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1998 DIGILAW 668 (GUJ)

PATEL NATVARLAL KHODIDAS v. STATE

1998-10-16

M.R.CALLA, R.M.DOSHIT

body1998
M. R. CALLA, J. ( 1 ) ALL these 42 Civil Applications in 42 Civil Appeals have been filed for seeking condonation of delay. In most of the cases, delay which is sought to be condoned, is for a period of 590 days and through Civil Application no. 3958 of 1998 in Civil Appeal No. 2261 of 1998 the delay for a period of 627 days is sought to be condoned. Mr. P. V. Hathi and Mr. Gaurang Bhatt appearing for the applicants have submitted that the award passed by the Reference Court, which is impugned in the appeals, was passed on 3-5-1996. The certified copy was applied for on 15-6-1996 and certified copy had been obtained on 15-7-1996. It has been then submitted that in the meantime the State had also preferred appeals against the same impugned award passed by the Reference Court and these First appeals came up before the Division Bench of this Court on 19-8-1996 on which date the notice was made returnable for 9-9-1996. After the service of the notice, the matter was adjourned from time to time till 15-1-1998 and on 2-2-1998 when the matter came up before the Court for preliminary hearing the State Appeals were dismissed. The learned Asstt. G. P. , has pointed out that State Appeals were dismissed on 2-2-1998 after hearing the learned Counsel for the claimants and after a full dress hearing. At that time, i. e. , on 2-2-1998 the Courts attention was never invited on behalf of the claimants that they intended to file any cross-objection. After the passing of the order dated 2-2-1998 dismissing the State Appeals, the claimants allege that they applied for the certified copy of the order dated 2-2-1998 on 4- 2-1998 and such copies were ready on 26-3-1998 and after obtaining the same, the present appeals were filed on 22-4-1998, but the affidavit in support of the applications for condonation of delay were filed later, on 16-7-1998. ( 2 ) THE learned Counsel for the applicants have submitted that whereas the State appeals had been dismissed at admission stage, they could not file the crossobjections in those Appeals and after the dismissal of the State Appeals on 2-2-1998, which were dismissed in their presence, they decided to file the present Appeals along with the Applications for condonation of delay. The delay is sought to be condoned on the grounds as aforesaid. The delay is sought to be condoned on the grounds as aforesaid. ( 3 ) THE learned Asstt. G. P. has submitted that the grounds on which the delay is sought to be condoned do not constitute the sufficient cause. The certified copies of the impugned award were available with the claimants since July 1996 and, therefore, it was open for them to file the Appeals within time. ( 4 ) THE learned Counsel for the applicants Mr. P. V. Hathi has placed reliance on the following decisions :- (1) A Full Bench decision of this Court reported in 1994 (2) GLR 1325 (Municipal Corporation of Ahmedabad v. Voltas Ltd.) (2) AIR 1987 SC 1353 (Collector, Land Acquisition, Anantnag v. Katiji) (3) AIR 1988 SC 897 (G. Ramegowda v. Special Land Acquisition Officer, bangalore) (4) AIR 1985 SC 606 (Ram Sumiran v. D. D. C.) (5) JT 1998 (6) SC 242 (N. Balakrishnan v. M. Krishnamurthy)MR. Gaurang Bhatt, who is also appearing for few applicants in these applications, has placed reliance on :- (1) JT 1996 (3) SC 371 (State of Huryana v. Chandra Mani) (2) 1984 (4) SCC 66 (0. P. Kathpalia v. Lakhmir Singh) ( 5 ) IT has been submitted that in the matter with regard to the condonation of delay, the length of delay does not matter and the explanation with regard to the sufficient cause should only be the criterion and that the parties filing the appeal with delay does not stand to any gain by filing appeals after the expiry of the time and that the conditions with regard to the poverty, ignorance and illiteracy should be taken into consideration and further that in such matters, the approach of the court should be liberal and practical. We are alive to the principles, which have been laid down in the aforesaid cases on which reliance has been placed by the learned Counsel for the applicants and in our considered opinion, there cannot be any quarrel with the propositions of law and principles laid down in the cases on which reliance has been placed, including the principles that the conclusion has to be arrived at whether the cause is sufficient or otherwise and that "sufficient cause" is not a question of principle but is a question of fact, whether the delay is for short period or long period is of no consequence and if the sufficient cause is shown long delay can be condoned and if no cause is shown even delay for short period may not be condoned, that the Courts are required to take a liberal view while considering the facts constituting sufficiency of the cause, that "every days delay must