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2002 DIGILAW 101 (GUJ)

UNION OF INDIA v. RAMESHCHANDRA JOSHI

2002-02-05

B.J.SHETHNA, N.G.NANDI

body2002
B. J. SHETHNA, J. ( 1 ) THIS civil application is filed for condoning delay of 5 years and 39 days in filing first appeal against the impugned judgment and decree dated 30-12-1995 passed by Learned 2nd. Jt. Civil Judge (S. D.) Jamnagar in Special Civil Suit No. 34 of 1984, whereby Learned Judge partly decreed the suit of the respondent/ plaintiff and directed the defendant/ applicants- appellants herein to hand over vacant and peaceful possession of the suit land admeasuring 1648 sq. meters to the plaintiff. ( 2 ) IT is the case of the original plaintiff before the trial Court that in the year 1971 Government of Gujarat issued notification under Section 4 and 6 of the Land Acquisition Act, 1984, acquiring land in question for defence purpose. Ultimately, Government found it necessary to acquire piece of land instead of the whole land. Thus, according to the plaintiff he became absolute owner of the suit land admeasuring 56 Are, S. M. 66, i. e. 1 Acre, 16 Gunthas. It was the case of the plaintiff that, he was enjoying ownership as well as possession and rights over the land and he was in actual and physical possession of the suit land and enjoying all the rights as absolute legal owner of the land. According to him, the defendants, i. e. Union of India, Military Estate Officer and Garrison Officer have encroached upon the land admeasuring 1648 sq. meter and made fencing and constructed tar road. The plaintiff therefore prayed for possession of the said land from the defendants/ applicants herein. Written statement was filed by all the defendants at exhibit-18 wherein it has been contended that part of Revenue Survey No. 1456/3 was transferred to Air Force along with other Revenue Survey Numbers and in fact in the year 1971 the demarcation of land transferred to Air Force was done by Government Surveyor and Air Force representative and the owner of the said land was fully aware of this fact. In spite of this, without impleading Air Force as party/ defendant, plaintiff preferred to proceed with the suit. Learned Judge by his impugned judgment and decree dated 30-12-1995 partly decreed the suit in favour of the respondent/plaintiff. ( 3 ) THE applicants/ defendants applied for certified copy of the judgment and decree on 3-1-1996 and the same was received by them on 29-6-1996. Learned Judge by his impugned judgment and decree dated 30-12-1995 partly decreed the suit in favour of the respondent/plaintiff. ( 3 ) THE applicants/ defendants applied for certified copy of the judgment and decree on 3-1-1996 and the same was received by them on 29-6-1996. However, for the reasons stated in the application they could not file it within the period of limitation and delay of 5 years and 39 days has been caused in filing the appeal. ( 4 ) MR. Mehul Shah, learned counsel appearing for respondent/ plaintiff vehemently submitted that, this Court should not condone gross delay of 5 years and 39 days in filing appeal late as no cause much less sufficient cause is shown in this application and the averments are absolutely vague. However, Ms. Dawavala, learned counsel appearing for the applicants submitted that the applicants are able to make out a case for condoning delay of 5 years and 39 days, therefore this Court should condone the delay. She submitted that, if this Court does not condone the delay, then a meritorious case is likely to be thrown out at this stage itself. She submitted that, by condoning delay no prejudice is going to be caused to the respondent, as this Court after hearing merits of the matter would only admit, hear and finally adjudicated it. She submitted that, at present the land in question is utilised by Air Force at Jamnagar which is very sensitive area, and looking to the present situation prevailing in the country it would not be safe to dispossess the applicants in the interest of the nation at large. In support of her submissions, she has placed reliance upon the judgment of Honble Supreme Court in case of COLLECTOR, LAND ACQUISITION, ANANTNAG AND ANOTHER VS. MST. KATIJI AND OTHERS, reported in A. I. R. 1987, S. C. pg. 1353. Ms. Dawavala further submitted that the land acquisition proceedings have already initiated for the land in question by the authority. ( 5 ) WE are fully conscious that the delay occurred in this case is 5 years and 39 days. MST. KATIJI AND OTHERS, reported in A. I. R. 1987, S. C. pg. 1353. Ms. Dawavala further submitted that the land acquisition proceedings have already initiated for the land in question by the authority. ( 5 ) WE are fully conscious that the delay occurred in this case is 5 years and 39 days. We would not have entertained this application if it was for a different cause, but having regard to the peculiar facts and circumstances of the case, and keeping in mind the judgment of the Honble Supreme Court in case of Collector, Land Acquisition, Anantnag (supra), we are of the considered opinion that; this is a fit case where the delay should be condoned, because by condoning delay the applicants do not stand to benefit and refusing to condone the delay is likely to result a meritorious matter being thrown out at the threshold, whereby cause of justice is likely to be defeated. By condoning delay the highest that can happen is that the case would be decided on merits after hearing the parties. ( 6 ) UNDER the circumstances, we are of the considered opinion that, when substantial justice and technical consideration are pitted against each other, then, cause of substantial justice deserves to be preferred. Accordingly, we allow this civil application and condone the delay. Rule made absolute, with no order as to costs. However, the amount of Rs. 1,000. 00 by way of cost deposited by the applicants are permitted to be withdrawn by the respondent/plaintiff. .