Allowed

J D a v. M/S Jaipuria Exports Pvt. Ltdand Ors.

Rajasthan HC9 Aug 2019CRES/144/2018

Case brief

AI extract

What is this about?

The High Court condoned a significant delay in restoring an appeal dismissed in default, attributing the lapse to departmental negligence. The court granted costs and directed disciplinary action against the responsible officer.

What did the court decide?

Restoration of the appeal (Applications Nos. 144/18 and 55/11) allowed, exemplary costs of Rs. 1,00,000 awarded to respondent, and directive to initiate disciplinary action against the negligent Offic

J D a Vs M/S Jaipuria Exports Pvt. Ltdand… — Civil Procedure and Limitation | Rajasthan HC (2019)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D.B. Civil Restoration Application No. 144/2018

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D.B. Civil Misc. Appl. No.55/2011

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D.B. Civil special Appeal (Civil) No.131/2002

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S.B. Civil Misc. Appeal No.1199/1999

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Jaipur Development Authority, Through Its Secretary, Ramkishore Vyas Bhawan, Indira Circle, Jln Marg, Jaipur.

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----Appellants-Appellants

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Versus

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M/s Jaipuria Export Private Limited, Jawahar Lal Nehru Marg, Jaipur.

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Respondent

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State Of Rajasthan Through Secretary, Urban Development And Housing Department, Government Of Rajas, Secretariat, Jaipur.

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The Land Acquisition Officer Urban Schemes, Ram Kishore Vyas Bhawan, Indira Circle, Jawahar Lal Nehru Marg, Jaipur.

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----Proforma Respondents

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For Petitioner(s) : Shri Amit Kuri For Respondent(s) : Shri N.K. Singhal

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HON'BLE MR. JUSTICE MOHAMMAD RAFIQ HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA

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Order

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09/08/2019

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This application has been filed on behalf of Jaipur Development Authority inter alia with the prayer to review and recall the order dated 5.10.2016 by which the Civil Misc. Appl. No.55/2011 filed by them was dismissed in default. The present

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(2 of 11)

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[CRES-144/2018]

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application is time barred having been filed with delay of 485 days.

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Shri Amit Kuri, learned counsel for the appellant submits that the aforesaid application was filed by JDA for review and recall of the order dated 24.1.2008 by which the appeal of the JDA was dismissed as not pressed, whereas the JDA did not ever intend not to press the appeal. The proxy counsel on behalf of the advocate engaged by the JDA simply made a request for adjournment, but the court has dismissed the appeal as not pressed.

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Shri Amit Kuri, learned counsel for the appellant has submitted that the notice of application no.55/11 was issued on 26.8.2011 and the Court stayed the execution of the award pending before the reference Court. Service was complete on 10.10.2011, however, the respondent filed the reply in 2015. The review application was filed by the then counsel for the JDA, but later on when he ceased to be JDA’s counsel, the matter was entrusted to the new counsel. However, when the matter came up before the Court on 4.2.2015, the Court directed that name of earlier counsel Shri Dinesh Yadav be shown in the cause list, whereas according to Shri Amit Kuri, he too was no longer counsel for the JDA. When the matter was next listed on 19.9.2016, Shri Amit Kuri appeared and sought time to take instructions. He then informed the JDA about the matter. The JDA thereafter engaged Shri Rajendra Prasad, the then Additional Advocate General to appear in the matter. It was against the backdrop of these facts that the matter was listed before this court on 5.10.2016. On that date, the request for adjournment was made by Shri Ashish Sharma, learned counsel appearing on behalf of Shri Rajendra Prasad, learned Additional Advocate General. This Court not only

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(3 of 11)

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[CRES-144/2018]

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declined the request of adjournment, but dismissed the application in default.

