The instant application is filed under section 5 of the Limitation Act seeking condonation of delay of 477 days caused in preferring Appeal From Order.
2. Mr. RC Kakkad, Ld.
Advocate for the applicant / appellant [original plaintiff] at the outset, submitted that the applicant has filed Special Civil Suit No. 62/2010 in the Court of the Ld. Principal Senior Civil Judge, Junagadh seeking various reliefs against the respondents herein, who are original defendants in the suit and in the said suit, the applicant filed temporary injunction application at exh. 5 which came to be dismissed by the trial Court vide order dated 20/8/2010. Mr. Kakkad submitted that the applicant - plaintiff is poor and illiterate and because of the ill-advice given to him by his advocate before the trial Court, instead of preferring Appeal From Order in this Court, he filed appeal challenging the impugned order passed by the trial Court in the District Court, Junagadh. Since there was delay of 8 days in preferring appeal, the applicant filed delay condonation application being Civil Misc. Application No. 115/2010 seeking condonation of delay of 8 days. It is submitted that pursuant to the notice issued in connection with delay condonation application, the respondents herein appeared before the District Court, Junagadh and resisted the said delay condonation application and one of the grounds raised was to the effect that the District Court, Junagadh has no jurisdiction to entertain the said appeal as the trial Court passed the order in Special Civil Suit No. 62/2010 wherein for the purpose of pecuniary jurisdiction, the applicant - plaintiff had assessed the same to the tune of about Rs.35 lac. It is submitted that despite such technical objection being raised by the respondents, the learned advocate representing the applicant - plaintiff before the District Court, Junagadh did nothing and said delay condonation application remained pending before the District Court, Junagadh, for the period of about more than one and half year and despite the fact that the applicant - plaintiff was represented by advocate before the District Court, Junagadh, ultimately the applicant himself appeared before the concerned District Court and made endorsement below his delay condonation application seeking permission to withdraw said application for the purpose of presenting the same before the Competent Court and the District Court, Junagadh, vide order dated 25/1/2012 permitted withdrawal.
2.1. Mr. Kakkad, Ld.
Advocate for the applicant, therefore, asserted that the applicant - plaintiff cannot be made to suffer because of the ill-advice given to him by his advocate before the trial Court and that the applicant has, therefore, sufficiently explained the delay. It is, therefore, submitted that the delay may be condoned.
3. Per contra, Mr. AD Mithani, Ld. Advocate for the respondent nos. 1 to 5 vehemently opposed this application and submitted that the applicant has miserably failed to explain the delay and the applicant has not come before this Court with clean hands. It is submitted that the material documents are suppressed by the applicant and bare perusal of the delay condonation application filed by the applicant would suggest that gross and inordinate delay goes practically unexplained. My attention was drawn to the affidavit-in-reply filed by the respondent nos. 1 to 5 and submitted that the instant application therefore, deserves to be dismissed. Reliance was placed upon the case of Ramji Pandey v. Swaran Kali reported in AIR 2011 S.C. 489.
4. I have taken into consideration the submissions advanced on behalf of both the sides. There is no dispute that the applicant - plaintiff filed Special Civil Suit No. 62/2010 in the trial Court and there is also no dispute that for the purpose of pecuniary jurisdiction, the suit was valued at about Rs.35 lac. There is also no dispute that in the said suit, the applicant - plaintiff had filed temporary injunction application exh. 5 and vide order dated 20/8/2010, the trial Court dismissed said application. There is also no dispute that the Appeal From Order challenging the order of the trial Court was maintainable only in this Court under Order 43 Rule 1[r] of the Code of Civil Procedure. There is also no dispute that instead of preferring any such appeal before this Court, the applicant - plaintiff preferred such appeal in the District Court, Junagadh, and since there was delay of 8 days in preferring said appeal, the delay condonation application being Civil Misc. Application No. 115/2010 was filed by the applicant herein. It seems that said application was filed before the District Court, Junagadh on 30/9/2010. There is no dispute that pursuant to the notice issued qua the respondents, they appeared and resisted said application by filing reply on 23/11/2010 [Annexure - R3]. In the said reply, along with other grounds, one of the grounds was to the effect that the District Court, Junagadh has no jurisdiction to entertain said appeal.
