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HIGH COURT OF GUJARAT AT AHMEDABAD
K.M. THAKER & G.B. SHAH, JJ.
Ghaghal Ranchhodbhai Amarabhai – Applicants
Versus
Bhanjibhai Devshibhai Luhar & Others – Respondents
Civil Application (For Condonation of Delay) No. 4700 of 2012, Misc. Civil Application (Stamp Number) No. 890 of 2012, Letters Patent Appeal No. 2339 of 2009, Special Civil Application No. 11825 of 2009, Civil Application No. 11534 of 2012, Civil Application No. 12634 of 2010
Decided On : 21.1.2014
The court condoned the delay of 295 days in filing the review application and allowed the review application to be considered on merits. The court held that the review application was maintainable because the Supreme Court did not pass an order on the merits in the application seeking leave to appeal and/or in the Special Leave Petition.
Fact of the Case:
The applicant-third party purchased land from Hajabhai Kalabhai Bharwad who had purchased the land from Varsangbhai Jalabhai Koli, the heir of deceased Mongiben Koli. The respondent No. 1 original appellant had purchased the land from Mongiben Koli in 1979. The Deputy Collector, pursuant to the proposal and report made by the Mamlatdar, related to entry No. 215 in the year 1997, issued a notice under section 54 read with section 75 of the Ordinance on the ground that the said transaction dated 29.6.1979 is violative of the provisions of the Ordinance. The respondent No. 1 original appellant filed an explanation and considering the same, the Deputy Collector, Limdi passed the order dated 2.2.2000 and declared that respondent No. 1 original appellant was not agriculturist; hence, he be removed from the said land and entry No. 215 be deleted. The respondent No. 1 original appellant preferred the appeal being Appeal No. 68 of 1999 2000 before the Collector, Surendranagar which came to be rejected vide order dated 6.8.2001. Against that, respondent No. 1 original appellant filed Revision Application No. 42 of 2005 before the Secretary (Appeals), Revenue Department who rejected the same vide his order dated 27.3.2009. Against the said order, respondent No. 1 original appellant preferred the petition i.e. Special Civil Application No. 11825 of 2009 which came to be rejected by order dated 17.11.2009. Though Mongiben died in 1998, no one brought said fact on record before the learned Single Judge. Against the said order, respondent No. 1 original appellant preferred Letters Patent Appeal No. 2339 of 2009 and vide order dated 10.5.2011, the said appeal was allowed and orders dated 27.3.2009, 6.8.2001 and 2.2.2000 were set aside and it was held that since the orders passed by the authorities were set aside, the judgment delivered by the learned Single Judge in Special Civil Application No. 11825 of 2009 dated 17.11.2009 would not survive. It is important to note that the fact of death of Mongiben in the year 1998 was not brought on record of above referred Letters Patent Appeal by anyone. It is also equally important to note that on 13.10.2010 i.e. during pendency of Letters Patent Appeal No. 2339 of 2009, respondent No. 1 original appellant has filed Civil Application No. 12634 of 2010 for joining heir of deceased Mongiben, but it is the fact that till disposal of said Letters Patent Appeal No. 2339 of 2009 i.e. till 10.5.2011, the said Civil Application No. 12634 of 2010 has not been listed on board. Thus, till the disposal of said Letters Patent Appeal No. 2339 of 2009, the fact of death of Mongiben was not placed before the Division Bench of this Court who has passed the above referred order dated 10.5.2011.
Finding of the Court:
The court found that the applicant-third party had failed to show sufficient cause to condone the delay of 295 days in filing the review application, but that there were sufficient grounds to accept the review application to review/recall the order dated 10.05.2011, passed in Letters Patent Appeal No. 2339 of 2009.
Issues: Whether the delay of 295 days in filing the review application should be condoned.
Ratio Decidendi: The court held that the review application was maintainable because the Supreme Court did not pass an order on the merits in the application seeking leave to appeal and/or in the Special Leave Petition. The court also held that the applicant-third party had failed to show sufficient cause to condone the delay of 295 days in filing the review application, but that there were sufficient grounds to accept the review application to review/recall the order dated 10.05.2011, passed in Letters Patent Appeal No. 2339 of 2009.
