Gujarat High Court

Gitaba Bhurubha Chauhan vs State Of Gujarat on 7 February, 2024

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     C/SCA/20879/2023                                          ORDER DATED: 07/02/2024

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 20879 of 2023

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                          GITABA BHURUBHA CHAUHAN
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR DIGANT B KAKKAD(6523) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
MR SATYAM Y CHHAYA(3242) for the Respondent(s) No. 4
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                  Date : 07/02/2024

                                      ORAL ORDER

1. The present petition is filed by the petitioners -

original plaintiffs / appellants under Article 227 of the

Constitution of India challenging the impugned order dated

13.10.2023 passed below Exh.13-A by the learned Principal

District Judge, Kachchh at Bhuj in Civil Misc. Application

No.112 of 2023, whereby the learned appellate Court below

has rejected the application for condonation of delay of 1877

days in preferring the appeal against the judgment and

decree dated 06.04.2018 passed below Exh.134/A by the

learned Principal Senior Civil Judge, Mundra - Kachchh in

Regular Civil Suit No.140 of 2017.

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2. Heard learned advocate Mr.Digant Kakkad for the

petitioners, learned advocate Mr.Satyam Chhaya for the

contesting respondent No.4 and learned AGP Mr.Shivam Dixit

for respondents No.1 to 3 at length.

3. Rule returnable forthwith. Learned advocates waive

service of notice of rule for and on behalf of the respective

respondents. With consent of all the learned advocates, the

matter is taken up for hearing and final disposal today.

4.1 Learned advocate Mr.Digant Kakkad for the

petitioners has submitted that the land in question is in

continuous possession of the petitioners and at present also,

the present petitioners are in possession of the suit land. He

has further submitted that pursuant to the land in question,

Regular Civil Suit No.322 of 2007 has been instituted by the

petitioners before the learned trial Court which was

subsequently transferred to the learned Civil Court at

Mundra and therefore, the suit got re-numbered as Regular

Civil Suit No.140 of 2017. He has submitted that originally,

the suit was instituted by one Bhurubha Mokaji Chauhan,

who died during the pendency of the suit and therefore, the

petitioners, being the legal heirs, had filed an application for

impleadment as party plaintiffs in the said suit in the year

2016, which was allowed and therefore, the petitioners are

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joined as plaintiffs in the suit proceeding. He has submitted

that the suit was decided on 06.4.2018 by the learned

Principal Senior Civil Judge, Mundra. He has submitted that

when they got to know about the disposal of the suit

proceeding, they immediately intend to file an appeal before

the appellate Court below and therefore, there is a delay of

1877 days in preferring the appeal.

4.2 He has submitted that the petitioners are

agriculturists and coming from very lower background and

has no other business except agriculture on the subject land.

He has submitted that all the family members are engaged

in the agriculture activities and no other business they are

doing. Therefore, the petitioners could not inquire about the

suit proceeding for a certain period. He has submitted that

when the petitioner came to know about the disposal of the

suit proceeding in the year 2023, the petitioners immediately

rushed to the advocate, inquired about the same and

thereafter, after getting the necessary documents, filed the

appeal before the learned District Court - appellate Court

below. He has submitted that the petitioner came to know

about the passing of such judgment and decree by the

learned trial Court and when officer of respondent No.4

visited the place of the petitioners, at that time, the

petitioners came to know and therefore, from that date of

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knowledge about the dismissal of the suit, they have

immediately contacted the advocate and followed the

necessary procedure. Thereafter, they immediately filed an

application for condonation of delay of 1877 days in

preferring the appeal, which is rejected by the learned

appellate Court below.

4.3 He has submitted that the appellate Court below

has not considered the reasons for delay which are bona fide.

He has submitted that the petitioners have not remained

negligent. He has submitted that the advocate of the

petitioners who represented their case before the learned trial

Court, has not informed the petitioners about the dismissal of

the suit. He has submitted that when the petitioner got to

know about the dismissal of the suit, they immediately

rushed and received the relevant papers and filed the

application for condonation of delay in preferring an appeal

before the learned appellate Court and therefore, there is a

delay of 1877 days which is bona fide and not intentional.