5. It is pertinent to note that said delay condonation application before the District Court, Junagadh, remained pending and undecided till 25/1/2012. There is no dispute that in said matter, before the District Court, Junagadh, the applicant herein was represented by his advocate, but on 25/1/2012 it was the applicant who approached to the District Court and made an endorsement below his delay condonation application seeking permission to withdraw said application so as to file the same before an appropriate Court and on the basis of the said endorsement, the Ld. Addl. District Judge, on 25/1/2012 permitted the withdrawal.
6. Perusing the averments made in para. 2 in the application, which are supported by the affidavit of the applicant, the above facts described in this order, have been pleaded by the applicant and it is averred that the applicant being poor and illiterate and because of the ill-advice given to him by his advocate, instead of preferring immediately such appeal in this Court, the appeal came to be preferred before the District Court, Junagadh. It is true that the respondent nos. 1 to 5 vehemently opposed this application by filing affidavit-in-reply in this matter. On behalf of the respondent nos. 1 to 5 it is submitted that if section 14 of the Limitation Act is perused, the period of limitation may only be saved if a proceeding before the wrong forum was instituted with due diligence. It is pertinent to note that in the instant matter, though in the cause title, there is a reference of section 14 of the Limitation Act, but as a matter of fact, while computing the delay, the applicant has not claimed, as such, exclusion of said period. In the instant application the applicant has prayed to condone the delay of 477 days, computing from the date on which the certified copy of the impugned order dated 20/8/2010 came to be obtained by the applicant till the date on which the instant application came to be filed before this Court.
7. On behalf of the respondent nos. 1 to 5, reliance was placed upon the case of Ramji Pandey [supra].
In the said case, on the basis of peculiar facts emerged on record, Hon'ble the Apex Court came to the conclusion that the time spent in wrong forum cannot be excluded and delay cannot be condoned in that matter. In the said matter, at the first instance, the applicant original defendant allowed the suit to proceed ex-parte despite the fact that he was served with summons of the original suit. The applicant - defendant then filed an application for setting aside ex-parte decree, but again there was inordinate delay in filing such application. Such application was also filed before a wrong forum as the District Court lacked pecuniary jurisdiction to entertain said appeal. The otherside raised the objection at a very initial stage in that appeal. No immediate steps were taken by the petitioner therein before the first appellate Court and continued with the said proceedings and the first appellate Court passed order in favour of the petitioner therein, despite the fact that the District Court was lacking the pecuniary jurisdiction. The said order was challenged by the otherside before the High Court and the High Court set aside said order and feeling aggrieved and dissatisfied with the order of the High Court, the petitioner preferred appeal before Hon'ble the Apex Court. Hon'ble the Apex Court further observed in the decision that not only the conduct of the petitioner before the first appellate Court was showing any due diligence, but even before the High Court because of the petitioner, delay occurred in disposal of said matter. Even before the High Court, where the impugned order was passed, the petitioner did not appear on the date of arguments or even on the previous date. It was, therefore, observed that absence of due diligence in pursuing the matter was writ large on the face of the record. Suit of 1983 was decreed ex-parte in the year 1988 and thereafter the proceedings of setting aside the ex-parte decree was being dragged on one way or the other by filing application/appeal in wrong forum and the matter was dragged till date. Thus, on the basis of peculiar facts and circumstances emerged on record, ultimately Hon'ble the Apex Court dismissed the said appeal. In the instant matter, the facts are otherwise. As averred by the applicant, because of the ill-advice, the appeal with the application of condonation of delay of 8 days, came to be preferred before the District Court, Junagadh. It is true that on 23/11/2010, by filing reply, the respondents opposed the condonation of delay and one of the grounds raised by them was regarding the jurisdiction of the District Court, Junagadh. It further transpires that said delay condonation application remained pending before the District Court, Junagadh till 25/1/2012 and there is no allegation levelled by the respondents herein that said delay condonation application was delayed on account of the applicant herein. On 25/1/2012 it was the applicant who appeared before the concerned District Court and he made an endorsement seeking withdrawal of said application for the purpose of presenting the same before a competent Court.
8. In the above view of the matter, this Court is of the opinion that the applicant has aptly and sufficiently explained the delay. However, it would be in the interest of justice if the application is allowed subject to imposing reasonable cost upon the applicant in this matter.
9. For the foregoing reasons, the application is allowed and the delay of 477 days caused in preferring the Appeal From Order is condoned. The applicant shall pay Rs.5,000/- [Rupees five thousand only] in one set by way of cost to the respondent nos. 1 to 5. Rule is made absolute accordingly.
(J.C.UPADHYAYA, J.) * Pansala.
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