1. The present Civil Revision Application under Section 115 of the Code of Civil Procedure has been preferred by the applicant-original defendant in HRP Suit No. 2379/1985 to quash and set aside the impugned judgment and order passed by the learned appellate Court-learned Small Cause Court at Ahmedabad dated 12/12/2001 below Exh. 1 in Civil Appeal No. 135/2001 by which the learned appellate Bench has not condoned the delay in preferring the Appeal against the judgment and decree passed by the learned Small Cause Court at Ahmedabad dated 16/01/1996 in HRP Suit No. 2379/1985. It appears that being aggrieved and dissatisfied with the judgment and decree passed by the learned Small Causes Court at Ahmedabad dated 16/01/1996 in HRP Suit No. 2379/1985 by which the learned trial Court passed the eviction decree against the applicant, the applicant preferred Civil Appeal No. 135/2001. However, there was delay of approximately five years and seven months in preferring the Appeal and, therefore, she preferred the application to condone the delay by submitting that her husband was suffering from paralytic attack and was hospitalised for a long period from 06/05/1995 to 18/06/1997 and, therefore, she approached respondent no. 1-original plaintiff not to execute the decree and tried for settlement and it was the case on behalf of the applicant-original defendant that looking to the health of her husband, respondent no. 1-original plaintiff agreed not to execute the decree and agreed for settlement and, therefore, she was busy with the treatment of her husband. It was submitted that however thereafter respondent no. 1-original plaintiff-trust did not settle the matter and instead filed the Execution Petition in the year 2000 and possession warrant was issued and immediately thereafter she has preferred the appeal. It was also submitted that since 16/01/1996 till the application/appeal was submitted, her husband was suffering from paralysis and, therefore, it was requested to condone the delay. The said application was opposed by respondent no. 1- original plaintiff. It was submitted that as the husband of the applicant-original defendant was in the hospital for the period from 06/05/1985 to 18/06/1997 only, the case of the applicant- original defendant that she was busy with the treatment of her husband cannot be accepted. Unfortunately, the learned appellate Bench accepted the same and observed that as the husband of the applicant-original defendant was admitted in the hospital from 06/05/1995 to 18/06/1997 only and, therefore, after 18/06/1997 the applicant was not busy throughout looking after the health of her husband and, therefore, the explanation and/or the reason, which has been stated by the applicant-original defendant in her application, is not satisfactory for condonation of the delay as prayed for and consequently dismissed the said application. Being aggrieved and dissatisfied with the impugned order passed by the learned appellate Bench dated 12/12/2001 in dismissing the application submitted by the applicant, which was submitted to condone the delay in preferring the Appeal against the judgment and decree passed by the learned Small Cause Court, Ahmedabad, the applicant-original defendant has preferred the present Civil Revision Application.
2. The learned advocate appearing on behalf of the applicant has vehemently submitted that the learned appellate Court has materially erred in not condoning the delay in preferring the Appeal. It is submitted that considering the fact that the husband of the applicant was hospitalised for the period between 06/05/1995 to 18/07/1997 due to paralytic attack and even thereafter he continued to suffer the same illness, she requested the respondent-trust, which belongs to their own community not to take any further steps and to settle the dispute for which assurance was given and, therefore, she continued to serve/treat her husband and did not prefer the appeal. It is submitted that the learned appellate Court ought to have accepted the same as sufficient ground and ought to have condoned the delay. It is submitted that the learned appellate Court ought to have appreciated that by not filing the appeal within the period of limitation the applicant was not going to gain anything and/or get any undue advantage. It s submitted that the applicant bonafidely believed the assurance of the respondent-original plaintiff and continued to serve/treat her husband. However, after a period of four years the respondent-original plaintiff filed the Execution Petition and as soon as she received the possession warrant she immediately preferred Appeal and, therefore, it is requested to allow the present Civil Revision Application and quash and set aside the impugned order passed by the learned appellate Court rejecting the delay condone application and consequently to condone the delay and direct the learned appellate Court to decide and dispose of the appeal in accordance with law and on its own merits.
3. Shri P.T. Jasani, learned advocate has appeared on behalf of respondent no. 1 and has tried to oppose the present Civil Revision Application by submitting that as it has come on record that the husband of the applicant was hospitalised only for the period between 06/05/1995 to 18/06/1997 there was no reason for the applicant not to prefer the appeal immediately thereafter and, therefore, the learned appellate Court has not committed any error and/or illegality in rejecting the delay condone application.
4. It is submitted by Shri Jasani, leaned advocate appearing on behalf of respondent no. 1-original plaintiff that in case this Court is inclined to allow the present Civil Revision Application and to condone the delay, in that case, the learned appellate Court be directed to decide and dispose of the appeal on merits at the earliest.
5. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that and which is not disputed that husband of the applicant was suffering from paralytic attack and in fact was admitted in the hospital for the period between 06/05/1995 to 18/06/1997. It is the case on behalf of the applicant, which has not been disputed, that even thereafter also her husband continued to be sick/ill and, therefore, the applicant was busy with his treatment. It is also the case on behalf of the applicant and it has not been disputed that in view of the above condition of her husband she requested the respondent- trust, which belongs to their own caste, not to proceed further and requested to settle the matter and the applicant was given assurance and, therefore, she did not prefer the appeal. However, subsequently, after a period of four years, the respondent-trust original plaintiff filed the Execution Petition and obtained the possession warrant and as soon as the applicant was served with the possession warrant she thereafter preferred the appeal. As stated hereinabove, the Execution Petition was filed after a period of four years. The learned advocate appearing on behalf of the respondent is not in a position to satisfy the Court why the Execution Petition was filed after a period of four years. The aforesaid conduct on the part of the respondent to file the Execution Petition after a period of four years would confirm the case on behalf of the applicant that she requested not to proceed further and settle the dispute considering the ill health of her husband and, therefore, the Execution Petition was not filed. In the aforesaid facts and circumstances of the case, it appears to the Court that the learned appellate Court has materially erred in not condoning the delay in preferring the appeal, which was against the eviction decree. It cannot be said that by not filing the appeal within the period of limitation the applicant was to gain anything and/or was to take any undue advantage. Even, it is not the case on behalf of the respondent that by not filing the appeal within the period of limitation the applicant was to get any undue advantage.
6. Under the circumstances and in the facts and circumstances of the case, the learned appellate Court has not exercised the discretion judiciously by not condoning the delay and, therefore, the same deserves to be quashed and set aside. In view of the above and for the reasons stated hereinabove, the present Civil Revision Application succeeds. The impugned order passed by the learned appellate Bench of the Small Cause Court at Ahmedabad dated 12/12/2001 below Exh. 1 in Civil Appeal No. 135/2001 in not condoning the delay in preferring the appeal against the judgment and decree passed by the learned Small Cause Court at Ahmedabad dated 16/01/1996 in HRP suit No. 2379/1985 is hereby quashed and set aside and consequently the delay caused in preferring the appeal against the aforesaid judgment and decree is hereby condoned and now the learned appellate Bench of the learned Small Cause Court, Ahmedabad to decide and dispose of Civil Appeal No. 135/2001 in accordance with law and on its own merits at the earliest. Rule is made absolute accordingly. No cost.
(M.R. SHAH, J.) siji