Dismissed

Heirs of Deceased Allahbux Bharuchwala v. Hanifaben Wd./O Kasamji Devdiwada - Deleted

Gujarat HC15 Jun 2018SCA/15064/2015

Case brief

AI extract

What is this about?

The High Court of Gujarat dismissed a special civil application seeking condonation of delay for restoring a dismissed appeal. The court held that the petitioners' negligence and failure to track proceedings, despite the advocate's illness, did not constitute sufficient cause.

What did the court decide?

Application for condonation of delay dismissed; interim stay on execution proceedings vacated.

Heirs of Deceased Allahbux Bharuchwala Vs… — Civil Procedure and Limitation | Gujarat HC (2018)

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C/SCA/15064/2015 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 15064 of 2015

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE BIREN VAISHNAV

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ?

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3 Whether their Lordships wish to see the fair copy of the judgment ?

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4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

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HEIRS OF DECEASED ALLAHBUX BHARUCHWALA

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Versus

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HANIFABEN WD./O KASAMJI DEVDIWADA - DELETED

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Appearance:

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MR GAURANG K PATEL(2613) for the PETITIONER(s) No. 1,1.1,1.2,1.3,1.4 DELETED(20) for the RESPONDENT(s) No. 1,2

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MR MAULIK J SHELAT(2500) for the RESPONDENT(s) No. 3,4

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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV

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Date : 15/06/2018

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ORAL JUDGMENT

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1 The present petition has been filed by the

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petitioners challenging the judgment and order dated
17.08.2015 passed below Exh.51 being Civil Misc.

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Page 1 of 8

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C/SCA/15064/2015 JUDGMENT

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Application No. 106 of 2014. The order was passed by
the Appellate Bench of the Small Cause Court at
Ahmedabad, by which the petitioners’/original
defendants’ application for condonation of delay of 4
years and 6 months in preferring the restoration
application in Civil Appeal No. 191 of 2008, which
was dismissed for default was rejected. It was the
case of the petitioners that they were defendants in
H.R.P Suit No. 1177 of 1997, in which a decree was
passed on 11.03.2009 for recovery of possession of

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suit premises. Aggrieved by the order, the
petitioners preferred Civil Appeal No. 191 of 2008.
Since their financial condition was not good, they
had engaged a lawyer through the legal aid. The
learned advocate for the petitioners filed the appeal
without copies. The Appellate Bench, therefore,
dismissed the appeal on 30.11.2009. Prior thereto, on
12.11.2009 the Bench had passed an order that the
appellants-petitioners should supply copies before
30.11.2009. The Execution Application was filed by

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the respondents – original plaintiffs for execution
of the decree. Notice was served on the petitioners
on 18.04.2014. Having come to know of the fact that

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Page 2 of 8

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C/SCA/15064/2015 JUDGMENT

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their appeal was dismissed, they applied for
certified copies of the order and prayed for
condonation of delay in filing restoration, by filing
Civil Misc. Application No. 106 of 2014. By the order
under challenge that application is rejected.

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2Mr. Gaurang Patel, learned advocate for the
petitioners contended that the financial condition of
the petitioners was not sound and they were,
therefore, constrained to engage an advocate through
legal aid. Their advocate fell sick and was
hospitalized. The advocate also filed an affidavit
stating that he could not appear or keep track of the
appeal because he was suffering from diabetes, was
bed ridden and had undergone hospitalization. On
these counts, the applicants prayed for condonation
of delay in filing the restoration application.

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3Mr. Maulik Shelat, learned advocate for the
original plaintiffs – respondents herein stated that,
the petitioners were completely negligent in pursuing
their remedy of appeal. No sufficient cause was shown
for condonation of delay. Apparent it is from their

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Page 3 of 8

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C/SCA/15064/2015 JUDGMENT

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conduct rather than following up through their
advocate, they never even kept track of the appeal,
and therefore such carelessness cannot be said to be
“a sufficient cause so as to befit the applicants to
seek condonation of delay of four years”.

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4Shri Gaurang Patel, has taken me through the
judgment rendered by the Court which is under
challenge. Perusal of the judgment indicates that the
learned trial Judge has extensively considered the
case law on the question of condonation of delay and
whether “sufficient cause was made out by the
applicants / petitioners”. The learned Judge has
observed that, it cannot be said that the applicants
were diligent or had remained active with regard to
pursuing their remedy. Merely because the lawyer was
ailing and could not attend the Court was not a
sufficient ground on which delay could have been
condoned. Even if the stand of the applicants that
they frequently inquired about the status of their
appeal is considered, it would suggest that mere
inquiries and follow up could not help and it cannot
certainly be said that the applicants acted

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Page 4 of 8

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C/SCA/15064/2015 JUDGMENT

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diligently. The learned trial Judge has, therefore,
committed no error in not condoning the delay.
Worthwhile it is to refer to a judgment in the case
ofSamsunisha Begaum W/o. Dr. Nasarullahkhan

