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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Sandeep N. Bhatt, J.
Late Jivanji Shankarji Thakore Through Lhs & Ors. - Appellant
Vs.
LHS Of Dineshbhai Keshavlal Patel & Ors. - Respondent
Special Civil Application No. 10358 of 2023 With Civil Application (For Bringing Heirs) No. 1 of 2023
Decided On : 03-05-2024
Delay Condonation - Civil Appeal - Section 5 of the Limitation Act
Fact of the Case:
The petitioners filed a petition challenging the rejection of their application for condonation of delay in filing an appeal before the lower appellate court. The petitioners, along with other co-parceners, owned a property which was the subject of a dispute. The trial court decreed the suit in favor of the respondents, making them owners of the property. The petitioners claimed that they were not aware of the judgment and decree and sought condonation of delay in filing the appeal.
Finding of the Court:
The court found that the petitioners failed to establish sufficient cause for condonation of delay. The court noted that the petitioners did not contest the suit, did not file a written statement or reply, and were not represented properly despite engaging an advocate. The court held that the petitioners' lack of vigilance and inaction did not constitute sufficient cause for condonation of delay.
Issues: The main issue was whether the petitioners had sufficient cause for condonation of delay in filing the appeal.
Ratio Decidendi: The court emphasized that 'sufficient cause' for condonation of delay must be bona fide and without negligence. It held that inaction or lack of bona fide on the part of the litigating party cannot be considered as cause for delay sufficiently explained. The court also referred to Section 5 of the Limitation Act, which requires the appellant to satisfy the court that there was sufficient cause for not filing the appeal within the prescribed period.
Final Decision: The court dismissed the petition, finding no merit in the petitioners' claim for condonation of delay. The petitioners were also ordered to bear the costs of the proceedings.
ORDER :
1. The present petition is filed by present petitioners – original appellants, by challenging the order dated 19.03.2022 passed below Exh.1 application in Civil Misc. Application No.15 of 2021 by the learned Addl. District Judge, Kalol, whereby the same was rejected, which was filed for condonation of delay in preferring the appeal before the lower appellate court.
2. Brief facts of the case as per the case of the petitioners in this petition are as such that the present petitioners along with other co-parceners own a property which is an old tenure property situated in village Adhana at revenue block/survey no. 114 khata number-63 which came to be renumbered as new block no. 141, khata number - 163 after resurvey. According to respondents, the said property was purchased through a registered sale deed no.3977 on 26.07.2006 from petitioners and their co-parceners. According to respondents, the said property used to be administered by Late Shri Dineshbhai Keshavlal Patel which was given for cultivation to petitioners and their other co-parceners. Petitioners along with other coparceners used to cultivate the said property. It is further the case of the petitioners in this petition that Late Shri Dineshbhai Keshavlal Patel submitted application for entry of sale for said property in revenue records when entry no. 1761 dated 07.06.2007 was entered in revenue records which came to be rejected by Revenue Authority on 11.01.2008. According to the respondents, no objection was raised by petitioners and their co-parceners upon recording of entry even after service of notice u/s 135 (d) of the Code. It is further the case of the petitioners in this petition that Late Shri Dineshbhai Keshavlal Patel, on coming to know the rejection of entry, got entry no. 1873 recorded again in the revenue records on 08.05.2008 with regard to which the petitioners along with co-parceners raised an objection on recording of entry on the ground that the same was rejected earlier. According to respondents, the dispute case no.466 of 2008 came to be registered before the Mamlatdar wherein, no notice was served on them and entry came to be rejected. According to respondents, names of petitioners and their co-parceners were recorded in revenue records through entry No.1672 on 16.12.2006 without knowledge of Late Shri Dineshbhai Keshavlal Patel even after, sale of the said property on 26.07.2006. That with regard to rejection of entry no. 1873, according to the respondents, an appeal has been filed in that regard before the Dy. Collector. According to the respondents, they met the petitioners and their co-parceners for handing over possession of the said property which was not agreed upon and therefore, according to the respondents, petitioners and their coparceners had denied to perform their part of contract. In view of the aforesaid background, respondents filed R.C.S. No. 219 of 2015 in the court of Additional Civil Judge. Kalol for specific performance of contract, possession, declaration and permanent injunction of the said property.
It is further the case of the petitioners in this petition that on service of summons, petitioners along with coparceners appeared before the Trial Court through their advocate. However, two legal heirs of co-parcener late Dahyaji Lakshmanji Thakore viz. Thakore Sahilji Dahyaji and Thakore Rajuji Dahyaji did not remain present whereby, the suit was ordered to be proceeded ex-parte against said two persons. It appears that in the proceedings of aforesaid suit, the petitioners along with other coparceners were not represented properly in as much as no written statement or reply to the said suit was filed. Petitioners being uneducated as well as having no knowledge of the procedures were not aware of the stages and the proceedings of the suit. This resulted in the suit being allowed with costs as well as that the respondents had become owners of the said property along with other reliefs.
It is further the case of the petit
The main legal point established in the judgment is that the delay in filing an appeal must be accompanied by a sufficient cause and a demonstration of diligence in pursuing the remedy, as negligence....
The court emphasized that applications for condonation of delay should be decided on merits, prioritizing substantial justice over technicalities, especially when the delay is not due to negligence.
(1) – Limitation period – Length of delay is a relevant matter which court must take into consideration while considering whether delay should be condoned or not – While considering plea for condona....
The main legal principle established is that delay in filing appeals should be condoned when sufficient cause is shown, especially to advance substantial justice. The discretion to condone delay shou....
Point of law: applicant, against whom an order is made under sub-rule (2) rule 105 or the opposite party against whom an order is passed ex-parte under sub-rule (3) of that rule or under sub-rule (1)....
The court emphasized that the law of limitation must be applied with all its rigours when the statute prescribes, and the court has no power to extend the period of limitation on equitable grounds.
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