1. As common question of law and facts arise in both these Civil Revision Applications, they are decided and disposed of by this common judgement and order.
2. Civil Revision Application No.32 of 2005 has been preferred by the applicants herein – original defendants to quash and set aside the impugned judgement and order dated 06/11/2004 passed by learned Joint District Judge, (Fast Track Court No.2), Ahmedabad (Rural) in Civil Misc.Application No.106 of 2003, by which, learned Trial Court has dismissed the said application by not condoning the delay of 13 months and 20 days in preferring the appeal challenging the judgement and decree passed by learned Trial Court in Special Civil Suit No.154 of 1994.
Civil Revision Application No.155 of 2005 has been preferred by the very applicants to quash and set aside the impugned judgement and order dated 06/11/2004 passed by learned Joint District Judge, (Fast Track Court No.2), Ahmedabad (Rural) in Civil Misc.Application No.83 of 2003, by which, learned Appellate Court has rejected the said application by not condoning the delay of 13 months and 20 days in preferring the appeal challenging the judgement and decree passed by learned Trial Court in Regular Civil Suit No.349 of 1993.
3. It appears that the applicants instituted Regular Civil Suit No.349 of 1993 in the Court of learned Civil Judge (S.D.), Ahmedabad (Rural) against the respondents herein. It appears that cross-suit being Special Civil Suit No.154 of 1994 was preferred by the respondents herein – original defendants in the same Court. Looking to the controversy, both the Civil Suits were consolidated. That the learned Trial Court dismissed the Civil Suit preferred by the applicants herein – original plaintiffs and decreed the suit preferred by the respondents herein by ex-parte judgement and decree dated 30/09/2002. It appears that thereafter the applicants preferred the appeal against the judgement and decree passed by learned Trial Court in the aforesaid Civil Suits and there was a delay of 13 months and 20 days and, therefore, they preferred the aforesaid Civil Misc.Applications requesting to condone the delay. It was submitted on behalf of the applicants that as such they changed their residential houses, which was not informed to their advocate. It is submitted that they succeeded in revenue proceedings and they were under the bonafide impression that as they succeeded in revenue proceedings, nothing further is required to be done by them in the suits. Thereafter when they approached Talati-cum-Mantri for payment of revenue, the same was refused on the ground that other side has become the owner of the suit land as they succeeded in the Civil Suits and immediately they applied for certified copy of the judgement and decree on 16/08/2003 and immediately thereafter after receiving the certified copy, they have preferred the appeals. By making above submissions, it was requested to condone the delay.
Both the aforesaid Civil Revision Applications were resisted by learned advocate appearing on behalf of the contesting respondents by submitting that no sufficient cause has been shown to condone the delay. It was submitted that as such the applicants initially appeared in the Civil Suits and, therefore, it cannot be said that they were not aware of the civil proceedings. It is submitted that they ought to have inquired from the advocates even with respect to pending Civil Suits. Therefore, contention on behalf of the applicants that they were not aware of the proceedings and judgement and decree, cannot be accepted. Accepting the above and by observing that as such the applicants were aware of the proceedings and they ought to have inquired from their advocates and, therefore, it is not believable that the applicants were not aware of the proceedings and judgement and decree passed in the aforesaid Civil Suits. Consequently, learned Appellate Court has dismissed the aforesaid Civil Misc.Applications.
Being aggrieved by and dissatisfied with the judgement and orders passed by learned Appellate Court in not condoning the delay in preferring the respective appeals, the applicants herein – original plaintiffs have preferred both these Civil Revision Applications under Section 115 of the Code of Civil Procedure.
4. Mr.Patel, learned advocate appearing on behalf of the respective applicants has vehemently submitted that the learned Appellate Court has materially erred in rejecting the applications and in not condoning the delay in preferring the appeals. It is submitted that as such there is no finding given by the learned Appellate Court that the applicants were aware of the ex-parte judgement and decree passed by learned Trial Court and despite the same, they did not prefer the appeal within stipulated period of limitation. It is submitted that learned Appellate Court has drawn the inference and rejected the applications mainly on the ground that the applicants were aware of the proceedings of the civil suits. What was required to be considered by learned Appellate Court is as to whether the applicants were aware of the judgement and decree, which was appealed. It is not the case on behalf of the respondents herein that deliberately and with malafide intention, the applicants did not prefer appeal within stipulated period of limitation. It is further submitted that the applicants have meritorious case. It is submitted that the applicants succeed before revenue authorities, they were under the bonafide impression that the Civil Suits are not required to be proceeded further and, therefore, they were not further appeared and contested the Civil Suits. Therefore, it is requested to allow both these Civil Revision Applications.
