Gujarat High Court
Karuna Sagar Mandir Trust vs Hasmukhlal Ratilal on 18 June, 2024
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C/CA/15/2023 ORDER DATED: 18/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 15 of 2023
In F/SECOND APPEAL NO. 23482 of 2022
With
F/SECOND APPEAL NO. 23482 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In F/SECOND APPEAL NO. 23482 of 2022
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KARUNA SAGAR MANDIR TRUST & ORS.
Versus
HASMUKHLAL RATILAL & ORS.
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Appearance:
MR P S DATTA(11324) for the Applicant(s) No. 1,2,7
DELETED for the Respondent(s) No. 13,14
MR MANAN A SHAH(5412) for the Respondent(s) No.
1,10,11,12,3,4,5,6,7,8,9
NOTICE SERVED BY DS for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 18/06/2024
ORAL ORDER
1. By way of this application, the applicants pray to condone
the delay of 1662 days caused in preferring captioned second
appeal against the impugned judgment and decree inter alia on
the ground that the trustees of Karuna Sagar Mandir Trust (in
short "the trust") have come on record by way of change report in
the year 2018 and then they came to know about selling of the
trust property by the previous trustees without obtaining
necessary permission u/s 36 of the Bombay Public Trust Act (in
short "the Act").
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2. Heard learned advocate Mr. PS Dutta for the applicants
and learned advocate Mr. Manan Mehta for the respondents
except respondent No.2.
3. Learned advocate Mr. PS Dutta for the applicants would
submit that the applicants who are trustees of the trust came to
know about the judgment and decree passed by the concerned
Court for specific performance of the immovable properties
belongs to the trust once the execution proceedings are filed and
the notices are served. Thus, the present trustees of the trust
thought it fit to file second appeal, but delay is caused. Referring
to grounds Nos.6 to 11 in the application memo for condonation
of delay, learned advocate Mr. Dutta would submit that the
applicants have no personal interest in the matter in dispute and
are prosecuting the lis inter alia on the ground that the trust
properties are being vested and are in danger. He would further
submit that glaring defect appearing in the impugned judgment
are that in absence of statutory permission u/s 36 of the Act, the
specific performance of the properties is granted.
3.1 Insofar as explanation of the delay is concerned, learned
advocate Mr. Dutta would submit that the length of delay may
not be considered, but since sufficiently explained, the
applicants, who are prosecuting the lis for the cause of the trust
should not be jettisoned on the technical ground, but the Court
is required to take liberal approach.
3.2 Upon above submission, learned advocate Mr. Dutta
requests to allow this application and to condone the delay.
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4. On the other hand, learned advocate Mr. Manan Shah for
the respondents would submit that the execution petition is filed
in the year 2015 and notices were served to the trustees of the
trust at the relevant time in the year 2015 itself; the applicants
being the trustees of the trust have had knowledge of the decree
for which specific performance is sought for in the year 2015
itself, but they remained in slumber and did not prefer appeal
within the time period and allow the limitation to go. He would
further submit that on passage of time, on expiry of limitation,
the right is perfected in favour of the defendants herein and in
view of that, delay should not be granted by taking liberal
approach and excuse should not be given for passing the
limitation.
5. In support of the submission, learned advocate Mr. Manan
Shah has relied upon judgment in case of State of U.P. and
others Vs.M/s Satish Chand Shivhare and brothers reported in
2022 LiveLaw (SC) 430.
6, Upon above submission, learned advocate Mr. Manan Shah
requests to condone the delay.
7. Having heard learned advocates appearing for the
respective parties, at the outset, I may refer 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
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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.
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
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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."
8. 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
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
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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."
9. A straight jacket formula cannot be accepted for deciding
the application for condonation of delay. The principle of
condonation of delay is based upon public policy and should not
be dealt with in a routine manner or on the basis of individual
philosophy which is basically subjective. Liberal, pragmatic and
justice-oriented approach is accepted phenomena. Substantial
justice being paramount and pivotal the technical considerations
should not be given undue and uncalled for emphasis. Lack of
bona fides imputable to a party seeking condonation of delay is a
significant and relevant fact. The conduct, behaviour and
attitude of a party relating to its inaction or negligence are
relevant factors to be taken into consideration. In the present
case, the applicants came out with the case that they are
impleaded as trustees by Scheme Application No.5 of 2018 on
17.9.2018 by the Charity Commissioner and the order was
passed on 14.12.2019 and subsequent thereto, the applicants
have come to know about the impugned proceedings when they
have taken charge as trustees of the trust.
10. It is subsequently argued that the former trustees without
following the procedure laid down in the Act and without
obtaining necessary permission u/s 36 of the Act, have executed
the agreement to sell. This legal aspect has not been considered
by the learned Court below, but erroneously granted specific
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performance of the trust properties. It is submitted that there is
legal bar in operation. The submission appears to have force.
Though the scope of the delay does not allow this Court to decide
the matter on merits, but, it is a case where the immovable
properties of the trust being a religious trust have been sold by
one of the trustees without obtaining necessary permission u/s
36 of the Act. The subsequent trustees i.e. present applicants
came to know about the same once their scheme application is
allowed and they are joined as trustees of the trust.
11. Learned advocate for the respondents would submit that
even after the present applicants are appointed as trustees of the
trust, they did not take any action for sufficiently long time and
that will preclude them from public cause on the ground of
sufficient explanation. I am not impressed with the submission
canvassed by the learned advocate for the respondents. I may
refer para 6 and 7 of the application memo, which reads as
under:-
"6. It is further respectfully stated and submitted that
the applicant Nos.3 to 6 were added as Trustees after
the application was made before the learned Joint
Charity Commissioner In Scheme Miac. Application
No.5 of 2018 on 17.9.2016 and the learned Charity
Commissioner passed order an 4.12.2019 to add
applicant Nos.3 to 6 as Trustees of the Trust.
