Whether Reporters of Local Papers may be allowed to see the judgment ?
To be referred to the Reporter or not ?
Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
Whether it is to be circulated to the civil judge ?
======================================== PUNABEN NARAN HETHVADIYA WD/O NARAN VIRA & 1 - Petitioner(s) Versus SHANTABEN LAGHUBHAI W/O LAGHUBHAI RAMJI & 9 - Respondent(s) ======================================== Appearance :
MR B.T. RAO with MR PAWAN A BAROT for Petitioner(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5, 1.2.6, 1.3.1, 1.3.2, 1.3.3, 1.3.4, 1.3.5, 1.3.6, 1.3.7, 1.3.8,1.3.9 - 2, 2.2.1, 2.2.2, 2.2.3, 2.2.4,2.2.5 None for Respondent(s) : 1,1.2.1 MR BY MANKAD for Respondent(s) : 1.2.2, 1.2.3, 1.2.4, 1.2.5, 1.2.6, 1.2.7, 1.2.8, 1.2.9,1.2.10 RULE SERVED for Respondent(s) : 1.2.5, 1.2.6, 1.2.8,1.2.9 ======================================== CORAM :
HONOURABLE MS.JUSTICE HARSHA DEVANI Date : 29/02/2012 CAV JUDGMENT By this application, the applicants seek condonation of the delay of 1797 days that has occasioned in filing Second Appeal (Stamp) No.246 of 2010.
On 10.10.2011, this court passed an order in the following terms :
"Heard the learned advocates for the respective parties. Stand over to 11.10.2011."
It appears that the matter could not be taken up on 11.10.2011 and hence, the same was taken up for hearing on 13.10.2011, on which date, the court passed the following order:
"Both the learned advocates have referred to various decisions on which they seek to place reliance in support of their submissions.
"Stand over to 18.10.2011 for dictation of order."
On 21.10.2011, this Court passed an order in the following terms:
"1. Vide order dated 13th October, 2011, the matter was adjourned to 18th October, 2011 for dictation of order after conclusion of arguments by the learned advocates for the respective parties. However, on 18th October, 2011, the court could not proceed with the dictation of judgment and the matter was kept on 19th October, 2011 at which point of time, the learned advocate for the applicants tendered an additional affidavit dated 19th October, 2011. Mr. B.Y. Mankad, learned advocate appearing on behalf of the respondents has strongly objected to the filing of the said affidavit stating that the same should not be taken on record as the same has been filed only for the purpose of removing the lacuna that had been initially left out and which came to the notice of the learned advocate for the applicants during the course of the arguments.
2. Since today is the last day prior to the Diwali vacation, due to paucity of time, it is not possible to proceed further with the dictation of the order hence, the judgment is reserved."
Mr.
B. T. Rao, learned advocate for Mr. Pawan Barot, learned advocate for the applicants invited attention to the averments made in the application as well as to the additional affidavit dated 19.9.2011 to submit that the delay that has occasioned in preferring the second appeal has been sufficiently explained. It was submitted that the judgement and decree impugned in the second appeal was rendered on 27.10.2005, however, the same was communicated to the belatedly by the learned advocate appearing in the matter. It was submitted that the communication of the learned advocate informing the present applicants regarding the dismissal of the appeal was received by the applicants in the year 2007; where after the second appeal was preferred as quickly as possible. It was submitted that the applicants herein were at the relevant time, living below the poverty line and were facing financial crisis and as such, were not financially capable to prefer the second appeal promptly. Moreover, the applicants did not have knowledge of law as regards challenging the impugned judgement and decree and it was only after obtaining necessary legal advice that the present application could be filed. It was further submitted that the respondent herein had preferred an execution application in the year 2007 for executing the impugned judgement and decree wherein notices came to be issued to the present applicants, whereupon it came to the knowledge of the applicants that the appeal against the judgement and decree passed by the trial court had been dismissed. The applicant No.2/1 had, therefore, contacted his advocate, but in view of his weak financial condition, he could not prefer the appeal expeditiously.
It was submitted that the applicant No.2/1 was working as a labourer and getting employment under the scheme known as National Rural Employment Guarantee Act (NREGA) sponsored by the Government of India for providing employment to needy persons. Attention was invited to the job card issued to the said applicant under the NREGA Scheme by the competent authority. It was submitted that the said applicant was an uneducated person and depended mainly upon the advice given to him by his advocate and as such, the delay caused in filing the appeal was not intentional. It was urged that the delay has been caused because of unavoidable circumstances and that for want of money; the applicants could not even approach the Anjar town. Though the appeal was dismissed in the year 2005, the said fact was never intimated to them by their advocate and as they were agricultural labourers, they were moving for agricultural labour wherever the work was available and as such, the applicant No.2/1 was not aware of the judgement. That when summons in the execution petition came to be served upon the applicants, the same was handed over to the local lawyer to defend the applicants in the execution petition, but they were not able to get proper advice in the matter. It was submitted that the learned advocate representing them in the execution petition did not inform them that an appeal is required to be filed before the High Court and had simply given them some papers. Thereafter, they had approached a social worker and an advocate who could assist them in the matter. However, due to paucity of funds, they could not come to Ahmedabad immediately to engage an advocate at the High Court. That their advocate at Anjar had recommended an advocate at Ahmedabad who was a newly enrolled advocate. When they reached the office of the said advocate he had informed them to obtain all the papers, that is, suit proceedings, appeal proceedings along with certified copies. However, on account of paucity of funds, they could not immediately apply for the certified copies immediately and could apply for the same only in December 2010. It was submitted that the application for obtaining copies of the proceedings of the lower court was made by the applicants themselves as they did not have such amount to make the payment to the advocate. Under the guidance of the advocate at Ahmedabad and with the assistance of the court clerk, they got prepared the application and signed it by putting thumb impression and applied for the certified copies in December 2010 and on getting the same, the same were handed over to the learned advocate. It was submitted that the applicants are illiterate agricultural labourers, and mainly depending on the agricultural labour provided by the Government of India through the State Government under the NREGA scheme and therefore, they had to meet with the basic requirements and provide food to their children and they never had any time to approach the lawyer. It was submitted that the delay was not intentional, but it was only on account of reasons beyond the control of the applicants, that the appeal could not be filed in time. It was submitted that, on merits, the applicants have a good case and the matter requires consideration by this court and as such, the present application requires to be allowed by adopting a liberal approach so as to subserve the ends of justice.
