Gujarat High Court
Mansukhlal Gangdas Padaliya vs Gujarat Electricity Board on 18 June, 2024
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C/CA/2832/2019 JUDGMENT DATED: 18/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 2832 of 2019
In F/SECOND APPEAL NO. 19180 of 2019
With
F/SECOND APPEAL NO. 19180 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In F/SECOND APPEAL NO. 19180 of 2019
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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MANSUKHLAL GANGDAS PADALIYA
Versus
GUJARAT ELECTRICITY BOARD & ORS.
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Appearance:
MR BHARAT T RAO(697) for the Applicant(s) No. 1
DELETED for the Respondent(s) No. 5
MR VIRAL J DAVE(5751) for the Respondent(s) No. 3
NOTICE NOT RECD BACK for the Respondent(s) No. 4
NOTICE SERVED for the Respondent(s) No. 2
NOTICE UNSERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 18/06/2024
Page 1 of 10
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ORAL JUDGMENT
1. Heard learned advocate Mr.B.T.Rao for the petitioner and
learned advocate Mr.Viral Dave for respondent no.3 who is
Deputy Engineer of respondent no.1 - company and he is
representing respondent nos.1 to 3.
2. This petition is filed under section 5 of the Limitation Act,
1963 to condone delay of 2308 days caused in filing Second
Appeal against concurrent findings of Courts below, where-
under learned Principal Civil Judge, Manavadar decree Regular
Civil Suit No.102 of 2005 (former No.125 of 2003) in favour of
respondent nos.1, 2 and 3 and appeal preferred by the present
petitioner being Regular Civil Appeal No.127 of 2012 filed under
section 96 of CPC was also rejected.
3. Brief facts of the case are as under :-
3.1. The appellant is resident of Village Zapodad, Taluka
Vanthali, District Junagadh. The appellant has constructed new
residential house and applied for electric connection. On
03.03.2001, there was surprise checking by respondent no.1. As
per say of respondent no.1, it was found that though appellant
was not having any valid electric connection, he was using power
from the house of Vashrambhai Kantariya by directly applying
wire. Pursuant to said checking respondent no.1 issued
supplementary bill for Rs.1,01,368/- to appellant and
respondent no.4 and 5 under ABCD formula for 154 days.
Criminal complaint was filed against appellant in Court of
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learned JMFC being Criminal Case No.196 of 2001 and learned
JMFC acquitted the appellant and other accused on 23.12.2009.
The respondent no.1 filed Civil Suit No.125 of 2003 on
09.09.2003 in the Court of learned Civil Judge (SD) for recovery
of Rs.1,56,368.43 ps. The suit was transferred to Manavadar.
The learned Trial Court vide judgment and decree dated
19.11.2012 partly allowed the suit against the appellant and
directed the appellant to pay respondent no.1 Rs.1,53,368.43 ps.
along with interest @ 6% p.a. from 03.03.2001 till realization.
The appellant filed Regular Civil Appeal No.127 of 2012 before
the District Court, Junagadh. Learned Additional District
Judge, Junagadh vide judgment and decree dated 30.09.2015
was pleased to dismiss the appeal. Hence, appellant has filed
Second Appeal. However, there is delay of 2308 days in
preferring Second Appeal.
4. Learned advocate Mr.Rao for the petitioner seeking
condonation of delay would submit that applicants brother's wife
Pravinaben was suffering from cancer and the petitioner and his
wife were taking care of medical treatment of wife of applicant's
brother from 2012 to 2017 and therefore, the petitioner could
not prefer the appeal within time period. Another reason
submitted by learned advocate Mr.Rao to condone delay is that
in the year 2015, the petitioner's son was involved in criminal
case of murder and arrested by police and because of such
reason, entire family of the petitioner was disturbed. Son of the
petitioner remained in jail and after the year 2017, he was
acquitted. Thereafter, son of the petitioner met with accident and
sustained multiple fracture and remained in hospital for long
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period and thereafter also the petitioner was engaged in
continuous treatment of this son and therefore, the petitioner
could not file appeal before this Court.
4.1. Learned advocate Mr.Rao would submit that once the
petitioner received summons from Executing Court, the
petitioner realized to file appeal and therefore, he approached
this Court to prefer appeal after huge delay of 2308 days.
Referring to para 4,5 and 6 of the petition, learned advocate
Mr.Rao would submit that the petitioner has sufficiently
explained reason for not filing appeal within time period and
therefore, he would submit to allow this petition and condone
delay.
4.2. Learned advocate Mr.Roa would also submit that the
petitioner should not be priced with reason for not filing appeal
within time period. The petitioner has substantial case on hand
and he is person who has parted electricity connection and
therefore, the petitioner is not liable to pay amount of bill
generated by respondent nos.1,2 and 3. Therefore, the petitioner
may be permitted to contest his case on merits and if he is
thrown-out on technical consideration, the petitioner would be
prejudiced only on hyper technical approach.
4.3. Upon above submissions, learned advocate Mr.Rao
submitted to allow the petition and condone delay.
