Rajkot Municipal Corporation vs Jivuben Ranabhai Yadav L H Of Decd. ...
2023 Latest Caselaw 5190 Guj

       C/CA/981/2019                                 ORDER DATED: 05/07/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CIVIL APPLICATION NO. 981 of 2019

                       In F/SECOND APPEAL NO. 7581 of 2019

                                    With
                        F/SECOND APPEAL NO. 7581 of 2019
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                 RAJKOT MUNICIPAL CORPORATION
                              Versus
     JIVUBEN RANABHAI YADAV L H OF DECD. RANABHAI CHAKUBHAI
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Appearance:
MR HS MUNSHAW(495) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1,3,4
YAGNESHKUMAR S JOSHI(8074) for the Respondent(s) No. 2,5
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 CORAM:HONOURABLE MS. JUSTICE S.V. PINTO

                                 Date : 05/07/2023

                                  ORAL ORDER

1. The present Civil Application is filed under section 5 of the Limitation Act for condonation of delay of 1846 days caused in filing the Second Appeal against the judgment and decree passed by the learned Principal District Judge, Rajkot in Regular Civil Appeal No.39 of 2001 on 11.11.2013.

2. During the course of hearing, learned advocate Mr.H.S.Munshaw for the applicant original defendant has drawn the attention of this Court to paragraph 2 of the Civil Application which reads as under.

C/CA/981/2019 ORDER DATED: 05/07/2023

"2. The applicant submits that however, a delay of 1846 days is caused in filing of Second Appeal before the Hon'ble High Court of Gujarat on 1 st March, 2019. It is humbly stated that the delay is not due to any negligence or lethargy as its end. The applicant submits that the delay is caused due to non-availability of record as the old building of Rajkot Municipal Corporation was demolished with a view to put up a construction of new building at the same place and the entire record was shifted to another building and in the procedure the record was lost. It is submitted that the applicant came to know about it only pursuant to issuance of notice by the Hon'ble Court in Darkhast No.50 of 2016. It is submitted that all efforts were made to search the record, but ultimately as the same is not traced, necessary record is constructed and Second Appeal is preferred before the Hon'ble Court of Gujarat. Thus, this Hon'ble Court is humbly prayed to condone the delay in view of this factual background and further be kind enough to hear the Second Appeal on merits in the interest of justice."

3. In support of his submissions, learned advocate Mr.Munshaw has relied upon the following decisions.

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(i) Virendra Gulabchand Patva Vs Ashaben Vinodbhai Desai rendered in Special Civil Application No.16740 of 2014 dated 31.7.2018.

(ii) Legal Heirs & Representative of Decd Jagdishchandra Maganlal Trivedi Vs State Bank of India rendered in Civil Misc. Petition No.662 of 2004 and allied matters dated 23.12.2004; and

(iii) Sapankumar I.Maniyar Vs Kesar Motels Private Limited rendered in Civil Application No.3565 of 2019, First Appeal No.17046 of 2019 dated 3.1.2022.

Mr.Munshaw, therefore, submits that in view of the decisions rendered by this Court as referred above on the point of condonation of delay, the delay of 1846 days caused in filing the Second Appeal is required to be condoned in the interest of justice. No other and further submissions have been made.

4. The present Civil Application is opposed by Mr.Yagneshkumar S.Joshi, learned advocate appearing on behalf of the respondent Nos.2 and 5 by filing an affidavit- in-reply. Learned advocate Mr.Joshi has submitted that there is an inordinate delay of 1846 days caused in filing

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the Second Appeal which itself justifies a refusal to exercise discretion in favour of the applicant and the applicant has not explained the delay and no sufficient cause is shown to condone the delay and in the absence of just, proper and sufficient cause to be shown, delay cannot be condoned. He has further submitted that the present application for condonation of delay is vague, devoid of particulars and does not disclose any cause, much less sufficient cause to condone the delay of 1846 days in preferring the Second Appeal. He, therefore, submits that as there is a gross and inordinate delay of 1846 days, the present Civil Application is required to be dismissed.

5. There is no dispute in regard to the delay of 1846 days caused in filing the above referred Second Appeal. It can also be noticed from the record that the learned Principal District Judge, Rajkot delivered the judgment on 11.11.2013 and Mr.R.M.Varotariya, learned advocate appearing for the original defendant - applicant herein has made endorsement on the said judgment delivered by the learned Principal District Judge, Rajkot on 11.11.2013. Therefore, the judgment delivered by the learned Principal District Judge, Rajkot on 11.11.2013 was well within the knowledge of the applicant. Further, on going through the paragraph 2 of the Civil Application, no ostensible reason has been provided. The captioned Second Appeal is filed some where in 2019 and there is an unexplained and

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inordinate delay in filing the appeal. Further, the application also did not specify the period as to when the old building of the Rajkot Municipal Corporation was demolished with a view to put up a construction of new building at the same place and as to when the entire entire record was shifted to another building and as to when the record was lost. Even the averments made in paragraph 2 of the application for condonation of delay does not specify the particular dates.

6. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. It is well settled that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay

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of a very long range can be condoned as the explanation thereof is satisfactory. It is equally true that the rules of limitation are not meant to destroy the rights of parties but they are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. This Court is also aware that refusal to condone delay would result in foreclosing the applicant herein from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate.

7. It is by now well settled that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bona fide can be imputed to the defaulting party. On the other hand, while considering this matter this court should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner.

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8. In the case of Post Master General and Ors. v. Living Media India Ltd and Anr. Reported in (2012) 3 SCC 563, the Honourable Apex Court had observed as under:

"27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.

28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government.

29. In our view, it is the right time to inform all the government bodies, their agencies and

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instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few."

9. In view of the above, the application is devoid of any acceptable and cogent explanation for the abnormal substantial delay and hence the Civil Application seeking condonation of delay in filing the Second Appeal stands dismissed. Consequently, F/Second Appeal No.7581 of 2019 is dismissed as well.

(S. V. PINTO,J) H.M. PATHAN