Gujarat High Court
Ninama Arvind Rupaji vs Heirs Of Ninama Dhulaji Jagaji on 10 January, 2024
Author: Gita Gopi
Bench: Gita Gopi
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 18 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In
R/SECOND APPEAL NO. 18 of 2024
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NINAMA ARVIND RUPAJI
Versus
HEIRS OF NINAMA DHULAJI JAGAJI
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Appearance:
MR JIGAR D DAVE(6528) for the Appellant(s) No. 1,2,3,4,5,6,7
VINODKUMAR M MAKWANA(9530) for the Appellant(s) No. 1,2,3,4,5,6,7
for the Respondent(s) No. 1,2,2.3
MR. MAULIK M SONI(7249) for the Respondent(s) No.
1.1,1.2,1.3,1.4,1.5,1.6,2.1,2.2,2.3.1,2.3.2,2.4,2.5,2.6,3,4
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 10/01/2024
ORAL ORDER
1. Mr. Jigar D.Dave, learned advocate for
the appellants submitted that a Regular Civil
Suit No.55 of 2013 was filed with a prayer for
declaration and permanent injunction in respect
before Additional Civil Judge, Bhiloda, Dist.
Arravali. Against the judgment and decree, the
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plaintiff filed a Regular Civil Appeal with delay
condonation application, as Civil Misc.
Application (Delay) No.22 of 2022 before the
learned Principal District Judge, Modasa.
2. Advocate Mr. Dave submitted that the
learned District Judge has rejected the delay
condonation application observing that the
applicant has failed to show satisfactory reason
for the delay of three months and three days and
while considering judgment and order in the Suo
Motu Writ Petition (C) No.3 of 2020 delivered by
the Hon'ble Supreme Court on 08.03.2021, which
extended the time period till 28.02.2022, the
learned Judge considered the delay of 26 days.
3. Advocate Mr. Dave referring to the
application for cognizance for extension of
limitation in Suo Motu Writ Petition (C) No.3 of
2020, submitted that the Hon'ble Apex Court had
extended the limitation period for 90 days from
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01.03.2022. Advocate Mr. Dave submitted that in
the present matter, since the judgment was
declared on 10.12.2021 by the trial Court, the
limitation expires for the period between
15.03.2020 to 28.02.2022, hence, as declared by
the Hon'ble Supreme Court, further 90 days time
has been extended from 01.03.2022. Mr. Dave,
therefore submitted that, the observation of the
District Judge is contrary and has to be
considered as perverse, since the application for
delay condonation was rejected on 04.02.2023,
while direction of the Supreme Court was issued
on 10.01.2022.
4. Advocate Mr. Maulik Soni submitted that
there is no quarrel to the order of the Hon'ble
Supreme Court dated 10.01.2022.
5. Considering the submissions, Admit.
6. Since the other side has already been
represented, the following substantial questions
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of law require immediate address of this Court:
(A) Whether the learned first
appellate court has erred in
dismissing the First Appeal
without entering into the merits
of the case?
(B) Whether the learned first
appellate court has committed
error in dismissing the First
Appeal on the ground of delay?
(C) Whether the learned first
appellate Court has committed
error by not considering
sufficient cause in delay condone
application?
(D) Whether the learned first
appellate court has committed an
error by not considering the
proposition of law that the First
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Appeal cannot be dismissed without
entering into the merits of the
case?
7. The learned District Judge while
rejected the delay condonation application has
noted about the limitation time extended during
the Covid-19 lock-down, and referring to the
judgment and order of the Hon'ble Supreme Court
of 08.02.2021 in Suo Motu Writ Petition (C) No.3
of 2020, has considered to exclude the period
from 15.02.2020 to 14.03.2021, and has observed
that the applicant had an extended period till
28.02.2022, and was supposed to file an appeal by
01.03.2022, and, thus considered the delay of 26.
days.
8. It appears that the learned District
Judge was not apprised of the order dated
10.01.2022, which was passed in Suo Motu Writ
Petition (C) No.3 of 2020, where directions were
issued in Misc. Application No.21 of 2022 in the
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following terms:
"I. The order dated
23.03.2020 is restored and in
continuation of the subsequent
orders dated 08.03.2021,
27.04.2021 and 23.09.2021, it is
directed that the period from
15.03.2020 till 28.02.2022 shall
stand excluded for the purposes
of limitation as may be
prescribed under any general or
special laws in respect of all
judicial or quasi-judicial
proceedings.
II. Consequently, the balance
period of limitation remaining as
on 03.10.2021, if any, shall
become available with effect from
01.03.2022.
III. In cases where the
limitation would have expired
during the period between
15.03.2020 till 28.02.2022,
notwithstanding the actual
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balance period of limitation
remaining, all persons shall have
a limitation period of 90 days
from 01.03.2022. In the event the
actual balance period of
limitation remaining, with effect
from 01.03.2022 is greater than
90 days, that longer period shall
apply.
IV. It is further clarified
that the period from 15.03.2020
till 28.02.2022 shall also stand
excluded in computing the periods
prescribed under Section 23(4)
and 29A of the Arbitration and
Conciliation Act, 1996. Section
12A of the Commercial Courts Act,
2015 and provisos (b) and (c) of
Section 138 of the negotiable
Instruments Act, 1881 and any
other laws, which prescribe
period(s) of limitation for
instituting proceedings, outer
limits (within which the court of
tribunal can condone delay) and
termination of proceedings.
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9. In view of the direction no.III, if the
limitation expires during the period between
15.03.2020 to 28.02.2022, it was observed that
despite the actual balance of remaining period,
all the persons shall have limitation of 90 days
from 01.03.2022. The learned Judge has considered
the extended final date as 28.02.2022 and
considered the date of filing of appeal to be
01.03.2022, and has observed the delay of 26
days.
10. In view of the direction of the Hon'ble
Supreme Court from 01.03.2022, all persons shall
have limitation period of 90 days, hence, the
appeal filed before the District Judge would fall
within the limitation, and, therefore the delay
was required to be condoned. The appeal was to be
registered and heard on merits.
11. In the result, the order dated
04.02.2023 passed by learned Principal District
Judge, Modasa at Arravali in Civil Misc.
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Application (Delay) No.22 of 2022 is quashed and
set aside. The delay is condoned.
12. Since the appeal would fall within the
extended limitation time, as directed by the
Hon'ble Supreme Court; the Principal District
Judge, Arravali at Modasa is directed to register
the Appeal preferred against the judgment and
decree dated 10.12.2021 in Regular Civil Suit
No.55 of 2013 and process in accordance with law,
and decide the appeal on merits.
13. In view of the above observations and
direction, the present appeal stands disposed of.
The connected Civil Application stands disposed
of accordingly.
(GITA GOPI,J)
Pankaj
