Satyendrakumar Vallabhdas Modi vs Kundanben Chinubhai Modi
2023 Latest Caselaw 6488 Guj

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     C/SCA/7962/2017                                   JUDGMENT DATED: 05/09/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 7962 of 2017


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE J. C. DOSHI

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1     Whether Reporters of Local Papers may be allowed                      NO
      to see the judgment ?

2     To be referred to the Reporter or not ?                               NO

3     Whether their Lordships wish to see the fair copy                     NO
      of the judgment ?

4     Whether this case involves a substantial question                     NO
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                        SATYENDRAKUMAR VALLABHDAS MODI
                                     Versus
                       KUNDANBEN CHINUBHAI MODI & 3 other(s)
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Appearance:
HL PATEL ADVOCATES(2034) for the Petitioner(s) No. 1
MR SP MAJMUDAR(3456) for the Respondent(s) No. 2,3,4
NOTICE NOT RECD BACK for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                  Date : 05/09/2023

                                 ORAL JUDGMENT

First respondent being deceased alongwith other respondents herein filed Regular Civil Suit No.258 of 2010 before the Court of learned Principal Senior Civil Judge, Godhra seeking relief of declaration and permanent injunction which

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was decreed in favour of respondents herein. To challenge the said judgment and decree by way of first appeal as delay occurred, delay application seeking condonation of delay of 880 days was preferred under Section 5 of the Limitation Act which came to be rejected by an order dated 06/03/2017 passed by the learned first appellant. The said order has been assailed in this petition under Article 227 of the Constitution of India.

2. Learned Advocate for the petitioner Mr.Maharshi Patel for HL Patel Advocates would submit that learned court below has taken hyper-technical approach. The learned court below was required to take liberal and non-pedentic approach and was required to allow the petitioner to prefer the appeal which could be decided on merits. He would further submit that the petitioner has explained sufficient reasons to the Court below for condonation of delay; but those are not considered and as such learned appellate Court committed an error of law. Learned Advocate for the petitioner taking this Court through the documents annexed with the petition would submit that the petitioner was suffering from the serious ailment of malignancy and therefore petitioner was not in position to approach the court below within stipulated time period. He would further submit that the reason of serious ailment by itself is sufficient cause to allow the delay condonation application; but the Court below passed the order in ignorance of such strong reason seeking condonation of delay. In support of this submissions, reliance is placed upon the decision in the case of Darbara Singh vs. Paramjit Singh [2001 (9) SCC 352].

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2.1 Another reason canvassed by learned Advocate for the petitioner is that learned Advocate Mr.N K Mehta representing him in the suit has not taken proper care to inform him about the stage of the suit. He would further submit that though time and again, the petitioner has asked about the progress of the litigation; he was not informed but for sheer negligence on the part of the said learned Advocate, the petitioner has become the victim as the said learned Advocate did not take care of the proceeding and never informed the petitioner about the outcome of the suit and in such a way, the delay has occurred. He would further submit that the Court below while dealing with the issue of condonation of delay was required to take liberal approach and to allow the petitioner to espouse his cause on merits. The above submissions has been made to allow the petition.

3. On the other hand, learned Advocate Mr.Jamsed Kavina for Mr.Majmudar, learned Advocate for the respondent has vehemently objected to the grant of this petition. Referring to the decision in case of Samusunisha Begaum W/O Dr Nasarullahkhan Dhaniani & Ors. Vs Vishnukumar Ambelal Patel [2012 GLH 2 725] he would submit that in identical situation this Court believed and held that the negligence on the part of the Advocate cannot be considered as a reason for allowing the condonation of delay. He would further submit that it was the duty of the petitioner to inquire about the litigation pending before the Court below. He cannot plead total ignorance to the proceeding which was carried before the Court below. He would further submit that petitioner never approached to the Court below and inquired about the progress of the trial either

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with his Advocate or from the Court which itself goes to show that he was not at all serious to go ahead with the suit.

3.1 He would further submit that issue of serious ailment raised by the petitioner was in existence even prior to filing of the suit. Drawing attention of this Court towards the medical case papers / documents produced on record, learned Advocate for the respondent submit that the documents indicate that he was suffering from the ailment since 2007 and in spite of the said fact the petitioner has engaged the Advocate. Not only that, he has also participated in the proceeding to some extent but; later on, due to his lackadaisical approach, he did not come to the Court and inquire about the status of the suit. He would submit that the result of the suit was against the petitioner and therefore, now he is trying to bring on record the artificial reasons which are non-existence since beginning. By relying upon the decision in case of Lanka Venkateswarlu (Dead) By Lrs., vs. State of Andhra Pradesh & Ors., [(2011) 4 SCC 363] he would submit that expression like 'liberal approach' 'justice oriented approach', 'substantial justice', etc., cannot be employed to jettisoned the substantial law of limitation. He would further submit that under the impression of doing substantial justice, the Court cannot overlook the right perfected by the vigilant party received from the impugned order. Upon above submissions, he would submit to dismiss the petition.