Final Decision: The court condoned the delay of 295 days in filing the review application and allowed the review application to be considered on merits.
G.B. SHAH, J.
1. So far as Civil Application No. 4700 of 2012 is concerned, Rule. Mr. Mehul S. Shah waives service of notice of rule on behalf of respondent No. 1.
1.1 We have heard Mr. P.C. Kavina, learned Senior Advocate with Mr. D.C. Sejpal, learned Advocate appearing for the applicant-third party and Mr. Mehul S. Shah, learned advocate for the respondent No. 1. Though duly served, none has appeared for respondent Nos. 2 to 5. On request made by learned senior advocate and learned advocates who were present before the Court, we have heard them by way of final hearing.
2. The applicant-third party seeks below mentioned relief in the present application:
“9 (a) Condone delay of 295 days caused in filing the application for joining applicant as party and for application for review of the order and judgment in LPA No. 2339 of 2009.”
Civil application No. 4700 of 2012 has been filed by the applicant-third party to condone the delay of 295 days caused in filing the review application against the order dated 10.5.2011 passed in Letters Patent Appeal No. 2339 of 2009 which was filed against the judgment dated 17.11.2009 delivered in Special Civil Application No. 11825 of 2009.
2.1 The applicant-third party has also preferred Misc. Civil Application (Stamp) No. 890 of 2012 for review under Order 47 of the Code of Civil Procedure, 1908. The prayer sought for in paragraph 12 reads as under.
“12. (a) to review/recall the order dated 10.5.2011 in LPA No. 2339 of 2009.
(b) To hear the parties.
(c) To set aside the order dated 10.5.2011 in LPA No. 2339 of 2009 and restore the order and judgment in Sp. C.A. No. 11825 of 2009 dated 17.11.2009.
(d) to (f)…………”
2.2 At the time of hearing of the application, learned advocate for respondent No. 1 original appellant raised the objection that the applicant – third party has not preferred the application for leave to file the review as he was not party to the litigation. As per the learned senior advocate for the applicant-third party though no such provision exists in the CPC that before filing an application for review, leave application is to be preferred by a person who was not party to the original litigation, but to put all the technical objections of respondent No. 1 original appellant at rest, the applicant-third party has preferred Civil Application No. 11534 of 2012. The prayer 7(A) of the same reads as under.
“7. (A) Your Lordships be pleased to grant leave and hold that the applicant is entitled to file and maintain the application for review in the order dated 10.5.2011 in Letters Patent Appeal No. 2339 of 2009, in the interest of justice and equity;
(B)…………….”
3. Learned senior advocate for the applicant-third party has submitted that the applicant- third party had purchased the land in question on 7.7.2010 from one Hajabhai Kalabhai Bharwad who had purchased the said land on 5.7.2010 from the sole heir Varsangbhai Jalabhai Koli of deceased respondent No. 5 original respondent No. 4 i.e. Mongiben d/o Motibhai Koli and w/o Jalabhai Kalabhai and both the said transfers took place after the learned Single Judge dismissed Special Civil Application No. 11825 of 2009 on 17.11.2009 and when there was no stay order of any competent court/authority. The entries related to both transfers were mutated in Form No. 6 Record of Right about ownership on 16.7.2010 and the same were certified on 25.8.2010 respectively vide entry Nos. 581 and 582.
3.1 Somewhere around in July 2011, the applicant-third party received the notice related to the subject land from the Mamlatdar, Sayla inviting objections against mutation entry in the name of respondent No. 1 original appellant i.e. Bhanjibhai Devsinhbhai Luhar pursuant to the order in Letters Patent Appeal No. 2339 of 2009 dated 10.5.2011. According to the applicant third party, he had purchased the land said to be free from the litigation, he immediately contacted the seller Hajabhai Kalabhai Bharwad who, (as claimed by him) was also totally unaware about
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