7. It is further respectfully stated and submitted that
after applicant Nos.3 to 6 were added as Trustees vide
order dated 4.12.2019, they took copies of the orders
passed by the learned First Appellate Court. It so
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further respectfully stated and submitted that they
decided that the impugned order are contrary to the
interest of the Trust and challenged. requires in to be
further respectfully stated and submitted that
thereafter, due to outbreak of Covid-19, they were not
in a position to prefer the appeal immediately. further
respectfully stated and submitted that the impugned
orders are even otherwise completely nullity as the
Trust property in question cannot be ordered to be sold
in such a manner. Agreement to sell stand is also
nullity and vald and contrary to the Provisions of the
Trust Act. Therefore, there is nelay caused In preferring
the second Appeal. It is further respectfully stated and
submitted that the delay may be condoned substantial
In the interest justice. of The applicants have a
meritorious case and are likely to succeed in the
appeal. It is further respectfully stated and submitted
that the applicants have not remained negligent in
preferring the appeal. It is further respectfully stated
and submitted that no prejudice would be caused to
the other side If the delay is condoned It is further
respectfully stated and submitted that in fact, the
latest Trustees were initially not aware about the
orders of the learned Trial Court as well as of the
learned First Appellate Court and upon becoming
aware about the same, immediate steps have been
taken. Hence, the delay may kindly be condoned in the
Interest of Justice."
12. The delay appears to be sufficiently explained. It is a long
delay, but no mala fide can be attributed to the applicants.
Since the applicants are the trustees fall under the category
representing the collective cause, it should be given some
acceptable latitude. The fact is undeniable that the order of
specific performance is made by the learned Court below without
referring to section 36 of the Act. Learned advocate for the
respondents could not point out that before passing the
judgment and order for specific performance of the trust
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properties, necessary permission as required u/s 36 of the Act
was obtained. Under these facts and circumstances, latitude is
required to be given to the applicants, as they are not
prosecuting personal cause, but prosecuting the cause as
trustees of the religious trust.
13. At this stage, I may refer to judgment of Hon'ble Apex
Court in the case of Collector, Land Acquisition, Anantnag and
Anr. v/s. Mst. Katiji and Ors. [AIR 1987 SC 1353]. In the said
judgment, it is observed by Hon'ble Supreme Court in para 3 as
under :-
"3. The legislature has conferred the power to condone
delay by enacting Section 51 of the Indian Limitation Act of
1963 in order to enable the Courts to do substantial
justice to parties by disposing of matters on 'merits'. The
expression "sufficient cause" employed by the legislature is
adequately elastic to enable the courts to apply the law in
a meaningful manner which subserves the ends of justice
that being the life-purpose for the existence of the
institution of Courts. It is common knowledge that this
Court has been making a justifiably liberal approach in
matters instituted in this Court. But the message does not
appear to have percolated down to all the other Courts in
the hierarchy. And such a liberal approach is adopted on
principle as it is realized that:-
1. Ordinarily a litigant does not stand to benefit by lodging
an appeal late.
2. Refusing to condone delay can result in a meritorious
matter being thrown out at the very threshold and cause of
justice being defeated. As against this when delay is con-
doned the highest that can happen is that a cause would
be decided on merits after hearing the parties.
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3. "Every day's delay must be explained" does not mean
that a pedantic approach should be made. Why not every
hour's delay, every second's delay? The doctrine must be
applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations
are pitted against each other, cause of substantial justice
deserves to be preferred for the other side cannot claim to
have vested right in injustice being done because of a non-
deliberate delay.
5. There is no presumption that delay is occasioned
deliberately, or on account of culpable negligence, or on
account of mala fides. A litigant does not stand to benefit
by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on
account of its power to legalize injustice on technical
grounds but because it is capable of removing injustice
and is expected to do so.
Making a justice-oriented approach from this perspective,
there was sufficient cause for condoning the delay in the
institution of the appeal. The fact that it was the 'State'
which was seeking condonation and not a private party
was altogether irrelevant. The doctrine of equality before
law demands that all litigants, including the State as a
litigant, are accorded the same treatment and the law is
administered in an even handed manner. There is no
warrant for according a stepmotherly treatment when the
'State' is the applicant praying for condonation of delay. In
fact experience shows that on account of an impersonal
machinary (no one in charge of the matter is directly hit or
hurt by the judgment sought to be subjected to appeal)
and the inherited bureaucratic methodology imbued with
the note-making, file pushing, and passing-on-the-buck
ethos, delay on its part is less difficult to understand
though more difficult to approve. In any event, the State
which represents the collective cause of the community,
does not deserve a litigant-non-grata status. The Courts
therefore have to be informed with the spirit and
philosophy of the provision in the course of the
interpretation of the expression "sufficient cause". So also
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the same approach has to be evidenced in its application to
matters at hand with the end in view to do even handed
justice on merits in preference to the approach which
scuttles a decision on merits. Turning to the facts of the
matter giving rise to the present appeal, we are satisfied
that sufficient cause exists for the delay. The order of the
High Court dismissing the appeal before it as time barred,
is therefore. set aside. Delay is condoned. And the matter
is remitted to the High Court. The High Court will now
dispose of the appeal on merits after affording reasonable
opportunity of hearing to both the sides."
14. Resultantly, present application is allowed and delay of
1662 days caused in preferring captioned second appeal is
hereby condoned.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
