1. The present Civil Revision Application under Section 115 of the Code of Civil Procedure has been preferred by the applicant to quash and set aside the impugned judgment and order dated 24/11/2011 passed by the learned Second Additional District Judge, Jamnagar in Miscellaneous Civil Application No. 76/2011 by which the learned appellate Court has dismissed the said application submitted by the applicant, which was submitted to condone the delay of approximately 9 years, 6 months and 7 days in preferring the Appeal against the judgment and decree passed by the learned trial Court dated 31/12/2002 in Regular Civil Suit No. 28/1994.
2. The grandfather of the applicant instituted Regular Civil Suit No. 28/1994 against one Jasukhal Kulshankar Oza in the Court of learned Civil Judge (Junior Division), Dhrol for declaration and permanent injunction. The learned trial Court dismissed the said suit by judgment and decree dated 31/12/2002. It appears that the certified copy of the judgment and decree was applied on 06/01/2003, which was received on 29/09/2004. It appears that the grandfather of the applicant- original plaintiff died on 28/02/2004 and it appears that in the meantime even the respondent-original defendant also died and thereafter after a period of 9 years, 6 months and 7 days the applicant preferred Appeal before the learned District Court, Jamnagar challenging the judgment and decree passed by the learned trial Court dated 31/12/2002 in Regular Civil Suit No. 28/1994. As there was delay of 9 years, 6 months and 7 days in preferring the Appeal, the applicant preferred Miscellaneous Civil Application No. 76/2011 requesting to condone the delay in preferring the Appeal by submitting that after the death of his grandfather, at the relevant time, he was in shock and his grandfather did not inform him about the pending case and recently on coming across the old documents he came to know about the case papers and as he has received the said property by will, after obtaining the advice from the advocate, he has preferred the Appeal and, therefore, it was requested to condone the delay. By the impugned order, the learned 2nd Additional District Judge, Jamnagar has dismissed the said application by holding that no sufficient cause has been shown to condone the huge delay of more than 9 years, 6 months and 7 days and even the averments made in the application in support of the prayer to condone the delay are vague. Being aggrieved and dissatisfied with the impugned order passed by the learned appellate Court in not condoning the delay of more than 9 years, 6 months and 7 days, the applicant has preferred the present Civil Revision Application under Section 115 of the Code of Civil Procedure.
3. Shri J.T. Trivedi, learned advocate appearing on behalf of the applicant has vehemently submitted that the learned appellate Court has committed an error in drawing the presumption that as the grandfather of the applicant has expired after 30/10/2004 and the certified copy was received on 29/09/2004 he must have knowledge about the same. It is submitted that as such the grandfather of the applicant expired on 28/02/2004 and, therefore, it is submitted that the learned appellate Court has passed the impugned order on incorrect facts.
3.1. Shri Trivedi, learned advocate appearing on behalf of the applicant has also relied upon the further affidavit explaining the delay by submitting that one Lalabhai Mehta, residing at Dhrol made a telephonic call in the month of June, 2011 at his residence and inquired as to whether the applicant wants to sell off the ancestral house at Dhrol and, therefore, the papers left behind his grandfather (deceased) were searched and shuffled. It is submitted that at that time the applicant came to know about the decree passed by the learned trial Court and immediately thereafter the Appeal has been preferred and, therefore, it is submitted that the applicant has now shown sufficient cause and, therefore, it is requested to allow the present Civil Revision Application and condone the delay in preferring the Appeal
3.2. Shri Trivedi, learned advocate appearing on behalf of the applicant has heavily relied upon the decisions of the Hon'ble Supreme Court in the case of N. Balakrishnan Vs. M. Krishnamurthy reported in 1998 (7) SCC 123 (paragraph 9) as well as in the case of Commissioner of Central Excise, Coimbatore Vs. Krishna Alloys reported in 2001 (4) Supreme 471 by submitting that as held by the Hon'ble Surpeme Court while considering the delay condone application, the Court is required to take a liberal view to do substantial justice. Making the above submissions and relying upon the above decisions, it is requested to allow the present Civil Revision Application.