In support of his submissions, the learned advocate placed reliance upon the following decisions :
[a] The decision of this High Court in the case of Bhikhabhai Mavjibhai Patel v. State of Gujarat, 1994(1) GLR 151, was cited wherein it has been held that the court should, while dealing with delay condonation applications, adopt a liberal approach and not a hyper-technical view. If there is no deliberate delay with some ulterior motive, the delay should normally be condoned. Substantial justice lies in deciding the matter on merits rather than disposing it of on technicalities. It is too much to expect from villagers, poverty stricken people to know the intricacies of law.
[b] The decision of this High Court in the case of Chhaga Ramabhai and others v. Heirs of Chhotabhai and another, 1994 (1) GLH 16, was cited for the proposition that the expression "sufficient cause" employed in section 5 of the Limitation Act is required to be interpreted in a liberal manner so as to advance the cause of substantial justice particularly when no negligence or inaction or want of bonafides is imputable to a party.
[c] The decision of this High Court in the case of State of Gujarat, through Commissioner of Income Tax v. M/s Rama Newsprint & Papers Ltd., 2011 (1) GLR 333, was cited wherein the court, placing reliance upon a decision of the apex court in the case of State of Haryana v. Chandramani, (1996) 3 SCC 132 as well as a decision in the case of G. Ramegowda, Major v. Special Land Acquisition Officer, (1988) 2 SCC 142, had condoned the delay of 110 days caused in filing the tax appeal.
[d] The decision of the Supreme Court in the case of Noted Infotech Private Limited v. Securities and Exchange Board of India, (2008) 8 SCC 431, wherein the court condoned the delay subject to payment of costs to the respondent.
[e] The decision of this High Court in the case of Shri Dhirajlal Madhavlal Bharati v. Shri R. S. Shukla, The Presiding Officer, First Labour Court, Ahmedabad & others, 1981 GLH 89, was cited wherein the Court had re-affirmed the principles articulated in Karim Abdulla v. Bai Hoorbai, 16 GLR 835, wherein the following principles have been laid down:
"[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 condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties.
[3] "Every day's delay must be explained" does not mean that a pedantic unpregmatic 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 a 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. The presumption would be just the other way round.
[6] It is unreasonable to adopt the approach of a school master using his rod to discipline the student. One need not bend backwards in such matters. The attitude must be one informed with greatest awareness for the cause of justice.
[7] 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 expected to do so.
[8] Delay may not be condoned if the result would be to promote injustice suffered by a poor victim or which would result in the relief given to a poor victim being denied to him by reopening a closed Chapter wherein substantial justice has been done in favour of a sufferer of injustice. In other words to help promote justice on merits, `always'. To promote injustice, `never'."
It was, accordingly, urged that the delay that has occasioned in preferring the second appeal has been sufficiently explained. There is no deliberate negligence or inaction on the part of the applicants in preferring the second appeal. The delay in filing the appeal has occurred on account of the weak financial condition, lack of knowledge, lack of education on the part of the applicants as well as the fact that they are agricultural labourers and as such, the applicants deserve to be given an opportunity to contest the litigation on merits and hence, the delay deserves to be condoned.
