action on the very first day after the cause of action
accrues. In view of the period of limitation prescribed the
party would be entitled to take its time and to file the
appeals on any day during the said period; and so prima
facie it appears unreasonable that when delay has been
made by the party in filing the appeal it should be called
upon to explain its conduct during the whole of the period
of limitation prescribed. In our opinion, it would be
immaterial and even irrelevant to invoke general
considerations of diligence of parties in construing the words
of S. 5. The context seems to suggest that "within such
period" means within the period which ends with the last
day of limitation prescribed. In other wards, in all cases
falling under S. 5 what the party has to show is why he
did not file an appeal on the last day of limitation
prescribed. That may inevitably mean that the party will
have to show sufficient cause not only for not filing the
appeal on the last day but to explain the delay made
thereafter day by day. In other words, in showing sufficient
cause for condoning the delay the party may be called upon
to explain for the whole of the delay covered by the period
between the last day prescribed for filing the appeal and
the day on which the appeal is filed. To hold that the
expression "within such period" means during such period
would, in our opinion, be repugnant in the context. We
would accordingly hold that the learned Judicial
Commissioner was in error in taking the view that the
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failure or the appellant to account for its non-diligence
during the whole of the period of limitation prescribed for
the appeal necessarily disqualified it from praying for the
condonation of delay, even though the delay in question was
only for one day; and that too was caused by the party's
illness."
19. In the present case, it is admitted fact that
the compromise decree which is sought to be challenged
by way of appeal is of the year 2016 and appeal is filed
in the year 2021 and therefore the same is apparently
barred by provisions of Limitation Act and therefore
these petitions are required to be allowed.
20. In view of the above discussion, all these
petitions are allowed. The impugned orders passed below
Exh.5 in respective Regular Civil Appeals are quashed
and set aside. The Regular Civil Appeals which are filed
before the Court below against the respective Regular
Civil Suits, as mentioned in the statement hereinabove
in paragraph 4 are declared as null and void and
therefore dismissed. Rule is made absolute in each
petition. No order as to costs.
(SANDEEP N. BHATT,J)
SRILATHA