4. Having heard learned Advocates for both the sides and on perusal of the pleadings of the petitioner which unsuccessfully sought the condonation of delay, it appears that he has

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canvassed two grounds. Firstly, that his Advocate remained non- vigilant and which has caused substantial delay in preferring the appeal. Secondly, he is suffering from serious ailment, which has prevented him to file appeal within stipulated time.

5. Though the petitioner pleaded the ground of negligence of learned Advocate representing him; he did not plead that why he has not come to the Court for inquiring about the proceeding. Affidavit of learned Counsel qua, is also not filed. To be noted that, the civil suit was filed in the year 2010 and it was decided on 15/02/2013, the petitioner did not utter a word that when he went to know about the progress of the suit. He has pleaded general allegation that his Advocate did not care to defend about the stage of the suit. The conduct of the petitioner itself shows that he was not at all serious in the proceeding of the suit. At this juncture, it is apt to refer to the observations of this Court in the case of Samusunisha Begaum W/O Dr Nasarullahkhan Dhaniani & Ors., (supra) ; where in paragraph 24 and 25 held as under:

"24. In the present case, it is undisputed that the suit was preferred in the year 1987. The issues in the suit were framed by the Court on 30/9/1995 and the first date of hearing after framing of issues was 29/11/1995. From the year 1995 to 1999, there was no progress in the suit. On 20/9/1999, the Civil Court in the absence of the plaintiff as well as his advocate, dismissed the suit for non prosecution. From 20/9/1999 the original plaintiff did not do anything till he passed away on 9/6/2004. I am at a loss to fathom that not even once in six years the original plaintiff thought fit to inquire with his advocate as regards the status of the civil suit and its

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progress even assuming that the original plaintiff and his family was not in India and had migrated to U.S.A. If the original plaintiff was so much keen to pursue the suit with seriousness then probably before leaving for U.S.A. he could have even executed a power of attorney in favour of any person, who could have proceeded with the suit but even that was not done. The fact that till 9/6/2004 i.e. till the date the original plaintiff passed away, he did not even bother to inquire once with his advocate about the progress and status of the suit, itself goes to show that he was not at all serious to go ahead with the suit.

Not only this but even thereafter the respondents as legal heirs of the original plaintiff preferred an application almost after a period of ten months from the date of demise of the original plaintiff.

25. Under such circumstances, the Trial Court committed a serious error in condoning delay on the ground that the advocate Shri Upadhyay did not inform the original plaintiff as well the respondents about the dismissal of the suit for non prosecution. Even if I assume for a moment that the same is true by itself would be no ground to condone such a long and inordinate delay as the litigant owes a duty to be vigilant of his own rights and is expected to be equally vigilant about the judicial proceedings pending in the Court initiated at his instance. The litigant, therefore, should not be permitted to throw the entire blame on the head of the advocate and thereby disown him at any time and seek relief. I regret to state that in the present case, learned advocate of the plaintiff Shri Upadhyay for some reasons has taken up the entire blame on his head and it appears that the same has been done only with a view to get the delay condoned. Over a period of time there is a growing tendency on the part of an advocate to file affidavit

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trying to explain the circumstances, under which, delay has occurred be it in preferring an appeal or filing an application for restoration of suit like in the present case etc. I am of the view that the practice of an advocate filing his affidavit in an application filed under Order 9 Rule 9 of Civil Procedure Code is totally wrong and deserves to be deprecated. I have noticed in many cases that even though an advocate is not at fault, he would file an affidavit taking the entire blame upon himself only because the lethargic and negligent litigant wants him to file such an affidavit so that the Court concerned in the name of substantial justice would condone the delay. Affidavit of an advocate may come on record in the rarest of rare circumstances and not as a matter of course. Let me assume for a moment that in the present case, concerned advocate of the original plaintiff could not remain present on 20/9/1999 the day on which the Trial Court dismissed the suit for non prosecution and thereafter he was not able to keep a track of the suit but was it not the duty of the original plaintiff to keep watch on the proceedings and inquire once atleast with his advocate as regards the status of the suit? This could have been done even if the original plaintiff and his family was in U.S.A. I do not blame the original plaintiff in going to U.S.A. but being a litigant in the Court of Law he is expected to keep a close watch on the proceedings as well as on the status of such proceedings. After filing a civil suit a litigant can not go off to sleep and wake up from a deep slumber after 5 years as if the Court is a storage of suits filed by such negligent litigants. If that be so, then Court would be quite justified in dismissing the suit for non prosecution and should be loathe enough to restore the suit unless strong grounds are made out by the party concerned. There is one more reason why I am very serious in commenting

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on the practice of advocates filing affidavit. There is a general impression in the mind of the litigants that if a lawyer would file an affidavit saying that he was unable to attend the Court or because of his negligence the suit or appeal came to be dismissed then the Court would very willingly accept such explanation and condone the delay. This impression needs to be eradicated. Advocates at time forget that in the zeal to help the client by filing such affidavit they would land up in difficulty if a litigant would file proceedings for compensation on the ground of deficiency in service."