Vehemently opposing the application, Mr. B. Y. Mankad, learned advocate for the respondents invited attention to the averments made in the memorandum of application to submit that in paragraph 2 of the application, the applicants have stated that they had received a communication from the advocate as regards dismissal of their appeal in the year 2007, whereas in paragraph 3 of the additional affidavit on behalf of the applicants, it has been stated that the appeal came to be dismissed in the year 2005, but it was never intimated to them by their advocate as they were agricultural labourers and were moving for agricultural work wherever the work was available. It was submitted that, thus, the contradictory averments have been made on oath by the applicant No.2/1 herein in the memorandum of application and in the additional affidavit filed on behalf of the applicants. It was submitted that the averments made in the plaint with regard to the financial crisis and poverty do not appear to be true inasmuch as in the execution proceedings, the applicants have engaged an advocate who is representing them in the said proceedings. It was submitted that if the applicants are in a position to engage an advocate in the execution proceedings, it is difficult to understand as to how it was not possible for them to engage an advocate in the High Court. It was submitted that the delay in the present case is not an ordinary delay, but of 1797 days which requires to be explained properly. Referring to the averments made in the memorandum of application and the additional affidavit, it was submitted that vague averments have been made and no specific dates have been mentioned and that no plausible explanation has been put forth by the applicants. It was submitted that the averments with regard to ignorance of law and lack of knowledge regarding the need to challenge the impugned judgement and decree are also not true as the applicants were duly represented by advocates in the appeal proceedings before the first appellate court as well as in the execution proceedings. It was submitted that the applicants have put forth three different reasons for the delay that has occasioned in preferring the appeal: firstly, belated communication from an advocate; secondly, financial incapacity; and thirdly, ignorance of law. It was submitted that all the three reasons either collectively or individually, do not provide any legal, factual or logical justification for condoning the delay in preferring the appeal. It was submitted that the execution petition was already filed in the year 2007 for implementation of the impugned judgement and decree. In the execution application, the notices were served on 12.12.2007 upon the applicants herein and as such, they were in notice of the judgment and decree under appeal, despite which, the second appeal came to be filed as late as in December 2010. It was, accordingly, urged that the conduct of the applicants does not amount to negligence or gross negligence simpliciter, but amounts to negligence and conscious omission to pursue the remedy available to the applicants.
It was argued that during the course of proceedings of Execution Application No.10 of 2007, on behalf of the applicants initially there was no representation expressing intention to prefer a second appeal. Consistently, the applicants herein had sought adjournments from time to time for filing reply. For the first time on 30.11.2010, adjournment was sought on the ground that they intended to prefer an appeal against the impugned judgement and decree. Therefore, for the period beginning from 16.1.2007 till 7.12.2010, no explanation whatsoever has been assigned by the applicants for not preferring an appeal against the impugned judgement and decree. It was submitted that the conduct of the applicants indicates that the intention behind preferring the present appeal is not bonafide inasmuch as, in the execution proceedings, initially adjournments were repeatedly sought to file objections against the execution which indicated their intention not to opt for remedy of appeal. After exhausting the remedy before the executing court in the execution proceedings by seeking repeated adjournments, when no further adjournments were being granted, with the ulterior motive of getting the execution proceedings delayed and with a view to linger the execution petition, the applicants have chosen to prefer the present appeal. It was submitted that, therefore, equitably also, the applicants are not entitled to condonation of the delay in preferring the appeal. It was submitted that on merits also, both the courts below have recorded concurrent findings of fact against the applicants herein and as such, even on merits the applicants do not have any good case so as to call for condonation of the delay.
In support of his submissions, the learned advocate placed reliance on the following decisions :
[a] The decision of the Supreme Court in the case of Vedabai alias Vaijayanatabai Baburao Patil v. Shantaram Baburao Patil and others, (2001) 9 SCC 106, was cited for the proposition that in exercising discretion under section 5 of the Limitation Act, the courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case, the consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach, but in the latter case, no such consideration may arise and such a case deserves a liberal approach. It was submitted that in the facts of the present case, there is an inordinate delay and as such, the prejudice caused to the respondents should also be taken into consideration as the same is a relevant factor.
[b] The decision of the Supreme Court in the case of Pundlik Jalam Patil (dead) by LRs v. Executive Engineer, Jalgaon Medium Project and another, (2008) 17 SCC 448, was cited for the proposition that everybody is presumed to know the law. It is the duty of the applicant to prefer appeal before the court for consideration. The court cannot inquire into belated and stale claims on the ground of equity. Delay defeats equity. The court helps those who are vigilant and "do not slumber over their rights". Mr. Mankad submitted that, in the facts and circumstances of the present case, the applicants were not diligent in availing the remedy of appeal. Moreover, the averments made in the application do not show any acceptable cause for exercising discretion in their favour.
[c] The decision of the Supreme Court in the case of Steel Authority of India Limited v. Sutni Sangam and others, (2009) 16 SCC 1, and more particularly, to paragraph 15 thereof.
[d] The decision of the Supreme Court in the case of Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation and another, (2010) 5 SCC 459, was cited for the proposition that what is to be seen is as to whether the any plausible/tangible explanation has been offered for the long delay in filing the appeal.
[e] The decision of this High Court in the case of Patel Natvarlal Kodidas v. State of Gujarat, 1999 (2) GLR 1340, was cited wherein the court had refused to condone a delay of 590 or 627 days on the ground that the applicants were not prevented by any reasonable and sufficient cause from filing the appeal within time. Mr. Mankad submitted that the facts of the present case are similar to the said case inasmuch as, the applicants herein have taken part in the execution proceedings for three to four years and did not prefer appeal before this court despite the fact that they were aware of the passing of the impugned judgement and decree. Thus, the applicants are merely adopting dilatory tactics so as to deprive the respondents of their rights in the suit land.
[f] The decision of this High Court in the case of Babubhai H. Kanada through his heirs Ramaben and others v. Natwarlal Chandarana and others, 2003 (4) GLR 3411, was cited for the proposition that if sufficient cause is not shown and the court does not record a finding that the cause shown is sufficient, the court does not possess power to arbitrarily condone delay in the name of advancing substantial justice. It was submitted that in the present case, it is apparent that sufficient cause has not been made out by the applicants herein and as such, merely in the name of advancing substantial justice, the delay that has occasioned in filing the appeal should not to be condoned.
