Gujarat High Court
Dakshin Gujarat Vij Company Ltd vs M/S A M Textiles Through Sole Proprietor ... on 13 June, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10359 of 2019
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DAKSHIN GUJARAT VIJ COMPANY LTD
Versus
M/S A M TEXTILES THROUGH SOLE PROPRIETOR AMRENDRAKUMAR
ADIYAPRASAD MISHRA
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Appearance:
MS LILU K BHAYA(1705) for the Petitioner(s) No. 1
MS SRUSHTI A THULA(5014) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 13/06/2024
ORAL ORDER
1. By way of this petition filed under Article 227 of the
Constitution of India, the petitioner made following relief:-
"To issue a writ of mandamus or certiorari or a writ in
the nature of mandamus or certiorari or any other
appropriate writ, order or direction quashing and
setting aside the order dated 28.8.2018 passed by the
learned 10th Addl. Senior Civil Judge, Surat below
Exh.1 in CMA No.116 of 2017 and allow the said
application and condone the delay in filing the
application for restoration of Special Civil Suit No.437
of 1998."
2. The fact discerning from the proceedings are that the
petitioner had filed Special Civil Suit No.437 of 1998 before the
learned trial Court for recovery of Rs.4,47,007.68 paisa being the
principle amount with the accrued interest thereon on the
ground that the defendant of the suit was illegally extracting
electricity and the therefore, was required to pay the damages.
The suit was dismissed for non-prosecution on 24.4.2009. The
petitioner after 3006 days raised from slumber and filed CMA
No.116 of 2017 before the learned Court below u/s 5 of the
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Limitation Act to condone the delay of the said time period
caused in preferring the CMA for restoration of the said suit.
The learned Court below passed the impugned judgment and
order dated 28.8.2018 and dismissed the CMA with costs.
Therefore, present petition under Article 227 of the Constitution
of India.
3. Heard learned advocate Ms. Lilu Bhaya for the petitioner.
None remained present for the respondent when the matter is
called out.
4. Learned advocate Ms. Lilu Bhaya would submit that the
petitioner has explained the delay sufficiently. She would
further submit that in view of the pleadings made in the
application before the learned trial Court, learned advocate Mr.
BK Patel was conducting the matter on behalf of the petitioner,
but he went to USA and died there. She would further submit
that the brief of the suit could not be traced out and therefore,
officer of the petitioner could not come to know about filing of
the suit before the concerned Court. She would further submit
that the suit was also transferred to some other station on the
variance in the jurisdiction. The notice was also issued to the
petitioner company, but the address of the petitioner company
was changed. Then the officer of the petitioner company tried to
search and locate the suit and came to know that the suit was
dismissed for non-prosecution. She would further submit that
therefore, copy of the order was asked for on 14.8.2017 and
received on 18.8.2017 and thereafter, it was decided to file
restoration application, but delay of 3006 days was caused and
therefore, application for condonation of delay was preferred.
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She would further submit that on going through the averments
made in the application for condonation of delay, it could be
seen that the delay is properly explained and there is sufficient
cause for the petitioner to prevent the petitioner from filing
restoration application within the stipulated time period. Apart
from the above submission, She would further submit that the
issue of recovery of public money of Rs.4,47,007.68 paisa is
involved in the matter as the suit was filed for recovery of the
amount of damages, which caused to the petitioner company on
illegal extracting the electricity. Therefore, the Court while
deciding the application for condonation of delay should lenient
towards the issue of substantial justice and to condone the delay
by showing generosity towards the petitioner.
5. Upon above submission, learned advocate Ms. Lilu Bhaya
urges to allow this petition and to quash and set aside the
impugned judgment and order and to condone the delay as
sought before the learned trial Court.
6. At the outset, let refer the nature of scope of the
supervisory jurisdiction under Article 227 of the Constitution of
India, which is enlightened in case of Garment Crafts Vs.
Prakash Chand Goel reported in (2022) 4 SCC 181, wherein the
Hon'ble Apex Court in para 15 and 16, held as under:-
"15. Having heard the counsel for the parties, we are
clearly of the view that the impugned order is contrary to
law and cannot be sustained for several reasons, but
primarily for deviation from the limited jurisdiction
exercised by the High Court under Article 227 of the
Constitution of India. The High Court exercising
supervisory jurisdiction does not act as a court of first
appeal to reappreciate, reweigh the evidence or facts upon
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which the determination under challenge is based.
