Patel Ravjibhaiambalal vs L H Of Dced Ambalal Parsotambhai ...
2023 Latest Caselaw 2633 Guj

      C/SCA/15662/2018                          ORDER DATED: 29/03/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 15662 of 2018

                              With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2022
        In R/SPECIAL CIVIL APPLICATION NO. 15662 of 2018
=============================================
                    PATEL RAVJIBHAIAMBALAL
                            Versus
      L H OF DCED AMBALAL PARSOTAMBHAI PATEL & 1 other(s)
=============================================
Appearance:
MR VISHAL C MEHTA(6152) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
MR. JAY M THAKKAR(6677) for the Respondent(s) No. 1.2,1.3
NOTICE SERVED BY DS for the Respondent(s) No. 1.1,1.4,1.5
=============================================

 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                           Date : 29/03/2023

                             ORAL ORDER

1. By way of present petition, the petitioner herein has challenged the impugned order dated 24.08.2016 passed by the Principal District Judge, Anand, in Civil Misc. Application No.47 of 2013 in Civil Appeal No.17 of 2003 whereby, the Court below rejected the application of the petitioner seeking condonation of delay in preferring the restoration application.

2. The brief facts leading to the filing of the present petition read thus:

2.1 The land bearing Survey No.547/1 situated at Village Oad, Taluka-District- Anand, admeasuring A. O - 22G (for short 'the suit land') was originally belonging to the uncle of the father of the Respondent No.1 and the land-in-question has

C/SCA/15662/2018 ORDER DATED: 29/03/2023

been mortgaged to the predecessor of the petitioner on 30.05.1949 for an amount of Rs.1,600/- and a period for redemption of the said mortgage was fixed for 10 years.

2.2 That, the respondent on 23.12.1988 after lapse of 39 years, preferred suit against the petitioner for redemption of the said mortgage. The Court of Joint Civil Judge (J.D.), Umreth (for short 'the trial Court') on 19.12.2002 passed a preliminary decree in favour of the respondents by allowing the suit and directed the respondents to pay an amount of Rs.1,600/- within a period of six months to the petitioner and further directed the petitioner to hand over any documents in respect of the suit land to the respondents.

2.3 The petitioner on 10.02.2003, being aggrieved and dissatisfied by the said preliminary decree passed by the trial Court, preferred an appeal being Civil Appeal No.17 of 2003 (New No.153 of 2006) before the appellate Court inter-alia raising various substantial grounds mentioned therein. A copy of the said memorandum of appeal is duly produced at Annexure - A. Pending the appeal, the advocate of the petitioner on 16.07.2012 preferred a withdrawal pursis vide Exh.30 in view of the alleged settlement arrived at between the parties and pursuant to the said settlement, the possession of the suit land has been handed over to the respondents herein and the appellate Court recording the said withdrawal pursis, passed an order disposing off the said appeal as withdrawn. A copy of the said withdrawal pursis below Exh.30 and the order passed below Exh.1 in Regular Civil Appeal No.153 of 2006 (Old No.17 of 2003) are duly produced at

C/SCA/15662/2018 ORDER DATED: 29/03/2023

Annexure -B and Annexure - C respectively to the present petition.

2.4 It is the case of the petitioner that the petitioner immediately having knowledge of passing of the said order in Regular Civil Appeal No.153 of 2006, preferred an application on 17.05.2013 through another advocate for restoration of the said appeal before the lower Court along with a separate application being Civil Misc. Application No.47 of 2013 for condonation of delay in preferring the restoration application. On 24.08.2016, in absence of the advocate for the petitioner, the appellate Court rejected the said Civil Misc. Application seeking condonation of delay on the ground that no sufficient cause have been shown by the petitioner to condone the delay.

2.5 The petitioner was not aware about the said order and in the meantime, the respondents herein on 07.03.2014, preferred the application below Exh.175 under the provisions of Order 34 Rule 8 for drawing of final decree in the suit. The trial Court by order dated 13.02.2017 allowed the application below Exh.175 by drawing a final decree in the suit. It is the case of the petitioner that the said order was not communicated to the petitioner by his advocate.

