Gujarat High Court
Devabhai Odhadbhai Mer vs Bhimabhaia Ramabhai Odhera on 25 January, 2024
NEUTRAL CITATION
C/SCA/6143/2021 ORDER DATED: 25/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6143 of 2021
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DEVABHAI ODHADBHAI MER
Versus
BHIMABHAIA RAMABHAI ODHERA
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Appearance:
SHRIJIT G PILLAI(7937) for the Petitioner(s) No. 1
for the Respondent(s) No. 3
HIREN J TRIVEDI(8808) for the Respondent(s) No. 1
NATVARLAL J MEHTA(6422) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2,3.1,3.2,3.3,3.4,3.5,3.6
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 25/01/2024
ORAL ORDER
1. The present petition is filed by the petitioner
challenging the impugned order dated 21.01.2021 passed in Civil
Misc. Application No.107 of 2017, for condonation of delay, by the
learned Principal District Judge, Jamnagar, whereby the learned
appellate Court below has rejected the same.
2. The brief facts of the present case are that the said
application for condonation of delay is filed by the petitioner in
preferring miscellaneous appeal before the learned appellate Court
below against the impugned order dated 30.01.2012 passed by the
learned Senior Civil Judge, Khambhaliya in Special Civil Suit
No.36 of 2010 whereby the application Exh.5 seeking injunction
was rejected.
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3. Heard learned advocate Mr. Shrijit Pillai for the
petitioner and learned advocates Mr.Hiren Trivedi & Mr.Natvarlal
J. Mehta for the respondent No.1. It is noted that rest of the
respondents are also served.
4.1 This Court has, on 06.09.2023, passed the following
order.
"The order passed below Exh.5 in
Special Civil Suit No.36 of 2010 by the learned
Principal Senior Civil Judge, Khambhalia was
challenged before the Appellate Court but delay
was caused and therefore, Civil Misc.
Application No.107 of 2017 was preferred
unsuccessfully before the Principal District
Judge, Jamnagar. The said order is challenged
before this Court.
In view of the oldness of the Special
Civil Suit No.36 of 2010, the petitioner is
directed to put the status of the suit. At the
same time, learned Principal Sr. Civil Judge,
Khambhalia shall also send the report about
the progress of the trial before the next date of
hearing.
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Stand over to 5.10.2023."
4.2 Pursuant to the above order, the learned trial Court
has sent the report of Special Civil Suit No.36 of 2010, which
indicates that the proceeding is at the stage of leading evidence of
the parties.
5. In view of above, the matter is required to be heard
on merits, as the matter is pending since the year 2021 and there
is no interim relief granted by this Court to the petitioner till
date.
6. Learned advocate Mr.Pillai for the petitioner has
strongly relied upon the contents of the delay condonation
application which is filed in preferring the appeal against Exh.5
order passed on 30.01.2012 by the learned trial Court in Special
Civil Suit No.36 of 2010; that the contents of the application are
not properly dealt with by the learned lower Appellate Court and
has erroneously rejected the application on unsustainable ground;
that if the delay is condoned and appeal is heard on merits, then
the petitioner has good case on merits and if the delay is not
condoned, then precious right of the petitioner to pursue the
remedy will be jeopardized; that normally, the Court should show
liberal view in condoning the delay, but it should not be weighed
with the Court as the cause is made out in the application for
condonation of delay by the petitioner with proper explanation. He
has further submitted that he has also simultaneously proceeded
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C/SCA/6143/2021 ORDER DATED: 25/01/2024
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before the various authorities and lastly, proceeding arising from
the order of the Special Secretary, Revenue Department is decided
by the Coordinate Bench of this Court by way of the order passed
on Special Civil Application No.15502 of 2017 dated 04.09.2017
and therefore, he has submitted that the petitioner was pursuing
the remedy before the wrong forum and the benefit of Section
14(2) of the Limitation Act should be granted to the present
petitioner, though such contention is not raised in the application
for condonation of delay. He has submitted that some reasonable
amount of cost may be imposed upon the petitioner with a view
to give proper opportunity to the petitioner to proceed with the
matter on merits. He has submitted that this petition may be
allowed.