He has submitted that the petitioners are the agriculturists

and all the family members are actively involved in the

agriculture activities continuously, therefore, they could not

inquire about the suit proceedings regularly. He has

submitted that if delay is not condoned then serious prejudice

would be caused to the petitioners as they are in possession

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since years.

4.4 In support of his submissions, he has relied upon

the decision in the case of Ram Nath Sao alias Ram Nath

Sahu versus Gobardhan Sao reported in AIR 2002 SC 1201,

more particularly paras 7, 10 & 11 thereof. He has submitted

that the Court should take liberal view under such peculiar

facts as in the present case, it cannot be said that the

petitioners remained negligent. He has submitted that soon

after came to know about the dismissal of the suit, the

petitioners immediately rushed to the appellate Court below

and filed the application for condonation of delay. He has

submitted that this petition may be allowed as sufficient

cause is made out to condone the delay by the petitioners.

He has submitted that the impugned order passed by the

learned appellate Court below is erroneous as the appellate

Court below has taken a hyper technical view. He has

submitted that this petition may be allowed.

5.1 Per contra, learned advocate Mr. Satyam Chhaya for the contesting respondent No.4 has vehemently opposed

this petition. He has submitted that he has filed affidavit in

reply. He has submitted that there is a huge delay of more

than five years. He has submitted that the petitioners are

aware about the fact that the said land in allotted for the

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purpose of Special Economic Zone (SEZ) by the Government

to respondent No.4 - company, as it was the Government

land which can be seen from the erstwhile record of the

village forms. He has submitted that it is within the

knowledge of the petitioners about the proceeding pending

before the learned trial Court. He has submitted that after

the demise of the original plaintiff viz., Bhurubha Mokaji

Chauhan, the petitioners, being the legal heirs of the

deceased, have approached the learned trial Court for

impleading them as party plaintiffs, which was allowed by

the learned trial Court and therefore, the petitioners have

become the original plaintiffs.

5.2 He has submitted that under the circumstances, it

cannot be denied by the petitioners that they were not aware

about the proceeding pending before the learned trial Court.

He has submitted that after impleading the petitioners as

party plaintiffs in the suit proceeding, they remained

negligent for years together. Therefore, the averments made

in the application for condonation of delay would not

constitute any cause, more particularly sufficient cause which

is required to be considered while considering the application

under Section 5 of the Limitation Act. He has submitted that

the conduct of the petitioners itself speaks a lot and no

prudent person would sit idle for more than five years when

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he has knowledge about the pendency of the suit proceeding

and that too without inquiring anything about the suit

proceeding with the concerned lawyer and/or trial Court.

5.3 In support of his submissions, he has relied upon

the following decisions :

(i) Office of the Chief Post Master General

Versus Living Media India Limited - (2012)

3 SCC 563 (Paras 27 to 29 thereof)

(ii) Oriental Aroma Chemical Industries Ltd.,

versus Gujarat Industrial Development

Corporation - (2010) 5 SCC 459 (Paras 15

and 16 thereof)

(iii) Maniben Devraj Shah versus Municipal

Corporation of Bruhin Mumbai - (2012) 5

SCC 157 (Paras 14, 15, 23 to 25 thereof)

5.4 He has submitted that when no sufficient cause is

made out, learned appellate Court below has rightly rejected

the application and there is no perversity or illegality in the

findings given by the learned appellate Court below. He has

submitted that no interference is called for by exercising the

powers under Article 227 of the Constitution of India. He has

submitted that this petition may be dismissed.

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6. Learned AGP Mr.Shivam Dixit for respondents

No.1 to 3 - State Authorities has adopted the arguments

made by learned advocate for respondent No.4. He has

submitted that now, the dispute is between the petitioners

and respondent No.4. He has submitted that since the land

in question is originally in the name of the Government and

the Government has allotted the land in turn to the

respondent No.4 Company, therefore, the Government has

very limited role now. He has submitted that this petition

may be dismissed.

7.1 I have heard rival contentions raised by the

learned advocates for the respective parties. I have considered

the documents annexed with the petition. I have perused the

impugned order passed by the learned appellate Court below.

