Dismissed

Chandreshbhai Somabhai Patel v. Ganesh Housng Corporation Ltd.

Gujarat HC10 Feb 2020CA/2566/2019

Case brief

AI extract

What is this about?

The High Court of Gujarat heard an application seeking condonation of delay for filing a civil revision application challenging the rejection of a plaint under Order 7 Rule 11 CPC. The Court rejected the application.

What did the court decide?

Application for condonation of delay rejected; Civil Revision Application disposed without orders to date.

Chandreshbhai Somabhai Patel Vs Ganesh Housng… — Civil Procedure and Limitation | Gujarat HC (2020)

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C/CA/2566/2019 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/CIVIL APPLICATION NO. 2566 of 2019 In F/CIVIL REVISION APPLICATION NO. 25021 of 2019

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With F/CIVIL REVISION APPLICATION NO. 25021 of 2019

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========================================================== CHANDRESHBHAI SOMABHAI PATEL

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Versus

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GANESH HOUSNG CORPORATION LTD

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==========================================================

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Appearance:

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MR MI HAVA(348) for the Applicant(s) No. 1,2,3 MR AS VAKIL(962) for the Respondent(s) No. 1

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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI Date : 10/02/2020

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ORAL ORDER

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This Court on 30.01.2020 gave an opportunity to the applicants to come up with full particulars explaining the delay since it transpires during the course of argument that more particulars are necessary for deciding this application; accordingly an affidavit has been filed by the applicant.

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This proceedings arise out of Regular Civil Suit No. 408 of 2017. The applicants herein are the defendants No.1, 2 and 3 who propounded the rejection of the plaint under Order 7 Rule 11 of the Code of Civil Procedure (for short “CPC”); which application was rejected on 14.08.2018. The order was revisable; however, writ petition being SCA No. 2481 of 2019 came to be preferred. On the opponent's objecting to its maintainability, it was permitted to be withdrawn on 29.07.2019 with a liberty to prefer appropriate proceedings. On 01.08.2019 revision application came to be filed; alongwith the said revision, this civil application is preferred seeking condonation of 262 days of delay.

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Page 1 of 8

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C/CA/2566/2019 ORDER

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The delay is sought to be explained with following averments in the affidavit explaining the particulars of delay.

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“I, Jayesh Parikh, the power of attorney holder of Vadilal Manibhai Patel, petitioner no.3 herein, aged : around 50 years, residing at 06, 13 Gurukrupa Row House, Near Canal, Gor nu Kuvo, Maninagar, Ahmedabad do hereby affirm and say as under:

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In compliance of the order of this Hon'ble Court dated 06.02.2020, hereunder are the full particulars explaining delay:

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Date	PARTICULARS
14.08.2018	Order by the Civil Court rejecting application for rejection of plaint.
27.08.2018	Filed written statement containing counter claim filed in RCS No.408/2017
05/09/18	Filed application under Order 8 Rule 6A and 6C filed by the respondent herein in RCS No.408/2017
10/09/18	Filed reply to the application for respondent as well as application for stayofproceedings.
10/09/18	Order of Ld. Civil Judge (Jr.Div.) disallowingthe counter claim.
18.09.2018	Filed application for amendment of written statement and Order 2 Rule 2.
18.12.2018	Order rejecting application for amendment of written statement and Order 2 Rule 2.
18.01.2019	Filed petition bearing SCA No. 1121 of 2019 before the Hon'ble High Court of Gujarat against order dated 18.12.2018 passed by the Civil Judge (Jr. Div.), Ahmedabad rejecting the amendment proposed by the petitioner. The court admitted the matter by issuing Rule and directed that the suit will be subject to the result of thepetition.
16.08.2018	Applied for certified copy of the order dated 14.08.2018 rejectingthe application for rejection ofplaint.

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Page 2 of 8

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C/CA/2566/2019 ORDER

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16.08.2018	Obtained certified copy of the order dated 14.08.2018 rejecting the application for rejection ofplaint.
04/02/19	Filed petition bearing SCA 2481/2019 challenging the order of the Ld. Civil Judge (Jr. Div.) dated 14.08.2018 in RCS No. 408/2017 rejectingthe application for rejection ofplaint.
29.07.2019	Order by the High Court granting the withdrawal of SCA No. 2481 of 2019 and filingof Civil Revision Application.
01/08/19	Filed Civil Revision Application challenging order of civil court rejectingapplication for rejection ofplaint.

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It is submitted that the delay may please be condoned in view of the facts of the present case. Reliance is placed on the latest decision of the Hon'ble Apex Court in BHIVCHANDRA SHANKAR MORE v. BALU GANGARAM MORE AND OTHERS [ (2019) 6 SCC 387 ], the relevant paragraphs have been reiterated hereunder for the convenience of this Hon'ble Court.

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“15. It is a fairly well settled law that “sufficient cause” should be given liberal construction so as to advance sustainable justice when there is no inaction, no negligence nor want of bonafide could be imputable to the appellant. After referring to various judgments, in B. Madhuri Goud v. B. Damodar Reddy, (2012) 12 SCC 693 : (2013) 2 SCC (Civ.) 546], this Court held as under:- (SCC p. 696, para 6)

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“6. The expression “sufficient cause” used in Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which serves the ends of justice. No hard-and-fast rule has been or can be laid down for deciding the applications for condonation of delay but over the years courts have repeatedly observed that a liberal approach needs to be adopted in such matters so that substantive rights of the parties are not defeated only on the ground of delay.”