[g] The decision of this High Court in the case of Gujarat Water Resources Development Corporation Ltd. v. Baldevji Mohanji Solanki, 2007 (4) GLR 3712, wherein the court refused to condone the delay of four and a half years on the ground that interest of justice should not only apply to the petitioner, but should apply to the respondent also.
[h] The decision of this High Court in the case of Municipal Corporation of the City of Ahmedabad v. Calico Dyeing & Printing Works, Ahmedabad, 1993 (1) GLH 285, was cited wherein the court had refused to condone the delay of 66 days in preferring the appeal.
[i] The decision of this High Court in the case of Himatlal Gordhandas Bhatti v. Gokulbhai Tulsidas Patel, 1983 GLH (UJ) 66, was cited wherein the court observed that barring the bare say of the petitioner, there was nothing to prove the alleged adverse financial condition. The petitioner had not stated as to what his occupation is and what is his earning therefrom. He had also not stated as to who the members of his family are and whether any other member was an earning member of the family. He had also not stated as to whether he owns any property or not. He had also not given an estimate of his property, movable and immovable. The court observed that it is also to be seen that he had not fought out the suit and the appeal as an indigent person. The court observed that it is true that he had approached the High Court through the Legal Aid Committee, but there was nothing to show as to how did the Legal Aid Committee held him a person deserving legal aid. In the circumstances, the court was not satisfied by the bare say of the petitioner that adverse financial circumstances were the cause for 66 days' delay.
Referring to the averments made in the memorandum of application as well as to the additional affidavit, the learned advocate for the respondent pointed out that the applicants have not stated as to who are the members of their family, and whether any of the members of their families are earning, nor have they stated as to whether they own any property, movable or immovable; nor has any estimate of their properties, movable or immovable, been given. Moreover, the applicants have engaged an advocate both before the trial court as well as the lower appellate court and in the execution proceedings. Hence, except for the bare say of the applicants that there were adverse financial circumstances, there is nothing on record to support their say. It was submitted that in the facts of the aforesaid case, the court had refused to condone mere delay of 66 days, whereas in the facts of the present case, there is inordinate delay of 1797 days. Under the circumstances, no case has been made out so as to condone the delay that has occasioned in preferring the appeal and as such, the application deserves to be rejected.
In rejoinder, Mr. B. T. Rao, learned advocate for the applicants placed reliance upon a decision of the Supreme Court in the case of Haribhai Lakhubhai Seedhav v. State of Gujarat, 2010 (2) GLH 97, wherein the court condoned a delay of ten years in filing the application seeking leave to file Letters Patent Appeal on the ground that the appellant was not aware about the dismissal of the writ petition filed by the General Power of Attorney and came to know about the dismissal of the writ petition only when the appellants were served with the notice under rule 10 of the Ceiling Rules by the office of the Mamlatdar. It was submitted that in the facts of the present case, the applicants were unaware of the dismissal of their appeal till the notices came to be issued to them in the execution proceedings and as such, the delay is required to be condoned. Reliance was also placed upon the decision of this court in the case of Govindbhai Bhavsing Jhala v. Priyanka Fibers & Filaments Pvt. Ltd., 2011 JX (Guj) 655, wherein the court had condoned a delay of 673 days by placing reliance upon the decision of the Supreme Court in the case of Collector, Land Acquisition, Anantnag and another v. Mst. Katiji & others, AIR 1987 SC 1353, wherein the Supreme Court had held that "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? There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay, in fact he runs a serious risk. Reliance was also placed upon a decision in the case of Lalitaben Iswarlal Naik v. Natvarlal Thakorbhai Desai, 2011 (2) GCD 1324, wherein the court observed that the expression 'sufficient cause' as appearing in section 5 of the Limitation Act, 1963 must receive a liberal construction so as to advance substantial justice. Normally deliberate attempt or intentional delay cannot be encouraged by court. However, it is better to decide the matter on merits. If delay is not condoned then it will adversely affect the legal right of applicant and if it is condoned it will not cause any prejudice to the opponent. Normally, liberal approach in such cases necessarily not the strict rule is to apply but practical approach is necessary. In such cases, discretionary power can be exercised by the court for doing substantial justice between parties. The court in the facts of the said case condoned delay of 905 days. It was urged that in the light of the aforesaid decision the delay is required to be condoned by adopting a liberal approach and the matter is required to be heard on merits. It was, accordingly, urged that the applicants have sufficiently explained the delay that has occasioned in filing the appeal. It was submitted that the financial condition of the applicants as well as the fact that they are illiterate agricultural labourers should be taken into consideration and the delay that has occasioned in preferring the appeal be condoned.
As noted hereinabove, there is an inordinate delay of 1797 days in filing the captioned second appeal. Adverting to the legal position as regards the factors that should be taken into consideration while considering an application for condonation of delay, while it is true that the Supreme Court in the case of Collector, Land Acquisition, Anantnag and another v. Mst. Katiji & others (supra), has held thus :
"[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 condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties.
[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 a 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 expected to do so."
It is equally true that the said judgement cannot be read to mean that in every case where there is a delay, the same should be condoned without taking into consideration the explanation advanced by the applicants for condoning the delay. The court, on the facts of the case, after considering the position of the litigant, both financial as well as the other circumstances, would view the explanation given by the applicant. However, every explanation advanced cannot be accepted as sufficient, keeping in mind the extent of delay and the explanation put forth in that regard. Where the delay is inordinate, the court would also have to take into consideration an additional factor, viz., the prejudice caused to the other side.