On bare perusal of the impugned order passed by the

learned appellate Court below, this Court finds that the

appellate Court has not committed any error, much less error

of law while passing the impugned order. The appellate Court

has rightly come to the conclusion that it is impossible to

believe that the petitioners sit idle for about more than five

years, though knowing fully well about the pendency of the

suit proceeding before the learned trial Court. In fact, the

petitioners themselves have filed an application for impleading

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them as party plaintiffs after the demise of their father viz.,

Bhurubha Mokaji Chauhan. Further, they are also fully

aware about the fact that the said application is allowed by

the learned trial Court and they were joined as plaintiffs in

the suit proceedings.

7.2 Looking to the record, it transpires that the land

in question was in the name of the Government since

inception, which can be seen from the various erstwhile

revenue records and it is an undisputed fact, which can also

be seen from the various litigation filed by the deceased

father of the petitioners before the various revenue

authorities to allot the land to them. Further, the learned

trial Court has specifically observed in its judgment that the

plaintiffs have not produced any documentary evidence to

show that they are in possession of the suit land. Therefore,

it can be said that it was the Government land. Further, the

land in question was therefore allotted to the respondent

No.4 Company and the respondent No.4 company has paid

the amount as decided by the Authority.

7.3 Further, the petitioners have shown sufficient

cause that they could not inquire about the suit proceeding

pending with the learned trial Court for about five years due

to continuous agricultural activities, cannot be believable. It is

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not believable that the person cannot get one day time to

inquire about the suit proceeding in five years, more

particularly they were aware about the suit proceeding as

they joined as party plaintiffs on their application being the

heirs. The learned appellate Court below has rightly observed

that the agricultural activities could not continue for 365

days continuously that too for about five years. The

petitioners can visit and inquiry about the suit proceeding

before the learned trial Court and/or with the advocate

concerned. Therefore, the reasons shown by the petitioners

causing the delay of about five years in approaching the

appellate Court are not justifiable. Such finding given by the

learned appellate Court below is logical and in consonance

with the settled position of law. It is always expected that

when the person approaches this Court with an application

for condonation of delay under Section 5 of the Limitation

Act, then he has to show sufficient cause for the delay.

7.4 It is relevant to note that no material is available

on record to show that it is one of the allegations that the

advocate of the plaintiffs has not informed them about the

dismissal of the suit. The petitioners have not raised any

grievance against the advocate concerned before any authority.

In absence of such material, merely throwing a burden upon

the shoulder of the advocate concerned, who represented their

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case before the learned trial Court, will not helpful to the

petitioners to establish sufficient cause for condoning the

delay. On the contrary, prima facie, it transpires that the

petitioners, for the reasons best known to them, though

having sufficient knowledge about the pendency of the suit

proceeding, have not proceeded after the judgment and decree

passed by the learned trial Court in the year 2018 and that

too till 2023 i.e. to approach the learned appellate Court

below. Under the circumstances, the delay of 1877 days

caused in preferring the appeal in the year 2023 against the

judgment and decree passed by the learned trial Court in the

year 2018 is not explained by the petitioners sufficiently, in

any manner. Therefore, prima facie, no cause is made out by

the petitioner to condone the delay.

7.5 There is no dispute about the proposition of law

enunciated in the judgments cited by the learned advocate for

the petitioners, however, considering the peculiar facts and

circumstances of the present case, more particularly the fact

that it is indisputably a Government land, allotted to the

respondent No.4 Company in Special Economic Zone, paid

amount by the respondent No.4 Company as decided by the

Government after taking permissions from the various

authorities, the suit is filed by the deceased father of the

petitioners, after the demise, the petitioners have joined as

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party plaintiffs on their own application, they have knowledge

about the suit proceedings, sit idle for about five years after

dismissal of the suit, it cannot be said that it is a bona fide

on the part of the petitioners. This Court should not lose

sight of the fact that by not taking steps within reasonable

time, the valuable right of the allottee - the respondent No.4

in the present case, is being lightly defeated by condoning

delay in a routine manner, as observed by the Hon'ble Apex

Court in the case of Ram Nath Sao alias Ram Nath Sahu

(supra).

7.6 At this stage, it would be fruitful to refer to the

decisions of the Hon'ble Apex Court, as relied upon by

learned advocate for respondent No.4, which are as under :

7.6.1 In the case of Office of the Chief Post Master

General Versus Living Media India Limited - (2012) 3 SCC

563, more particularly paras 27 to 29 thereof.