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Page 3 of 8

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C/CA/2566/2019 ORDER

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Observing that the rules of limitation are not meant to destroy the rights of the parties, in Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123, this Court held as under:-

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“11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.”

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In the premises aforesaid it is humbly submitted that there is delay of about 140 days which can be attributed to the petitioner caused on account of petitioner being involved in litigation for challenging orders passed by the Learned Judge one after the other however rest of the delay after filing of petition under Article 227 may not be attributed to the petitioner. In view of the aforesaid, the interest of justice demand that delay may please be condoned, and the Revision Application may please be entertained on merits.

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Page 4 of 8

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C/CA/2566/2019 ORDER

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I, Jayesh Parikh, do hereby solemnly affirm and state on oath that what is stated hereinabove is true to the best of my personal knowledge and information and I believe the same to be true and correct.”

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The above dates and events would indicate that, all the while, until the withdrawal of the writ petition, the applicant was pursuing the litigation on one count or the other; not connected with Order 7 Rule 11 of CPC. Thus explanation would not constitute sufficient explanation inasmuch as, what the applicant was required to explain is the bonafide litigating under the wrong remedy for the cause for which the revision application is sought to be filed.

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It is the case of the applicant that immediately on the pronouncement of the order on 14.08.2019 the certified copy was applied for and was delivered to the applicant on the next day. The period of limitation being 90 days; the revision could have been filed within 91 days if the one day spent by the applicant for getting the certified copy is excluded. The revision was presented on 04.02.2019 and was registered on 05.02.2019. Thus it was delayed by 84 days after expiry of period of limitation on 12.11.2018, if the period spent by the applicant litigating under the aforesaid petition is excluded. There is no explanation for the said period of 84 days.

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It is a settled legal position that the courts would be liberal in the matter of condonation of delay on sufficient cause being shown. In this regard the observations made by the Supreme Court in BHIVCHANDRA SHANKAR MORE v. BALU GANGARAM MORE AND OTHERS [ (2019) 6 SCC 387 ] particularly para 15 and 16 may be noted.

Page 5 of 8

C/CA/2566/2019 ORDER

“6. The expression “sufficient cause” used in Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which serves the ends of justice. No hard-and-fast rule has been or can be laid down for deciding the applications for condonation of delay but over the years courts have repeatedly observed that a liberal approach needs to be adopted in such matters so that substantive rights of the parties are not defeated only on the ground of delay.”

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Observing that the rules of limitation are not meant to destroy the rights of the parties, in Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123, this Court held as under:-

Page 6 of 8

C/CA/2566/2019 ORDER

parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.”

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One cannot however be oblivious to the fact that for condonation of delay there must exists a sufficient cause and it cannot be propounded that despite lack of sufficient cause the court would under the banner of being liberal shut its eyes against the indolence of the litigant and condone the delay. It is not the quantum of delay but the demonstration of the sufficient cause which would be relevant. In this context the observations by Supreme Court in ASHIS KUMAR HAZRA v. RUBI PARK COOPERATIVE HOUYSING SOCIETY LTD. AND OTHERS [ (1997) 6 SCC 26 ] particularly para 3 may be beneficially noted.

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“Shri R.C. Verma, learned counsel for the petitioner, contends that the High Court having held that since the petitioner was bona fide prosecuting the proceedings, under Section 14, the time spent for that purpose has to be excluded, the Registrar was wrong in refusing to condone the delay. We find no force in the contention. From September 10, 1975 till the date of disposal of the matter in the High Court on the civil side, by operation of the direction issued by the High court under Section 14 of the Act, the said period stands excluded. However, the explanation for period of delay from September 10,1975 till the date when civil suit came to be filed is required to be explained. The limitation prescribed is only two months after notice. Unless proper explanation is given. the valuable right has been created in favour of the respondents under section 3 of the limitation Act, it is the duty of the Court to ensure that unless proper explanation is given the valuable right cannot be defeated. Considered from this perspective, the Registrar was right in not condoning the delay.”

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Page 7 of 8

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C/CA/2566/2019 ORDER

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As is rightly pointed out by learned counsel Mr. Vakil, it appears that the applicant has no cause to pursue inasmuch as, after pronouncement of the impugned order he participated in the suit by filing written statement and the counter claim. He also filed reply to the application for stay of the proceedings and also sought amendment of written statement on disallowing of the counter claim. It is only after his participation in the suit and failure in the amendment on the written statement as also disallowance of the counter claim that the applicant opted for the writ petition; that too with a delay of 84 days.

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For the foregoing reasons, the application is required to be rejected in absence of sufficient cause. Accordingly the application fails and is rejected.

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10. No orders on Civil Revision Application.

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Learned counsel Mr. Hava contended that the applicant has a substantial cause for challenging the impugned order and therefore the application should be heard with the main matter. It is not understood as to how the main matter could be heard without deciding this application for condonation of delay. In fact, before the main matter is taken up, the decision on this application would be necessary. The said submission is therefore not accepted.

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(G.R.UDHWANI, J)

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syed/

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Page 8 of 8

Chandreshbhai Somabhai Patel v. Ganesh Housng Corporation Ltd.

Case brief

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Chandreshbhai Somabhai Patel v. Ganesh Housng Corporation Ltd.

Case brief

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