2.6 On 15.03.2018, the respondents, through their advocate, issued a legal notice to the petitioner for handing over the possession of the suit land in view of the final decree passed in the present suit by the trial Court and upon taking legal advice and/or inquiry, it was revealed that the lower Court in the year

C/SCA/15662/2018 ORDER DATED: 29/03/2023

2016 passed an order rejecting the application for condonation of delay preferred by the petitioner and also the order passed by the trial Court of drawing final decree in the said suit. A copy of the legal notice issued by the respondents dated 15.03.2018 is duly produced at Annexure - E. The petitioner applied for certified copies of the order on 12.07.2018 which were received by the petitioner on 16.07.2018 and upon receipt of the same, sent it to the advocate and thereafter, the present petition came to be filed challenging the order passed by the Principal District Judge, Anand in Civil Misc. Application No.47 of 2013 dated 24.08.2016 and further with a prayer that the further proceedings of the Execution Petition No.4 of 2018, pending before the Court of Principal Civil Judge, Umreth, be stayed.

2.7 Notice came to be issued on 10.10.2018 by the Coordinate Bench of this Court and interim relief in terms of paragraph 8(b) came to be granted.

3. Heard Mr. Vishal C. Mehta, learned advocate appearing for the petitioner and Mr. Jay M. Thakkar, learned advocate appearing for the respondents.

4. Mr. Vishal C. Mehta, learned advocate appearing for the petitioner, submitted that the order rejecting the application seeking condonation of delay in filing the restoration application is passed by the appellate Court in absence of the petitioner. Mr. Mehta, learned advocate, submitted that the withdrawn pursis below Exh.30 establishes that said was without the consent of the petitioner as there was no signature

C/SCA/15662/2018 ORDER DATED: 29/03/2023

of the parties shown under the pursis. Mr. Mehta, learned advocate, submitted that upon knowledge of the impugned order dated 24.08.2016 passed in Civil Misc. Application No.47 of 2013, the petitioner immediately preferred an application for restoration along with condonation of delay. The petitioner otherwise has good case on the merits and therefore, the application seeking condonation of delay in filing the restoration application in Civil Appeal No.17 of 2003 was required to be allowed.

5. Per contra, Mr. Jay M. Thakkar, learned advocate appearing for the respondents, submitted that no interference called for in the orders passed by the appellate Court. Mr. Thakkar, learned advocate, submitted that learned advocate appearing for the petitioner filed a withdrawal pursis below Exh.30 on 02.07.2012 pursuant to which, order permitting the withdrawal below Exh.1 came to be passed on 16.07.2012 by the appellate Court in Misc. Civil Appeal No.17 of 2003 (New Regular Civil Appeal No.153 of 2006). Mr. Thakkar, learned advocate, submitted that the application seeking condonation of delay being Civil Misc. Application No.47 of 2013 in filing of restoration application came to be rejected by order dated 24.08.2016 and the present petition came to be filed on 16.08.2018 and therefore, there is a gross delay in filing of the present petition. Mr. Thakkar, learned advocate further submitted that the respondents - original plaintiffs have deposited the amount as directed in the preliminary decree in the Court and necessary receipt is also issued qua the same on 10.01.2014. Mr. Thakkar, learned advocate also submitted that

C/SCA/15662/2018 ORDER DATED: 29/03/2023

on the even date, the respondents filed an application below Exh.175 inter alia praying for drawing of final decree and in the said application it was stated that the petitioner had withdrawn Misc. Civil Appeal No.17 of 2003. Mr. Thakkar, learned advocate submitted that on 30.09.2016, the respondents had produced on record the order dated 24.08.2016 passed in Civil Misc. Application No.47 of 2013 vide Exg.191 and on 13.02.2017, the said application was allowed by the trial Court and final decree came to be drawn. Mr. Thakkar, learned advocate submitted that in the year 2018 in pursuance to the issuance of the final decree, the respondents herein filed Execution Petition No.4 of 2018 praying for execution of final decree. That, the petitioner on 29.08.2018 preferred an appeal before the lower appellate Court along with an application for condonation of delay being Civil Misc. Application No.149 of 2018, which came to be rejected by order dated 03.11.2018. Mr. Thakkar, learned advocate, submitted that the petitioner herein has suppressed the aforesaid facts in the present petition.