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To explain the delay in the present application, Shri Amit Kuri, learned counsel for the appellant has referred to the averments of the application for condonation of delay. He has submitted that the Officer-in-charge having come to know about the dismissal in default, requested the counsel Shri Rajendra Prasad by letter dated 13.10.2016 to file restoration application. However, it appears that the letter dated 13.10.2016 could not be personally given to him and the Officer-in-charge of the JDA did not pursue the matter any further. The respondent filed an application in the pending execution application for amendment of the execution application no.9/1999, on 3.1.2018. The Director Law wrote a letter dated 19.1.2018 to Dy. Commissioner Zone-1, the Officer-in-charge, JDA, Jaipur stating that appeal of the JDA was dismissed on 5.10.2016 and the execution application for recovery of eight crores rupees was filed, in which 2.2.2018 has been fixed as the next date and therefore he should take steps to get the appeal restored. Copy of the aforesaid letter was endorsed to Shri Rajendra Prasad, learned AAG for taking early steps to get the appeal restored.

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Reliance is placed on another letter dated 25.1.2018 addressed by the Officer-in-charge to Shri Rajendra Prasad, learned AAG with the same request. It is contended that in this letter, reference of earlier letter dated 13.10.2016 was given with which the main file was provided in the office of learned Additional Advocate General. Learned counsel submitted that since the matter is having huge stakes and this Court finding merit in the review application has while issuing notices, stayed the execution

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(4 of 11)

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[CRES-144/2018]

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of the award pending before the reference Court in favour of the applicant. The matter ought to have been therefore decided on merits, rather than being dismissed in default, especially when the proxy counsel was present and made a request for adjournment. In support of his arguments, learned counsel has placed reliance of the judgements of the Supreme Court in Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy & Ors.(2013) 12 SCC 649, Lily Thomas & Ors. vs. UOI & Ors.-(2000) 6 SCC 224, Executive Officer, Antiyur Town Panchayat vs. G. Arumugam (D) by L.Rs.-(2015) 1 WLC (SC) 443 and order of coordinate bench of this Court in Jaipur Development Authority vs. Bahadur Singh & Ors., D.B. Civil Restoration Application No.235/2015 dated 9.3.2015.

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Shri N.K. Maloo, learned senior counsel for the respondent has submitted that the execution petition filed by the respondent has been pending since 1999. The JDA is not satisfying the decree of the Court. It is rather conducting this matter in a grossly negligent manner. When the appeal was listed before the Court on earlier dates, the request for adjournment was made on behalf of JDA. On 12^th July, 2007, when it was mentioned that counsel representing appellant is out of station, the court categorically observed that on the next date, the matter shall not be adjourned on any ground. Yet it was again adjourned on the request of their counsel on 7.1.2008. Again when it was listed on 11.1.2008, the matter was adjourned as their counsel was not present with the clear stipulation that request for further adjournment will not be entertained on next date. It was in this background that when the matter was listed before this Court on 24.1.2018, the request for

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(5 of 11)

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[CRES-144/2018]

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adjournment was declined and the appeal was dismissed as not pressed.

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Learned senior counsel contended that even in the

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application when no one has appeared for the JDA on 4.2.2015, this Court directed that name of Shri Dinesh Yadav, who was earlier appearing for them be shown in the cause list. On 19.9.2015, Shri Amit Kuri, learned counsel himself sought time to seek instructions and in this manner, the present matter was fixed for 3.10.2016, on which date, it was adjourned to 5.10.2016. When the matter was listed on that date, the request for adjournment made by Shri Ashish Sharma, learned counsel appearing on behalf of Shri Rajendra Prasad, learned AAG for the JDA was declined by the Court and application was dismissed in default and rightly because despite being required to argue the matter on merits, repeated adjournments were being sought, thus frustrating the legitimate claim of the respondent to receive the decreetal amount.

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Learned senior counsel has submitted that the application u/s.5 of the Limitation Act filed by the JDA does not at all give any explanation for delay, much less any satisfactory explanation, which may be considered as sufficient cause in the meaning of section 5 of the Limitation Act to justify the huge delay. Learned senior counsel in support of his arguments has cited the judgement of the Supreme Court in Postmaster General & Ors. vs. Living Media India Limited & Anr.-(2012) 3 SCC 563, State of Uttar Pradesh vs. Amar Nath Yadav-(2014) 2 SCC 422, Union of India & Ors. vs. Tata Yodogawa Ltd. & Anr.-(2015) 9 SCC 102, State of Rajasthan vs. Nav Bharat Construction Co.-(2005) 11 SCC 197

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(6 of 11)

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[CRES-144/2018]

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and judgement of this Court in State of Rajasthan & Ors. vs. Hawji Meena-2015 SCC Online Raj 4871.