"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

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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 bonafide, 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 instrumentalities that unless they have reasonable and acceptable explanation for

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the delay and there was bonafide 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 redtape 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 government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few."

7.6.2 In the case of Oriental Aroma Chemical Industries

Ltd., versus Gujarat Industrial Development Corporation -

(2010) 5 SCC 459, more particularly paras 15 and 16 thereof.

"15. The expression "sufficient cause"

employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which subserves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal

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approach in condoning the delay of short duration and a stricter approach where the delay is inordinate - Collector, Land Acquisition, Anantnag v. Mst. Katiji (1987) 2 SCC 107 : (AIR 1987 SC 1353), N. Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123 : ( AIR 1998 SC 3222 : 1998 AIR SCW 3139) and Vedabai v. Shantaram Baburao Patil (2001) 9 SCC 106 : (AIR 2001 SC 2582 :

2001 AIR SCW 2809).

16. In dealing with the applications for condonation of delay filed on behalf of the State and its agencies/instrumentalities this Court has, while emphasizing that same yardstick should be applied for deciding the applications for condonation of delay filed by private individuals and the State, observed that certain amount of latitude is not impermissible in the latter case because the State represents collective cause of the community and the decisions are taken by the officers/agencies at a slow pace and encumbered process of pushing the files from table to table consumes considerable time causing delay - G. Ramegowda v. Spl. Land Acquisition Officer (1988) 2 SCC 142 : (AIR 1988 SC 897), State of Haryana v. Chandra Mani (1996) 3 SCC

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132 : (AIR 1996 SC 1623 : 1996 AIR SCW 1672), State of U.P. v. Harish Chandra (1996) 9 SCC 309 : (AIR 1996 SC 2173 : 1996 AIR SCW 2785), State of Bihar v. Ratan Lal Sahu (1996) 10 SCC 635 : (AIR 1996 SC 3500 :

1996 AIR SCW 3507), State of Nagaland v. Lipok Ao (2005) 3 SCC 752 : (AIR 2005 SC 2191 : 2005 AIR SCW 1748), and State (NCT of Delhi) v. Ahmed Jaan (2008) 14 SCC 582 : (AIR 2009 SC (Supp) 695 : 2008 AIR SCW 5692)."

7.6.3 In the case of Maniben Devraj Shah versus

Municipal Corporation of Brihan Mumbai - (2012) 5 SCC 157,

more particularly paras 14, 15, 23 to 25 thereof.

"14. We have considered the respective arguments / submissions and carefully scrutinized the record. The law of limitation is founded on public policy. The Limitation Act, 1963 has not been enacted with the object of destroying the rights of the parties but to ensure that they approach the Court for vindication of their rights without unreasonable delay. The idea underlying the concept of limitation is that every remedy should remain alive only till the expiry of the period fixed by the Legislature. At the same time, the Courts

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are empowered to condone the delay provided that sufficient cause is shown by the applicant for not availing the remedy within the prescribed period of limitation.

15. The expression 'sufficient cause' used in Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to enable the Courts to apply the law in a meaningful manner which serve the ends of justice. No hard and fast rule has been or can be laid down for deciding the applications for condonation of delay but over the years this Court has advocated that a liberal approach should be adopted in such matters so that substantive rights of the parties are not defeated merely because of delay.

23. What needs to be emphasised is that even though a liberal and justice oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the Courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost.

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24. What colour the expression "sufficient cause" would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay.

25. In cases involving the State and its agencies/instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and / or its agencies / instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public

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interest."

7.7 In view of above, there is no dispute that

sufficient cause is required to be made out and when there

is no negligent or inaction or want of bona fide on the part

of the party who is praying to condone the delay, then the

Court should exercise discretion in favour of the party, but in

the present case, there is a lack of bona fide on the part of

the petitioners, so also sufficient cause is not shown by the

petitioners to condone the delay of about 1877 days in

preferring the appeal before the appellate Court below. Thus,

the judgments cited by the learned advocate for the

petitioners are therefore not helpful to the petitioners. On the

contrary, the decision cited by learned advocate for