5.1 In the case on hand, the petitioner seeks to condone the delay of two years; tow months and 28 days (880 days) which is a quite huge delay. This Court in the above case law discussed the issue of condonation of delay in identical fact. The ratio and finding therein is squarely applied to the facts of the present case.

6. At this juncture, let refer to the decision in case of Lanka Venkateswarlu (Dead) By Lrs., (supra) where in paragraph 28 the Hon'ble Apex Court has held as under:

"28. We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as "liberal approach", "justice oriented approach", "substantial justice" can not be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to

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maintain whilst adjudicating any lis between the parties. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms."

6.1 The finding herein above that on the concepts such as "liberal approach", "justice oriented approach", "substantial justice" the Court can not stratify the substantial law of limitation. Such expression can be given due importance in background of facts governing the reasons for condonation of delay.

7. In Basawaraj & Anr. vs. Special Land Acquisition Officer [(2013) 14 SCC 81], the Hon'ble Apex Court explained the word 'sufficient cause' used within Section 5 of the Limitation Act and in paragraph 9 and 11 to 15 has held as under:

"9. Sufficient cause is the cause for which defendant could not be blamed for his absence. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, the word "sufficient"

embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently" or "remained inactive". However, the

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facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the Court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay. The Court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose. (See: Manindra Land and Building Corporation Ltd. V/ s. Bhootnath Banerjee & Ors., AIR 1964 SC 1336; Lala Matadin V/s. A. Narayanan, AIR 1970 SC 1953; Parimal v.Veena @ Bharti AIR 2011 SC 1150; and Maniben Devraj Shah V/s. Municipal Corporation of Brihan Mumbai AIR 2012 SC 1629.)

xxx xxx xxx xxx

11. The expression "sufficient cause" should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned, whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible. (Vide: Madanlal V/s. Shyamlal, AIR 2002 SC 100; and Ram Nath Sao @ Ram Nath Sahu & Ors. V/s. Gobardhan Sao & Ors.,AIR 2002 SC 1201.)

"12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds.

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"A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation." The Licenced

statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same. The legal maxim "dura lex sed lex"which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute.

13. The Statute of Limitation is founded on public policy, its aim being to secure peace in the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. It seeks to bury all acts of the past which have not been agitated unexplainably and have from lapse of time become stale. According to Halsbury's Laws of England, Vol. 24, p. 181: ["330. Policy of Limitation Acts. The Courts have expressed at least three differing reasons supporting the existence of statutes of limitations namely, (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence". An unlimited limitation would lead to a sense of insecurity and uncertainty, and therefore, limitation prevents disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence' or laches. (See : Popat and Kotecha Property V/s. State Bank of India Staff Assn. (2005) 7 SCC 510; Rajendar Singh & Ors. V/s. Santa

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Singh & Ors., AIR 1973 SC 2537; and Pundlik Jalam Patil V/s. Executive Engineer, Jalgaon Medium Project, (2008) 17 SCC

448).] xxx xxx xxx

15. 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 bonafide 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. No Court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the Court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature."

8. Thus, what emerges that word 'sufficient cause' is always attached with the facts of the particular case and no straitjacket formula can be possible to apply. The explanation for sufficient cause must be satisfactory and it should be bona-fide; without any negligence. Inaction or lack of bona-fide on the part of the litigating party cannot be considered as cause for delay sufficiently explained. The petitioner has to display that he acted

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diligently to espouse his cause, but yet could not come to the Court for sufficient reason. Justifiability and proper explanation are basic and vital ingredient to condonation of delay.

9. Switching on the another ground canvassed by the learned Advocate for the petitioner that he is suffering from the serious ailment of malignancy which has prevented him from filing appeal within stipulated time and to find justifiability but refer to the document upon which learned Advocate has relied upon they indicates that the petitioner is suffering from the ailment of malignancy; but this ailment is from year 2007 i.e. even prior to filing of the suit and at nowhere in the medical case papers, it is stated that the petitioner is advised not to move and to remain bedridden. In view of that, the second ground canvassed by the petitioner does not stand.

10. The decision in case of Darbara Singh (supra) on which the petitioner has relied upon is on peculiar facts where by the petitioner therein was advised not to move by the concerned Doctor and the Hon'ble Apex Court believed that it was sufficient cause for condonation of delay. In absence of any such written advise on record in the present case, the said decision would not be helpful to the petitioner.

11. The perusal of the impugned judgment indicates that the learned Court below has taken into consideration all the aspect including the ground of medical condition of the petitioner (see paragraph 7 of the impugned order). The learned trial Court has passed well reasoned order holding that it was not a fit case to

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condone the delay where the petitioner has failed to explain the sufficient reason with rationality for condonation of delay. No patent illegality is found rather committed by the learned Court below which would call for interference at the hands of this Court under the supervisory jurisdiction.

12. For the foregoing reasons, the petition fails and is accordingly dismissed. No costs. Interim-relief if any stands vacated.

(J. C. DOSHI,J) ompura