Gujarat High Court
Bawa Barkullah Dargah Trust Through ... vs State Of Gujarat on 6 February, 2025
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C/AO/395/2014 JUDGMENT DATED: 06/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 395 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
Yes
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BAWA BARKULLAH DARGAH TRUST THROUGH AHMEDMIYA
KADARMIYA SAIYED & ORS.
Versus
STATE OF GUJARAT
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Appearance:
MR MA KHARADI(1032) for the Appellant(s) No. 1,2,3,4
RULE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 06/02/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. M.M. Kharadi for learned
advocate Mr. M.A. Kharadi for the appellants.
2. The present Appeal from Order is filed under Order 43
rule 1 of CPC, thereby the appellants have challenged the
impugned judgenent and order dated 27.08.2013 passed by
the City Civil Court No. 8, Ahmebabad City in
CMA-DC/219/2003.
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3. The short facts of the present appeal appears that the
Civil Suit No. 5554 of 1987 filed by the respondents before
the City Civil Court, Ahmedabad against the appellants which
came to be decreed ex-parte on 03.08.2000. On learning
such fact, the appellants have preferred an application under
Order 9 rule 13 of Code of Civil Procedure 1908 (herein after
referred as 'CPC') being CMA-DC/219/2003.
3.1 During the pendency of the aforesaid application, the
appellants learnt that there is delay in filing such application,
had filed an independent delay application albeit, at later
point of time.
3.2 After hearing the parties, the trial Court has rejected
the aforesaid application solely on the ground that it was not
accompanied by the delay application when it was presented
before the trial Court.
3.3 Being aggrieved and dissatisfied with the aforesaid
impugned judgement and order, the present appeal has
been filed by the original defendants.
4. Learned advocate Mr. M.M. Kharadi for learned
advocate Mr. M.A. Kharadi for the appellants would submit
that a hyper technical approach has been taken by the trial
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Court while rejecting the impugned application filed by the
appellants.
4.1 Learned advocate for the appellants would submit that
the impugned application was filed under Order 9 rule 13 of
CPC as per settled position of law, as such, no separate delay
application requires to be filed when the reason of not
approaching the trial Court within period of limitation is very
well explained in the impugned application itself.
4.2 He would further submit that as per the decision of
Hon'ble the Apex Court in the case of Bhagmal and others
Vs. Kunwar Lal and others reported in (2010) 12 SCC 159,
as such there is no requirement in the law to file any
separate delay application in a application filed under Order
9 rule 13 of CPC.
4.3 He would further submit that as per the decision of
Hon'ble Apex Court in the case of State of Madhra Pradesh
Vs. Pradeep Kumnar reported in 2000 (7) SCC 372, whereby
it has been felt that if the appeal is not filed along the delay
application, if the appellant filed a delay application at later
point of time, such defect not filing the delay application is
considered to be curable one.
4.4 Making above submissions, learned advocate for the
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appellants would request this Court to allow the present
appeal and thereby request this Court to quash the
impugned judgment and order passed by the trial Court and
also request this Court to remand back the matter to the
trial Court for deciding a fresh the impugned application
filed by the appellants on its merits.
4.5 No other and further submissions have been made by
the learned advocate of the appellants.
5. Per contra, learned Assistant Government Pleader Mr.
Aakash Chhaya for the respondent would submit that there
is gross negligence on the part of the appellants in filing an
application under Order 9 rule 13 of CPC and there is no
error committed by the trial Court while rejecting the
impugned application.
5.1 Learned AGP would further submit that the appellants
were aware about the fact that ex-parte decree was passed
on 03.08.2000, whereas the impugned application was filed
in the year 2003 then there would a gross delay in filing such
application. So, the appellants ought to have preferred such
application along with delay application.
5.2 Learned AGP would lastly submit that detailed order
has been passed by the trial Court which may not be
interfered by this Court.
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5.3 Making above submission, learned Assistant
Government Pleader would request this Court to dismissed
the appeal.
5.4 No other and further submissions have been made by
the learned Assistant Government Pleader.
6. The short controversy and point of determination
which arise in the present appeal:-
(i) Whether the separate delay application requires to be
filed in the application filed under Order 9 rule 13 of CPC or
not ?
(ii) Whether in a case where the delay application is filed
subsequent to filing an application under Order 9 rule 13 of
CPC would be maintainable or not ?
7. It is undisputed fact that when the appellants had filed
an application under Order 9 rule 13 of CPC before the trial
Court, at that time, they have not preferred any separate
delay application. Such delay application was filed later in
point of time. The trial Court having considered the said fact
has outright rejected the application under Order 9 rule 13
of CPC, which was not accompanied by the delay application
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which resulted into passing the impugned order.