5.1 Placing reliance on the aforesaid submissions, Mr. Thakkar, learned advocate submitted that no interference is called for in the order passed by the appellate Court rejecting the Civil Misc. Appeal No.47 of 2013.

6. Heard the learned advocates appearing for the respective parties. The petitioner herein is aggrieved by the order dated 24.08.2016 passed by the District Judge, Anand, rejecting the application being Civil Misc. Application No.47 of 2013 seeking condonation of delay in preferring the restoration application.

C/SCA/15662/2018 ORDER DATED: 29/03/2023

The operative part of the said order reads thus: (true translation)

"(6) The applicant has not produced any evidence or affidavit to the effect that he came to know about the order dated 16/07/2012 only on 03/04/2013. Further, the suit against the applicant is very old and the appeal was filed in the year 2003. The said appeal was withdrawn in the year 2012 and it does not prima facie appear that the applicant has mentioned reasonable and adequate reasons for condonation of delay after such a long time.

(7) Considering provisions of section 5 of the Limitation Act, 1963, when there is a just and sufficient reason for condoning the delay in filing any application or appeal or revision application, it is condonable. When there is delay of a long period, the applicant should cite reasonable and sufficient reason for condoning delay and should mention facts for delay in his application. As the appeal has been withdrawn in the year 2012 and applicant's advocate has stated that there is no reason to proceed with the appeal as compromise has been struck between the parties, it does not transpire that there is sufficient and just reason for the applicant to file the present application for condonation of delay. Therefore, I pass the following order rejecting the application of the applicant in the interest of justice.

ORDER

The Civil Miscellaneous Application No.47/2013 filed by the applicant Patel Ravjibhai Ambalal is rejected.

This order was read over and pronounced in the open Court today on the 24th day of August of the year 2016."

7. The aforesaid order rejecting the Civil Misc. Application No.47 of 2013 came to be passed on 24.08.2016. The relevant dates for the purpose of consideration of the dispute-in question read thus:

7.1 On 23.12.1988, the respondents - original plaintiffs filed Civil Suit No.181 of 1988 before the Court of Civil Judge, Umreth.

       C/SCA/15662/2018                        ORDER DATED: 29/03/2023




7.2     On 19.12.2002, the Civil Judge (J.D.), Umreth, was

pleased to allow the said suit and was pleased to draw the preliminary decree in favour of the respondents - original plaintiffs. A copy of decree dated 19.12.2002 passed in Civil Suit No.181 of 1988 is annexed herewith and marked as Annexure - AA.

7.3 On 10.02.2003, the original defendant - petitioner herein preferred Civil Appeal No.17 of 2003 challenging the aforesaid judgment and decree dated 19.12.2002.

7.4 On 02/16.07.2012, learned advocate for the petitioner in Civil Appeal No.17 of 2003 filed a pursis before the Court inter alia stating that the parties have entered onto compromise. The Court recorded the presence of the learned advocate of the petitioner and recorded the same in the said application.

7.5 On 16.07.2012, the learned 2 nd (Ad-hoc) Additional District Judge, Anand, passed an order below Exh.1 in Misc. Civil Appeal No.17 of 2003 (New Regular Civil Appeal No.153 of 2006) and disposed off the appeal as withdrawn.

7.6 On 17.05.2013, the present petitioner filed Civil Misc. Application No.47 of 2013 seeking condonation of delay of 215 days in filing the restoration application.

7.7 On 10.01.2014, the respondents herein deposited the amount as per the preliminary decree and necessary receipt came to be issued qua the same.

7.8     On 10.01.2014, the respondents herein preferred an





       C/SCA/15662/2018                           ORDER DATED: 29/03/2023

application below Exh.175 for drawing the final decree. In the said application, it was stated that the petitioner had withdrawn Misc. Civil Appeal No.17 of 2003.

7.9 On 30.09.2016, vide Exh.191, the respondents herein produced on record order dated 24.08.2016 passed in Civil Misc. Application No.47 of 2013.

7.10 On 13.02.2017, the said application came to be allowed and final decree came to be drawn. A copy of application below Exh.15 inter alia praying for final decree, a copy of list of documents vide Exh.191 and the copy of the order dated 13.02.2017 are produced at Annexure - CC (Colly.).