Supervisory jurisdiction is not to correct every error of
fact or even a legal flaw when the final finding is justified
or can be supported. The High Court is not to substitute
its own decision on facts and conclusion, for that of the
inferior court or tribunal [Celina Coelho Pereira (Ms) and
Others v. Ulhas Mahabaleshwar Kholkar and Others,
(2010) 1 SCC 217]. The jurisdiction exercised is in the
nature of correctional1 jurisdiction to set right grave
dereliction of duty or flagrant abuse, violation of
fundamental principles of law or justice. The power under
Article 227 is exercised sparingly in appropriate cases,
like when there is no evidence at all to justify, or the
finding is so perverse that no reasonable person can
possibly come to such a conclusion that the court or
tribunal has come to. It is axiomatic that such
discretionary relief must be exercised to ensure there is
no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227,
this Court in Estralla Rubber v. Dass Estate (P) Ltd.,
(2001) 8 SCC 97 has observed:-
"6. The scope and ambit of exercise of power and
jurisdiction by a High Court under Article 227 of the
Constitution of India is examined and explained in a
number of decisions of this Court. The exercise of power
under this article involves a duty on the High Court to
keep inferior courts and tribunals within the bounds of
their authority and to see that they do the duty expected
or required of them in a legal manner. The High Court is
not vested with any unlimited prerogative to correct all
kinds of hardship or wrong decisions made within the
limits of the jurisdiction of the subordinate courts or
tribunals. Exercise of this power and interfering with the
orders of the courts or tribunals is restricted to cases of
serious dereliction of duty and flagrant violation of
fundamental principles of law or justice, where if the High
Court does not interfere, a grave injustice remains
uncorrected. It is also well settled that the High Court
while acting under this article cannot exercise its power
as an appellate court or substitute its own judgment in
place of that of the subordinate court to correct an error,
which is not apparent on the face of the record. The High
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Court can set aside or ignore the findings of facts of an
inferior court or tribunal, if there is no evidence at all to
justify or the finding is so perverse, that no reasonable
person can possibly come to such a conclusion, which the
court or tribunal has come to."
7. The learned trial Court believed that there was gross delay
of 11 years in filing the CMA. It also believed that whole delay is
unexplained. The learned trial Court has also referred the
judgment of this Court in case of Sun Jyoti Dye-chem Industries
Vs. KJ Vakhariya & Co., Partnership rendered in Special Civil
Application No.15883 of 2012 while denying the relief of
condonation of delay.
8. On perusal of the petition filed before the learned trial
Court, it appears that the officers of the petitioner company were
completely lethargic for 11 long years; they have not inquired
about the suit or proceedings for recovery filed; when they have
decided to search about the suit; pleading to that effect is
completely missing or are purposefully not averred. It is a
complete slumber on part of the officer of the petitioner and it
remains for 11 long years.
9. Learned advocate Ms. Lilu Bhaya would submit that
learned advocate Mr. BK Patel, who was conducting the matter
before the trial Court, went to USA and died there and thus, the
petitioner could not proceed in the suit, as the officers of the
petitioner were not knowing about the proceedings of the suit.
This submission is totally misconceived. The aspect of death of
learned advocate Mr. BK Patel must be in knowledge of the
officer of the petitioner company that their advocate conducting
the suit has expired and therefore, immediately, they were
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required to ascertain that which matters are lying with late
learned advocate Mr. BK Patel and thenafter, they have to
approach the Court to see that how many matters, which were
conducted by late learned advocate Mr. BK Patel are pending in
the Court. It is very unfortunate that the officer of the petitioner
company on one hand cry for public money, on the other hand
did not care to reach even at the Court to find out that how
many proceedings are pending. Legal department is maintained
by the petitioner company, which is evident and yet, the Legal
Department also remained in slumber at least for 11 long years.
This is a complete and gross negligence on the part of the
petitioner company. Under the pretext of rendering substantial
justice, the Court cannot cause prejudice to the opposite party.
Plea of the petitioner could not be excused as a matter of
generosity or on the ground that the public money is involved in
the issue. The principles of limitation are based on principles of
sound public policy and principles of equity. While deciding the
application for condonation of delay; firstly party owes duty to
establish bona fide on their part and the Court owes a duty to
first ascertain the bona fides of the explanation offered by the
party seeking condonation. It is only if the sufficient cause
assigned by the litigant and the opposition of the other side is
equally balanced that the court may bring into aid the merits of
the matter for the purpose of condoning the delay. Reasonable
diligence is another facet. The question of limitation is not
merely a technical consideration. As stated earlier, it is based
upon the principles of sound public policy and principles of
equity.
10. At this stage, I may refer to the judgment of the Hon'ble
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Apex Court in case of Lanka Venkateswarlu (D) by LRs v. State
of Andhra Pradesh & others, (2011) 4 SCC 363, the Hon'ble Apex
Court made following observations:-
"20. In N. Balakrishnan, [(1998) 7 SCC 123] this Court
again reiterated the principle that: (SCC p. 127, para
11)
11. Rules of limitation are not meant to destroy the
rights of parties. They are meant to see that [the]
parties do not resort to dilatory tactics, but seek their
remedy promptly.
21 to 27.........
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 cannot 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 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.