be explained does not mean that a pedantic approach should be made, that ordinarily a litigant would not stand to benefit by lodging an appeal late, refusal to condone the delay may in a given case result in a meritorious matter being thrown out at the very threshold, there is no presumption that delay is occasioned deliberately and that judiciary is respected not on account of its powers to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so and while taking the liberal approach the grounds of poverty, ignorance and illiteracy etc. , have also to be considered. ( 6 ) WE have considered the grounds set out in these Applications seeking condonation of delay in the light of the principles, which have been laid down in the aforesaid decisions and even if we apply all these principles and even if we ignore the question that there is long delay in these cases, the fact remains that the applicants had the certified copies of the impugned award with them since July 1996. The very fact that they had entered appearance in response to notice in the State appeals, which remained pending since August 199 6/02/1998, in which they were duly represented, shows that the legal advice was readily available with them and it was known on the day when the State Appeals were dismissed that whereas the State Appeals are being dismissed, they will have no opportunity to file the cross-objections, more particularly when the Appeals were admitted on that very day in their presence and on such date they failed to even make a mention before the Court that so far they had not filed the Appeals in the expectation that these Appeals will be admitted and they will have an opportunity to file the crossobjections. On the contrary, the copy of the judgment dated 2-2-1998, which is rendered by the Division Bench dismissing the State Appeals, which has been produced for our perusal by the learned Asst. G. P. , shows that after the admission of the State Appeals on that very date, i. e. , 2-2-1998, the learned Counsel for the claimants waived service in each of the matters and they proceeded with the hearing without making the mention that the claimants were intending to file Appeals or that they were desirous of filing cross-objections and, therefore, final hearing of the State Appeals may be taken up on some other later date. All these facts cumulatively put together show that the present applicants were sitting on the fence and the State Appeals were dismissed on the very day when the Appeals were admitted and to this course of action no objection was raised. In such a fact situation, it cannot be said that the applicants were prevented from filing the Appeals within time by any reasonable and sufficient cause. Even if it is assumed in their favour that they could not file the cross-objections because the State Appeals were admitted and finally decided on the same date, the fact remains that they opposed the State appeals in response to the notice issued by the Court and went on watching the state Appeals proceedings since August 199 6/02/1998 without mentioning to the Court that they themselves intended to file Appeals or cross-objections if State appeals are admitted. True, it is that State Appeals were dismissed on the very day when they were admitted, the fact cannot be lost sight of that State Appeals were admitted on 2-2-1998 after notice to them and the same were dismissed on 2-2-1998 itself in their presence and yet they did not mention on that date that they wanted to file cross-objections or Appeals. ( 7 ) WE are, therefore, of the considered opinion that the grounds, which have been set out in the Applications seeking condonation of delay, do not constitute the sufficient cause for the purpose of condoning the delay of 590 or 627 days or like. It cannot be said in the facts of the present case that the applicants were prevented by any reasonable and sufficient cause from filing the Appeals within time. We are not calling upon the applicants to explain the delay of each and every day but in the facts of the present case, we cannot proceed to examine the question of sufficient cause on the anvil that these Appeals were filed after the dismissal of the State appeals because the claimants could not prefer the cross-objections. In such a fact situation, we have no hesitation in holding that it is not at all a case for condonation of delay and the applicants have miserably failed to establish sufficient cause which can be said to have prevented them from filing the Appeals within time. ( 8 ) ALL these 42 Civil Applications seeking condonation of delay are, therefore, rejected. Rule issued in. each of these Applications is hereby discharged. No order as to costs. ( 9 ) CONSEQUENTLY, all these 42 time-barred appeals cannot be entertained and the same are hereby dismissed. It will be open for the appellants to withdraw the amount of Court-fees, if any, paid by them in accordance with law. .