8. The approach of the trial Court is not in consonance
with the rule of procedure and law laid down by the Hon'ble
Apex Court in the case of Bhagmal and others (supra). It is
apposite to refer and relied upon the observation made by
the Hon'ble Apex Court in the case of Bhagmal (supra),
wherein it has been so held as under in Para- 11, 12 & 13
which reads as under :-
"11. In our opinion, the High Court was not justified in taking a hyper
technical view. We have seen all the orders. It is quite clear from the
trial court's order that the trial court entertained the application on
merits. The trial court undoubtedly has referred to the reply of the
respondents to the effect that the application for setting aside the ex
parte decree was beyond the limitation. However, the view taken by
the trial court was based more on the merits. In fact, it went on to
record the finding that there was no compromise and the theory of
compromise and delay on account of that was not acceptable. The trial
court has more or less based its findings regarding delay on the basis
of the order-sheets. That was not right as the order-sheets nowhere
bore the signatures of the parties. They were mechanically written
mentioning "parties as before". Therefore, the trial court did not throw
the application under Order 9 Rule 13 merely on the basis of the fact
that no application for condonation of delay was made. It went on to
consider the delay aspect as well as the merits and even allowed the
parties to lead evidence.
12. It is to be seen here that the question of delay was completely
interlinked with the merits of the matter. The appellant-defendants had
clearly pleaded that they did not earlier come to the court on account
of the fact that they did not know about the order passed by the court
proceeding ex parte and also the ex parte decree which was passed. It
was further clearly pleaded that they came to know about the decree
when they were served with the execution notice. This was nothing,
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but a justification made by the appellant-defendants for making Order
9 Rule 13 application at the time when it was actually made. This was
also a valid explanation of the delay. The question of filing Order 9
Rule 13 application was, in our opinion, rightly considered by the
appellate court on merits and the appellate court was absolutely right
in coming to the conclusion that the appellant-defendants were fully
justified in filing the application under Order 9 Rule 13 CPC at the time
when they actually filed it and the delay in filing the application was
also fully explained on account of the fact that they never knew about
the decree and the orders starting the ex parte proceedings against
them. If this was so, the Court had actually considered the reasons for
the delay also. Under such circumstances, the High Court should not
have taken the hyper technical view that no separate application was
filed under Section 5.
13. The application under Order 9 Rule 13 CPC itself had all the
ingredients of the application for condonation of delay in making that
application. Procedure is after all handmaid of justice. Here was a
party which bona fide believed the assurance given in the compromise
panchnama that Respondent 1-plaintiff would get his suit withdrawn or
dismissed. The said compromise panchnama was made before the
elders of the village. Writing was also effected, displaying that
compromise. The witnesses were also examined. Under such
circumstances, the non-attendance of the appellant-defendants, which
was proved in the further proceedings, was quite justifiable. The
appellant-defendants, when ultimately came to know about the decree,
had moved the application within 30 days. In our opinion that was
sufficient."
Emphasized supplied.
9. The very view has been recently reiterated by the
Hon'ble Apex Court in the case of Dwarika Prasad (D)
through LRs. Vs. Prithvi Raj Singh reported in 2024 SCC
Online SC 3828, more particularly in Para- 9,11, 12 which
reads as under :
"9. We have heard learned counsel for the appellant and perused
the record. We are of the opinion that the High Court has erred in
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upholding the order of the Additional District Judge. The Trial Court
had rightly allowed the restoration application filed by the Appellant
under Order IX Rule 13 of CPC. It is well settled that Courts should not
shut out cases on mere technicalities but rather afford opportunity to
both sides and thrash out the matter on merits. Further, we cannot let
the party suffer due to negligent or fault committed by their counsel.
This principle has been enunciated by this court in the case of Rafiq v.
Munshilal, quoted as follows:
"3. The disturbing feature of the case is that under our
present adversary legal system where the parties generally
appear through their advocates, the obligation of the parties is to
select his advocate, brief him, pay the fees demanded by him
and then trust the learned Advocate to do the rest of the things.