7.11 Pursuant to the final decree, which came to be drawn on 13.02.2017, the respondent herein filed Execution Petition No.4 of 2018 praying for execution of the final decree.

7.12 On 29.08.2018, the petitioner herein filed an appeal before the lower appellate Court along with an application for condonation of delay being Civil Misc. Application No.149 of 2018, which came to be rejected by order dated 03.11.2018. A copy of the said order is duly produced at Annexure - DD.

8. In the aforesaid set of facts, while the Regular Civil Suit No.181 of 1988 came to be decreed on 19.12.2002 in favour of the respondents by the Civil Judge, Umreth, the petitioner herein on 10.02.2003 preferred Civil Appeal No.17 of 2003 challenging the aforesaid judgment and decree dated 19.12.2002, which came to be withdrawn by the learned advocate appearing for the petitioner on 02/16.07.2012 stating

C/SCA/15662/2018 ORDER DATED: 29/03/2023

that the parties have entered into compromise by an pursis below Exh.30. The appellate Court by an order below Exh.1 recording the settlement, disposed of the said appeal as withdrawn by order dated 16.07.2012. The application seeking condonation of delay on the ground that the aforesaid was undertaken by the learned advocate of the petitioner and that, the petitioner was not aware about the withdrawal of the said appeal. The petitioner was not aware about such withdrawal purshis. Having come to know about the same and having procured the certified copy of the said order, the petitioner filed an application for condonation of delay as referred above to condone the delay of 215 days, which came to be rejected by order dated 24.08.2016. In the meantime, the respondents initiated the proceedings for drawing final decree and the preliminary decree came to be drawn on 10.01.2014, which resulted in passing of final decree on 13.02.2017 wherein the petitioner was duly represented.

9. Learned advocate appearing for the petitioner candidly submitted that the final decree drawn is to the knowledge of the petitioner and pursuant thereto an appeal also came to be filed challenging the said decree with an application seeking condonation of delay which came to be rejected by the appellate Court. In such background, the petitioner having actively participated in the proceedings even after the application for condonation of delay came to be rejected, filed the present petition on 02.08.2018 after the drawing of the final decree. The petitioner in 2018 has prayed for condonation of delay of 215 days occurred in filing of the restoration

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application for restoration of the appeal, which came to be withdrawn below Exh.30 and final order of which came to be passed below Exh.1 on 16.07.2012.

10. In view of this Court, considering the facts of the present case and the documents which are placed on record, the prayers, as prayed for in the present petition, cannot be granted for the reason that the the applicant herein actively participated in the proceedings wherein final decree was drawn on 13.02.2017 and the petitioner has also challenged the final decree by filing an application for condonation of delay on 29.08.2018, which has been rejected by the appellate Court by order dated 03.11.2018. The Execution petition being Execution Petition No.4 of 2018 also came to be filed by the respondents herein for the purpose of execution of the said decree dated 13.02.2017 in the year 2018. Subsequent thereto, the petitioner filed an appeal before the lower appellate Court challanging the said decree, which came to be rejected by order dated 29.08.2018.

11. In view of above, it can be said that the present petition is instituted by the petitioner herein challenging the order dated 24.08.2016 rejecting the application for restoration of Civil Appeal No.17 of 2003 and praying for condonation of delay of 215 days in preferring the same after the final decree came to be passed which in the opinion of this Court does not call for interference by this Court, the petition being barred by the delay and latches and the petitioner having acquiesced of the right to challange the impugned order dated 24.08.2016 after a period of 6 years and more particularly, having

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participated in the suit/appeal proceedings after the impugned order having been passed. The challenge to final decree dated 13.02.2017 also being dismissed, does not call for interference under Article 227 of the Constitution of India. This Court does not deem it fit to consider the prayers as prayed for by the petitioner for the reason that the approach of the petitioner can be said to be callous. In such circumstances, this Court is not inclined to exercise supervisory jurisdiction under Article 227 of the Constitution of India.

12. The petition stand dismissed. Civil Application stands disposed of accordingly.

(VAIBHAVI D. NANAVATI,J)

NEHA