5. Learned advocate Mr.Dave for the respondents would
submit that insufficient reasons are stated in para 3 to 5 of the
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petition. The petitioner has not annexed any documentary
evidence which could breath in favour of the petitioner. The
petitioner has filed application seeking copy of judgment on
30.09.2015 and obtained it on 20.10.2015 but has not filed
appeal till 06.09.2019. Limitation is not sufficiently explained.
Causal approach on the part of the petitioner cannot be allowed
on the pretext of substantial justice. Huge and gross delay of
2308 days are unexplained and therefore, he would submit not
to allow the petition.
5.1. Upon above submissions, it is submitted to dismiss the
petition.
6. Having heard learned advocate for the parties, let refer
para 3 to 5 of the petition so as to understand explanation of
sufficient case which prevented the petitioner from filing appeal
within stipulated time period. Para 3 to 5 reads as under :-
"3. Applicant submits that in the aforesaid matter, the
judgment and decree was pronounced by the Learned 10th
(Ad-hoc) Additional District Judge, Junagadh on
30.9.2015. The certified copy was applied for on 7.10.2015,
it was ready for delivery on 20.10.2015 and taken delivery
of on 20.10.2015.
4. Applicant submits that the applicant is residing at
village Zapodad with his family. The family of the applicant
is joint family and the applicant is the head of the family.
5. Applicant submits that his brother's wife Pravinaben
was suffering from cancer and the applicant and his wife
were being the heads of the family were busy in taking care
of the medical treatment of the wife of applicant's brother
from 2012 to 2017 till she died. Applicant submits that
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right from 2012 to 2017 till Pravinaben died because of
cancer, the applicant and his wife were constantly busy in
the treatment of deceased Pravinaben."
7. At first, what could be noticed that though the petitioner
has pleaded delay of 2308 days caused in filing Second Appeal,
nowhere the petitioner has shown calculation of delay. Apart
from not averring any calculation for delay, the petitioner has
not produced any document on record to support the reasons
stated in the petition. It appears that the reasons therein are
absolute superficial and they are not constituting any sufficient
cause, which could receive the liberal consideration so as to
render substantial justice. It is a gross delay of 2308 days i.e.
almost about 8 years in preferring the appeal and in absence of
the pet showing any due diligence, which prevented him from
prosecuting the cause, the delay could not be condoned on above
grounds.
8. Rule of limitation is based upon principles of sound public
policy and principles of equity. Indeed expression 'sufficient
cause' should receive liberal construction so as to advance
substantial justice. This proposition comes into picture when no
negligence or inaction or want of bona fide is imputable to party
seeking condonation of delay. Whether explanation furnished
would constitute 'sufficient cause' or not will depend on facts of
each case and there cannot be straitjacket formula for accepting
or rejecting explanation furnished for delay caused in taking
steps. While considering the matter, the Court is also required to
consider all the fact that why party has not taken steps within
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time prescribed. The Court should not lose sight of the fact that
by not taking steps within the time prescribed time, valuable
right has accrued to other party which should not lightly be
defeated by condoning delay in routine like manner.
9. Theory of liberal approach should be adjudicated on theory
of due diligence. In the present case, length of delay is 2308
days. It is quite long delay and on going through petition as well
as arguments, it remains unexplained. They are propelled by
the petitioner, it does not seem to be germane one and none of
the reasons prevented the petitioner from filing Second Appeal
within time period. It is to be remembered that pleadings and
reasons are not backed out by any documentary evidence.
Respondent nos.1 to 3 have filed Civil Suit in the year 2003. It is
suit for recovery of money for bills generated by respondent no.3.
for usage of electricity.
10. According to this Court, the petitioner has failed to
establish any sufficient reasons which has prevented him to file
appeal within stipulated time period.
11. In Lanka Venkateswarlu v/s. State of Andhra Pradesh [AIR
2011 SC 1199], the Hon'ble Supreme Court has observed as
under :-
"Generally the Courts including Supreme Court adopt a
liberty approach in considering application for condonation
of delay on ground of sufficient cause under section 5 of
the Act. However, the concept such as "liberal approach",
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justice oriented approach, "substantial justice" cannot be
employed to jettison the substantial law of limitation."
12. Recently, the Hon'ble Supereme Court in the case of Union
of India v/s. Jahangir Byramji Jeejeebhoy [2024 (2) GLH 217],
after surveying earlier judgments in para 33 and 35 has held as
under :-
"33. In the case of Esha Bhattacharjee v/s. Managing
committee of Raghunathpur Nagar Academy (2013) 12 SCC
649, this Court made the 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
cannot be allowed a totally unfettered free play.
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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.
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 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
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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.
35. In a plethora of decisions of this Court, it has been said
that delay should not be excused as a matter of generosity.
Rendering substantial justice is not to cause prejudice to
the opposite party. The appellants have failed to prove that
they were reasonably diligent in prosecuting the matter
and this vital test for condoning the delay is not satisfied in
this case."
13. Thus in the facts and in circumstances, this Court is of the
opinion that petitioner was not diligent in availing remedy of
appeal. The averments made in the petition seeking condonation
of delay in filing appeal does not inspire any acceptable cause
much less sufficient cause to exercise discretion in its favour.
14. For the foregoing reasons, the petition stands dismissed.
Registration of Second Appeal is refused. Second Appeal and
Civil Application for stay is disposed of.
(J. C. DOSHI,J)
SATISH