Adverting to the facts of the present case, in the memorandum of application, the explanation put forth is that the judgement and decree which is subject matter of challenge in the second appeal was pronounced on 27.10.2005, but the same was communicated belatedly by the advocate of the lower court. It is further stated that a communication as regards the dismissal of the appeal was received by the applicants in the year 2007. It may be noted that the present appeal has been preferred in December 2010, that is, after a period of more than three years since the date on which the applicants have stated that they had received the communication from their advocate. It is also stated in the memorandum of the application that after the communication was received by the applicants, the second appeal was preferred as quickly as possible. That the applicant was not capable of filing the present appeal promptly because he was not financially capable during that period. That the present applicant had no knowledge of law regarding challenging the impugned judgement and decree and after obtaining necessary legal advice, he had preferred the present second appeal as soon as possible. That the family of the applicant consists of two sons, two daughters and wife, and there is a social responsibility of getting them married. In the beginning, the applicant was facing financial crisis and in such a situation, he had to maintain his entire family and that the applicant was living below the poverty line at the relevant time and on account of change in his financial condition, he has immediately approached the advocate for challenging the impugned judgment and decree. The advocate had given advice to collect necessary papers for preferring the second appeal for which the applicant had to immediately contact the learned advocate appearing for him in the lower court for obtaining necessary case papers. After obtaining the same, the applicants had preferred the present second appeal as soon as possible. It is further stated therein that the respondent had preferred an execution application in the year 2007 for executing the decree in which proceedings, the executing court had issued notice to the present applicant, and it is at that point of time that it had come to his knowledge that his appeal against the judgement of the trial court has been dismissed. Therefore, he immediately contacted his advocate, but at that time, the applicant and his family members were facing financial crisis, and therefore, he could not prefer second appeal immediately. That on change of his financial condition, the applicants had recently approached this court for challenging the impugned judgement and decree.
In the additional affidavit filed on behalf of the applicants, it has been stated that the deponent therein, that is, Hethwadiya Ayar Hari alais Babu Rata is working as a labourer and getting employment under the scheme known as National Rural Employment Guarantee Act (NREGA) sponsored by the Government of India for providing employment to the needy persons and that he is living below the poverty line. A copy of the job card issued to him under the NREGA Scheme by the competent authority is annexed thereto. It is further stated that he is an uneducated person and depended mainly upon the advice given to him and therefore, delay has been caused in filing the appeal, which is not intentional. It is further stated that the delay has been caused because of unavoidable circumstances and that for want of money, the applicants could not even approach Anjar town. It is stated that though the appeal was dismissed in the year 2005, the said fact was never intimated to them by their advocate and as they were agricultural labourers, they were moving for agricultural labour wherever the work was available and hence, the deponent was not aware of the judgement. It is further stated that the execution petition came to be filed pursuant to the judgement and decree passed by the trial court being confirmed by the lower appellate court, whereupon the summons came to be issued to them, which was handed over to the local lawyer to defend the same, but as they did not have any finance, they were unable to get proper advice in the matter. According to the deponent the learned advocate representing them in the execution petition did not inform them that the appeal is required to be filed before the High Court and has simply given them some papers. Therefore, with the help of a social worker, they had approached an advocate, but due to paucity of funds, they could not come to Ahmedabad immediately to engage an advocate at the High Court. When they reached the office of the advocate at the recommendation of the advocate of Anjar, the said advocate had assigned the matter to newly enrolled advocate for conducting the same. The learned advocate had intimated them to obtain all the papers, that is, suit proceedings, appeal proceedings along with certified copies, however, on account of paucity of funds, they could not immediately apply for the same and the same was applied for by them only in December 2010. That the application for copies of the proceedings of the lower court was made by the applicants themselves as they did not have such amount to make the payment to the advocate. Therefore, under the guidance of the advocate at Ahmedabad and with the assistance of the court clerk, they got prepared the application and signed it by putting thumb impression and applied for the certified copies in December 2010 and on getting the same, handed them over to the learned advocate. It is also stated that the deponent and the other applicants are illiterate agricultural labourers, mainly depending on the agricultural labour provided by the Government of India through the State Government under the NREGA scheme. In the evening, they had to meet with the basic requirements and provide food to their children and they never had any time to approach the lawyer. It was further stated that the agricultural land was also not fertile land which gives agricultural crop and some surplus amount could be found out therefrom. In Kutch district, rain is uncertain and for want of finance, the applicants are undertaking agricultural activities solely based on rain and whatever they grow from the said field during four months of monsoon is for maintaining their families and for the remaining eight months, they are doing agricultural labour or any other labour work. That on account of illiteracy, the deponent has to depend upon others since in the entire family nobody is educated and none of the members of the family has studied even up to the second standard. It is, accordingly, stated that the delay was not intentional, but it was only on account of situation beyond the control of the applicants, that the appeal could not be filed in time.