The party may be a villager or may belong to a rural area and
may have no knowledge of the court's procedure. After engaging
a lawyer, the party may remain supremely confident that the
lawyer will look after his interest. At the time of the hearing of the
appeal, the personal appearance of the party is not only not
required but hardly useful. Therefore, the party having done
everything in his power to effectively participate in the
proceedings can rest assured that he has neither to go to the
High Court to inquire as to what is happening in the High Court
with regard to his appeal nor is he to act as a watchdog of the
advocate that the latter appears in the matter when it is listed. It
is no part of his job. Mr A.K. Sanghi stated that a practice has
grown up in the High Court of Allahabad amongst the lawyers
that they remain absent when they do not like a particular
Bench. Maybe, we do not know, he is better informed in this
matter. Ignorance in this behalf is our bliss. Even if we do not
put our seal of imprimatur on the alleged practice by dismissing
this matter which may discourage such a tendency, would it not
bring justice delivery system into disrepute. What is the fault of
the party who having done everything in his power expected of
him would suffer because of the default of his advocate. If we
reject this appeal, as Mr A.K. Sanghi invited us to do, the only
one who would suffer would not be the lawyer who did not
appear but the party whose interest he represented. The
problem that agitates us is whether it is proper that the party
should suffer for the inaction, deliberate omission, or
misdemeanour of his agent. The answer obviously is in the
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negative. Maybe that the learned Advocate absented himself
deliberately or intentionally. We have no material for
ascertaining that aspect of the matter. We say nothing more on
that aspect of the matter. However, we cannot be a party to an
innocent party suffering injustice merely because his chosen
advocate defaulted. Therefore, we allow this appeal, set aside
the order of the High Court both dismissing the appeal and
refusing to recall that order....."
11. The Appellant has relied upon the following judgments in support of his
submissions. In Bhagmal v. Kunwar Lal this Court held as follows;
"12. It is to be seen here that the question of delay was
completely interlinked with the merits of the matter. The
appellant-defendants had clearly pleaded that they did not
earlier come to the court on account of the fact that they did not
know about the order passed by the court proceeding ex parte
and also the ex parte decree which was passed. It was further
clearly pleaded that they came to know about the decree when
they were served with the execution notice. This was nothing,
but a justification made by the appellant-defendants for making
Order 9 Rule 13 application at the time when it was actually
made. This was also a valid explanation of the delay. The
question of filing Order 9 Rule 13 application was, in our
opinion, rightly considered by the appellate court on merits and
the appellate court was absolutely right in coming to the
conclusion that the appellant-defendants were fully justified in
filing the application under Order 9 Rule 13 CPC at the time
when they actually filed it and the delay in filing the application
was also fully explained on account of the fact that they never
knew about the decree and the orders starting the ex parte
proceedings against them. If this was so, the Court had actually
considered the reasons for the delay also. Under such
circumstances, the High Court should not have taken the
hypertechnical view that no separate application was filed under
Section 5.
13. The application under Order 9 Rule 13 CPC itself had all
the ingredients of the application for condonation of delay in
making that application. Procedure is after all handmaid of
justice."
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12. From the above cases, it is clear that there was no need to file a
separate application for condonation of delay in the present case as
well. The High Court has erred in taking a hyper technical view and
concluding that there was violation of mandatory provision of law.
Endorsing such a view would effectively mean ignoring the purpose of
judicial procedure. The procedure cannot stand in the way of achieving
just and fair outcome. In the present case, the Appellant acted bona
fide and diligently. His conduct does not violate any rule of law."
Emphasized supplied.
10. Thus, in view of the ratio laid down by the Hon'ble Apex
Court in the case of Bhagmal (supra) and Dwarika Prasad
(supra), there was no need to file any separate delay
application while the appellants have filed application under
Order 9 rule 13 of CPC. So, point (i) answered accordingly.
11. As such when this Court is of the opinion that no
separate delay application requires to be filed under the law
when the appellants - applicants has filed an application
under Order 9 rule 13 of CPC but when such delay
application has been filed separately by the appellants at
later point of time, in view of the ratio in the case of
Pradeep Kumar (supra) such so called defect is curable one,
requires to be rectified thereby the trial Court could not take
a very hyper technical approach while considering such delay
application thereby rejected it when the defect is curable
one. The relevant observation made by Apex Court in
Pradeep Kumar (supra) which reads as under:-
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"12. It is true that the pristine maxim "Vigilantibus Non Dormientibus
Jura Subveniunt (Law assists those who are vigilant and not those who
sleep over their rights). But even a vigilant litigant is prone to commit
mistakes. As the aphorism 'to err is human" is more a practical notion
of human behaviour than ar abstract philosophy, the unintentional
lapse on the part of a litigant should not normally cause the doors of
the judicature permanently closed before him. The effort of the court
should not be one of finding means to pull down the shutters of
adjudicatory jurisdiction before a party who seeks justice, on account
of any mistake committed by him, but to see whether it is possible to
entertain his grievance, if it is genuine.