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We have given our anxious consideration to the rival

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submissions and perused the material on record.

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The appeal filed by the JDA against the judgement of learned Single Judge was admitted to hearing on 5.12.2002 and the status quo order was passed and that order was continued further. Originally, Shri Bharat Vyas, learned counsel was appearing for the JDA, but when the matter was listed on 12.7.2007, a request on his behalf was made and it was adjourned to next week with the observation that no further adjournment shall be granted. Again no one was present on his behalf and the matter was adjourned. On 7.1.2008 again request for adjournment was made and thereafter when the matter was listed on 11.1.2008, on request of counsel for appellant, the matter was adjourned with the clear stipulation that request for adjournment will not be entertained on the next date. In these circumstances, when the appeal was listed on 24.1.2008, a request for adjournment was again made on behalf of the appellant, but the Court declined the request and the appeal was dismissed as not pressed. The order dated 24.1.2018 is reproduced hereunder:-

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“This matter was listed earlier on 11.1.2008 when the matter was adjourned at the request of Govt. Advocate making it clear that request for further adjournment will not be entertained on the next date. Yet again, request for adjournment has been made which is refused as the matter is dragging on ever since 2002 and on every date, a request for adjournment is made. A

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(7 of 11) [CRES-144/2018]

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request consistently asking for adjournment cannot be entertained.

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The appeal therefore stands dismissed as not pressed.”

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Aforequoted order was sought to be reviewed/recalled by application no.55/2011. The application was filed by Shri Bharat Vyas, learned counsel who was originally appearing for JDA, but it appears that in between Shri Dinesh Yadav, the then learned Additional Advocate General was engaged in the matter. In these facts, when the application no.55/2011 was listed on 1.3.2011, the Court accepted the application on behalf of JDA that the matter be treated as application for recall of the order and for restoring the appeal to its original number. Thereafter, when the matter was listed on 26.8.2011, while issuing notice to the nonapplicant, this Court stayed the execution of the award before the Reference Court. On that date, Shri Dinesh Yadav, learned Additional Advocate General appeared for the JDA before the Court. Thus, when the matter was listed on 4.2.2015 and none appeared for the applicant, the Court directed that the name of Shri Dinesh Yadav be shown in the cause list as the counsel for the applicant, but now the stand of the JDA before us is that Shri Dinesh Yadav was no longer counsel for the JDA on that day. Shri Amit Kuri appeared for the JDA on 19.9.2016 and sought time to seek instructions. Shri Amit Kuri today again appeared for the JDA and submits that looking to the high stakes in the matter, the JDA decided to engage Shri Rajendra Prasad, learned senior counsel, who was then AAG for State, to appear in the matter. Since Shri Rajendra Prasad on 5.10.2016 was engaged in relation to another matter in different Court, therefore, he sent his colleague Shri

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(8 of 11)

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[CRES-144/2018]

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Ashish Sharma, who sought a short accommodation, but the Court declined the request for adjournment and dismissed the application in default by following order:-

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“In spite of the order dated 19.09.2016, Mr. Ashish Sharma for JDA requests for time.

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We decline adjournment. The application stands dismissed in default.”