It is further stated in the additional affidavit that the mortgage deed is executed on 12.4.1948 and the mortgagor had to redeem the same after two years on repayment of 3075 KORIS = Rs.1025/-. Thus, the period of limitation for filing a suit for redemption is twelve years; hence, the plaintiffs could have filed the suit on or before 1960. That when the mortgage is executed in 1948, under Article 135 of the Limitation Act, 1908, the mortgagor has to file the suit for redemption within twelve years from the date on which the mortgagor is entitled to redeem the mortgage. It is further stated that a substantial question of law as to whether the mortgagor is required to file a suit for redemption within thirty years or twelve years has not been dealt with by the courts below. It is further stated that the date of mortgage deed has been executed on 12.4.1948 and the date of institution of the suit is 17.4.1980 whereas the right to redeem the property or to recover possession by virtue of the said agreement has accrued on 11.4.1950, hence, even if the period of thirty years is calculated, the same would expire on 11.4.1980 and therefore, the suit was time barred.
In the affidavit in reply filed by the respondents opposing the application, it is stated that in the execution application, notices were served on 17.2.2007 upon the judgement-debtors - Babu Hira, Dhanaibai Daya Vira, Ramanbaiben Daya Vira, Puribai Hira, Satibai Hira, Valiben Babu, Sajuben Daya Vira, Janiben Daya Vira and certain others. No rejoinder has been filed to the said affidavit denying the averments made in the affidavit in-reply. Thus, it appears that the applicants were served with the notices in the execution proceedings in February 2007.
From the averments made in the application as well as the additional affidavit, it is apparent that beyond February 2007, the only explanation put forth by the applicants for explaining the delay of almost four years till December 2010, is on the ground that the applicants were ignorant of law and their financial condition was weak. Both, the memorandum of civil application as well as the additional affidavit have been affirmed by applicant No.2/1 - Hethvadiya Ayer Rata alias Babu Hira. The cause title of the application indicates that apart from the applicant No.2/1, some of the other applicants are male adults. In case of two of the applicants, applicant No.1/3(3) and applicant No.1/3(9), their occupation is shown to be "service". However, no details have been mentioned as to what is the nature of service in which they are engaged or to indicate their financial position. In case of the other male applicants, their occupation is shown as "agriculture". As has been rightly contended by the learned advocate for the respondents, nothing has been shown as to the extent of income of the said applicants and more particularly, those who are in service. The averments made in the application all pertain to the applicant No.2/1, whereas in respect of the other applicants, the averments are general in nature. Along with the application, the applicant No.2/1 has annexed a copy of the job-card under the NREGA Scheme, which shows that the family of the applicant consists of three members, namely, (1) Babu Hira, (2) Deviben Babu and (3) Vela Babu. The card showing the days of employment under the said Scheme indicates that all the three members of the family have worked for 25 days each for the period between 9.2.2010 to 12.3.2010. It may be noted that the first appeal was dismissed in the year 2005. According to the applicants, they came to know about the passing of the impugned judgement and decree only in the year 2007 when their advocate informed them. In the additional affidavit, it is stated that the advocate had not informed them and that they came to know about the same when the notices in the execution petition came to be served upon them. The notices in the execution petition appear to have been served upon them in February 2007. However, there is nothing on record to indicate as to what was the income of the applicants herein in the year 2007 till the year 2010. Though it is stated that most of the members were employed under the NREGA scheme, the job card indicates the employment only for the aforesaid period. Hence, it does not appear as if the employment under the NREGA scheme is the sole occupation of the applicants.
In the present case, the delay is not an ordinary delay of a few days or a few months. The total delay is 1797 days which comes to approximately more than a period of four and a half years. Apart from the fact that it is difficult to believe that the applicants were not aware of the fate of their appeal despite the fact that they were the appellants before the lower appellate court, assuming that the applicants came to know about the passing of the impugned judgement and decree only when the notices issued by the executing court came to be served upon them, even then, from February 2007 till December 2010, that is, for a period of more than three years, no proper explanation is put-forth for the delay that has occasioned in filing the appeal. From the averments made in the memorandum of application itself, it is apparent that the applicants had engaged an advocate to appear on their behalf before the lower appellate court as well as in the execution proceedings. Thus, the contention as regards financial crisis does not appear to be genuine. Besides, as stated in the memorandum of application, the applicants had taken the help of a social worker who had advised them to engage an advocate. In the circumstances, the applicants would have been aware that they are entitled to avail of legal aid both before the lower courts as well as in the High Court, however, the applicants do not appear to have availed of the same. From the averments made in the application, it is not possible to ascertain as to whether or not the applicants are indigent persons and were not in a position to come to the High Court in time. Assuming that poverty may be a ground for the delay in filing the application, the delay has to be reasonable. Poverty cannot be a ground for condoning the delay of more than three years, more so when legal aid is available to the parties. Ignorance of law and ignorance of the fact that they are required to challenge the impugned judgement and decree, also does not appear to be convincing inasmuch as, the applicants have earlier engaged advocates for appearing on their behalf in the appeal before the lower appellate court as well as for defending them in the execution proceedings. Thus, it is not possible to accept the plea of the applicants that they were financially not capable enough to engage an advocate and therefore, could not file the present appeal in time.