29. The use of unduly strong intemperate or
extravagant language in a judgment has been
repeatedly disapproved by this Court in a number of
cases. Whilst considering applications for condonation
of delay under Section 5 of the Limitation Act, the
courts do not enjoy unlimited and unbridled
discretionary powers. All discretionary powers,
especially judicial powers, have to be exercised within
reasonable bounds, known to the law. The discretion
has to be exercised in a systematic manner informed by
reason. Whims or fancies; prejudices or predilections
cannot and should not form the basis of exercising
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discretionary powers."
11. The ratio laid down therein is also referred in many
judgments, but in the case of Esha Bhattacharjee v. Managing
Committee of Raghunathpur Nafar Academy & Others, (2013) 12
SCC 649, the Hon'ble Apex Court has made following
observations:-
"21. From the aforesaid authorities the principles that
can broadly be culled out are:
21.1. (i) There should be a liberal, pragmatic, justice-
oriented, non-pedantic approach while dealing with an
application for condonation of delay, for the courts are
not supposed to legalise injustice but are obliged to
remove injustice.
21.2. (ii) The terms sufficient cause should be
understood in their proper spirit, philosophy and
purpose regard being had to the fact that these terms
are basically elastic and are to be applied in proper
perspective to the obtaining fact-situation.
21.3. (iii) Substantial justice being paramount and
pivotal the technical considerations should not be given
undue and uncalled for emphasis.
21.4. (iv) No presumption can be attached to deliberate
causation of delay but, gross negligence on the part of
the counsel or litigant is to be taken note of.
21.5. (v) Lack of bona fides imputable to a party seeking
condonation of delay is a significant and relevant fact.
21.6. (vi) It is to be kept in mind that adherence to strict
proof should not affect public justice and cause public
mischief because the courts are required to be vigilant
so that in the ultimate eventuate there is no real failure
of justice.
21.7. (vii) The concept of liberal approach has to
encapsulate the conception of reasonableness and it
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cannot be allowed a totally unfettered free play.
21.8. (viii) There is a distinction between inordinate
delay and a delay of short duration or few days, for to
the former doctrine of prejudice is attracted whereas to
the latter it may not be attracted. That apart, the first
one warrants strict approach whereas the second calls
for a liberal delineation.
21.9. (ix) The conduct, behaviour and attitude of a party
relating to its inaction or negligence are relevant factors
to be taken into consideration. It is so as the
fundamental principle is that the courts are required to
weigh the scale of balance of justice in respect of both
parties and the said principle cannot be given a total go
by in the name of liberal approach.
21.10. (x) If the explanation offered is concocted or the
grounds urged in the application are fanciful, the courts
should be vigilant not to expose the other side
unnecessarily to face such a litigation.
21.11. (xi) It is to be borne in mind that no one gets
away with fraud, misrepresentation or interpolation by
taking recourse to the technicalities of law of limitation.
21.12. (xii) The entire gamut of facts are to be carefully
scrutinised and the approach should be based on the
paradigm of judicial discretion which is founded on
objective reasoning and not on individual perception.
21.13. (xiii) The State or a public body or an entity
representing a collective cause should be given some
acceptable latitude."
12. Recently, the Hon'ble Apex Court in case of Union Of India
Versus Jahangir Byramji Jeejeebhoy (D) Through His Lr reported
in 2024(2) GLH 217, added some more guidelines to the
aforesaid principles laid down by the Hon'ble Apex Court.
"22. To the aforesaid principles we may add some more
guidelines taking note of the present day scenario. They
are:
22.1. (a) An application for condonation of delay should
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be drafted with careful concern and not in a haphazard
manner harbouring the notion that the courts are
required to condone delay on the bedrock of the
principle that adjudication of a lis on merits is seminal
to justice dispensation system.
22.2. (b) An application for condonation of delay should
not be dealt with in a routine manner on the base of
individual philosophy which is basically subjective.
22.3. (c) Though no precise formula can be laid down
regard being had to the concept of judicial discretion,
yet a conscious effort for achieving consistency and
collegiality of the adjudicatory system should be made
as that is the ultimate institutional motto.
22.4. (d) The increasing tendency to perceive delay as a
non-serious matter and, hence, lackadaisical propensity
can be exhibited in a nonchalant manner requires to be
curbed, of course, within legal parameters."
13. A complete lackadaisical approach is exposed and
exhibited at the instance of the officer of the petitioner and it
cannot be fallen within the parameters of sufficient cause, due
diligence, reasonable diligence etc.
14. Under these circumstances, this Court finds no error of law
in passing the impugned order, which is even otherwise,
reasonable and legal order and therefore, in exercise of
supervisory jurisdiction under Article 227 of the Constitution of
India, I do not find any reason to interfere with the impugned
order.
15. Resultantly, present petition fails and stands dismissed.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