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Even though we are cognizant of the fact that JDA has not given the explanation of delay on day to day or may be month to month basis, but the documents, which have been placed on record clearly demonstrate that Officer-in-charge of the JDA wrote a letter to newly engaged counsel on 13.10.2016 for filing of the restoration application, but thereafter he remained negligent and did not pursue the matter any further till the respondent filed amendment application in their execution petition on 3.1.2018 in which the next date was fixed on 2.2.2018. Counsel for the JDA appearing before the executing court immediately informed the Director, Alwar JDA about this development. It is thereafter that as we have noted above, the Director, Law wrote to the Officer-Incharge on 19.1.2018 and then Officer-in-charge wrote letter to Shri Rajendra Prasad, learned AAG on 25.1.2018, in which he gave reference to earlier letter dated 13.10.2016. Although it may be true that the JDA, which is a statutory authority, is not entitled to any latitude when it comes to a litigation before the Court. This Court however cannot loose sight of the fact that it was not an individual but a statutory body manned by various officials. It appears that there was a gap of communication between the Officer-in-charge and the learned counsel engaged to argue the

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(9 of 11)

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[CRES-144/2018]

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matter on behalf of the JDA. Thereafter when the matter was dismissed in default, the Officer-in-Charge sent letter dated 13.10.2016 to him but when no action was taken, the Officer-incharge remained indifferent though he was required to follow up the matter with the office of learned Additional Advocate General to get the restoration application drafted and filed in time. He thus remained grossly negligent.

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Looking to the high stake involved in the matter, the Court is also conscious of the fact that if this matter is dismissed in default due to the negligence of the Officer-in-charge, he is not going to suffer. It is the State Exchequer, which has to suffer the loss/consequences thereof. There cannot be two views on the subject that the litigation on behalf of the Government should be diligently contested and that the JDA should not get any premium of its negligence. But it cannot be made to suffer for lapses due to fault on the part of its officers. In totality of the circumstances, we find that the review/recall application of the JDA was dismissed in default even though Shri Ashish Sharma, a learned counsel on behalf of Shri Rajendra Prasad, the newly engaged counsel was present and requested for adjournment before the Court. Even in the main appeal, proxy counsel Ms. Bharti appeared on behalf of the counsel for JDA Shri Bharat Vyas and prayed for adjournment, yet the appeal was dismissed as not pressed. We find substance in the submission of Shri Amit Kuri that JDA never intended not to press the appeal. It is borne out from the record that JDA always wanted a decision on merits and therefore engaged number of leading advocates in succession. The matter has however gone against it for no fault of it.

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(10 of 11)

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[CRES-144/2018]

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We are therefore inclined to condone the delay of 485 days

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and allow the restoration application no.144/18.

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Considering that the misc. application no.55/11 itself was filed for restoration of the appeal, which too was dismissed as not pressed although in the presence of counsel for the appellant, we are inclined to allow the D.B. Civil Misc. Appl. No.55/11 also and restore the appeal to its original so that it may not be now decided in default on the part of the appellant, but can be decided on merits, particularly when it is a matter relating to old execution petition, as has been argued by Shri N.K. Maloo, learned senior counsel, has remained pending for long and the compensation of the huge amount of over rupees 9 crores has not been paid to the respondent.

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In order to avoid further delay, we are also persuaded to allow the restoration application no.55/11 and restore the main appeal to its original number, subject to payment of exemplary costs of Rs.1,00,000 to the respondent within four weeks to be paid by the petitioner-JDA with the further direction to Commissioner, Jaipur Development Authority to initiate appropriate disciplinary action for major penalty proceedings against the erring Officer-In-charge/officers, who was/were negligent in not pursuing the matter timely. If the Officer-incharge happened to be on deputation from the State Government, the Secretary, Department of Personnel, Government of Rajasthan shall take appropriate action. The action taking report shall be filed in the D.B. Civil special Appeal (Civil) No.131/2002. It would be open for the JDA to recover the amount of costs from the erring officer/s found guilty in the disciplinary proceedings.

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(11 of 11)

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[CRES-144/2018]

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The restoration application nos.144/2018, misc. application no.55/11 and the application no.865/2018 filed u/s.5 of the Limitation Act are accordingly allowed.

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The appeal be listed for hearing on 11.09.2019.

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(NARENDRA SINGH DHADDHA),J

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(MOHAMMAD RAFIQ),J

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RAVI SHARMA /15

J D a v. M/S Jaipuria Exports Pvt. Ltdand Ors.

Case brief

What is this about?

What did the court decide?

J D a v. M/S Jaipuria Exports Pvt. Ltdand Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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