4. Heard Shri Trivedi, learned advocate appearing on behalf of the applicant and considered the delay condone application submitted by the applicant and the impugned order passed by the learned appellate Court dismissing the delay condone application. At the outset, it is required to be noted that as such there is a huge delay of 9 years, 6 months and 7 days in preferring the Appeal challenging the judgment and decree passed by the learned trial Court dismissing the suit. Considering the averments made in the delay condone application, it appears that as such no sufficient cause has been shown explaining the huge delay of approximately 9 years, 6 months and 7 days and the averments made in the application to condone the delay are too vague. Nothing has been mentioned on which date his grandfather has expired. Nothing has been mentioned when he came to know about the old documents and the case papers. Even nothing has been mentioned in the present Revision Application and no sufficient cause has been shown. Subsequently, by way of additional affidavit, in the present proceedings, the applicant has tried to explain the delay and it is submitted that one Lalabhai Mehta residing at Dhrol made telephonic call in the month of June, 2011 to his residence and he inquired as to whether the applicant wants to sell off his ancestral house at Dhrol and, therefore, the papers left behind his grandfather (deceased) lying in his house were searched and shuffled. Apart from that, even the facts that were stated in the application and the facts stated in the further affidavit are contrary. It appears that whatever has been stated in the further affidavit is an afterthought. Even the averments in the further affidavit are not supported by any further material like affidavit of his uncle Lalabhai Mehta, who made the telephonic call in the month of June, 2012 as alleged. Under the circumstances, considering the aforesaid facts and circumstances of the case, when the applicant has not shown sufficient cause and/or any cause to condone the huge delay of 9 years, 6 months and 7 days, it cannot be said that the learned appellate Court has committed any error and/or illegality in refusing to condone the huge delay of 9 years, 6 months and 7 days in preferring the Appeal.
5. Now so far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of M. Balakrishnan (Supra) and in the case of Krisha Alloys (Supra) and the submission made on behalf of the applicant that while considering the delay condone application, the Court is required to take a liberal approach to do substantial justice is concerned, it is required to be noted that liberal view/approach can be taken provided some sufficient cause has been shown to condone the delay. At this stage, the recent decision of the Hon'ble Supreme Court in the case of Balwant Singh (Dead) Vs. Jagdish Singh & Ors reported in AIR 2010 SC 3043 as well as the decision of the Hon'ble Supreme Court in the case of Lanka Venkateswarlu (D) by L.Rs. Vs. State of A.P. reported in AIR 2011 SC 1199 deserves to be considered. In the recent decision in the case of Balwant Singh (Dead) (Supra), the Hon'ble Supreme Court has held that even if term “sufficient cause” has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the concerned party. In paragraph 13 the Hon'ble Supreme Court has observed as under;
“We may state that even if the term 'sufficient cause' has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the concerned party. The purpose of introducing liberal construction normally is to introduce the concept of 'reasonableness' as it is understood in its general connotation. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right, as accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly. The application filed by the applicants lack in details. Even the averments made are not correct and ex facie lack bona fide. The explanation has to be reasonable or plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. If it does not specify any of the enunciated ingredients of judicial pronouncements, then the application should be dismissed. On the other hand, if the applicant is bonafide and based upon true and plausible explanations, as well as reflect normal behaviour of a common prudent person on the part of the applicant, the Court would normally tilt the judicial discretion in favour of such an applicant. Liberal construction cannot be equated with doing injustice to the other party.”
6. Similarly in the case of Lanka Venkateswarlu (D) by L.Rs. (Supra) the Hon'ble Surpeme Court has while considering the scope and ambit of Section 5 of the Limitation Act has observed that the concepts such a “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 delay.
7. In view of the above, it cannot be said the learned appellate Court has committed any error and/or illegality in not condoning the delay of 9 years, 6 months and 7 days in preferring the appeal, which calls for the interference of this Court in exercise of powers under Section 115 of the Code of Civil Procedure. In view of the above and for the reasons stated hereinabove, there is no substance in the present Civil Revision Application and the same deserves to be dismissed and is accordingly dismissed.
(M.R. SHAH, J.) siji