7. Per contra, learned advocate Mr.Trivedi for the
contesting respondent No.1 has strongly opposed the submissions
made by the learned advocate for the petitioner. He has submitted
that considering the conduct of the petitioner that when the
present respondent got succeeded before the Revenue Department,
that order is challenged before this Court by way of Special Civil
Application No.15502 of 2017 and that order is passed pursuant to
the proceeding initiated regarding mutation entry, but fact remains
that though the petitioner is aware that Exh.5 order is passed
before long ago, he has not taken sufficient care to file the said
application. He has further submitted that no proper cause is
shown by the petitioner in the application for condonation of
delay, and therefore it does not warrant any interference by this
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C/SCA/6143/2021 ORDER DATED: 25/01/2024
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Court. He has submitted that no sufficient cause is made out as
required under Section 5 of the Limitation Act for condonation of
delay. He has submitted that in view of various judgments of the
Hon'ble Apex Court, when no satisfactory explanation is given by
the applicant for condonation of delay, the Court should not
condone the delay. He has further submitted that now, the matter
is at the stage of leading of evidence before the learned trial
Court and therefore also, this Court should not interfere in the
impugned order. Moreover, he has submitted that the learned trial
Court has given cogent and convincing reasons for rejecting the
application for condonation of delay of the petitioner.
8.1 I have considered the rival submissions made by the
bar. I have also perused the documents available on record. I have
considered the provisions of Section 5 of the Limitation Act, which
is reproduced as under :
"5. Extension of prescribed period in certain
cases.--Any appeal or any application, other
than an application under any of the provisions
of Order XXI of the Code of Civil Procedure,
1908 (5 of 1908), may be admitted after the
prescribed period if the appellant or the
applicant satisfies the court that he had
sufficient cause for not preferring the appeal or
making the application within such period.
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Explanation.--The fact that the appellant or the
applicant was missed by any order, practice or
judgment of the High Court in ascertaining or
computing the prescribed period may be
sufficient cause within the meaning of this
section."
8.2 I have also considered the averments made in the
application whereby the petitioner has made some general
averments in paragraphs 2 to 4, but not made out any cause,
more particularly sufficient cause for condonation of delay.
8.3 Further, the proceeding which is initiated pursuant to
the mutation entry is parallel proceeding and it cannot be
connected with the proceeding which is initiated in the Civil
Court, more particularly the petitioner has participated in the said
proceeding and he is aware about the order passed in that
proceeding. Thereafter, the petitioner has not persuaded further
pursuant to the order passed below Exh.5 in the civil suit for
more than 2025 days, which itself shows that the petitioner
remained negligent in pursuing the remedy, though the petitioner
has simultaneously persuaded the remedy before the revenue
authority. Therefore, the reasons which are assigned by the
learned trial Court in the impugned order by discussing the
various aspects of the matter, more particularly in paragraphs 6 to
10, this court is of the opinion that there is no illegality or
perversity or any jurisdictional error committed by the learned
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trial Court.
8.4 At this stage, it would be fruitful to refer to the
decision of the Hon'ble Apex Court in the case of University of
Delhi versus Union of India reported in AIR OnLine 2019 SC
1810 = (2020) 13 SCC 745, more particularly paragraph 23
thereof, which is as under :
"23. That apart, as rightly noticed by the
Division Bench in the LPA, the approval from
the Executive Council was obtained on
28.02.2017 / 07.03.2017, the appeal was
ultimately filed on 01.03.2018 after an year from
the said date which only indicates the casual
approach which is now sought to be overcome
with the plea of public interest despite there
being no explanation for the delay at every
stage. It is true that as held in the case of
Mst. Katiji (supra) that every day's delay need
not be explained with such precision but the
fact remains that a reasonable and acceptable
explanation is very much necessary. The Division
Bench apart from noticing these aspects had
also noted that the learned Single Judge too
found the writ petition to be hit by delay and
laches."
NEUTRAL CITATION
C/SCA/6143/2021 ORDER DATED: 25/01/2024
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9. In view of above and considering all the aspects of the
matter, this court is of the opinion that there is no reason made
out to interfere with the impugned order by exercising the powers
of this Court under Article 227 of the Constitution of India in
view of the decision of the Hon'ble Apex Court in the case of
M/s. Garment Craft versus Prakash Chand Goel reported in
(2022) 4 SCC 181, more particularly in paras 15 to 17.
Accordingly, this petition deserves to be dismissed and is
dismissed accordingly. Notice is discharged. Interim relief granted
earlier, if any, stands vacated.
(SANDEEP N. BHATT,J)
SRILATHA