This court in the case of Babubhai H. Kanada through his heirs Ramaben and others v. Natwarlal Chandarana and others (supra), has held as follows :
"8.3 It is well settled position of law that the existence of "sufficient cause" to the satisfaction of the Court is the condition set for the Court to exercise its discretion in the matter of condoning delay. Granting of extension under Section 5 on sufficient cause being shown is a matter of discretion which is judicial and not arbitrary. Where "sufficient cause" is not shown no question of condonation of delay arises. Even if there may be sufficient cause the Court may in its discretion decline to condone the delay. It is relevant to bear in mind two important considerations, namely:
[1] the expiration of limitation for filing the appeal gives rise to a legal right in favour of the decree-holder to treat the decree as binding between the parties and this legal right should not be light heartedly disturbed ; [2] if sufficient cause of excusing delay is shown, the applicant is not entitled as a matter of right to condonation of delay, but discretion is given to the Court to condone delay and admit the appeal. Section 5 gives the Courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles: the words "sufficient cause" receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant. In the case of Manindra Lands and Buildings Corporation Vs. Bhutnath Banerjee, reported in A.I.R. 1964 S.C. 1336, it has been held that whether there is sufficient cause for condoning the delay is a matter exclusively within the jurisdiction of the Court where the proceeding is instituted which may decide it rightly or wrongly. It is a well settled principle of law that if the appellant does not show the sufficient cause nor does the Court record the finding that the cause shown by the appellant is sufficient for not preferring the appeal in time, the court does not possess power to arbitrarily condone delay in the name of advancing substantial justice merely because the appellant litigant happens to be the government. "Sufficient cause" must be a cause which is beyond the control of the party invoking the aid of the section. A cause for delay which a party, could have avoided by the exercise of due care and attention cannot be a sufficient cause. The test whether or not a cause is sufficient is to see whether it is a bona fide cause, inasmuch as nothing can be considered to be bonafide which is not done with due care and attention. In case of Municipal Corporation of Ahmedabad v. Voltas Limited, (supra Full Bench of this Court ruling spells out of "sufficient cause" and lays down the following propositions :
(a) The phrase "sufficient cause" pertains to the establishment of appropriate facts before the Court, to which the Court can apply its mined.
(b)] Condonation depends on the facts of each case but the facts must be placed by the applicant before the Court.
(c) Courts should take a liberal view.
8.4 It is also a legal position that whether there is a sufficient cause is a question of fact in each case. In considering the question, the bona fides of the party should be taken into account. Good faith for this purpose is to be understood in its general sense rather than in the sense in which it has been defined in Section 2(h) of the Act. It implies due care and caution and is negatived by inaction, carelessness or negligence. Inaction or negligence before the expiry of the limitation period may not be material. Thus, for condonation of delay sufficient cause should be bona fide done in good faith. The question of existence of "sufficient cause" is to be decided on the basis of the facts and circumstances of each particular case. Sufficient cause within the meaning of the section must be a cause which is beyond the control of the party invoking the aid of the section and the test to be applied would be to see as to whether it was a bona fide cause, inasmuch as nothing could be considered to be bona fide which is not done with due care and attention."
From the decisions of the Supreme Court on which reliance has been placed in the above cited decision, it is apparent that sufficient cause may be a cause beyond the control of the party invoking the aid of the section. The cause for delay which a party could have avoided by the exercise of due care and caution cannot be sufficient cause. The test whether or not the cause is sufficient is to see whether it is a bona fide cause inasmuch as, nothing can be considered to be bona fide which is not done with due care and attention.
Adverting to the facts of the present case, the very conduct of the applicants in not challenging the impugned judgement and decree for a period of more than almost four years from the date of knowledge of the passing of the impugned judgment and decree, makes it evident that the applicants have failed to exercise due care and attention. From the averments made in the application and supporting affidavit, it is the case of the applicant No.2/1 that the heirs of deceased applicant No.1 were not interested in the matter as they had waived their rights in favour of the heirs of deceased applicant No.2. However, it is also stated that it was deceased applicant No.1/4, Hethvadiya Dahya Vira who was looking after the court matters and that he had expired in 2007-2008 and that the applicant No.2/1 was not aware of the proceedings and that on account of the death of Dahyabhai Virabhai he was not able to understand the niceties of law. That after the death of Dahya Vira they were not aware about the stage of the proceedings and simply relied on the advice of the advocates. The say of the applicant is, therefore, contradictory. On the one hand he says that the heirs of applicant No.1 were not interested in the matter as they had waived their rights in favour of the heirs of applicant No.2, whereas on the other hand he says that the applicant No.1/4 was entrusted with the matter and looking after the proceedings. Moreover, though the exact date of death of Dahya Vira has not been stated, he is stated to have died in 2007-2008 which is much after the 27.10.2005, the date when the appeal came to be dismissed. Besides as per the applicants' own say they were informed about the dismissal of the appeal by their advocate in the year 2007. Even after that no steps appear to have been taken by them to challenge the impugned judgement and decree. In the circumstances, the cause stated in the application cannot be said to be either bonafide or sufficient cause.
