Mangilal @ Manilal Hiralal ... vs Hasmukhbhai Fogatbhai Parmar
2023 Latest Caselaw 3357 Guj

     C/SCA/18808/2021                                          ORDER DATED: 26/04/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
             R/SPECIAL CIVIL APPLICATION NO. 18808 of 2021
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         MANGILAL @ MANILAL HIRALAL DHULDHOYA (SOLANKI)
                              Versus
                HASMUKHBHAI FOGATBHAI PARMAR
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Appearance:
MR TEJAS P SATTA(3149) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                Date : 26/04/2023

                                     ORAL ORDER

1. This petition is filed challenging the order

dated 27.2.2020 below Exh.1 in Civil Miscellaneous th Application No.60 of 2020 by the learned 9 Additional

District Judge, Vadodara, by which the application for

condonation of delay of 802 days is rejected.

2. Heard learned advocate Mr.Satta for the

petitioner and also perused the earlier order passed by

this Court on 16.12.2021 which reads as under:

"On a request being made by learned advocate for the petitioner, petitioner is permitted to produced relevant documents such as handing over the possession of the suit premises to the original plaintiff on 14 th September 2019 and report submitted by the official of the court, withdrawal

C/SCA/18808/2021 ORDER DATED: 26/04/2023

purshish passed by the original plaintiff in Execution Petition No.95 of 2018 and disposed of the Execution Petition No.15.10.2019.

Stand over to 6th January 2022."

3. Thereafter, 1.2.2022, 23.2.2022 and 29.3.2022,

this Court has passed the further orders by recording

the request of the learned advocate for the petitioner to

adjourn the matter.

4. Today, when the matter is called out, learned

advocate Mr.Satta has submitted that though the

documents are with him, he could not produce the same

on the record of this petition and therefore the same

were tendered during the course of hearing for perusal and the Court has perused the same.

5. The facts of the case are such that the

original plaintiff has rented the ownership premises and

thereafter the plaintiff filed Rent Suit No.49 of 2017

against the defendant for recovery of possession and

mesne profit, wherein, due to the gross negligence of the

learned advocate for the defendant i.e. the present

petitioner, the written statement could not be filed and

C/SCA/18808/2021 ORDER DATED: 26/04/2023

the suit was decreed ex-parte vide order dated

10.11.2017. Thereafter, the Darkhast Proceeding no. 95 of

2018 was filed before the Small Causes Court, Vadodara

and on 23.9.2019, the present petitioner who is the

original defendant has handed over the possession of the

suit premises to the respondent who is original plaintiff

in the execution proceeding and that report is made by

the concerned officer and pursis at Exh.9 is filed in the

darkhast proceeding and the Court has disposed of the

execution proceeding by order dated 15.10.2019.

6. Thereafter, the present petitioner has preferred

appeal before the learned learned District Court and also

filed application for condonation of delay of 802 days in preferring such appeal. The learned trial Court, after

hearing the present petitioner at length, has dismissed

the application for condonation of delay by giving reasons

in detail. Being aggrieved and dissatisfied with the same,

the present petition is filed.

7. Learned advocate Mr.Satta has submitted that

though the decree is passed on 10.11.2017 and the

possession of the premises is also handed over pursuant

C/SCA/18808/2021 ORDER DATED: 26/04/2023

to the execution proceeding on 23.9.2019, thereafter in

the month of February, 2020, by way of appeal, the

petitioner has challenged the judgment and decree passed

in the suit i.e. after a delay of 802 days. He submitted

that the petitioner was not aware about the decree

passed in the suit proceedings and he came to know

about the same only when the notice of execution

proceeding was served and therefore he should not be

considered at fault.

8. Learned advocate Mr.Satta submitted that the

Court should take liberal view while considering the

application for condonation of delay and give proper

opportunity to the parties to pursue the statutory remedy on merits and therefore he prays for interference with

the impugned order passed by the learned lower

appellate Court.

9. I have considered the submissions made at the

bar, also considered the reasons given by the learned

lower appellate Court while deciding application for

condonation of delay.

C/SCA/18808/2021 ORDER DATED: 26/04/2023

10. On perusal of the impugned order, this Court

is of the opinion that the Court has rightly come to the

conclusion that no satisfactory reasons have come out for

the delay. On the contrary, the conduct of the petitioner

clearly shows that the petitioner was aware about the

outcome of the suit proceeding and therefore only, he

has handed over the possession without further

contesting the execution proceeding on 23.9.2019 and

accordingly even the execution proceedings were concluded

by order dated 15.10.2019, however, the Civil

Miscellaneous Application is filed on 25.2.2020. It is also

relevant to note that the order is passed by the learned

Judge, Vadodara on 27.2.2020 and the present petition is

filed on 5.9.2020. Thus, here also, the petitioner has approached after almost 7 months. Considering all these

aspects, there is no cause made out for the delay, much

less, sufficient cause.

11. In a recent judgment of the Hon'ble Apex

Court in the case of Ajay Dabra v. Pyare Ram reported

in AIR 2023 SC 698, the Court has considered the aspect of condonation of delay of 254 days in filing First

Appeal and the aspect of sufficient cause as the reason

C/SCA/18808/2021 ORDER DATED: 26/04/2023

given for delay was of paucity of funds to pay court

fees, wherein the Court considered the totality of the

facts and circumstances of that case and has considered

in detail that the Court should consider what is

sufficient cause.

12. Accordingly, considering the settled legal

position of law, no case is made out to interfere with

the findings of the learned lower appellate Court more

particularly, considering the limited power of this Court

under Article 227 of Constitution of India in view of the

judgment in the case of Garment Craft V/s Prakash

Chand Goel reported in (2022) 4 SCC 181, where it was held that High Courts while exercising powers under Article 227 does not act as appellate authority and

cannot reappreciate evidence and the jurisdiction

exercised under Article 227 is in nature of correctional

jurisdiction to set aside grave dereliction of duty or

flagrant abuse of process of law and High Court cannot

substitute its own view on merits, this petition is

required to be dismissed. Accordingly, the same is

dismissed. No order as to costs.

(SANDEEP N. BHATT,J) SRILATHA