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2012 Supreme(Guj) 256
IN THE HIGH COURT OF GUJARAT
Hon’ble Mr. Justice Rajesh H. Shukla
Manhargiri Rajgiri Goswami & Anr.
Versus
District and Sessions Judge Valsad Deleted & Ors.
Civil Application-For Condonation of Delay No. 4101 of 20111—Decided on 30/04/2012
Appearance :
Mr Aspi M Kapadia, for the Petitioners No. 1 - 2.
Deleted, for the Respondent No. 1.
Rule Served by DS, for the Respondents No. 2-3, 5-6.
Mr. C.B. Upadhyaya, for the Respondent No. 3.
Mr. S. Sanjanwala, Sr. Adv. with Mr. Dilip L. Kanojiya, for the Respondent No. 4.
Point in Issue :
Whether in the facts of the case sufficient cause in filing appeal with delay is made out.
Headnote:Limitation Act, 1963 (Central Act 36 of 1963) — Section 5 — Bombay Public Trust Act, 1980 — Section 27(4) — Appeal — Delay in filing appeal — Condonation of delay — Scope — Finding of — Delay can be condoned by Court on sufficient — cause made out by party as required under the Law — The words sufficient cause should be understood and applied in a reasonable, pragmatic practical manner — In the case delay is about 1552 days caused in filing first appeal on account of economic condition and lawyer has not guided properly — Considering the facts of the case Court held both the grounds alleged are not acceptable and do not constitute sufficient cause to condone delay — Application therefore can not be accepted.
Held :
Therefore, the basic approach and the guidelines, is that unless the explanation is plausible, which would fit in the criteria of sufficient cause, the delay may not be condoned. In other words, the explanation, which is offered, must be plausible, reasonable and must fulfill the test of ‘sufficient cause’. In the facts of the case, the explanation cannot be said to have been made out any sufficient cause justifying the condonation of delay. The offered explanation need not be enough as the sufficient cause and the word sufficient cause, which has been considered by the Hon’ble Apex Court itself clearly states that it has to be a plausible explanation justifying the condonation of delay. [Para 15]
In the facts of the case, it does not fulfill any such test or criteria of ‘sufficient cause’ and as there is no sufficient cause made out with the explanation or justification, the present application cannot be entertained and deserves to be dismissed. [Para 17]
Law Laid Down :
Concept such as ‘Liberal approach’ ‘Justice merited approach’ ‘Substantial Justice’ can not be employed to Jettison Substantial Law of Limitation.
Rajesh H. Shukla, J.—The present Civil Application has been filed by the applicants-original appellants under Section 5 of the Limitation Act for condonation of delay on the grounds stated in the application inter alia that the applicants were financially weak and could not make the financial arrangement to immediately challenge the order dated 04.10.2005 passed by the Presiding Officer, Fast Track Ccourt, Valsad. It is also contended that the time was consumed for making financial arrangement. Further, it is also contended that the applicants’ advocate, who was handling the case and guiding them, did not properly guide the applicants and did not inform about the availability of the remedy of Appeal under Section 72(4) of the Bombay Public Trust Act, 1980.
2. Affidavit-in-reply has been filed on behalf of the opponent No. 4-Trust specifically contending that the say of the applicant that they are economically weak cannot be believed as they have been fighting the litigations for seven years and after the impugned order was passed, they have filed further proceedings at Valsad and one petition is filed before the Tribunal. It is further contended in the affidavit that second reason that the advocate, who was handling, was not guided them properly is not correct because the affidavit of the said advocate has been filed. It is, therefore, contended that bare perusal of the affidavit of the said advocate shows that they were having complete information regarding the right of Appeal.
3. Affidavit-in-rejoinder has been filed by the applicant reiterating the statements made in the memo of application and it has been stated that the affidavit of the advocate refers to the name of Shri Chaturvedi suggesting that Shri Chaturvedi had Power of Attorney of the applicants. It is also contended that this statements are false as the applicant had not given any Power of Attorney to Shri Chaturvedi. It is also contended that the delay has been occasioned on account of the genuine reason and not intentionally and, therefore, the present application may be allowed.
4. Heard learned Counsel, MrApsi Kapadia for the applicants and learned Sr. Counsel, Shri S. Sanjanwala appearing with learned Counsel, Mr. Dilip Kanojiya for the opponent No. 4-Trust.
5. Learned Counsel, Mr. Apsi Kapadia submitted that the respondent No. 4 is a Trust and out of total 11 Trustees, only one Trustee has filed affidavit and it does not refer to any such Resolution of the Trust authorizing him to file any affidavit. Learned Counsel, Mr. Kapadia submitted that Survey No. 98 of the land is belonging to the Trust, whereas Survey No. 99 and 133 are of private ownership claimed by the applicants and if the opportunity of contesting on merits are denied, it will cause great prejudice. Learned Counsel, Mr. Kapadia has also submitted that the approach of the Court should be liberal as laid down by the Hon’ble Apex Court in several judgments and he has submitted that the Court may allow this Appeal for doing justice between the parties on merits rather than any technicality. He therefore referred to the judgment of the Hon’ble Apex Court in case of Improvement Trust, Ludhiana vs. Ujagar Singh & Ors., reported in (2010) 6 SCC 786 in support of his submissions and submitted that it has been observed in this judgment that hyper technical approached to be avoided and what should be matters to be considered. Learned Counsel, Mr. Kapadia submitted that unless malafides are pointed out, normally rule is that delay should be condoned. He emphasized the observations and submitted that as observed, the matter should be allowed to be contested on merits rather than throwing it out on technicalities.
6. He has also referred to and relied upon the judgment of the Hon’ble Apex Court in case of N. Balakrishnan vs. M. Krishnamurthy, reported in AIR 1998 SC 3222 more particularly Para No. 9, which reads as under :—
“9. It is axiomatic that condonation of delay is a matter of discretion of the Cou