Despite the aforesaid position, this court has examined the appeal on merits so as to ensure that a good case is not thrown out on the ground of limitation. A perusal of the judgment and decree passed by the trial court as well as by the lower appellate court indicates that the respondent-plaintiff had instituted a suit for redemption of mortgage properties. The mortgage deed was dated 12.5.1948 and under the terms of the mortgage, the mortgage was redeemable after a period of two years. In the facts of the present case, the suit came to be instituted on 17.4.1980. As per the contentions on merits raised in the additional affidavit as regards the suit being barred by limitation, it has been stated that this is a case of English Mortgage and as per the Mortgage deed which was executed on 12.4.1948 the mortgagor was required to redeem the mortgage after two years on repayment of the consideration stated therein. Thus, the original plaintiffs were required to redeem the mortgage within two years and were required to institute the suit on or before 1960. That as the mortgage is executed in the year 1948, under Article 135 of the Limitation Act, 1908 the mortgagor was required to file the suit for redemption within twelve years from the date on which the mortgager is entitled to redeem the mortgage. A perusal of Article 135 of the Limitation Act, 1908 indicates that the same relates to a case where a suit is instituted by a mortgagor to recover possession of immovable property mortgaged and afterwards by the mortgagee for a valuable consideration. In the present case, the aforesaid article would not be applicable inasmuch as, from the facts of the case there is nothing to indicate that the suit property had subsequently been transferred by the mortgagee to a third party for a valuable consideration. Moreover, the twelve year period contemplated under the said provision is from the date when the transfer becomes known to the plaintiff and not from the date on which the right to redeem accrues. The relevant article of the Schedule to the Limitation Act, 1963 which would be applicable in the facts of the present case is Article 61(a) which relates to a suit for possession of immovable property mortgaged, wherein the limitation provided is thirty years from the date when the right to redeem or recover possession accrues. In the additional affidavit, at various places, it has been stated that the mortgage deed was executed on 12.4.1948 and hence, the period of 30 years would expire on 11.4.1980, therefore, the suit which has been filed on 17.4.1980 is barred by limitation. However, a perusal of the judgment and decree passed by the trial court as well as the lower appellate court shows that the date of mortgage is 12.5.1948 and not 12.4.1998, as stated in the additional affidavit. Hence, the suit instituted on 11.4.1980 was well within the period of limitation, as held by the courts below.
At this stage it may be apposite to refer to the decision of the Supreme Court in Balwant Singh v. Jagdish Singh, (2010) 8 SCC 685, wherein it has been held thus:
"34.
Liberal construction of the expression "sufficient cause" is intended to advance substantial justice which itself presupposes no negligence or inaction on the part of the applicant, to whom want of bona fide is imputable. There can be instances where the court should condone the delay; equally there would be cases where the court must exercise its discretion against the applicant for want of any of these ingredients or where it does not reflect "sufficient cause" as understood in law. (Advanced Law Lexicon, P. Ramanatha Aiyar, 2nd Edn., 1997)
35. The expression "sufficient cause" implies the presence of legal and adequate reasons. The word "sufficient" means adequate enough, as much as may be necessary to answer the purpose intended. It embraces no more than that which provides a plentitude which, when done, suffices to accomplish the purpose intended in the light of existing circumstances and when viewed from the reasonable standard of practical and cautious men. The sufficient cause should be such as it would persuade the court, in exercise of its judicial discretion, to treat the delay as an excusable one. These provisions give the courts enough power and discretion to apply a law in a meaningful manner, while assuring that the purpose of enacting such a law does not stand frustrated.
36. xxx The explained delay should be clearly understood in contradistinction to inordinate unexplained delay. Delay is just one of the ingredients which has to be considered by the court. In addition to this, the court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. The statutory provisions mandate that applications for condonation of delay and applications belatedly filed beyond the prescribed period of limitation for bringing the legal representatives on record, should be rejected unless sufficient cause is shown for condonation of delay. The larger Benches as well as equi-Benches of this Court have consistently followed these principles and have either allowed or declined to condone the delay in filing such applications. Thus, it is the requirement of law that these applications cannot be allowed as a matter of right and even in a routine manner. An applicant must essentially satisfy the abovestated ingredients; then alone the court would be inclined to condone the delay in the filing of such applications."
It may be noted that though, while considering an application made by applicants who come from a rural, uneducated background, the Court may adopt a sympathetic view and a liberal approach. However, the sympathy cannot be stretched so far so as to condone the delay of more than four years, more so when no acceptable explanation has come forth except that the applicants on account of poverty could not file the appeal within a period of limitation. It may also be noted that the suit for redemption of mortgage was instituted in the year 1980 and came to be decreed by the trial court by a judgement and decree dated 30.12.1999. The appeal preferred by the applicants against the judgment and decree passed by the trial court came to be dismissed by a judgement and decree dated 27.10.2005. Thereafter, the execution petition came to be filed in the year 2007 and despite service of notice in the execution proceedings in February 2007; the applicants herein did not file the second appeal for a period of almost four years thereafter. Thus, the applicants have been grossly negligent in prosecuting the appeal. Besides the respondent herein despite having a decree in his favour from 30.12.1990, has been deprived of the fruits of the litigation for a period of almost twenty two years. Thus, while considering the interest of justice, the prejudice caused to the respondent is also required to be considered. The applicants herein appear to be deliberately lingering the litigation with a view to deprive the respondent herein of the fruits of litigation. In the circumstances, the conduct of the applicants also disentitles them from exercise of discretion in their favour by condoning of the delay that has occasioned in filing the appeal.
For the foregoing reasons, sufficient cause has not been made out so as to persuade the court, in exercise of its judicial discretion, to treat the delay as an excusable one and condone the inordinate delay of 1797 days caused in filing the second appeal. In the result the application fails and is, accordingly, rejected. Rule is discharged with no order as to costs.
[HARSHA DEVANI, J.] parmar* Top