5. Both these Civil Revision Applications were opposed by Mr.Mehul Shah, learned advocate appearing on behalf of the contesting respondents. It is submitted that in the facts and circumstances of the case and by detailed order, the learned Appellate Court has rejected the applications by exercising the discretionary jurisdiction, this Court is not required to exercise the powers u/s.115 of the Code of Civil Procedure. It is submitted that learned Appellate Court has rightly rejected the Civil Misc.Applications by observing that the applicants were aware of the proceedings of the Civil Suits and, therefore, they are supposed to have knowledge of the judgement and decree passed by learned Trial Court and they must have inquired about the Suits from their advocate and, therefore, learned Appellate Court has rightly held that it was not believable that the applicants were not aware of the judgement and decree passed by learned Trial Court. By making above submissions, it is requested to dismiss both these Civil Revision Applications.
6. Heard learned advocates appearing on behalf of the respective parties at length and considered the impugned judgement and order passed by learned Appellate Court rejecting the Civil Misc.Applications filed by respective applicants and not condoning the delay of 13 months and 20 days in preferring the respective appeals.
7. Heard learned advocates appearing on behalf of the respective parties at length. It appears that learned Appellate Court has not condoned the delay and has rejected the Civil Misc. Applications mainly on the ground that the applicants were aware of the proceedings of the Civil Suits and, therefore, it is not believable that the applicants were not aware of the ex-parte judgement and decree passed by learned Trial Court. However, it is required to be noted that the aforesaid finding given by learned Appellate Court is on presumption. Merely because the applicants were aware of the proceedings of the Civil Suits filed in the year 2001, by that it cannot be presumed that in fact the applicants had knowledge of ex-parte judgement and decree passed by learned Trial Court. Learned Appellate Court has drawn inference by observing that it was duty of the applicants to inform their advocates with respect to change of their addresses and to know status of the Civil Suits from time to time. The aforesaid might be true but by that it cannot be presumed that the applicants had knowledge of ex-parte judgement and decree passed by learned Trial Court. Under the circumstances and as soon as the applicants come to know about the ex-parte judgement and decree when they approached the Talati-cum-Mantri for payment of revenue, the same was refused on the ground that other side has become the owner of the suit land as they have succeeded in the Civil Suits immediately they had applied for certified copy of the judgement and decree on 16/08/2003 and immediately after receiving the certified copy, they have immediately preferred the appeals, it appears to the Court that learned Appellate Court ought to have condoned the delay. It is required to be noted that nothing has been pointed out that there was malafide intention on the part of the applicants not to prefer appeals within stipulated period of limitation. Nothing has been pointed out as such that by not preferring the appeals within stipulated period of limitation, the applicants were likely to be benefited. Under the circumstances, learned Appellate Court has materially erred in not properly exercising the discretion by not condoning the delay. Under the circumstances, learned Appellate Court ought to have condoned the delay and even ought to have given an opportunity to the applicants to submit their case on merits rather than non-suiting them on technical ground of delay.
8. In view of the above and for the reasons stated hereinabove, both these Civil Revision Applications are succeed. The impugned judgement and order dated 06/11/2004 passed by learned Joint District Judge, (Fast Track Court No.2), Ahmedabad (Rural) in Civil Misc.Application No.106 of 2003 as well as Civil Misc.Application No.83 of 2003 are hereby quashed and set aside and delay caused in preferring the appeals are hereby condoned. Now learned Appellate Court to decide and dispose of the appeal in accordance with law and on merits at the earliest. Rule is made absolute to the aforesaid extent in each of the Civil Revision Applications. No costs.
*dipti [M.R.SHAH,J]