13. Crawford on "Statutory Construction" has stated thus at Page
516, Art. 261 in the 1940 Edn.:
"The question as to whether a Statute is mandatory or directory
depends upon the intent of the Legislature and not upon the
language in which the intent is clothed. The meaning and
intention of the Legislature must govern, and these are to be
ascertained, not only from the phraseology of the provision, but
also while considering its nature, its design, and the
consequences which would follow from construing it the one
way or the other."
14. It is apposite to point out that the said passage has been quoted
with approval by this Court in Govind Lal Chaggan Lal Patel V/s. The
Agriculture Produce Market Committee and Ors. (AIR 1976 SC 263).
15. In Jagat Dhish Bhargava V/s. Jawahar Lal Bhargava and Ors.
(AIR 1961 SC 832) this Court while considering the procedure to be
followed by the Court on receipt of defectively filed appeals, made the
following observations:
"It would thus be clear that no hard and fast rule of general
applicability can be laid down for dealing with appeals
defectively, filed under Order 41, Rule 1. Appropriate orders will
have to be passed having regard to the circumstances of each
case, but the most important step to take in cases of defective
presentation of appeals is that they should be carefully
scrutinised at the initial stage soon after they are filed and the
appellant required to remedy the defects."
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19. The object of enacting Rule 3-A in Order 41 of the Code seems
to be twofold. First is, to inform the appellant himself who filed a time-
barred appeal that it would not be entertained unless it is accompanied
by an application explaining the delay. Second is, to communicate to
the respondent a message that it may not be necessary for him to get
ready to meet the grounds taken up in the memorandum of appeal
because the court has to deal with application for condonation of delay
as a condition precedent. Barring the above objects, we cannot find
out from the Rule that it is intended to operate as unremediably or
irredeemably fatal against the appellant if the memorandum is not
accompanied by any such application at the first instance. In our view,
the deficiency is a curable defect, and if the required application is filed
subsequently, the appeal can be treated as presented in accordance
with the requirement contained in Rule 3-A of Order 41 of the Code."
12. Thus, in view of the aforesaid facts and circumstances
and position of law, stand as on today, it is permissible in law
to file an application of delay condonation after
presentation of such application filed under Order 9 rule 13
of CPC. In any event, it is held that there is no prohibition
under the law that the applicant can not file separate
application seeking condonation of delay after filing an
application under Order 9 rule 13 of CPC. The point no. (ii) is
answered accordingly.
13. It is by now well settled legal position of law that rule of
procedure is handmaid of justice and as far as possible, the
Civil Court is required to take departure from taking any
hyper technical view which does not advance justice.
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14. Before parting with the judgement, this Court would
like to remind the Trial Court that whenever such type of
application is presented before the trial Court, an endeavor
should be made by the trial Court to see that such kind of
application will be decided as expeditiously as possible
without going into the technicality of procedure and if so
desire, the litigant may be advised by the Court to cure their
defects if such litigant is not aware about rule of procedure.
At the end of the day, the Court is required to render justice
between the parties and to work for advancement of justice,
thereby always have an approach to overcome such
technicalities which may come in the way of the Court while
dispensing the justice.
Conclusion.
15. The upshot of aforesaid observations, discussions and
reasons, I am of the view that the impugned order requires
to be interfered by this Court while exercising its appellate
power under Order 43 of CPC as it is not in-consonance with
the provisions of law as such contrary to the law laid down by
the Hon'ble Apex Court in the case of Bhagmal (supra),
Dwarika Prasad (supra) and Pradeep Kumar (supra).
15.1 The impugned judgement and order dated 27.08.2013
passed by the City Civil Court No. 8, Ahmedabad City in CMA-
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DC/219/2003 is hereby quashed and set aside. Consequently,
the impugned application being CMA-DC/219/2003 is
restored back on its file.
15.2 Considering the fact that the impugned application is
filed in the year 2003, the trial Court is requested to decide
such applications i.e. filed under O.9 R.13 as well as delay
application filed therein by way of common order at the
earliest preferably within a period of three months from the
date of receipt of copy of this order, albeit, after giving an
opportunity of hearing to all parties concerned.
15.3 The trial Court shall decide the applications in
accordance with law without being influenced by any order
passed by this Court and or the order impugned in the
appeal as well as aforesaid observations made in the present
judgement.
15.4 Thus, the present Appeal from Order is partly allowed
to the aforesaid extent. No order as to costs. The Civil
Application if any pending stand disposed of accordingly.
Sd/
(MAULIK J.SHELAT,J)
SALIM/