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Dhaniani & Ors., vs. Vishnukumar Ambelal Patel &
Ors., reported in 2012 (3) G.L.R 2565., where the
Court has extensively considered the question of
condonation of delay. It will be worthwhile to quote
paragraph 25 of the said judgment, which reads as
under:

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“25 Under such circumstances, the trial Court committed a serious error in condoning delay on the ground that the Advocate Shri Upadhyay did not inform the original plaintiff as well the respondents about the dismissal of the suit for non-prosecution. Even if I assume for a moment that the same is true by itself would be no ground to condone such a long and inordinate delay as the litigant owes a duty to be vigilant of his own rights and is expected to be equally vigilant about the judicial proceedings pending in the Court initiated at his instance. The litigant, therefore, should not be permitted to throw the entire blame on the head of the Advocate and thereby disown him at any time and seek relief. I regret to state that in the present case, learned Advocate of the plaintiff Shri Upadhyay for some reasons has taken up the entire blame on his head and it appears that the same has been done only with a view to get the delay condoned. Over a period of time there is a growing tendency on the part of an advocate to file affidavit trying to explain the circumstances, under which, delay has occurred be it in preferring an appeal or filing an application for restoration of suit like in the

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Page 5 of 8

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C/SCA/15064/2015 JUDGMENT

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present case etc. I am of the view that the practice of an advocate filing his affidavit in an application filed under Order 9 Rule 9 of Civil Procedure Code is totally wrong and deserves to be deprecated. I have noticed in many cases that even though an advocate is not at fault, he would file an affidavit taking the entire blame upon himself only because the lethargic and negligent litigant wants him to file such an affidavit so that the Court concerned in the name of substantial justice would condone the delay. Affidavit of an advocate may come on record in the rarest of rare circumstances and not as a matter of course. Let me assume for a moment that in the present case, concerned advocate of the original plaintiff could not remain present on 20/9/1999 the day on which the Trial Court dismissed the suit for non prosecution and thereafter he was not able to keep a track of the suit but was it not the duty of the original plaintiff to keep watch on the proceedings and inquire once atleast with his advocate as regards the status of the suit? This could have been done even if the original plaintiff and his family was in U.S.A. I do not blame the original plaintiff in going to U.S.A. but being a litigant in the Court of Law he is expected to keep a close watch on the proceedings as well as on the status of such proceedings. After filing a civil suit a litigant can not go off to sleep and wake up from a deep slumber after 5 years as if the Court is a storage of suits filed by such negligent litigants. If that be so, then Court would be quite justified in dismissing the suit for non prosecution and should be loathe enough to restore the suit unless strong grounds are made out by the party concerned. There is one more reason why I am very serious in commenting on the practice of advocates filing affidavit. There is a general impression in the mind of the litigants that if a lawyer would file an affidavit saying that he was unable to attend the Court or because of his negligence the suit or appeal came to be dismissed then the Court would very willingly accept such explanation and

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Page 6 of 8

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C/SCA/15064/2015 JUDGMENT

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condone the delay. This impression needs to be eradicated. Advocates at time forget that in the zeal to help the client by filing such affidavit they would land up in difficulty if a litigant would file proceedings for compensation on the ground of deficiency in service”.

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5Even in the case of Basawaraj And Another vs.
Special Land Acquisition Officer.,reported in

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(2013) 14 SCC 81., the Hon’ble Supreme Court has held
that though the approach of the Courts and the
discretion to condone delay is to be exercised
judiciously, there cannot be liberal interpretation
of the term “ sufficient cause” when it is evident
that there is negligence or inaction on the part of
the parties.

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6Having read the order of the learned trial Court
and considering the facts on record, it is evident
that negligence of the petitioners / applicants is
writ large on the face looking to their conduct, and
therefore, in my opinion, I do not find any error in
the order dated 17.08.2015 by which the learned Chief
Judge, Small Cause Court rejected the application for
condonation of delay for restoration of the appeal.

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Page 7 of 8

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C/SCA/15064/2015 JUDGMENT

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7At this stage, learned advocate Shri Gaurang
Patel submits that even if the petition is dismissed,
the Court may observe that it will be open for the
defendants to take objections, if available in
accordance with law in the execution proceedings
filed by the respondents- plaintiffs in the executing
Court. Needless to say that, before the Executing
Court, if it is open for the petitioners to take
their contentions on merits which may be available in
accordance with law, this order would not come in
their way. The petition stands dismissed. Interim
relief, by which the execution proceedings were
stayed, stands vacated. Rule is discharged.

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(BIREN VAISHNAV, J)

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Bimal

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Page 8 of 8

Heirs of Deceased Allahbux Bharuchwala v. Hanifaben Wd./O Kasamji Devdiwada - Deleted

Case brief

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Heirs of Deceased Allahbux Bharuchwala v. Hanifaben Wd./O Kasamji Devdiwada - Deleted

Case brief

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